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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

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BRANDON COOPER, LOUIS

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DAVENPORT, RON GATLIN, KENNY *

SWATT, STEPHEN ZERINGUE, and *

WILLIAM PITZER,

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on behalf of themselves and all other

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similarly situated individuals,

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PLAINTIFFS

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VS.

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KATHY KLIEBERT, Secretary of the

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Louisiana Department of Health and

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Hospitals, in her official capacity; and the *

LOUISIANA DEPARTMENT OF

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HEALTH AND HOSPITALS,

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DEFENDANTS

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CIVIL ACTION NO.____________ SECTION ____________ JUDGE____________ MAGISTRATE JUDGE____________

CLASS ACTION COMPLAINT

I. INTRODUCTION

1. Plaintiffs, Brandon Cooper, Louis Davenport, Ron Gatlin, Kenny Swatt, Stephen

Zeringue, and William Pitzer are individuals who have been diagnosed with mental illness and

found Not Guilty by Reason of Insanity (NGRI) of a criminal offense but, despite that finding,

continue to be incarcerated in correctional facilities in Louisiana. They bring this civil rights

action under 42 U.S.C. § 1983 and federal statutes barring discrimination on the basis of

disability, on behalf of themselves and all other similarly-situated persons. Plaintiffs seek a

declaratory judgment and injunctive relief to enjoin Defendants’ policies, practices, and

procedures, executed under color of state law, which have caused them to be deprived of their

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liberty due to their disabilities, and denied necessary mental health treatment. Plaintiffs and the class they represent contend that these policies, practices, and procedures violate their rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, Title II of the Americans with Disabilities Act of 1990 (“ADA”), and Section 504 of the Rehabilitation Act of 1973 (“Section 504”).
II. JURISDICTION 2. This Court has federal question jurisdiction under 28 U.S.C. §§1331 and 1343, in that this is an action arising under the Fourteenth Amendment to the United States Constitution, Section 504, and the ADA. 3. Venue is appropriate in this court under 28 U.S.C. §1391(b)(2) because the Defendants reside in this district. III. PARTIES 4. Plaintiff BRANDON COOPER is a 34-year old man with mental illness. On February 14, 2014, the St. Tammany Parish District Court found Mr. Cooper not guilty by reason of insanity for two counts of unauthorized use of a motor vehicle, and committed him to Eastern Louisiana Mental Health System (“ELMHS”), which is a state mental health facility in Jackson, Louisiana. Mr. Cooper has been continuously incarcerated in the St. Tammany Parish Jail since the date of that finding. No other criminal charges have been filed against him. 5. Plaintiff LOUIS DAVENPORT is a 25-year old man old with mental illness. On April 23, 2014, the Jefferson Parish District Court found Mr. Davenport not guilty by reason of insanity for one count of battery on a correctional facility employee, and committed him to ELMHS. Mr. Davenport has been continuously incarcerated in the Jefferson Parish Correctional Center since the date of that finding. No other criminal charges have been filed against him.
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6. Plaintiff RON GATLIN is a 25-year old man with mental illness. On March 19, 2014, the Jefferson Parish District Court found Mr. Gatlin not guilty by reason of insanity for one count of obscenity, and committed him to ELMHS. Mr. Gatlin has been continuously incarcerated in the Jefferson Parish Correctional Center since the date of that finding. No other criminal charges have been filed against him.
7. Plaintiff KENNY SWATT is a 25-year old man with mental illness. On April 23, 2014, the Jefferson Parish District Court found Mr. Swatt not guilty by reason of insanity for one count of aggravated battery, and committed him to ELMHS. Mr. Swatt has been continuously incarcerated in the Jefferson Parish Correctional Center since the date of that finding. No other criminal charges have been filed against him.
8. Plaintiff STEPHEN ZERINGUE is a 31-year old man with mental illness. On March 19, 2014, the Jefferson Parish District Court found him not guilty by reason of insanity for one count of aggravated arson, and committed him to ELMHS. Mr. Zeringue has been continuously incarcerated in the Jefferson Parish Correctional Center since the date of that finding. No other criminal charges have been filed against him.
9. Plaintiff WILLIAM PITZER is a 57-year old man with mental illness. On April 16, 2014, the Jefferson Parish District Court found him not guilty by reason of insanity for two counts of auto theft and one count of theft, and committed him to ELMHS. Mr. Pitzer has been continuously incarcerated in the Jefferson Parish Correctional Center since the date of that finding. No other criminal charges have been filed against him.
10. Defendant KATHY KLIEBERT is the Secretary of the Louisiana Department of Health and Hospitals (“DHH”). Pursuant to La. R.S. 36:254, she is responsible for the oversight, supervision and control of DHH and its divisions and is ultimately responsible for ensuring that DHH’s services for people with disabilities are provided in conformance with federal law. The
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Community Forensic Coordinators program, which monitors and provides services to persons found NGRI, is located within her Department. She is being sued in her official capacity only.
11. Defendant, LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS (DHH) is the state agency that operates Eastern Louisiana Mental Health System (ELMHS). ELMHS maintains a waiting list for the services it provides to persons with mental illness who have been ordered to ELMHS to receive mental health treatment. DHH receives federal financial assistance and is a public entity as defined by 42 U.S.C. § 12131(1) (B).
IV. CLASS ACTION ALLEGATIONS 12. Plaintiffs bring this action pursuant to Federal Rules of Civil Procedure 23(a) and (b)(2) on behalf of themselves and all others similarly situated. The class consists of all persons in Louisiana who are being, or who may be in the future, incarcerated in Louisiana correctional facilities after a finding of NGRI and their commitment to a mental health facility pursuant to La. Code Crim. P. art. 657. 13. The number of persons in the class is so numerous and in such fluctuation that joinder of all of them is impractical. There are scores of individuals throughout the state of Louisiana who have been or will be found NGRI and committed to a mental health facility, but who remain or will remain incarcerated in a parish jail, often for months at a time. 14. The questions of law and fact raised in this case are common to both the named Plaintiffs and the class as defined above. These common questions of law and fact include whether it violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and is unlawful discrimination on the basis of disability to incarcerate individuals after a finding of NGRI and an order that they be committed to a mental health facility, pursuant to La. Code Crim. P. art. 657, even though no other criminal charges have been filed against them.
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15. The claims of the Plaintiffs are typical of the claims of the proposed class. As with Plaintiffs, the class of individuals they represent have been or will be found NGRI but nevertheless remain incarcerated in parish jails, even though no other criminal charges have been filed against them.
16. Plaintiffs will fairly and adequately represent the interests of the class, have no interests that are antagonistic to the class, and seek relief that will benefit all members of the class. Plaintiffs are represented by counsel experienced in the prosecution of class actions.
17. The Defendants have acted and refused to act on grounds generally applicable to the class, making injunctive and declaratory relief appropriate for the class as a whole.
V. STATUTORY SCHEME 18. La. R.S. 14:14 states that an individual charged with a criminal offense is exempt from criminal responsibility for his behavior when “the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question.” 19. La. R.S. 28:2(20) defines a mentally ill person as “any person with a psychiatric disorder which has substantial adverse effects on his ability to function and who requires care and treatment.” 20. When the defendant enters a plea of not guilty and NGRI, the court may appoint a Sanity Commission, as provided in La. Code Crim. P. art. 644, to examine the defendant to determine whether he or she was “insane” at the time of the offense. La. Code Crim. P. arts. 650– 652. 21. A finding of NGRI means that the defendant has committed the acts that constitute the crime; however, the defense has proven by a preponderance of the evidence that
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the defendant was insane at the time the acts were committed and thus cannot be held legally responsible. La. Code Crim. P. art. 651.
22. La. Code Crim. P. art. 654 provides that if the defendant is found not guilty by reason of insanity in a non-capital case, the court shall remand him to the parish jail or to a private mental institution approved by the court and promptly hold a hearing to determine whether the defendant can be released. When a verdict of not guilty by reason of insanity is returned in a capital case, the court shall commit the defendant to a state or private mental institution for care, custody, and treatment.
23. Under the United State Constitution, an insanity acquittee’s liberty may be curtailed only upon a finding that he is both dangerous and mentally ill. However, implicit in the NGRI acquittal is a finding that the defendant is mentally ill. Therefore, at the initial hearing following an NGRI finding, the only issue before the court in determining whether the acquittee should be released or committed, is whether the acquittee is dangerous.
24. Under Louisiana’s statutory scheme, after a contradictory hearing, and considering the Sanity Commission’s findings, the court may order the individual’s release, place him on conditional release, or commit him. La. Code Crim. P. art. 657.1.
25. If the court determines that the defendant cannot be released without danger to himself or others, the court shall order him committed to a proper state mental institution or to a private mental institution approved by the court for custody, care, and treatment. La. Code Crim. P. art. 654.
26. Even if a defendant has been committed under La. Code Crim. P. art. 654, as a result of having been found dangerous and presumed mentally ill based on the finding of NGRI, the acquittee may later apply for discharge or conditional release.
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27. The insanity acquittee or the superintendent of the facility in which he or she is being held may petition the review panel for discharge, which can recommend to the court that the person be discharged conditionally or unconditionally or placed on conditional release, after finding that the acquittee is not a danger to himself or others or is no longer mentally ill.
VI. STATEMENT OF FACTS a. Plaintiff Brandon Cooper 28. Mr. Cooper has been diagnosed with schizophrenia and was first hospitalized for mental health problems when he was a teenager. He currently receives a monthly injection of the psychotropic medication Haldol. 29. On or about December 12, 2012, Mr. Cooper was arrested and placed in the St. Tammany Parish Jail for two counts of unauthorized use of a motor vehicle. 30. On April 8, 2013, Mr. Cooper’s public defender filed an application with the St. Tammany Parish District Court to determine Mr. Cooper’s present mental health condition, and his mental health condition at the time of the alleged offense. Mr. Cooper’s public defender advised the court that he had good reason to believe that Mr. Cooper was not of sound mind and understanding and was currently insane and insane at the time of the alleged offense; and that Mr. Cooper was “mentally defective or deficient” and unable to understand his criminal proceedings. Mr. Cooper’s public defender asked the court to appoint two physicians to examine Mr. Cooper with regard to his mental condition. 31. On May 9, 2013, the circuit court appointed two physicians to examine Mr. Cooper, and scheduled a hearing for June 27, 2013 to determine Mr. Cooper’s present mental condition, and his mental condition at the time of the alleged offenses. 32. On February 14, 2014, the circuit court adjudicated Mr. Cooper NGRI and ordered him committed to ELMHS. However, as of today’s date, Mr. Cooper remains in the St.
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Tammany Parish Jail where his mental health treatment is limited to monthly injections of Haldol.
b. Plaintiff Louis Davenport 33. Mr. Davenport has been diagnosed with Schizoaffective Disorder, Bipolar Type, and has been hospitalized for mental health treatment on several occasions. 34. In late 2012 or early 2013, Mr. Davenport was transferred to the Jefferson Parish Correctional Center from the Orleans Parish Prison for allegedly forfeiting a bond issued to him by the Jefferson Parish District Court in 2007. On or about March 19, 2013, while suffering from untreated psychosis, Mr. Davenport was accused of committing a battery upon a Jefferson Parish correctional officer who tried to escort Mr. Davenport out of the jail infirmary. 35. On or about March 22, 2013, Mr. Davenport was transported to ELMHS for a competency evaluation, at which time the Department of Health and Hospitals reported that Mr. Davenport was in a “floridly psychotic state” and had a “significant psychosis and mood disturbance.” It took the doctors at ELMHS five months to stabilize Mr. Davenport through medication. 36. On or about September 19, 2013, Mr. Davenport’s public defender filed a Motion for Mental Examination with the Jefferson Parish District Court to request that the court appoint physicians to evaluate Mr. Davenport to determine if he was insane at the time of his alleged offense. The district court ordered a sanity evaluation that same day. 37. On April 23, 2014, the district court adjudicated Mr. Davenport NGRI and committed him to ELMHS. However, as of today’s date, Mr. Davenport remains in the Jefferson Parish Correctional Center where his mental health treatment is limited to receiving his daily psychotropic medications. c. Plaintiff Ron Gatlin
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38. Mr. Gatlin has a history of mental illness dating back to his childhood. On or about July 15, 2013, Mr. Gatlin was charged with one count of obscenity for an incident that occurred in the Kenner City Jail. Although Mr. Gatlin had been hospitalized for mental health problems just a few months prior to this offense, he was not receiving any medication or treatment at the time that he was charged with obscenity.
39. On or about December 17, 2013, Mr. Gatlin’s public defender filed a motion with the Jefferson Parish District Court requesting the appointment of a sanity commission to determine whether Mr. Gatlin was insane at the time of the alleged obscenity offense.
40. On March 19, 2014, the district court adjudicated Mr. Gatlin not guilty by reason of insanity and committed him to ELMHS. However, as of today’s date, Mr. Gatlin remains in the Jefferson Parish Correctional Center where his mental health treatment is limited to his daily psychotropic medications.
d. Plaintiff Kenny Swatt 41. On or about July 1, 2013, Mr. Swatt was arrested for one count of aggravated battery and placed in the Jefferson Parish Correctional Center, where he started to receive treatment for bipolar disorder and schizophrenia. 42. On or about September 10, 2013, Mr. Swatt’s public defender filed a motion with the Jefferson Parish District Court requesting the appointment of a sanity commission to determine whether Mr. Swatt was insane at the time of the alleged offense. The district court appointed a sanity commission on September 11, 2013, and ordered the commission to report its findings to the court by November 13, 2013. 43. On April 23, 2014, the district court adjudicated Mr. Swatt not guilty by reason of insanity for one count of aggravated battery and committed him to ELMHS. However, as of today’s date, Mr. Swatt remains incarcerated in the Jefferson Parish Correctional Center where
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his mental health treatment is limited to receiving the medication Haldol. Due to the lack of treatment, Mr. Swatt spends nearly all of his time sleeping and worries that his condition is deteriorating in jail.
e. Plaintiff Stephen Zeringue 44. Mr. Zeringue has a lengthy history of mental health problems and psychiatric treatment dating back to his childhood. On or about January 4, 2013, Mr. Zeringue was arrested for one count of aggravated arson and placed in the Jefferson Parish Correctional Center. 45. On or about March 27, 2013, Mr. Zeringue was found incompetent to stand trial, and was remanded to ELMHS to be restored to competency. Mr. Zeringue remained at ELMHS for over five months, and was eventually returned to the Jefferson Parish Correctional Center around September 19, 2013. 46. On November 19, 2014, Mr. Zeringue’s public defender filed a motion with the Jefferson Parish District Court to request the appointment of a sanity commission to determine whether Mr. Zeringue was insane at the time of the alleged offense. The district court appointed a sanity commission that same day, and ordered the physicians to report their findings to the court on January 8, 2014. 47. On March 19, 2014, the district court found Mr. Zeringue not guilty by reason of insanity and committed him to ELMHS. However, despite this order, Mr. Zeringue remains incarcerated in the Jefferson Parish Correctional Center where his treatment is limited to oral psychotropic medications. f. Plaintiff William Pitzer 48. William Pitzer was arrested on or around February 28, 2012 for two counts of auto theft and one count of theft. He was initially deemed incompetent to stand trial, and was remanded to ELMHS on or around February 20, 2013 to be restored to competency. At the time
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of his admission, the physicians at ELMHS described him as psychotic and delusional, and diagnosed him with delusional disorder.
49. Mr. Pitzer returned to the Jefferson Parish Correctional Center at the end of June 2013, and on or about July 18, 2013, Mr. Pitzer’s public defender filed a motion to request a sanity commission to determine whether Mr. Pitzer was insane at the time of the alleged offenses.
50. On April 16, 2014, the Jefferson Parish District Court adjudicated Mr. Pitzer NGRI, and committed him to ELMHS. However, Mr. Pitzer remains incarcerated in the Jefferson Parish Correctional Center where his treatment is limited to oral psychotropic medications. Mr. Pitzer does not receive any visitors, and passes his time by sleeping through the day.
g. Defendants’ Unconstitutional Policies and Practices 51. The primary purpose for incarcerating individuals in Louisiana correctional facilities is punishment and pre-trial detention. Such facilities do not have the capacity to provide the mental health treatment to individuals found NGRI. 52. Defendant Kliebert’s policies, practices, and procedures, including maintaining a waiting list for placement at ELMHS, cause scores of individuals to remain incarcerated in correctional facilities in Louisiana for months at a time following an NGRI determination and their commitment to a mental health facility. 53. Only persons with mental illness in Louisiana are intentionally subjected to punishment by incarceration in correctional facilities in the absence of pending criminal charges or a conviction of a criminal offense. 54. Defendants, at all times relevant to this Complaint, have acted under color of state law.
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55. Defendants, at all times relevant to this Complaint, have acted and continue to act with deliberate indifference to Plaintiffs’ liberty interests.
56. Defendants intentionally discriminate against persons found NGRI on the basis of their mental illness by confining them, or causing them to be confined, in Louisiana correctional facilities where they are subjected to punishment and unable to access appropriate mental health services.
57. Defendants, at all times relevant to this Complaint, knowingly and intentionally violated Plaintiffs’ constitutional and federal statutory rights.
58. As a direct and proximate result of the foregoing, Plaintiffs, and the class they represent, have suffered or are likely to suffer deprivation of their liberty by incarceration in correctional facilities, discrimination based on their disabilities, and significant irreparable damage to their mental health.
VII. CAUSES OF ACTION A. VIOLATION OF SUBSTANTIVE DUE PROCESS 59. Under the Due Process Clause to the United States Constitution, individuals who have not been properly charged with a crime or convicted may not be punished by incarceration in prison or jail. Jones v. United States, 463 U.S. 354, 369 (1983). 60. “[D]ue process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed." Jackson v. Indiana, 406 U.S. 715, 738 (1972). 61. For insanity acquittees, the purpose of commitment is to provide treatment of their mental illness in a manner that is not punitive, and to protect society from dangerous behavior that may result from that mental illness. 62. For insanity acquittees, when either dangerousness or mental illness ceases to
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exist, the State has no legitimate interest in commitment. 63. Defendants’ policies, practices, and procedures, which cause individuals with
mental illness who have been found NGRI and committed to mental health facilities to instead be confined in correctional facilities, violate their rights under the Due Process Clause to the United States Constitution.
64. As set forth in this Complaint, Defendants’ policies, practices, and procedures of maintaining a waiting list for placement at ELMHS that causes Plaintiffs to remain incarcerated in correctional facilities in Louisiana for months at a time following an NGRI determination and their commitment to a mental health facility, violate their rights under the Due Process Clause to the United States Constitution.
B. VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT 65. As qualified persons with disabilities, Plaintiffs are entitled to the protections and benefits of Title II of the Americans with Disabilities Act, which provides that "no qualified individual with a disability shall, by reason of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity." 42 U.S.C. § 12132. 66. Regulations implementing the ADA prohibit a public entity from providing any aid, benefit, or service, directly or through contractual licensing, or other arrangements that (i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service; (ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others; (iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others; and (iv) Provide different or
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separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others. 28 C.F.R. § 35.130(b)(1)(i-iv).
67. The ADA's implementing regulations further provide that "a public entity may not, directly or through contractual or other arrangements, utilize criteria or other methods of administration: (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability….” 28 C.F.R. § 35.130(b)(3).
68. As set forth in this Complaint, Defendants’ policies, practices, and procedures of maintaining a waiting list for placement at ELMHS, which cause Plaintiffs to remain incarcerated in correctional facilities in Louisiana for months at a time following an NGRI determination and their commitment to a mental health facility, violate Title II of the ADA.
C. VIOLATIONS OF SECTION 504 OF THE REHABILITATION ACT 69. Section 504 of the Rehabilitation Act states that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance . . .." 29 U.S.C. § 794(a). 70. Section 504's regulations also prohibit recipients of federal financial assistance from "utiliz[ing] criteria or methods of administration ... (i) [t]hat have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap …." 45 C.F.R. § 84.4(b)(4); 28 C.F.R. § 41.51(b)(3)(I). 71. As set forth in this Complaint, Defendants’ policies, practices, and procedures of maintaining a waiting list for placement at ELMHS, which cause Plaintiffs to remain incarcerated in correctional facilities in Louisiana for months at a time following an NGRI
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determination and their commitment to a mental health facility, violate Section 504 of the Rehabilitation Act.
WHEREFORE, Plaintiffs and the class they represent pray for judgment against the Defendants as follows:
A. Certify this action as a class action; B. Issue an order granting Plaintiffs and the class they represent permanent injunctive relief prohibiting Defendants from confining persons with disabilities in correctional facilities, following their commitment to a mental health facility; C. Issue a declaratory judgment that Defendants’ policies, practices, and procedures of continuing to confine persons with disabilities in state correctional facilities, following their commitment to a mental health facility, violate Plaintiffs’ rights under the Due Process Clause of the United States Constitution, Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act of 1990; D. Award Plaintiffs’ their reasonable attorneys’ fees and costs; E. Grant such other and further relief as this Court deems just and proper.
Respectfully submitted this ____ day of August 2014.
/s/ Ronald K. Lospennato Ronald K. Lospennato, Bar No. 32191 Concepcion “Koki” Otero, Bar No. 29372 (Application for admission to the Middle District pending) Advocacy Center 8325 Oak Street New Orleans, LA 70118 504-208-4679 504-335-2890
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Case 3:14-cv-00507-SDD-SCR Document 1 08/14/14 Page 16 of 16 rlospennato@advocacyla.org kotero@advocacyla.org /s Katie M. Schwartzmann Katie M. Schwartzmann, Bar No. 30295 Vanessa Carroll (Pro Hac Vice Application Pending) Roderick & Solange MacArthur Justice Center 4400 S. Carrollton Ave. New Orleans, LA 70119 (504) 620-2259 (p) (504) 208-3133 (f) katie.schwartzmann@macarthurjustice.org vanessa.carroll@macarthurjustice.org
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

BRANDON COOPER, LOUIS DAVENPORT, RON GATLIN, KENNY SWATT, STEPHEN ZERINGUE, and WILLIAM PITZER, on behalf of themselves and all other similarly situated individuals

CIVIL ACTION NO.: 14-507-SDD-SCR

VS.

KATHY KLIEBERT, Secretary of the Louisiana Department of Health and Hospitals, in her official capacity; and the LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS

RULING ON MOTION FOR CLASS CERTIFICATION
Before the Court is the Plaintiffs’ Motion for Class Certification1 which is opposed2 by the Plaintiffs. A hearing on class certification was held on December 9, 2014. For the following reasons, Plaintiffs’ Motion is hereby denied. I. FACTUAL BACKGROUND
The Plaintiffs are Louisiana residents with mental illness who have been adjudicated by various state courts “Not Guilty by Reason of Insanity” (“NGRI”). The Plaintiffs contend that, despite having been found NGRI, and subsequently ordered committed to a mental health facility, they remain incarcerated. The Plaintiffs recount and offer evidence that, after having been adjudicated NGRI and ordered committed to

1 Rec. Doc. 2. 2 Rec. Doc. 9.
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the Eastern Louisiana Mental Health System (“ELMHS”), Plaintiffs remain incarcerated in Louisiana correctional facilities for months while awaiting bed space at ELMHS. Plaintiffs move for class certification under Rule 23(a) and 23(b) of the Federal Rules of Civil Procedure, and propose the following as their class definition:
[A]ll persons in Louisiana who are being, or may be in the future, incarcerated in Louisiana correctional facilities after a finding of NGRI and their commitment to a mental health facility pursuant to La. Code Crim. Proc. Art. 657.3
II. CLASS CERTIFICATION The party seeking class certification bears the burden of proving all four
requirements of Rule 23(a); namely, numerosity, commonality, typicality, and adequate representation.4 In addition to meeting the requirements of Rule 23(a), a class must also meet at least one element of Rule 23(b). In this case, the Plaintiffs rely on Rule 23(b)(2) which provides that a class action may be maintained if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole”.
“The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only’.”5 Because class actions are the exception and not the rule, “[a] district court must conduct a rigorous analysis of the Rule 23 prerequisites before certifying a class”.6 The elements of commonality,
3 Rec. Doc. 2-1, p. 2. 4 Berger v. Compaq Computer Corp., 257 F.3d 475, 479-80 (5th Cir. 2001). 5 Wal-mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550 (2011)(quoting Califano v. Yamasaki, 99 S.Ct. 2557 (1979)). 6 Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996).
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typicality, and adequacy of representation are not in dispute.7 The Defendants oppose class certification on the grounds that the proposed class is not so numerous as to make joinder impractical.8
According to the evidence offered in support of the Plaintiffs’ Motion for Class Certification, as of March 28, 2014, the Department of Health and Hospitals (“DHH”) had eleven persons who had been adjudicated NGRI and committed to ELMHS, but who remained incarcerated while awaiting bed space.9 The evidence further indicates that, in the twelve months ending in April of 2014, twenty-five individuals had been adjudicated NGRI and ordered committed to ELMHS but remained incarcerated for several months before being admitted to ELMHS for mental health treatment.10 Plaintiffs contend, and the Defendants do not dispute that, the population of individuals who are adjudicated NGRI and ordered committed to a mental health facility is changing. Stated differently, the proposed class of plaintiffs is ever-changing and remains fluid. III. LEGAL ANALYSIS
In this case, while the putative class is a fluctuating population, according to the Plaintiffs’ evidence, only thirty-six individuals meet the class definition.11 For purposes of the numerosity requirement, “[t]he proper focus is not on numbers alone, but on whether joinder of all members is practicable in view of the numerosity of the class and
7 The Court is mindful of its obligation to “conduct a rigorous analysis to determine whether the plaintiffs have met the Rule 23 requirements”. Castano, 84 F.3rd at 740. After close examination of the pleadings and evidence, the Court is satisfied that the elements of commonality, typicality, and adequacy of representation have been met. 8 Rec. Doc. 9. 9 Rec. Doc. 32-1, p. 6. Plaintiffs’ Exhibit 2. 10 Rec. Doc. 32-1, pp. 4-5. Plaintiffs’ Exhibit 1. 11 Rec. Doc. 32-1, pp. 4-6. Plaintiffs’ Exhibits 1 and 2.
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all other relevant factors”.12 Other factors which are relevant to the “numerosity” inquiry include the geographical dispersion of the class, the ease with which class members may be identified, the nature of the action, and the size of each plaintiff’s claim.13 Not surprisingly, there are no definitive instructions or guidelines in terms of the number of purported class members required to satisfy the numerosity requirement.14
The Fifth Circuit instructs that: “[T]he number of members in a proposed class is not determinative of whether joinder is impracticable.”15 The Fifth Circuit has further counseled that “courts must not focus on sheer numbers alone”.16 The crux of the numerosity inquiry is the ease and practicability of joinder of party plaintiffs.17
In Garcia v. Gloor,18 the Fifth Circuit affirmed the District Court’s denial of certification of a class comprised of only thirty-one persons whose identity and addresses were readily ascertainable and who lived in a compact geographical area.19 In this case, the evidence indicates that once an offender is adjudicated NGRI and ordered committed, DHH captures and tracks the following information: the offender’s name, age, race, case number, committing Parish, committing offense, date of NGRI adjudication, and date of admission to a mental health facility.20 Up until the point that the offender is admitted to a mental health facility, DHH places the offender on a
12 Phillips v. Joint Legislative Committee, 637 F.2d 1014, 1022 (5th Cir. 1981); Zeidman v. J. Ray McDermott & Company, 651 F.2d 1030, 1038 (5th Cir. 1981). 13 Id. 14 Wright and Miller 7A Fed. Prac. & Proc. Civ. Section 1762 (3rd Ed.). 15 Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999). 16 Pederson v. La. State Univ., 213 F.3d 858, 868 n.11 (5th Cir. 2000). 17 “The basic question is practicability of joinder, not number of interested persons per se. Practicability of joinder depends on size of the class, ease of identifying its members and determining their addresses, facility of making service on them if joined and their geographic dispersion.” Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir. 1980). 18 618 F.2d 264 (5th Cir. 1980). 19 Id. at 267. 20 Rec. Doc. 32-1, Plaintiffs’ Exhibit 1.
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“waitlist.”21 There was no evidence that DHH failed to know the name and whereabouts of any offender having been adjudicated NGRI and ordered committed. In short there was no evidence that the offenders awaiting commitment were not known to DHH, or that NGRI committed offenders’ whereabouts were unknown. The only evidence before the Court demonstrated that the identity and whereabouts of putative plaintiffs is readily ascertainable.
Plaintiffs cite J.D. v. Nagin22 which the Court finds distinguishable. Although the proposed class contains future members, unlike the proposed class in J.D. v Nagin, the future Plaintiffs in this case are easily identifiable. Once adjudicated NGRI and a commitment order is entered, if the offender is not immediately placed, the offender’s name goes on the DHH waitlist. Thus, future Plaintiffs are easily identified. Likewise, future Plaintiffs are easily located by virtue of the fact that the committing Parish, ie. the parish where the offender is incarcerated, is also identified on the DHH waitlist. In this case, the population of putative plaintiffs is continually changing; however, that fact alone does not, in the Court’s view, present an undue obstacle to joinder. The mere fact that the population of potential plaintiffs will evolve during the pendency of litigation does not render their future joinder impractical. The Fifth Circuit cautions the need to read Rule 23(a) liberally in the context of civil rights suits where plaintiffs seek injunctive relief on behalf of past, present, and future class members.23 The Court finds that this goal can be accomplished by crafting a process whereby DHH is required to disclose the names and locations of offenders placed on the mental health waitlist to Plaintiffs periodically for the purpose of facilitating joinder.
21 Rec. Doc. 32-1, Plaintiffs’ Exhibit 2. 22 255 F.R.D. 406 (E.D.La. 2009). 23 Jones v. Diamond, 519 F.2d 1090, 1099 (5th Cir. 1975).
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IV. CONCLUSION For the foregoing reasons, the Motion for Class Certification is DENIED.24 Baton Rouge, Louisiana the 22nd day of December, 2014.
S
JUDGE SHELLY D. DICK UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
24 Rec. Doc. 2.
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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
BATON ROUGE DIVISION

___________________________________

BRANDON COOPER, LOUIS DAVENPORT, RON GATLIN, KENNY SWATT, STEPHEN ZERINGUE,WILLIAM PITZER, and TYRIN PERKINS, On Behalf of Themselves and All Other SimilarlySituated Individuals, and ADVOCACY CENTER,

CIVIL ACTION NO. 14-cv-00507SDD-SCR JUDGE DICK MAGISTRATE REIDLINGER

PLAINTIFFS
VS.
KATHY KLIEBERT, Secretary of the Louisiana Department of Health and Hospitals, in her official capacity, and the DEPARTMENT OF HEALTH AND HOSPITALS,
DEFENDANTS
___________________________

PLAINTIFFS’ THIRD AMENDED CLASS ACTION COMPLAINT I. INTRODUCTION
1. Plaintiffs, Brandon Cooper, Louis Davenport, Ron Gatlin, Kenny Swatt, Stephen Zeringue, William Pitzer, Tyrin Perkins, Dominick Perniciaro III, Scott Frye, Ryan Kazami, and Francis Mary Watson are individuals who have been diagnosed with mental illness and found Not Guilty by Reason of Insanity (NGBRI) of a criminal offense but, despite that finding, continued to be incarcerated in correctional facilities in
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Louisiana. Plaintiff Advocacy Center is a private, federally-funded, non-profit corporation, designated by Louisiana to serve as the State’s protection and advocacy system for persons with disabilities, which has moved to intervene in the instant case as an associational plaintiff.
2. Plaintiffs bring this civil rights action under 42 U.S.C. § 1983 and federal statutes barring discrimination on the basis of disability, on behalf of themselves and all other similarly-situated persons. Plaintiffs seek a declaratory judgment and injunctive relief to enjoin Defendants’ policies, practices, and procedures, executed under color of state law, which have caused them to be deprived of their liberty due to their disabilities, and denied necessary mental health treatment. Plaintiffs and the class they represent contend that these policies, practices, and procedures violate their rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, Title II of the Americans with Disabilities Act of 1990 (“ADA”), and Section 504 of the Rehabilitation Act of 1973 (“Section 504”).
II. JURISDICTION 3. This Court has federal question jurisdiction under 28 U.S.C. §§ 1331 and 1343, in that this is an action arising under the Fourteenth Amendment to the United States Constitution, Section 504, and the ADA. 4. Venue is appropriate in this court under 28 U.S.C. §1391(b)(2) because Defendants reside in this District.
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III. PARTIES 5. Plaintiff BRANDON COOPER is a 34-year-old man with mental illness. On February 14, 2014, the St. Tammany Parish District Court found Mr. Cooper not guilty by reason of insanity for two counts of unauthorized use of a motor vehicle, and committed him to Eastern Louisiana Mental Health System (“ELMHS”), which is a state mental health facility in Jackson, Louisiana. At the time of the filing of the original Complaint, Mr. Cooper had been continuously incarcerated in the St. Tammany Parish Jail since the date of the NGBRI finding. No other criminal charges have been filed against him. 6. Plaintiff LOUIS DAVENPORT is a 25-year-old man with mental illness. On April 23, 2014, the Jefferson Parish District Court found Mr. Davenport not guilty by reason of insanity for one count of battery on a correctional facility employee, and committed him to ELMHS. At the time of the filing of the original Complaint, Mr. Davenport had been continuously incarcerated in the Jefferson Parish Correctional Center since the date of the NGBRI finding. No other criminal charges have been filed against him. 7. Plaintiff RON GATLIN is a 25-year-old man with mental illness. On March 19, 2014, the Jefferson Parish District Court found Mr. Gatlin not guilty by reason of insanity for one count of obscenity, and committed him to ELMHS. At the time of the filing of the original Complaint, Mr. Gatlin had been continuously incarcerated in the Jefferson Parish Correctional Center since the date of the NGBRI finding. No other criminal charges have been filed against him.
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8. Plaintiff KENNY SWATT is a 25-year-old man with mental illness. On April 23, 2014, the Jefferson Parish District Court found Mr. Swatt not guilty by reason of insanity for one count of aggravated battery, and committed him to ELMHS. At the time of the filing of the original Complaint, Mr. Swatt had been continuously incarcerated in the Jefferson Parish Correctional Center since the date of the NGBRI finding. No other criminal charges have been filed against him.
9. Plaintiff STEPHEN ZERINGUE is a 31-year-old man with mental illness. On March 19, 2014, the Jefferson Parish District Court found him not guilty by reason of insanity for one count of aggravated arson, and committed him to ELMHS. At the time of the filing of the original Complaint, Mr. Zeringue had been continuously incarcerated in the Jefferson Parish Correctional Center since the date of the NGBRI finding. No other criminal charges have been filed against him.
10. Plaintiff WILLIAM PITZER is a 57-year-old man with mental illness. On April 16, 2014, the Jefferson Parish District Court found him not guilty by reason of insanity for two counts of auto theft and one count of theft, and committed him to ELMHS. At the time of the filing of the original Complaint, Mr. Pitzer had been continuously incarcerated in the Jefferson Parish Correctional Center since the date of the NGBRI finding. No other criminal charges have been filed against him.
11. Plaintiff TYRIN PERKINS is a 21-year-old man with mental illness. On March 20, 2014, the 19th Judicial District Court found him not guilty by reason of insanity for one count of armed robbery, and placed him on conditional release and in the custody of Harmony Transitional Center, a group home located in Baton Rouge, Louisiana. On August 20, 2014, Mr. Perkins was arrested for an alleged violation of his
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conditional release, and on August 25, 2014, the court committed him to ELMHS. At the time of the filing of the Second Amended Complaint, Mr. Perkins had been continuously incarcerated in the East Baton Rouge Parish Prison for over two months after being committed to ELMHS. No other criminal charges have been filed against him.
12. Plaintiff DOMINICK PERNICIARO, III, is a 30-year-old man with mental illness. On April 8, 2015, the 24th Judicial District Court found Mr. Perniciaro not guilty by reason of insanity to his pending criminal charges and committed him to ELMHS. Mr. Perniciaro has not been placed at ELMHS, but has instead remained continuously incarcerated in Jefferson Parish Correctional Center since the NGBRI finding. He is currently ninth on the waitlist for admission to ELMHS, per documentation provided by Defendants’ counsel on April 10, 2015. No other criminal charges have been filed against him.
13. Plaintiff SCOTT FRYE is a 49-year-old man with a mental illness. On April 7, 2014, the Calcasieu Parish District Court found Mr. Frye not guilty by reason of insanity to the charge of simple robbery and committed him to ELMHS. Mr. Frye has been continuously incarcerated in the Calcasieu Parish Correctional Center since the date of that finding. No other criminal charges have been filed against him.
14. Plaintiff RYAN KAZAMI is a 40-year-old man with a mental illness. On March 23, 2015, the Lafayette Parish District Court found Mr. Kazami not guilty by reason of insanity to the charge of terrorizing and committed him to ELMHS. Mr. Kazami has been continuously incarcerated in the Lafayette Parish Correctional Center since the date of that finding. No other criminal charges have been filed against him.
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15. Plaintiff FRANCIS MARY WATSON is a 52-year-old woman with a mental illness. On December 8, 2014, the Lafayette Parish District Court found Ms. Watson not guilty by reason of insanity to two counts of armed robbery and committed her to ELMHS. Ms. Watson has been continuously incarcerated in the Lafayette Parish Correctional Center since the date of that finding. No other criminal charges have been filed against her.
16. Plaintiff ADVOCACY CENTER is a private, federally-funded, non-profit corporation, designated by Louisiana to serve as the State’s protection and advocacy system for persons with mental illness.
17. Plaintiff Advocacy Center is part of a nationwide network of disability rights agencies created under federal law to provide legal representation and other advocacy services on behalf of persons with disabilities (“Protection and Advocacy” organizations). See Protection and Advocacy of Individual Rights Program of the Rehabilitation Act of 1973, 29 U.S.C. § 794e (2009); Protection and Advocacy for Individuals with Mental Illness (“PAIMI”) Act of 1986, 42 U.S.C. §§10801–10851 (2009); Developmental Disabilities Assistance and Bill of Rights Act of 2000, 42 U.S.C. §§15041–45 (2009). Pursuant to these statutes, Protection and Advocacy organizations are authorized to investigate incidents of abuse or neglect of such persons, to enforce the federal and state constitutional and statutory rights of such persons through administrative, legal, and other appropriate remedies, and to provide information and referrals relating to programs and services addressing the needs of such persons.
18. In addition to a governing board, Plaintiff Advocacy Center has an advisory board known as a “PAIMI Council.” At least sixty percent of these PAIMI
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Council members have received or are receiving mental health services or are family members of such individuals; the PAIMI Council also includes mental health professionals and individuals from the public who are knowledgeable about mental illness. Because so many people on the PAIMI Council have family members with mental health issues, it is not surprising that some of those family members have ended up in the criminal justice system, and inevitable that such involvement will continue.
19. Plaintiff Advocacy Center has met with persons who have been incarcerated in Louisiana correctional facilities after a finding of NGRI and commitment to a mental health facility pursuant to La. Code Crim. P. art. 657 (“NGRI Acquittees”). NGRI Acquitees have been, or are being, held for extended periods in parish prison. Each NGRI Acquittee is a constituent of the Advocacy Center and has suffered, and/or is continuing to suffer, an injury that would allow him or her to bring suit in his or her own right. NGRI Acquittees without either relatives or friends with whom they are in contact while in jail have no one other than the Advocacy Center to act on their behalf in civil matters.
20. Plaintiff Advocacy Center brings this suit as an associational plaintiff on behalf of NGRI Acquittees, who allege that the actions of the Defendants in incarcerating individuals who have been found NGRI violate the Fourteenth Amendment to the United States Constitution, Section 504, and the ADA.
21. Defendant KATHY KLIEBERT is the Secretary of the Louisiana Department of Health and Hospitals (“DHH”). Pursuant to La. R.S. 36:254, she is responsible for the oversight, supervision and control of DHH and its divisions and is ultimately responsible for ensuring that DHH’s services for people with disabilities are
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provided in conformance with federal law. The Community Forensic Coordinators program, which monitors and provides services to persons found NGBRI, is located within her Department. She is being sued in her official capacity only.
22. Defendant LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS (DHH) is the state agency that operates Eastern Louisiana Mental Health System (ELMHS). ELMHS maintains a waiting list for the services it provides to persons with mental illness who have been ordered to ELMHS to receive mental health treatment. DHH receives federal financial assistance and is a public entity as defined by 42 U.S.C. § 12131(1)(B).
IV. CLASS ACTION ALLEGATIONS 23. Plaintiffs bring this action pursuant to Federal Rules of Civil Procedure 23(a) and (b)(2) on behalf of themselves and all others similarly situated.1 The class consists of all persons in Louisiana who are being, or who may be in the future, incarcerated in Louisiana correctional facilities after a finding of NGBRI and their commitment to a mental health facility pursuant to La. Code Crim. P. art. 657. 24. The number of persons in the class is so numerous and in such fluctuation that joinder of all of them is impractical. There are scores of individuals throughout the State of Louisiana who have been or will be found NGBRI and committed to a mental health facility, but who remain or will remain incarcerated in a parish jail, often for months at a time.
1 Plaintiffs filed a motion for class certification at the time of the filing of the original Complaint (Rec. Doc. 2). After a hearing on December 9, 2014, the Court denied the class certification motion based on a finding that the joinder of individual plaintiffs was practicable (Rec. Doc. 44). Plaintiffs have retained the class certification allegations in the instant Amended Complaint such that Plaintiffs retain the ability to renew a motion for class certification if the circumstances upon which the Court based its denial change. Plaintiffs are not pursuing a motion for class certification at this time.
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25. The questions of law and fact raised in this case are common to both the named Plaintiffs and the class as defined above. These common questions of law and fact include whether it violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and is unlawful discrimination on the basis of disability to incarcerate individuals after a finding of NGBRI and an order that they be committed to a mental health facility, pursuant to La. Code Crim. P. art. 657, even though no other criminal charges have been filed against them.
26. The claims of the named Plaintiffs are typical of the claims of the proposed class. As with Plaintiffs, the class of individuals they represent have been found NGBRI but nevertheless have been incarcerated in parish jails, even though no other criminal charges have been filed against them.
27. Plaintiffs will fairly and adequately represent the interests of the class, have no interests that are antagonistic to the class, and seek relief that will benefit all members of the class. Plaintiffs are represented by counsel experienced in the prosecution of class actions.
28. Defendants have acted and refused to act on grounds generally applicable to the class, making injunctive and declaratory relief appropriate for the class as a whole.
V. STATUTORY SCHEME 29. La. R.S. 14:14 states that an individual charged with a criminal offense is exempt from criminal responsibility for his behavior when “the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question.”
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30. La. R.S. 28:2(20) defines a mentally ill person as “any person with a psychiatric disorder which has substantial adverse effects on his ability to function and who requires care and treatment.”
31. When the defendant enters a plea of not guilty and NGBRI, the court may appoint a Sanity Commission, as provided in La. Code Crim. P. art. 644, to examine the defendant to determine whether he or she was “insane” at the time of the offense. La. Code Crim. P. arts. 650– 652.
32. A finding of NGBRI means that the defendant has committed the acts that constitute the crime; however, the defense has proven by a preponderance of the evidence that the defendant was insane at the time the acts were committed and thus cannot be held legally responsible. La. Code Crim. P. art. 651.
33. La. Code Crim. P. art. 654 provides that if the defendant is found not guilty by reason of insanity in a non-capital case, the court shall remand him to the parish jail or to a private mental institution approved by the court and promptly hold a hearing to determine whether the defendant can be released. When a verdict of not guilty by reason of insanity is returned in a capital case, the court shall commit the defendant to a state or private mental institution for care, custody, and treatment.
34. Under the United States Constitution, an insanity acquittee’s liberty may be curtailed only upon a finding that he is both dangerous and mentally ill. However, implicit in the NGBRI acquittal is a finding that the defendant is mentally ill. Therefore, at the initial hearing following an NGBRI finding, the only issue before the court in determining whether the acquittee should be released or committed, is whether the acquittee is dangerous.
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35. If the court determines that the defendant cannot be released without danger to himself or others, the court shall order him committed to a proper state mental institution or to a private mental institution approved by the court for custody, care, and treatment. La. Code Crim. P. art. 654.
36. Even if a defendant has been committed under La. Code Crim. P. art. 654, as a result of having been found dangerous and presumed mentally ill based on the finding of NGBRI, the acquittee or the superintendent of the facility in which he or she is being held may later apply for discharge or conditional release.
37. Under Louisiana’s statutory scheme, after a contradictory hearing, and considering the Sanity Commission’s findings, the court may order the individual’s release, place him on conditional release, or commit him. La. Code Crim. P. art. 657.1.
VI. STATEMENT OF FACTS a. Plaintiff Brandon Cooper 38. Mr. Cooper has been diagnosed with schizophrenia and was first hospitalized for mental health problems when he was a teenager. He currently receives a monthly injection of the psychotropic medication Haldol. 39. On or about December 12, 2012, Mr. Cooper was arrested and placed in the St. Tammany Parish Jail for two counts of unauthorized use of a motor vehicle. 40. On April 8, 2013, Mr. Cooper’s public defender filed an application with the St. Tammany Parish District Court to determine Mr. Cooper’s present mental health condition, and his mental health condition at the time of the alleged offense. Mr. Cooper’s public defender advised the court that he had good reason to believe that Mr. Cooper was not of sound mind and understanding and was currently insane and insane at
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the time of the alleged offense; and that Mr. Cooper was “mentally defective or deficient” and unable to understand his criminal proceedings. Mr. Cooper’s public defender asked the court to appoint two physicians to examine Mr. Cooper with regard to his mental condition.
41. On May 9, 2013, the circuit court appointed two physicians to examine Mr. Cooper, and scheduled a hearing for June 27, 2013, to determine Mr. Cooper’s present mental condition, and his mental condition at the time of the alleged offenses.
42. On February 14, 2014, the circuit court adjudicated Mr. Cooper NGBRI and ordered him committed to ELMHS. However, as of the date of the filing of the original Complaint, Mr. Cooper remained in the St. Tammany Parish Jail, where his mental health treatment was limited to monthly injections of Haldol.
b. Plaintiff Louis Davenport 43. Mr. Davenport has been diagnosed with Schizoaffective Disorder, Bipolar Type, and has been hospitalized for mental health treatment on several occasions. 44. In late 2012 or early 2013, Mr. Davenport was transferred to the Jefferson Parish Correctional Center from the Orleans Parish Prison for allegedly forfeiting a bond issued to him by the Jefferson Parish District Court in 2007. On or about March 19, 2013, while suffering from untreated psychosis, Mr. Davenport was accused of committing a battery upon a Jefferson Parish correctional officer who tried to escort Mr. Davenport out of the jail infirmary. 45. On or about March 22, 2013, Mr. Davenport was transported to ELMHS for a competency evaluation, at which time the Department of Health and Hospitals reported that Mr. Davenport was in a “floridly psychotic state” and had a “significant
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psychosis and mood disturbance.” It took the doctors at ELMHS five months to stabilize Mr. Davenport through medication.
46. On or about September 19, 2013, Mr. Davenport’s public defender filed a Motion for Mental Examination with the Jefferson Parish District Court to request that the court appoint physicians to evaluate Mr. Davenport to determine if he was insane at the time of his alleged offense. The district court ordered a sanity evaluation that same day.
47. On April 23, 2014, the district court adjudicated Mr. Davenport NGBRI and committed him to ELMHS. However, as of the date of the filing of the original Complaint, Mr. Davenport remained in the Jefferson Parish Correctional Center, where his mental health treatment was limited to receiving his daily psychotropic medications.
c. Plaintiff Ron Gatlin 48. Mr. Gatlin has a history of mental illness dating back to his childhood. On or about July 15, 2013, Mr. Gatlin was charged with one count of obscenity for an incident that occurred in the Kenner City Jail. Although Mr. Gatlin had been hospitalized for mental health problems just a few months prior to this offense, he was not receiving any medication or treatment in jail at the time that he was charged with obscenity. 49. On or about December 17, 2013, Mr. Gatlin’s public defender filed a motion with the Jefferson Parish District Court requesting the appointment of a sanity commission to determine whether Mr. Gatlin was insane at the time of the alleged obscenity offense. 50. On March 19, 2014, the district court adjudicated Mr. Gatlin not guilty by reason of insanity and committed him to ELMHS. However, as of the date of the filing of
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the original Complaint, Mr. Gatlin remained in the Jefferson Parish Correctional Center, where his mental health treatment was limited to his daily psychotropic medications.
d. Plaintiff Kenny Swatt 51. On or about July 1, 2013, Mr. Swatt was arrested for one count of aggravated battery and placed in the Jefferson Parish Correctional Center, where he was given medication for bipolar disorder and schizophrenia. 52. On or about September 10, 2013, Mr. Swatt’s public defender filed a motion with the Jefferson Parish District Court requesting the appointment of a sanity commission to determine whether Mr. Swatt was insane at the time of the alleged offense. The district court appointed a sanity commission on September 11, 2013, and ordered the commission to report its findings to the court by November 13, 2013. 53. On April 23, 2014, the district court adjudicated Mr. Swatt not guilty by reason of insanity for one count of aggravated battery and committed him to ELMHS. However, as of the date of the filing of the original Complaint, Mr. Swatt remained incarcerated in the Jefferson Parish Correctional Center, where his mental health treatment was limited to receiving the medication Haldol. Due to the lack of treatment, Mr. Swatt spent nearly all of his time incarcerated sleeping. e. Plaintiff Stephen Zeringue 54. Mr. Zeringue has a lengthy history of mental health problems and psychiatric treatment dating back to his childhood. On or about January 4, 2013, Mr. Zeringue was arrested for one count of aggravated arson and placed in the Jefferson Parish Correctional Center.
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55. On or about March 27, 2013, Mr. Zeringue was found incompetent to stand trial, and was remanded to ELMHS to be restored to competency. Mr. Zeringue remained at ELMHS for over five months, and was eventually returned to the Jefferson Parish Correctional Center around September 19, 2013.
56. On November 19, 2014, Mr. Zeringue’s public defender filed a motion with the Jefferson Parish District Court to request the appointment of a sanity commission to determine whether Mr. Zeringue was insane at the time of the alleged offense. The district court appointed a sanity commission that same day, and ordered the physicians to report their findings to the court on January 8, 2014.
57. On March 19, 2014, the district court found Mr. Zeringue not guilty by reason of insanity and committed him to ELMHS. However, despite this order, at the time of the filing of the original Complaint, Mr. Zeringue remained incarcerated in the Jefferson Parish Correctional Center, where his mental health treatment was limited to oral psychotropic medications.
f. Plaintiff William Pitzer 58. William Pitzer was arrested on or around February 28, 2012, for two counts of auto theft and one count of theft and was incarcerated at Jefferson Parish Correctional Center. He was initially deemed incompetent to stand trial, and was remanded to ELMHS on or around February 20, 2013, to be restored to competency. At the time of his admission, the physicians at ELMHS described him as psychotic and delusional, and diagnosed him with delusional disorder. 59. Mr. Pitzer returned to the Jefferson Parish Correctional Center at the end of June 2013, and on or about July 18, 2013, Mr. Pitzer’s public defender filed a motion
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to request a sanity commission to determine whether Mr. Pitzer was insane at the time of the alleged offenses.
60. On April 16, 2014, the Jefferson Parish District Court adjudicated Mr. Pitzer not guilty by reason of insanity, and committed him to ELMHS. However, as of the date of the filing of the original Complaint, Mr. Pitzer remained incarcerated in the Jefferson Parish Correctional Center, where his mental health treatment was limited to oral psychotropic medications. Mr. Pitzer did not receive any visitors while incarcerated, and passed his time in Jefferson Parish Correctional Center by sleeping through the day.
g. Plaintiff Tyrin Perkins 61. Plaintiff Tyrin Perkins is a 21-year-old man with mental illness. He has been diagnosed with bipolar disorder and has been hospitalized numerous times related to his illness. 62. Mr. Perkins was found Not Guilty by Reason of Insanity to one charge of Armed Robbery on March 20, 2014. 63. Upon being found NGBRI, Mr. Perkins was conditionally released and placed in the custody of Harmony Transitional Center, a group home located in Baton Rouge, pursuant to La. Code Crim. Proc. arts. 558.1 and 658.1. He was further placed on supervised/active probation for a period of five (5) years, pursuant to La. Code Crim. Proc. arts. 657, 658, and 895. 64. Mr. Perkins was arrested on or about August 20, 2014, after allegedly leaving the group home without permission. He was not charged with any criminal offense, but was nonetheless incarcerated in East Baton Rouge Parish Prison pending a probation revocation hearing.
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65. On August 25, 2014, Judge Anthony J. Marabella Jr. of the 19th Judicial District Court revoked Mr. Perkins’ supervised probation based on a finding that he was “in need of indefinite hospitalization due to the presence of mental illness and/or dangerousness.”
66. The court ordered that Mr. Perkins be recommitted to ELMHS pursuant to La. Code Crim. Proc. art. 658(B)(4).
67. Mr. Perkins had not been recommitted to ELMHS at the time of the filing of the Second Amended Complaint. He remained incarcerated in East Baton Rouge Parish Prison for over two months after the court ordered him committed to ELMHS. The majority of his incarceration at East Baton Rouge Parish Prison was spent in solitary confinement, and his treatment was limited to oral medications. He was placed on suicide watch on at least one occasion during this period.
h. Plaintiff Dominick Perniciaro, III 68. Mr. Perniciaro is a 30-year-old man with mental illness. He has been diagnosed with schizoaffective disorder, which manifests in extreme paranoia. Mr. Perniciaro has been hospitalized on numerous occasions since the age of 21, and has attempted suicide on at least two prior occasions. 69. Mr. Perniciaro was arrested by the Jefferson Parish Sheriff’s Department in June 2013 following an altercation with a neighbor. 70. During the course of his arrest processing at Jefferson Parish Correctional Center, and while experiencing untreated psychosis, Mr. Perniciaro had an altercation with several correctional officers. Officers subsequently slammed Mr. Perniciaro’s face
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into a brick cinder block wall, breaking three of his front teeth. Mr. Perniciaro was charged with additional criminal counts related to this incident.
71. The 24th Judicial District Court found Plaintiff incompetent to stand trial and on August 22, 2013, he was committed to ELMHS for competency restoration.
72. After nearly seven months of commitment at ELMHS, on March 21, 2014, Plaintiff was determined to have been restored to competency and was transferred back to Jefferson Parish Correctional Center.
73. Shortly after his arrival at Jefferson Parish Correctional Center, Plaintiff was determined by the examining psychiatrist and psychologist appointed by the 24th Judicial District Court to be “floridly psychotic.” The psychiatrist and psychologist recommended that he be returned to ELMHS for another competency restoration.
74. Plaintiff was re-committed and returned to ELMHS on April 15, 2014. 75. After nearly eight months of commitment at ELMHS, in December 2014, Plaintiff was again determined to be competent. He was returned to Jefferson Parish Correctional Center. 76. In February 2015, Mr. Perniciaro’s was re-evaluated by the psychiatrist and psychologist appointed by the district court. Based upon their recommendation, and the agreement of the prosecuting attorneys, the Court, and Plaintiff’s criminal counsel, the Court accepted a plea of NGBRI to Mr. Perniciaro’s pending criminal charges. 77. On April 8, 2015, Judge Danyelle Taylor of the 24th Judicial District Court found Mr. Perniciaro NGBRI and ordered him committed to ELMHS. 78. Mr. Perniciaro remains incarcerated in Jefferson Parish Correctional Center despite being found NGBRI to the criminal charges facing him.
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79. The entirety of Mr. Perniciaro’s incarceration at Jefferson Parish Correctional Center has been spent in solitary confinement, with no access to family visits, telephone calls, sunlight, or exercise. Mr. Perniciaro is not allowed access to any pens or pencils, and so is unable to write to his family or legal counsel. He is not allowed to leave his cell at all except during the brief period that he is allowed to shower. He has physical injuries, including a dislocated shoulder sustained during his commitment at ELMHS, which have remained untreated during his incarceration. His current mental health treatment is limited to oral medications.
i. Plaintiff Scott Frye 80. Mr. Frye is a 49-year-old man with a mental illness, namely schizophrenia, who is currently incarcerated in Calcasieu Parish Correctional Center despite being found NGBRI to the criminal charges facing him. 81. On April 7, 2014, the Calcasieu Parish District Court found Mr. Frye not guilty by reason of insanity to the charge of simple robbery and committed him to ELMHS. 82. Mr. Frye has not been placed at ELMHS, but has been continuously incarcerated in the Calcasieu Parish Correctional Center since the date of that finding.. 83. No other criminal charges have been filed against Mr. Frye. j. Plaintiff Ryan Kazami 84. Plaintiff Ryan Kazami is a 40-year-old man with a mental illness who is currently incarcerated in Lafayette Parish Correctional Center despite being found NGBRI to the criminal charges facing him.
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85. On March 23, 2015, the Lafayette Parish District Court found Mr. Kazami not guilty by reason of insanity to the charge of terrorizing and committed him to ELMHS.
86. Mr. Kazami has not been placed at ELMHS, but has been continuously incarcerated in the Lafayette Parish Correctional Center since the date of that finding. Mr. Kazami is currently housed in the medical unit of the correctional center.
87. No other criminal charges have been filed against Mr. Kazami. k. Plaintiff Francis Mary Watson 88. Plaintiff Francis Mary Watson is a 52-year-old woman with a mental illness who is currently incarcerated in Lafayette Parish Correctional Center despite being found NGBRI to the criminal charges facing her. 89. On December 8, 2014, the Lafayette Parish District Court found Ms. Watson not guilty by reason of insanity to two counts of armed robbery and committed her to ELMHS. 90. Ms. Watson has not been placed at ELMHS, but has been continuously incarcerated in the Lafayette Parish Correctional Center since the date of that finding. Ms. Watson spent sixteen months of her incarceration in isolation before being transferred to the general population of the correctional center. 91. No other criminal charges have been filed against Ms. Watson. l. Defendants’ Unconstitutional Policies and Practices 92. The primary purpose for incarcerating individuals in Louisiana correctional facilities is punishment and pre-trial detention. Such facilities do not have the capacity to provide the mental health treatment to individuals found NGBRI.
20

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93. Defendants’ policies, practices, and procedures, including maintaining a waiting list for placement at ELMHS, cause scores of individuals to remain incarcerated in correctional facilities in Louisiana for months at a time following an NGBRI determination and their commitment to a mental health facility.
94. Only persons with mental illness in Louisiana are intentionally subjected to punishment by incarceration in correctional facilities in the absence of pending criminal charges or a conviction of a criminal offense.
95. Defendants, at all times relevant to this Third Amended Complaint, have acted under color of state law.
96. Defendants, at all times relevant to this Third Amended Complaint, have acted and continue to act with deliberate indifference to Plaintiffs’ liberty interests.
97. Defendants intentionally discriminate against persons found NGBRI on the basis of their mental illness by confining them, or causing them to be confined, in Louisiana correctional facilities where they are subjected to punishment and unable to access appropriate mental health services.
98. Defendants, at all times relevant to this Third Amended Complaint, knowingly and intentionally violated Plaintiffs’ constitutional and federal statutory rights.
99. As a direct and proximate result of the foregoing, Plaintiffs, and the class they represent, have suffered or are likely to suffer deprivation of their liberty by incarceration in correctional facilities, discrimination based on their disabilities, and significant irreparable damage to their mental health.
21

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VII. CAUSES OF ACTION  A. VIOLATIONS OF SUBSTANTIVE DUE PROCESS 
100. Under the Due Process Clause to the United States Constitution, individuals who have not been properly charged with a crime or convicted may not be punished by incarceration in prison or jail. Jones v. United States, 463 U.S. 354, 369 (1983).
101. “[D]ue process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed." Jackson v. Indiana, 406 U.S. 715, 738 (1972).
102. For NGBRI acquittees, the purpose of commitment is to provide treatment of their mental illness in a manner that is not punitive, and to protect society from dangerous behavior that may result from that mental illness.
103. For NGBRI acquittees, when either dangerousness or mental illness ceases to exist, the State has no legitimate interest in commitment. 
104. As set forth in this Third Amended Complaint, Defendant Kliebert’s policies, practices, and procedures of maintaining a waiting list for placement at ELMHS, which have caused and continue to cause individuals with mental illness who have been found NGBRI and committed to mental health facilities to instead be confined in correctional facilities, violate those individuals’ rights under the Due Process Clause to the United States Constitution.
105. As set forth in this Third Amended Complaint, Defendant Kliebert’s policies, practices, and procedures of maintaining a waiting list for placement at ELMHS that have caused and continue to cause the named Plaintiffs to be incarcerated in
22

Case 3:14-cv-00507-SDD-RLB Document 65 05/13/15 Page 23 of 26
correctional facilities in Louisiana for months at a time following an NGBRI determination and their commitment to a mental health facility, violate their rights under the Due Process Clause to the United States Constitution. B. VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT
106. As qualified persons with disabilities, Plaintiffs are entitled to the protections and benefits of Title II of the Americans with Disabilities Act, which provides that “no qualified individual with a disability shall, by reason of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.” 42 U.S.C. § 12132.
107. Regulations implementing the ADA prohibit a public entity from providing any aid, benefit, or service, directly or through contractual licensing, or other arrangements that (i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service; (ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others; (iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others; and (iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others. 28 C.F.R. § 35.130(b)(1)(i–iv).
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108. The ADA’s implementing regulations further provide that “a public entity may not, directly or through contractual or other arrangements, utilize criteria or other methods of administration: (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability....” 28 C.F.R. § 35.130(b)(3).
109. As set forth in this Third Amended Complaint, Defendants’ policies, practices, and procedures of maintaining a waiting list for placement at ELMHS, which have caused and continue to cause Plaintiffs to remain incarcerated in correctional facilities in Louisiana for months at a time following an NGBRI determination and their commitment to a mental health facility, violate Title II of the ADA. C. VIOLATIONS OF SECTION 504 OF THE REHABILITATION ACT
110. Section 504 of the Rehabilitation Act states that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance . . . .” 29 U.S.C. § 794(a).
111. Section 504’s regulations also prohibit recipients of federal financial assistance from “utiliz[ing] criteria or methods of administration . . . (i) [t]hat have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap . . . .” 45 C.F.R. § 84.4(b)(4); 28 C.F.R. § 41.51(b)(3)(i).
112. As set forth in this Third Amended Complaint, Defendants’ policies, practices, and procedures of maintaining a waiting list for placement at ELMHS, which have caused and continue to cause Plaintiffs to remain incarcerated in correctional facilities in Louisiana for months at a time following an NGBRI determination and their commitment to a mental health facility, violate Section 504 of the Rehabilitation Act.
24

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WHEREFORE, Plaintiffs and the class they represent pray for judgment against the
Defendants as follows:
A. Certify this action as a class action;
B. Issue an order granting Plaintiffs and the class they represent permanent
injunctive relief prohibiting Defendants from confining persons with disabilities
in correctional facilities, following their commitment to a mental health facility;
C. Issue a declaratory judgment that Defendants’ policies, practices, and procedures
of continuing to confine persons with disabilities in state correctional facilities,
following their commitment to a mental health facility, violate Plaintiffs’ rights
under the Due Process Clause of the United States Constitution, Section 504 of
the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act
of 1990;
D. Award Plaintiffs their reasonable attorneys’ fees and costs;
E. Grant such other and further relief as this Court deems just and proper.
Respectfully submitted this 13th day of May, 2015.
/s/ Ronald K. Lospennato Ronald K. Lospennato, Bar No. 32191 Concepcion “Koki” Otero, Bar No. 29372 Nell Hahn, Bar No. 22406 Kathryn E. Fernandez, Bar No. 33829
Advocacy Center 8325 Oak Street New Orleans, LA 70118 504-208-4679 504-335-2890 rlospennato@advocacyla.org kotero@advocacyla.org kfernandez@advocacyla.org
/s/ Katie M. Schwartzmann
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Katie M. Schwartzmann, Bar No. 30295 Eric A. Foley, Bar No. 34199 Roderick & Solange MacArthur Justice Center 4400 S. Carrollton Ave. New Orleans, LA 70119  (504) 620-2259 (p)  (504) 208-3133 (f) katie.schwartzmann@macarthurjustice.org eric.foley@macarthurjustice.org
CERTIFICATE OF SERVICE I hereby certify that on this 13th day of May, 2015, a copy of the foregoing will be served on the Defendants by the “Notice of Electronic Filing” automatically generated by the Court’s Electronic Filing System. An electronic copy has also been sent to Trey Phillips, First Assistant Attorney General, P.O. Box 94005, Baton Rouge, LA 70804.
_____/s/ Ronald K. Lospennato__ Ronald K. Lospennato, Bar No. 32191
26

 
 Case 3:14-cv-00507-SDD-RLB Document 200 11/17/16 Page 2 of 22 Case 3:14-cv-00507-SDD-RLB Document 197-1 09/06/16 Page 1 of 21

UNITED STATES DISTRICT CO URT MIDDLE DISTRICT OF L OUISIANA

*

BRANDON C OO PER, et a!.,

*

P la inti ffs

* * C IVIL ACT ION NO. 3:14-00507-SDD-RLB

*

v.

* J UDGE DI CK

R EBEKAH GEE, et at.,

* * MAG ISTRATE JUDGE BOURGEOIS

*

Defenda nts

*

*

Consolidated with

*

* ADVO CACY CENTER a nd MO NICA *

J ACKSON, Pla intiffs
v.

* * CIVIL ACTION NO. 3: 15-0075 1-SDD-RLB * * JU DGE DI CK
*

REBEKA H GEE, et al.,

* MAGISTR AT E JUDGE BOURGEOIS *

*

Defend ants.

*

*

I.

Introduction:

SETTL EMENT AGREEMENT

In these conso lidated actions, Plaintiffs, Brandon Cooper, Loui s Davenport, Ron Gatlin , Kenny Swatt, Stephen Zeringue, William Pitzer. Tyrin Perkins, Dom inick Perniciaro IlL Scott Frye, and Ryan Kazemi are individual s who have been diagnosed with mental illness and found Not Gu ilty by Reason of Insanity (NG RI) of a crim inal offense. Plainti ff Monica Jackson has been diagnosed with mental iII ness and was found incompetent to stand trial and ordered comm itted to Feliciana Forensic Faci lity, but was incarcerated in correctional facili ties in Loui siana fo llowing that order. Pl aintiff Advocacy Center is a private. federall y-funded. non-
1

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profit corporation. designated by Louisiana to serve as the State 's protection and advocacy system for persons with disabilities and is a party in the instant consolidated cases as an associational plaintiff. Plaintiffs allege that Defendants have refused. and are conti nuing to refuse. to promptly accept physical custody of individua ls round NG Rl and Incompetent to Stand Trial who have been ordered to be admitted to an inpatient psychiatric facility for care and treatment. Plaintiffs allege that Defendants' refusal to accept phys ical custody has resulted and is resulting in prolonged and unconstitutional confinement in parish jails. in violation of Plaintiffs· rights to due process under the United States Constitution, Title II of the Americans with Disabilities Act or 1990, and Section 504 of the RehabiIitation Act of 1973.
The parties mutually desire to settle all or the claims asserted by the Pla inti ffs in these consolidated cases without the need for further litigation and have therefore agreed to enter into thi s Settlement Agreement.
It is. therefore, ORDERED, ADJUDGED, AND DEC REED: I. Thi s Court has jurisdiction over Plaintiffs· claims against the Defendants set forth in the Complaint. 2. This Settlement Agreement applies to the indiv iduals defined as foll ows: All individuals who. after having been found ot Gui lty by Reason of Insan ity or Incompetent to Stand Trial are remanded by a court to a mental health fac ility for treatment pursuant to Louisiana law.
2

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II. Definitions:

3.

For the purposes of this Settlement Agreement, the fol lowing definitions

shall apply unless a contrary meaning is indicated by the text:

a. Incompetent Individual: a person who has been found to lack the mental capacity to proceed to trial, is being held in jail, and has been ordered committed to Feliciana Forensic Facility (a.k.a. ELMHS) or other mental health facil ity pursuant to La. Code Crim. P. art. 648.

b. NGRI :a person who has been found Not Gu ilty by Reason of Insan ity ("NGRI") and has been ordered by a court to be committed to a mental health faci li ty pursuant to La. Code Crim. P. art. 654.

c. NGRI Order: an order entered by a criminal court subseq uent to a finding of GRI. committing an individual to a mental health facility pursuant to La. Code Crim. P. art. 654.

d. Order for Competency Restoration: an order committing an Incompetent Individual to a mental health facility issued pursuant to La. Code Crim P. art. 648(A)(2)(a).

e. Mental health faci lity: The Feliciana forensic faci li ty at ELMHS designated by La. R.S. 28:25.1 and any other facility to which NGRI o r Incompetent Individual may be committed by an NGR I Order or an Order for Competency Restoration.
f. Jail: A parish or municipal detention facility in which NGR I and Incompetent Individuals are held. or may be held, pending admission to a mental health facility pursuant to an Order of Comm itment or an Order

3

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for Inpatient Treatment. This may include DOC fac ilities or facilities owned or operated by third-parry contractors who have contracted with Parish Sheri ffs to house pretrial detainees. g. Wa iting list: the list of individuals described in paragraph 4 below. h. Di version from the waiting list: Release from jail to a placement 111 the community. 1. Sani ty Comm ission: a commission appointed by a State court pursuant to La. Code Crim. P. art. 644 to examine a criminal defendant whose mental capac ity to proceed to trial is in question, and to make findings concerning hi s competency to proceed to trial: or pursuant to Art. 650 in cases in which a defendant enters a combined plea of ''not guilty and not gu ilty by reason of insanity"' in order to make an examination as to the defendant's mental condition at the time of the offen se.
J. Sanitv Comm ission Report: A report prepared by the San ity Comm ission and submitted to the Court.
k. District Forensic Coordinator (DFC): a mental health professional employed by the Lo ui s iana Department of Hea lth with at least a master's degree in soc ial work, psychology or related field, such as counseling or nursing, and who has been trained by and is under the active supervision of the Medica l Director of Defendant's Forensic Program or other Boa rd-certified forens ic psychiatrist.
I. Brief Psychiatri c Rating Scale (BPRS): a standardized 24-item psychiatric rating scale used to rate psychiatric symptoms and behav iors. The BPRS comprises 24 items that can be rated from not present ( I) to extreme ly severe (7).
4

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o. CAGE-A 10 questionnaire: a brief standard ized questi onnaire that is a widely used method of screening for alcoholism, adapted to include other types of substance abuse.
p. Behavioral Health Assessment: a face-to-face assessment by a psychiatri st. licensed psychol ogist, or District Forensic Coord inator for mental illness and addiction problem s. using the Brief Psychiatric Rating Scale (BPRS) for mental health symptoms and the CAGE-A ID for substance abuse issues. Also included in the term ..Behavioral Health Assessment'· is a review of any san ity commission report; medical and mental health history. if available: jail medical and mental health records; and assessment of other factors bearing on the acuity of the NG RI or Incompetent Individual's need for mental health and substance abuse treatment, including whether the NGRI or Incompetent Indi vidual is receiving medication. whether the NGRI or Incompetent Indiv idual is compliant with his or her medication, efficacy and side effects of medication, phys ical health needs, and extent to which he or she has received jail-based competency restoration services. The Behavioral l lea lth Assessment will result in a determination as to whether an NGRI or Incompetent Individual has an Emergency Mental llcalth Need, as de fined below.
q. Incompetent or NGR I Individual with Emergency Mental Health Needs: an Incompetent Individua l or NGRI who has a BPRS total score that is 50 or greater; who is determined by a psychiatrist designated by the ELMI-1 Chief of Staff to need immediate hospital treatment; or who has engaged. or is likely to engage, in acts of serious self-harm, acts of violence toward others. or significant acts of violence toward property. These individuals shall be admitted pursuant to Paragraph 8 of this Agreement. 5

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III. Actions Required of Defendants:

4.

Defendants shall maintain an updated cumulative list of all NGRI and Incompetent

Individuals who are or have been housed in parish jails in Louisiana awaiting

transfer to the forens ic unit at ELMHS or other mental health fac ility or p lacement,

on or after the date of the entry of thi s Settlement Agreement. The summary or Iist

shall include. for each NG RJ and Incompetent Individual:

a. The NGRI or Incompetent Individual's name and docket number.

b. Whether the person is an NG RI or Incompetent Indi vidual.

c. The cout1 that entered the NGRI Order or Order for Competency Restorati on.

d. The date of the Order.

e. The date that LDH was notified of the Order. f. The dates and results of the Behavioral Assessment and whether the person was
classified as an NGRI or Incompetent Indi vidual with Emergency Mental Health Needs.

g.

The jail or other faci lity he ld. if known.

in

wh ich

th e

NGRI or

Incompete nt

Individual

is

be ing

h. The status of any paperwork that must be completed. pursuant to Louisiana Code of Cr·iminal Procedure 648.1 and Louisiana Code of Crim inal Procedure 654.1 prior to admission of the NG RI or Incompetent Individual to a mental hea lth fac ility or community placement.

1. The date of admission of the NG RI or Incom petent Indi vidual to the forensic unit at ELMHS or other mental health fac ility or placement.
J. Date of any NG RI or Incompetent Individual" s remova l from the list due to diversion or other reasons.

6

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k. The reasons for the GRI or Incompetent lndividuars removal from the list, including identification of the facil ity or other setting to which the NGRI or Incompetent Individual was transferred.

5.

Defendants shall maintain their current system for rece iving Orders from cri minal

courts. Defendants prev iously notified all criminal courts in Louisiana that Orders

should be sent promptly to ensure indi viduals can be qu ickly assessed. If any court

sends an Order more than two days after it is signed, Defend ants fo llow up with that

court via letter to reinforce the importance of the timeliness of transmi ss ion.

6.

De fendants shall provide all NG RI Incompetent Individuals a Behavioral Hea lth

Assessment, as defined above. within five (5) calendar days of notification of

an order for inpatient treatment or order of commitment. If the Behav ioral Health

Assessment is conducted by a DFC, as opposed to a psychiatrist or psychologist.

the DfC must send the BPRS and CAGE-A ID test results and documentation, and

all other documentation described above that has been obta ined, to the Forensic

Aftercare Clinic (FA C) Medical Director, or another psychiatrist on staffdesignated

by the Eastern Louisiana Mental Health System's (ELM HS) Chief of Staff, to

interpret the results of the Behavioral Health Assessmen t in order to determine if the

client needs emergency services.

7.

No later than two hundred forty-five days (245) from the date of th is Order.

Defend ants shall have admitted all NG RI and Incompetent Individuals who are on

the wa iting list to ELM HS. another mental health fac ility. or community residential

program. as of the date of thi s Order.

8.

Foll owing the signing of this Order. Defendants shall adm it all new NGRI or

In competent Individuals with Emergency Mental Health eeds to a Mental Health 7

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Facility within two (2) business days followi ng completion of a Behavioral Hea lth Assessment.

9.

No later than two hundred forty-five days (245) from th e date of this Order,

Defendants shall admit all NGRI or Incompetent Indi viduals to the forensic unit at

ELMH S or other mental health facility, or to an appropriate community based

program within fifteen ( 15) calendar days fo ll owi ng receipt of an Order. except that if Defendants demonstrate that unusual and exigent circumstances make it is imposs ible for them to admit an NGR I or Incompetent Individua l within fift een ( 15) calendar da ys, Defendants may have up to thirty (30) calendar days to admit the NGRI or Incompetent Indi vidual. If the monthl y reporting provi sions below demonstrate admission times regularl y exceed ing 15 ca lendar days. the Piainti ffs

may. at their option. call a meeting with Defendants to devise a remedial action plan to bring adm ission times with in the IS-day threshold . Such a meeting shall not limi t Pla inti ffs' enforcement rights under paragraph 23.

I0. Within ninety (90) days of this Order, Defendants shall implement procedures to help provide NGRI or Incompetent Indiv iduals who are incarcerated in parish jails with expedited admission in the event of emergent mental health needs. Such

procedures shall include, at a minimum, the follow ing:

a. Defendants shall establ ish and publicize to each sheriff or other personnel responsible for parish jails the name, telephone number. and email address of DHH personnel to contact in the cases concerning an Incompetent Individual or NGR I with Emergency Mental Health Needs. Thi s publication sha ll further instruct each sheriff or other personnel responsible for parish jails of how to report an emergency to DHH 8

CaCsaese3:31:41-4c-vc-v0-00500570-7S-SDDDD-R-RLLBB

Document 200 11/17/16 Page 10 of 22 Document 197-1 09/06/16 Page 9 of 21

personnel and shall include a description of the factors that substantiate the emergency.
b. Within forty-ei ght (48) hours of the report of an emergency to LDH, the ELMH S Chief o f Staff or his Designee shall make the determination as to whether there is an actual emergency, and whether to admit the NGR I or Incompetent Individual to a Menta l llea lth Fac ility on an expedited basis or take other action except when such repor1s occur between the close of business on Friday and 12:00 a.m. Sunday in which case determinations shall be made within seventy-two (72) hours.
I I. Defendants will continue their current intake assessment procedures as well as their post-adm iss ion assessment procedures to ensure appropriate placement for each individual. In the event of a discrepancy between Defendants· recommendation for an individual's placement and the court' s order regarding that individual' s placement. Defendants will provide the Plaintiffs with the individual's name and the information listed in Paragraph 4 of this agreement.
12. Within one hundred and eighty ( 180) days of this Order, Defendants shall confer and meet to develop a plan for providing less restrictive placement opti ons in which NG RI and Incompetent Individuals can, with the appropriate permission of the criminal court, receive clinical ly appropriate competency restoration or mental treatment placement options. The parties wi ll di scuss potential legislati ve proposa ls to address needs or issues brought forth in this meeting. The implementation of any such plan shall be subject to concurrence of LDH executive management and budgetary appropriation by the legislature.
13. In developing the plan described in paragraph 12. Defendants shall coordinate 9

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a meeting of Defendants, Plaintiffs' counsel, Plaintiffs" expert. Or. Joel Ovoskin, and any stakeholders Defendants deem necessary to discuss (a) needed research and analysis beyond that identified in the preceding paragraph, and (b) necessary elements of the strategic plan. Defendants shall consider. in addition to the fu nding of new placements identified in paragraph 18, opportunities to di vert NG RI and Incompetency Individual s from the criminal justice system and to improve efficiencies in existing operations. To facilitate that meeting. Defendants, in addition to the infonnation contained in paragraph 4 of this agreement, will provide to Plaintiffs· counse l relevant data in Defendants' possess ion regarding patient wait times and recidivism rates for persons placed on conditional release or returned to jail to stand trial after a determination that his or her competency has been restored.
14. Plaintiffs shall seek alternate methods of fundin g Or. Dvoskin" s consultation. including but not limited to searching and appl ying fo r any grants. In the event alternate fund ing cannot be found, Defendants agree to pay Or. Dvoskin his standard hourly rate of four hundred dollars ($400) per hour as well as travel expenses for a total of up to thirty-thousand dollars ($30,000). Or. Ovosk in wi ll not bill Defendants for any travel time.
15. Defendants agree as follows to allocate necessary resources to create new placement options. in addition to and not in lieu o f current placement opportunities. at clinically and lega lly suitable locations. Said locations will include community-based settings. Defendants agree to allocate resources to provide less restrictive placement alternatives to NGRI or Incompetent Individuals cu rrently housed at ELMHS or incarcerated in parish jails and to prevent future NGRI or 10

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Incompetent Indiv iduals from being unnecessarily con fined in a Mental Health Facility or jail. or detained in jail beyond the time periods provided for in this agreement. To this end:

a.

Within two hundred forty-five (245) days from the date of

thi s Order. Defendants shall increase the number of available beds

at ELMHS by an amount necessary to accommodate the placement

of individuals within the time frame established in Paragraph 9 of

thi s Agreement;

b.

Within two hundred forty-five (245) days from the date of

this agreement. Defendants shall develop a plan to create supportive

housing opportunities with appropriate mental health services for

NGRI and Incompeten t Individua ls in locations throughout the

Louisiana. which shall include. but not be limited to. ew Orleans,

Baton Rouge, Lafayette. Lake Charles. and Shreveport. including

th e possibility of an increase in community based beds.

16. Jail-based competency restoration and mental health treatment provided in jails

do not constitute new placement options required by the preceding paragraph.

IV. Reportin g provis ions:

17. Defendants shall submit a report to Plaintiffs· counsel on the first working day of each month beginning November I, 20 16. The report shall conta in the information set forth in Paragraph 4 above. as well as the number of NG RI and Incompetent Individuals disaggregated by category of detention. gender. and the faci li ty to which each Individual was admitted. and a description of any unusual and ex igent circumstances that resulted in a delay in placement in excess of 15 days as I 1

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established in Paragraph 9. uch report shall a lso contain the name of any NG RI or Incompetent Indi vidual for whom Defendants have received a report of a mental health emergency pursuant to paragraph 12 above, the fac ility in which the
GRI or Incompetent Individual was held at the time of the report. a description of the factors that were prov ided as substantiating the emergency. the identity of the ELMH S Chief of Staff or hi s Des ignee who made the determinati on as to whether there is an actual emergency, the time and date of such determination, and a description of any action taken by Defendants with regard to the claimed emergency. 18. Any current or future indi vidual(s). as defined in Paragraph 2. shall have the right to seek enforcement of thi s Settlement Agreement in accordance with the procedures set fo rth herein. regardless of whether he or she was a named Plaintiff in thi s action. In the event that NGR I or Incompetent Individuals seek to enforce thi s settlement based on the belief that Defendants have fa iled to discharge any obligations under thi s settlement, they will give written notice of such failure to Defendants· counsel, speci fy ing the grounds that demonstrate such failure. and the Defendants will have thirty (30) days from receipt of such notice to come into or establish compliance with this settlement. If an individual believes that the alleged fa ilure has not been cured within the thirty (3 0) day period. they may seek in this Court specifi c perfo rmance of this sett lement, together with attorneys' fees and/or costs recoverable under 42 U.S.C. § 1988, but not contempt of court. The sole exception to the obligation of NGR I or Incompetent Indi viduals to prov ide the written notice required by this paragraph is a circumstance in whi ch an alleged failure to compl y with a term of this agreement warrants immediate inj uncti ve relief. in which case defendants will receive the appropriate notice required when such
12

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relief is sought.
19. The reporting provisions 1n thi s agreement shall terminate after four (4) continuous years of Defendants' substantial compliance with the terms of this ag ree ment.
V. ATTORNEYS ' FEES AND COSTS 20. Plaintiffs are a prevailing pat1y. In full and final settlement of thi s matter, and within 90 da ys of the execution of this Settlement Agreement. Defendants will issue Plaintiff a settlement payment in the amount of $466.000 that wi II be inclusive of all attorneys· fees and costs incurred in connection with this action, up to and including the date of the entry of this Settlement Agreement. 21. The parties agree that Plaintiffs may recover attorneys· fees under §1988 a fler fin al approval of this Settlement Agreement and sati sfacti on of the initi al claim for attorneys' fees referred to in Paragraph 20 above. subject to the prov isions ofSecti on V of this Agreement.
22. Such "future" claims for fees are limited to fees and costs for work performed in obtaining Defendants· compliance with the Settlement Agreemen t; obtaining attorney's fees merited under the Agreement; seeking a modification of the Settlement Agreement over Defendants' objection (if the Court modifies the Settlement Agreement at Plaintifr s Request), and/or opposing a modificati on requested by Defendants if the Court denies (or denies, in part) Defendants' request for a modi fi cation. If the Court denies Defendants · request for modification in part, Plainti ffs are onl y entitled to fees for the part(s) denied.
23. In the absence of a filing for judicia l enforcement or modification of the Settlement Agreement. Plaintiffs may not recover attorneys· fees. In the event that such a 13

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motion is filed and Plaintiffs are the prevailing party, Plaintiffs' reserve the ri ght to seek a reasonable award of fees for a ll work done in connection with the particular motion. Defendants reserve the right to oppose any such request. 24. The Parties agree that Plaintiffs are entitled to reasonable attorneys· fees if Defendants are found o ut of compliance by the Court after Pla intiffs file a motion for judicial enforcement o r modificatio n of the Settlement Agreement. provided that Plaintiffs' have given Defendants' notice and an o pportunity to come into compliance pursuant to Paragraph 18 of this Sett lement Agreement prior to fi ling the ir motion.
25 . Reasonable attorneys· fees shall be awarded o nly to counsel of record and/or to any paralegals empl oyed by counsel of record . the Advocacy Center, and/o r the MacArthur Justice Center. (The person(s) c laim ing reimbursement of atto rneys· fees sha ll herei nafter be referred to as ''Ciaimant(s)...)
26. In accordance with precedent of the U.S. Fifth C ircuit Court of Appeals, § 1988 attorneys· fees and costs can o nly be awarded for the work of a legal assistant or para legal if that work is legal , as opposed to clerical. Work that is lega l in nature includes, for example. factual investigation. locating and inte rviewing witnesses, assistance with depositions. interrogatories and document productio n. compilation of statistical and financial data. checking lega l citations and drafting correspondence. Activities that are purely clerical in nature include. for example. typing, copying. filing, o r de livering pleadings. Pure c lerica l or secretaria l work may not be billed at an attorney's or paralegal 's rate.
27. The cost ofservices performed by paralegals or other persons supervised by counse l of record and/or the Advocacy Center are to be included in the assessment and award 14

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of attorneys' fees if the following criteria are m et: a. The services performed must be legal in nature: b. The performance of such serv ices must be supervi sed by an atto rney: c. The qualificatio ns of the person performing the services must be spec ified in the application or motion requesting an award of fee s in order to demonstrate that the person is qua lified by virtue of education, training, o r work experience to perform substanti ve work; d. The nature of the services performed by the perso n must be specified in the appl ication/mo tion requesting an award o f fees in order to permit a determination that the services performed were lega l rathe r than clerical in nature;
e . The amo unt of time expended by the person in performing the serv ices must be reasonable and must be set o ut in the mo tio n; and
f. The amount charged fo r the time spent by the person must renect reaso nable community standards of remuneration.
28. Costs avai lable under 28 U.S .C. §1920 wi ll be reimbursed whenever Plaintiffs are entitled to recover attorneys· fee s a nd costs as described above.
29. Other costs w ill o nly be reimbursed if the evidence accompanying the c laim shows that they a re of the type of costs that wou ld no rmally be reimbu rsed by a fee- paying cl ient and that the costs were necessarily incurred in the litigation.
30. Mileage for necessary travel will be re imbursed at the rate establi shed annua lly (on a fi scal calendar) by the State Division of Administration and w ill be reimbursed at the rate in effect at the time o f travel.
3 1. Attorneys· fees for travel time will be paid at 50% of the c laimant's billable rate. 15

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32. Counsel of record for the Pla intiffs. at the time the instant Settlement Agreement is entered, bill at the fol lowing rates (which are fixed for the calendar year 20 16): Ro nald Lospennato. $375/hour; Ellen Hahn. $375/hour; Katie Schwartzmann, $350/hour; Eric Fo ley, $240/hour: Kathryn Fernandez. $240/hour; Laura Thornton. $200/hour.
33. The billable rates of the above-named counsel may increase annually (beginning January I, 20 17) in accordance with commensurate increase in the relevant legal market (Bato n Ro uge, Louisiana).
34. However. counsels· bi llable rates (for purposes of claims in this case under§ 1988) shall not increase more than $25.00 in a calendar year.
35. Billable rates for any lega l personne l other than current counsel of record, as listed above in paragraph 37, must compot1 with the prevailing rates in the relevant legal market (Baton Rouge. Louisiana), and may increase annually (beginn ing January I. 20 17) in accordance with commensurate increases in the relevant legal market. but not to exceed $25.00 in a ca lendar year.
36. Any annual increases by attorneys other than current of record. as li sted above in paragraph 37. shall not exceed $25.00 in a ca lendar year.
37. Any annual increases by non-lawyers shall not exceed $12.50 in a calendar year. 38. Any future c laims for attorneys· fees and costs and appropriate documentatio n supporting the claim shall be prese nted to counsel for defendants within thirty (30) days of e ntry of the applicable Judgment or Order, unless the parties agree o n, or the Court by order permits. a longer period of time. 39. The evidence accompanying any and all claims for attorneys' fee s and costs must expressly show and, if requested by defendants. certify under penalty ofperjury. that all costs and ho urs c la imed were incurred in this case and that no cost or hour claimed has been
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previously reimbursed in this litigation or any other litigation against the State of Louisiana, any of its agencies, officials, and/or employees.
40. If the parties cannot amicably agree on a fut ure cla im of attorneys' fees and costs pursuant to paragraph 38 above, it shall be the responsibility to the Plainti ffs to document, via time and date stamped e-mail to defense counsel, the official end to the negotiati on.
41. In the event that the parties cannot amicably resolve a future claim for attorneys' fees and costs. Plaintiffs must fi le a Motion for Attorneys· Fees and Costs within thirty (3 0) days ofthe end of the negotiati on, as described in paragraph 40 above.
42. Defendants have and reserve their right to question and/or cha llenge the hours billed by any claimant. exercise of billing judgment by any claimant. and necessity of costs requested by any claimant.
43. Defendants have and reserve their rights to question and/or challenge the reasonableness of the billable hourly rates of any claimant.
CAP ON ATIORNEYS" FEES AND COSTS 44. In light of the four (4) year limit on this Settlement Ag reement and so the State may budget accurately. the part ies ha ve agreed to a maximum amount of attorneys' fees and costs that may be awarded during the course of thi s litigation.
45. The total amount of attorneys' fees that may be awarded in thi s case after fina l approva l of thi s Settlement Agreement and satisfaction of the initial claim for attorneys ' fees referred to in Paragraph 20 above shall not exceed $300.000.
46. Counsel for Defendants shall include in each Receipt Release. and Indemnity Agreement signed by Plaintiffs" counse l as descri bed above. an accounting of how much has been paid in attorneys' fees and costs up to and including the sum received on that date and the remaining balance on the cap.
17

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VI. M iscellaneous

47. This Settlement Agreement represents the entire agreement between the parties. 48. This Settlement Agreement is a settlement of disputed c laims and shall not be
considered to be an admi ssion of liability by any patty.
49. Each party to this Settlement Agreement was assisted by counsel. understands the meaning and consequences of the Settlement Agreement. and executes the Settlement Agreement of his. her, its, or their own free wil l.
50. This Court shall retain jurisdiction to enforce thi s Settlement Agreement until thi s matter is dismissed after four (4) continuous years of Defendants' substantial compliance with this Settlement Agreement.
51. Each party to this Settlement Agreement has cooperated in the preparation and drafting of this Settlement Agreement. Accordingly. the Settlement Agreement shall not be construed more stri ctly against any party than it is aga inst any other party.

52. The claims compromised. settled, and resolved by this Settlement Agreement include all claims that were raised in the Original or Amended Complaints filed in thi s action. as well as all claims prec luded by gove rning law. on behalf of the Plai nti ffs defined in Section I above. This agreement does not compromise. settle or reso lve, and shall in no way impair, any cla ims that may ari se after the end of thi s Settlement Agreement.

53.

In consideration of the comm itment contained herein. and the benefits prov ided or

to be prov ided hereunder. this Selllement Agreement shall fully resolve. extingui sh.

and finall y and forever bar. and the Pl aintiffs· hereby release. all claims described

in paragraph 51 above. Upon final approval by the court. this Settlement Agreement

18

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shall be fully binding on, and full y extinguish and release the claims of, all Plaintiffs, and may be plead as a fu ll and complete defense to any subsequent action or other proceeding that ari ses out of the claims released and discharged by thi s Settlement Agreement.

54.

othing in thi s Senlement Agreement is intended to affect any rights of any party or

non-party other than to the extent specifical ly addressed by the terms of this

Settlement Agreement.

SO ORDER ED thi s Louisiana.

, 20 16. in Baton Rouge.

19

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Approved:
sf Ronald K. Lospennato Ronald K. Lospennato, Bar No. 32191 Kathryn E. Fernandez, Bar No. 33829 Laura Thornton, Bar No. 36053 Advocacy Center 8325 Oak Street New Orleans, LA 701 18 504-2084679 504-335-2890 rl ospen na to@advo cacyla .o rg nhahn@advocacyla.org kfernandez@ adv ocacy la.o rg lthornton @ advocacy la .org
sf Katie Schwartzmann Katie Schwartzmann, Bar No. 30295 Eric Foley, Bar No. 34199 ROD ERICK & SO LANGE MACA RTHUR JUSTICE CENTER 4400 S. Carrollton Ave. New Orleans, LA 70 I 19 Telephone: (504) 620-2259 E-mai I: katic.schwartzmann@macarthurjustice.org
sf Ne ll Hahn Nell Hahn, Bar No. 22406 ADVOCA CY CENTER OF LOU ISIANA 600 Jefferson Street. Suite 812 Lafayette, LA 7050 I Telephone: (337) 237- 7380. ext. II Facsimile: (337) 205-6166 E-m aiI: nhahn@advocacyla.org
Dated: September I. 20 16
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Approved:

s/ Kimberly Sullivan KIMBERLY SULLIVAN. La. Bar Roll No. 27540 NEAL ELLIOTT, La. Bar Roll o. 24084 JENNA GERMANY YOUNG. La. Bar Roll No. 25942 STEPHAN IE BORGHARDT, La. Bar Roll No. 33465 RYAN ROM ERO. La. Bar Roll No. 35987 Louisiana Department of Health Bureau of Legal Services 628 North 41h Street (70802) P.O. Box 3836 Baton Rouge, Louisiana 7082 1-3836 (225) 342-1128 (Telephone); (225) 342-2232 (Facsimile)
Dated: September I, 20 16

21

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

BRANDON COOPER, LOUIS DAVENPORT, RON GATLIN, KENNY SWATT, STEPHEN ZERINGUE, and WILLIAM PITZER, on behalf of themselves and all other similarly situated individuals

CIVIL ACTION NO.: 14-507-SDD-SCR

VS.

KATHY KLIEBERT, Secretary of the Louisiana Department of Health and Hospitals, in her official capacity; and the LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS

RULING ON MOTION TO DISMISS

Before the Court is Defendants’ Motion to Dismiss Plaintiffs’ Class Action

Complaint brought pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure on

the grounds of Eleventh Amendment Immunity and mootness, and Rule 12(b)(6) of the

Federal Rules of Civil Procedure for failure to state a claim.1 Plaintiffs have filed an opposition.2 Defendants’ mootness and sovereign immunity defenses present threshold

challenges which the Court must address before determining the propriety of class certification.3

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs, on behalf of themselves and others similarly situated, bring a civil rights

action under 42 U.S.C. § 1983 and federal disability statutes against the Louisiana

1 Rec. Doc. 8. Plaintiffs were subsequently granted leave to file their First Amended Class Action Complaint (Rec. Doc. 29). 2 Rec. Doc. 20. 3 Dallas Gay Alliance, Inc. v. Dallas County Hosp. Dist., 719 F.Supp. 1380, 1383 (N.D. Tex. 1989)(citing Newberg, Newberg on Class Actions §§ 2.05-.08 (2nd ed. 1985)).

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Department of Health and Hospitals (“DHH”), and Kathy Kliebert, Secretary of DHH, in her official capacity. Plaintiffs are criminal offenders with mental illnesses who have been adjudicated “Not Guilty by Reason of Insanity” (“NGRI”) and ordered committed to East Louisiana Mental Health System (“ELMHS”) pursuant to Article 657 of the Louisiana Code of Criminal Procedure.4 Plaintiffs allege that after having been adjudicated NGRI and ordered committed to ELMHS they remain incarcerated in Louisiana correctional facilities for months while awaiting bed space at ELMHS. Plaintiffs allege that their continued incarceration under these circumstances violates the Fourteenth Amendment5; Title II of the Americans with Disabilities Act (“ADA”)6; and Section 504 of the Rehabilitation Act (“RA”)7. Plaintiffs seek injunctive and declaratory relief only and move to certify a class action on behalf of:
[A]ll persons in Louisiana who are being, or may be in the future, incarcerated in Louisiana correctional facilities after a finding of NGRI and their commitment to a mental health facility pursuant to La. Code Crim. Proc. Art. 657.8

4 La. Code Crim. Proc. Art. Art 657 provides: “After considering the report or reports filed pursuant to Articles 655 and 656, the court may either continue the commitment or hold a contradictory hearing to determine whether the committed person is no longer mentally ill as defined by R.S. 28:2(14) and can be discharged, or can be released on probation, without danger to others or to himself as defined by R.S. 28:2(3) and (4). At the hearing the burden shall be upon the state to seek continuance of the confinement by proving by clear and convincing evidence that the committed person is currently both mentally ill and dangerous. After the hearing, and upon filing written findings of fact and conclusions of law, the court may order the committed person discharged, released on probation subject to specified conditions for a fixed or an indeterminate period, or recommitted to the state mental institution. A copy of the judgment and order containing the written findings of fact and conclusions of law shall be forwarded to the administrator of the forensic facility. Notice to the counsel for the committed person and the district attorney of the contradictory hearing shall be given at least thirty days prior to the hearing.” 5 Rec. Doc. 1, paragraphs 59-64. 6 Rec. Doc. 1, paragraphs 65-68. 7 Rec. Doc. 1, paragraphs 69-71. 8 Rec. Doc. 1.

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II. LEGAL STANDARD A. Rule 12(b)(1) A 12(b)(1) motion to dismiss is analyzed under the same rubric as a 12(b)(6)
motion to dismiss. The Court must accept all well pleaded facts in the Complaint as true and view them in the light most favorable to the plaintiff. While a 12(b)(6) motion is determined solely on the face of the pleadings, for purposes of a 12(b)(1) motion, the Court may look at evidence in the record.9 A motion to dismiss for lack of subject matter jurisdiction should only be granted if it appears that the plaintiff “cannot prove any set of facts” in support of the plaintiff’s claims to relief.10 In ascertaining the likelihood of whether the plaintiff can “prove any set of facts” in support of his/her claims for relief, the Court may evaluate the Complaint, supplemented by undisputed facts, and the Court’s resolution of disputed facts.11 Furthermore, “[w]hen a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.”12
B. Eleventh Amendment The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or subjects of any Foreign State.”13 Where there is Eleventh Amendment immunity from suit,

9 Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009)(quoting Ginter ex rel. Ballard v. Belcher, Prendergast & Laporte, 536 F.3d 439, 441 (5th Cir. 2008)). 10 Wagstaff v. United States Department of Education, 509 F.3d 661, 663 (5th Cir. 2007). 11 Ramming v. U.S., 281 F.3d 158, 161 (5th Cir. 2001)(“Lack of subject matter may be found in any of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.”). 12 Id. 13 United States Constitution, Amendment XI.

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federal courts lack subject matter jurisdiction.14 Although not expressed by its terms, Eleventh Amendment Immunity is triggered when a citizen brings a suit against his/her own state in federal court.15 In this case, the Plaintiffs have named a state entity, DHH, and a state official, Kathy Kliebert, secretary of DHH in her official capacity, as Defendants.
The Eleventh Amendment bars suit against State entities where the entity is an arm of the State such that the suit is in reality a suit against the State itself.16 The Fifth Circuit has held that DHH is an arm of the State and is, therefore, entitled to Eleventh Amendment Immunity.17 Likewise, “[t]he Eleventh Amendment bars a suit against state officials when ‘the state is the real, substantial party in interest’.”18 “The general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter.”19 “A suit against state officials that is in fact a suit against a State is barred regardless of whether it seeks damages or injunctive relief.”20 Accordingly, in this case, the Court starts with the premise that the Eleventh Amendment bars claims against DHH and its Secretary, unless immunity has been

14 See, Wagstaff, 509 F.3d at 664. 15 Tennessee v. Lane, 124 S.Ct. 1978, 1985 (2004); Blanchard v. Newton, 865 F.Supp.2d 709, 713 (M.D.La. 2012)(quoting Pennhurst State Sch. & Hosp. v. Halderman,104 S.Ct. 900, 906 (1984)(citing Hans v. Louisiana, 94 S.Ct. 1347, 1355 (1890)). 16 Daigle v. Gulf State Utilities Co., Local Union Number 2286, 794 F.2d 974, 980 (5th Cir. 1986). 17 Caldwell v. Bristol Myers Squibb Sanofi Pharmaceuticals Holding Partnership, 2012 WL 3862454, at (W.D.La. June 12, 2012)(quoting Darlak v. Bobear, 814 F.2d 1055, 1060 (5th Cir. 1987)). 18 Pennhurst State School & Hosp. v. Halderman, 104 S.Ct. 900, 908 (1984)(quoting Ford Motor Co. v. Dept. of Treasury, 65 S.Ct. 347, 350 (1945)). 19 Darlak v. Bobear, 814 F.2d 1055, 1060 (1987)(quoting (quoting Pennhurst State School and Hospitals v. Halderman, 104 S.Ct. 900, 908-909 (1984)(quoting Hawaii v. Gordon, 83 S.Ct. 1052, 1053 (1963)(per curium))). 20 Id. (quoting Pennhurst State School and Hospitals,104 S.Ct. at 908-909).

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waived by the State,21 constitutionally abrogated by Congress,22 or immunity is lacking under the Ex Parte Young23 doctrine. III. ANALYSIS
A. Secretary of DHH’s Sovereign Immunity Defense The Supreme Court’s holding in Ex Parte Young recognized an important exception to the general rule of sovereign immunity for state officials. Ex Parte Young holds that the Eleventh Amendment does not prohibit a federal court from issuing an injunction against a state official to enjoin unconstitutional acts rooted in federal authority.24 In this case, the Plaintiffs allege that Kathy Kliebert, as the Secretary of DHH,25 acting in her official capacity, has engaged in an ongoing violation of federal constitutional law by depriving persons with mental illness, who have been adjudged NGRI, to remain confined in correctional facilities as opposed to mental health facilities to which they have been ordered committed.26 Plaintiffs allege that this continuous incarceration amounts to a deprivation of NGRI detainees’ liberty interests guaranteed under the Fourteenth Amendment. The Plaintiffs seek declaratory and prospective injunctive relief only against the Secretary of DHH, whom the Plaintiffs allege has acted

21 Federal Courts lack jurisdiction over suits against a State, a State agency, or a State official in his/her official capacity unless the State has waived its sovereign immunity or Congress has clearly abrogated the State’s sovereign immunity. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55, 116 S. Ct. 114, 134 L. Ed. 2nd 252 (1996); Moore v. Louisiana Board of Elementary and Secondary Education, 743 F.3d 959, 963 (2014). 22 Id. 23 209 U.S. 123, 28 S. Ct. 441 (1908). 24 Id. As explained by the Fifth Circuit, “[t]o meet the Ex Parte Young exception, a plaintiff’s suit alleging a violation of federal law must be brought against individual persons in their official capacities as agents of the state, and the relief sought must be declaratory or injunctive in nature and prospective in effect.” Aguilar v. Texas Dept. of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). 25 La. R.S. 36:254 sets forth the “powers and duties” of the Secretary of DHH. Notably, the Secretary “shall organized, plan supervise, direct, administer, execute, and be responsible for the functions and programs vested in the Department [DHH], in the manner and to the extent provided by this Title.” La. R.S. 36:254(A)(4). 26 Rec. Doc. 1.

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unconstitutionally. Therefore, the Ex Parte Young exception to the Eleventh Amendment immunity applies and this Court has jurisdiction over the Plaintiffs’ 42 U.S.C. 1983 claims against Kathy Kliebert, Secretary of DHH, in her official capacity.
The Plaintiffs’ ADA Title II and RA §504 claims for injunctive against DHH Secretary Kliebert can also proceed. In McCarthy ex rel. Travis v. Hawkins 27 the Fifth Circuit rejected the argument Ex Parte Young applies only to cases against state officials that involve the violation of a federal right, not merely a violation of federal law. In rejecting this argument, the Fifth Circuit drew upon the Supreme Court’s guidance in Verizon Maryland, Inc. v. Public Service Commission 28 that “the inquiry into whether suit lies under Ex parte Young does not include an analysis of the merits of the claim.”29 On the contrary, the Court explained that “[i]n determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’”30 Accordingly, the Court has jurisdiction over the Plaintiff’s ongoing constitutional claims and ADA Title II and R.A. §504 claims against Kathy Kliebert, in her official capacity as Secretary of DHH. The Defendants’ Rule 12(b)(1) Motion to Dismiss the Plaintiffs’ claims against Kathy Kliebert in her official capacity on the defense of sovereign immunity shall be DENIED.

27 381 F.3d 407, 415 (5th Cir. 2004). 28 535 U.S. 635, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002). 29 Id. at 646, 122 S.Ct. 1753. 30 381 F.3d 407, 416 (5th Cir. 2004) citing, Verizon Maryland, Inc. v. Public Service Commission, 122 S.Ct. 1753. See also, McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 416 (2004)(explaining how the Supreme Court in Verizon Maryland, Inc., “made clear that analyzing the applicability of the Ex Parte Young exception should generally be a simple matter, which excludes questions regarding the validity of the plaintiff’s cause of action.”).

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B. DHH’s Sovereign Immunity Defense The Ex Parte Young exception to sovereign immunity applies only to State officials acting in their official capacities and does not apply to State agencies.31 Thus, even though the Court has Ex Parte Young jurisdiction over claims for declaratory and injunctive relief as to Kathy Kliebert, Secretary of DHH, in her official capacity, the Court lacks jurisdiction to hear claims brought directly against DHH32 unless the State has waived its sovereign immunity for those claims or Congress has clearly abrogated the State’s sovereign immunity as to those claims.33 To determine whether Congress has abrogated the State’s Eleventh Amendment Immunity, the United States Supreme Court instructs that two predicate questions must be answered; first, whether Congress expressed an unequivocal intent to abrogate State immunity and, if so, second, whether Congress “acted pursuant to a valid grant of Constitutional authority.”34 The ADA and the RA contain unequivocal statements of intent to abrogate.35 Thus the question becomes whether Congress’ abrogation of state sovereign immunity

31 Moore v. Louisiana Board of Elementary and Secondary Education, 743 F. 3d 959, 963 (5th Cir. 2014)(citing Puerto Rico Aquaduct and Sewer Authority v. Metcalf and Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684, 121 L. Ed. 2nd 605 (1993)(The Ex Parte Young doctrine “has no application in suits against the States and their agencies, which are barred regardless of the relief sought.”). 32 In its Memorandum in Support of dismissal, DHH admits that the Community Forensic Services program is administered by DHH, ELMHS. Rec. Doc. 8-1, p. 7. 33 Nevada Department of Human Resources v. Hibbs, 123 S. Ct. 1972 (2003) holding that Congress may abrogate a State’s immunity from suit in federal court “if it makes its intention to abrogate unmistakably clear in the language of the statute and act pursuant to a valid exercise of its power [to enforce the Constitutional guarantee of due process] under § 5 of the Fourteenth Amendment.” 34 Tennessee v. Lane, 124 S. Ct. 1978, 1985 (2004)(quoting Kimel v. Florida Bd. of Regents, 120 S.Ct. 631, at 640 (2000)). 35 See 42 U.S.C. § 12202 (“A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this chapter.”); 42 U.S.C. § 2000d–7(a)(1) (“A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 ....”); see also Bd. of Trustees of Univ. of Alabama v. Garrett, 121 S.Ct 955 (2001) (finding unequivocal statement requirement met for ADA).

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is a valid exercise of its power under Section 5 of the Fourteenth Amendment to enforce the substantive guarantees of that amendment.36
In Board of Trustees of Univ. of Ala. v. Garrett, the U.S. Supreme Court held that abrogation of state sovereignty with respect to the enforcement of Title I of the ADA was not a valid exercise of Congress’ §5 power to enforce the Fourteenth Amendment’s prohibition on unconstitutional disability discrimination in public employment.37 “Garrett left open the question whether Title II is a valid exercise of Congress’ §5 enforcement power.”38
Addressing sovereign immunity in the context of Title II of the ADA, in Tennessee v. Lane the U.S. Supreme Court held that the abrogation of sovereign immunity for purposes of Title II is a valid exercise of Congressional power, to the extent that “‘it applies to the class of cases implicating the fundamental right of access to the courts.”39 The Court expressly did not consider whether abrogation under Title II extended to other rights considered to be fundamental under the Constitution.40
The unanswered question is whether the principle of Lane extends to cases involving other fundamental rights, such as the liberty interests implicated in this case. In U.S. v. Georgia, the Supreme Court addressed “whether Title II of the ADA validly abrogates state sovereign immunity with respect to the claims” of a paraplegic wheel chair confined prisoner challenging the conditions of his confinement.41 The Court

36 Tennessee v. Lane, 124 S.Ct. at 1985. 37 Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 518, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). 38 Id. at 522. 39 Tennessee v. Lane, 541 U.S. at 533-34; See also, Bennett-Nelson v. Louisiana Bd of Regents, 431 F.3d 448 (2005) (citing Tennessee v. Lane, 541 U.S. 509 at 533-34 (2004)). 40 Pace v. Bogalusa City School Board, 403 F.3d 272, 287 (5th Cir. 2005)(en banc). 41 U.S. v Georgia, 546 U.S. 151, 156, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006). Plaintiff alleged that the state prison officials failed to accommodate his disability-related needs including mobility, hygiene and

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declined to hold that Title II of the ADA operates a wholesale abrogation of state sovereignty. Finding that the Plaintiffs ADA Title II claims were “based, at least in large part, on conduct that independently violated the provisions of § 1 of the Fourteenth Amendment”42, the Court held that “Title II validly abrogates state sovereign immunity”43 where the cause of action arises from “conduct that actually violates the Fourteenth Amendment.”44 The scope of Title II’s abrogation of state sovereignty remains unclear.
Likewise, the Fifth Circuit has “yet to decide whether the principle of Lane extends to cases involving other rights.”45 For the reasons stated by the Fifth Circuit in Pace v Bogalusa City School Bd.46 and Bennett-Nelson v. Louisiana Board of Regents47 this Court need not address the parameters or scope of Title II’s abrogation of state sovereignty.
The Fifth Circuit has held that the state’s receipt of federal funds is a knowing and voluntary waiver of its sovereign immunity as to claims arising under § 504 of the RA.48 The Complaint in this case alleges that “DHH receives federal financial assistance and is a public entity as defined by 42 USC Section 12131(1)(B).”49 Defendants do not challenge this allegation. Hence, considering the pleadings the

medical care and that he was excluded from participation in prison activities and programs due to his disability. 42 Id. 126 S.Ct. at 881. 43 Id. 126 S.Ct. at 882 (emphasis original). 44 Id. 45 Bennett-Nelson v. Louisiana Board of Regents, 431 F.3d 448, 454 (2005). 46 Pace v. Bogalusa City School Board, 403 F 3d 272 (5th Cir. 2005). 47 In Bennett-Nelson, 431 F.3d 448, the Fifth Circuit reasoned that because the rights and remedies are the same under Title II of the ADA and §5 of the Rehabilitation Act, it need not reach the question of whether Congress constitutionally abrogated sovereign immunity under Title II of the ADA as applied to a public Louisiana university’s alleged failure to make reasonable accommodations for hearing impaired students. The Court concluded that Louisiana had waived its sovereign immunity from actions under 504 of the Rehabilitation Act and, since the rights and remedies under § 504 of the Rehabilitation Act and under Title II of the ADA were coextensive under the facts of that case, the Court need not reach the Title II abrogation question. 48 Pace v. Bogalusa City School Board, 403 F.2d 272 (2005)(en banc). 49 Rec. Doc. 1, paragraph 11.

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Court concludes that the State has waived it sovereign immunity from suit under §504 of the RA. The Court further finds that the rights and remedies invoked in this case under Title II of the ADA and Section 504 of the RA are virtually identical.50 Since Louisiana has validly waived its sovereign immunity from actions under §504 of the RA, whether or not Congress has constitutionally abrogated state sovereignty under Title II of the ADA under the circumstances in this case need not be reached. The Court shall has jurisdiction over Plaintiffs’ claims arising §504 of the RA, which for all intents and purposes is identical to the plaintiffs’ claims under Title II of the R.A.
As for Plaintiffs’ remaining claims against DHH, there has been no abrogation of the State’s sovereign immunity from suit in federal court for claims arising under 42 U.S.C. §1983. The United States Supreme Court has expressly held “[t]hat Congress, in passing §1983, had no intention to disturb the States’ Eleventh Amendment immunity.”51 Likewise there has been no waiver by the State of its sovereign immunity for the §1983 claims. Hence while the Court has jurisdiction over the ADA Title II and §504 RA claims, the Court lacks subject matter jurisdiction over the Plaintiffs’ remaining 42 U.S.C. §1983 claims against DHH. Therefore, Plaintiffs’ 42 U.S.C. § 1983 claims

50 As to both of these claims, Plaintiffs seek prospective injunctive and declaratory relief barring the discriminatory practice of incarcerating persons deemed NGRI on the basis of their disability while awaiting placement in mental health facilities. In their Complaint, Plaintiffs have alleged that “Defendants’ incarceration of individuals found NGRI constitutes intentional discrimination on the basis of disability because ‘[o]nly persons with mental illness in Louisiana are intentionally subjected to punishment by incarceration in correctional facilities in the absence of pending criminal charges or a conviction of a criminal offense.” Additionally “Defendants intentionally discriminate against persons found NGRI on the basis of their mental illness by confining them, or causing them to be confined, in Louisiana correctional facilities where they are subjected to punishment and unable to access appropriate mental health services” in violation of the ADA. Similarly, Plaintiffs allege violations of the RA based on “Defendants’ policies, practices, and procedures of maintaining a waiting list for placement at ELMHS, which cause Plaintiffs to remain incarcerated in correctional facilities in Louisiana for months at a time following an NGRI determination and their commitment to a mental health facility, violates Section 504 of the Rehabilitation Act.”. 51Will v Michigan Dep’t of State Police, 109 S.Ct. 2304, 2309-2310 (1989).

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against DHH shall be dismissed without prejudice on the grounds of sovereign immunity.
C. Mootness Defendants urge the case is not justiciable owing to mootness. Defendants contend that, because the named Plaintiffs have now been placed in a mental health facility, the actual controversy has been eliminated rendering the action moot. Since the mootness challenge, however, a similarly situated Plaintiff, Tyrin Perkins, who remains incarcerated, has intervened.52 The Court finds that the present situation gives rise to an important exception to the mootness doctrine. This case remains justiciable even though the complained of conduct no longer directly affects the original named Plaintiffs, because the offending conduct is capable of repetition while at the same time evading review.53 Owing to the temporary nature of NGRI individuals being waitlisted for admission to a mental health facility and the possibility that release from incarceration and assignment to a mental health facility may occur before a Plaintiff’s claims are fully adjudicated, coupled with the fact that there are continuous additions the class of persons who are adjudicated NGRI and placed on the waitlist for mental health hospital beds, this case presents a classic example of the mootness exception for claims which are capable of repetition, yet evade review. Accordingly, the Defendants’ Rule 12(b)(1) Motion to Dismiss on the grounds of mootness shall be DENIED.

52 Rec. Doc. 28. 53 Moore v. Hosemann, 591 F.3d 741, 744 (5th Cir. 2009)(quoting Alvarez v. Smith, 130 S.Ct. 576, 581 (2009)(citing Fed. Election Comm’n v. Wis. Right to Life, Inc., 127 S.Ct. 2652 (1911)).

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D. Rule 12(b)(6) Motion to Dismiss Defendants contend that Plaintiffs have failed to allege facts showing discrimination on the part of Kliebert or DHH, or on-going violations of federal law. Defendants’ argue that because article 654 of the Louisiana Code of Criminal Conduct does not specify a time period in which insanity acquittees are to be transferred to a mental institution, a claim of intentional discrimination is implausible and must be dismissed. Defendants further argue that they have not intentionally denied Plaintiffs any rights due to their disabilities and counter that the plaintiffs have been provided with all necessary accommodations. Defendants argue that “at all times herein…[plaintiffs] received a bed to sleep in, clothes, meals, and more importantly, monitoring and jailbased treatment by the District Forensic Coordinators while awaiting placement.”54 At the motion to dismiss stage the Court must accept the well-plead factual allegations as true, Defendants’ simple denial of or disagreement with the factual allegations as plead carries no weight in the Court’s determination of whether Plaintiffs have stated a claim.55 The Court views the Complaints in the light most favorable to Plaintiffs, resolving all doubts in their favor.56 If the facts as plead allow the Court to conclude that it Plaintiff’s claims for relief are “plausible” the Motion must be denied.57 After reviewing the Complaints, the Court finds that Plaintiffs have alleged sufficient facts to support their claims at this stage. The Supreme Court has recognized that unique considerations underlie the commitment of an insanity acquittee, including
54 Rec. Doc. 8-1, p. 9. 55 In their memorandum, Defendants argue that “Defendants, Kliebert and DHH, have not discriminated against the plaintiffs based on their disability or for any other reason;” “Defendants are not intentionally denying Plaintiffs any rights due to their disabilities, nor have Defendants discriminated against Plaintiffs because of Plaintiffs’ disabilities;” and “Plaintiffs are not being excluded, denied or subjected to discrimination solely by reason of his or her disability.” Rec. Doc. 8-1, pp. 7; 9-10. 56 Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1572 (5th Cir. 1988). 57 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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that, persons deemed NGRI may not be punished because they have not been
convicted of a crime.58 Recently, the District Court for the Eastern District of Louisiana
noted how “state-imposed imprisonment without conviction is a ‘massive curtailment of
individual liberty.’”59 Plaintiffs have alleged that as insanity acquittees deemed NGRI
who have not been convicted of any crimes, Defendants’ policies, practices, and
procedures which result in the Plaintiffs’ continued confinement in Louisiana correctional
facilities while awaiting placement at ELMHS violates their substantive due process
rights under the Fourteenth Amendment.60 They further contend that Defendants’
actions amount to deliberate indifference of the Plaintiffs’ constitutional liberty interests
to be free from unlawful imprisonment.61 After reviewing the Complaints and accepting
all well-plead facts as true, the Court finds that Plaintiffs have sufficiently pled a violation
of their substantive due process rights as guaranteed by the Fourteenth Amendment.
The Fifth Circuit has also explained that “the RA and the ADA are judged under
the same legal standards, and the same remedies are available under both acts.”62 For
purposes of Defendants’ motion to dismiss Plaintiffs’ ADA and RA claims, Plaintiffs must
58 In Jones v. U.S., 103 S.Ct. 3043, 3052 (1983), the Court held that upon a finding of NGRI by a preponderance of the evidence, it is constitutional for the government to continue confinement until the committee has regained her sanity or is no longer a threat to herself or society. In reaching this holding, the Court explained that “insanity acquittees constitute a special class that should be treated differently from other candidates for commitment.” 59 Advocacy Center for Elderly and Disabled v. Louisiana Dept. of Health and Hospitals, 731 F.Supp.2d 603. 626 (E.D.La. 2010). 60 At this stage, the Court does not reach the merits of Plaintiffs’ substantive due process challenge which will require weighing “the individual’s liberty interest against the State’s asserted reasons for restraining individual liberty.” Youngberg v. Romero, 102 S.Ct. 2452, 2460 (1972). 61 In Foucha v. Louisiana, 112 S.Ct. 1780 (1992) the Supreme Court explained as follows: “[f]reedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action. Youngberg v. Romeo, 102 S.Ct. 2452 2458 (1982). The Supreme Court has also repeatedly recognized “commitment for any purpose constitutes significant deprivation of liberty interest that requires due process protection.” Addington v. Texas, 99 S.Ct. 1804, 1810 (1979). 62 Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010). See also, Bascle v. Parish, 2013WL4434911, at *2 (E.D.La. Aug. 14, 2013)(“A prima facie case under the RA is operationally identical to the test under the ADA. Moreover, ‘the ADA and Rehabilitation Act generally are interpreted in pari materia.’ Indeed, the language of both the ADA and the RA is similar, and the remedies, procedures and rights available under the RA are also available under the ADA.”(internal citations omitted)).

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have pled facts of the following three elements: (1) Plaintiffs are qualified individuals under the ADA; (2) Plaintiffs are being excluded from participation in, or, is being denied benefits, services, programs, or other activities for which a public entity is responsible or is otherwise being discriminated against by the public entity; and (3) that such exclusion, denial of benefits, or discrimination is by reason of their disability.63
The Court finds that Plaintiffs have pled that they are qualified individuals due to their mental illness. Plaintiffs have further pled that in spite of their mental disabilities, they are being denied access to appropriate mental health treatment while incarcerated in correctional facilities, because such facilities cannot provide adequate mental health care to meet their needs. They have further pled that they are being denied the mental health care they should be receiving at ELMHS. In support of the third element, Plaintiffs have alleged that the Defendants policies, procedures and actions which result in continued incarceration operate to discriminate against them because of their disability.64 The Court finds that Plaintiffs have satisfactorily pled enough facts “to state a claim to relief that is plausible on its face” arising under the ADA and RA. Accordingly, Defendants’ Rule 12(b)(6) motion shall be denied.

63 Melton v. Dall. Area Rapid Transit, 391 F.3d 669, 671-72 Motion to Dismiss Plaintiffs’ Class Action Complaint brought pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure on the grounds of Eleventh Amendment Immunity and mootness, and Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds of mootness. (5th Cir. 2004). 64 Plaintiffs plead “intentional discrimination. However, the Fifth Circuit makes it clear that “[a] plaintiff asserting a private cause of action for violations of the ADA or the [Rehabilitation Act] may only recover compensatory damages upon a showing of intentional discrimination.” Delano-Pyle, 302 F.3d at 574 (citing Carter v. Orleans Parish Pub. Sch., 725 F.2d 261, 264 (5th Cir. 1984). However, Plaintiff’s seek only declaratory and injunctive relief in this action; therefore the Court reads Plaintiff’s allegations of “intentional discrimination” as embellishment.

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IV. CONCLUSION For the foregoing reasons, the Defendants’ Motion to Dismiss Plaintiffs’ Class
Action Complaint brought pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure is hereby GRANTED IN PART, and DENIED IN PART.
Defendants’ Motion is GRANTED as to Plaintiffs’ 42 U.S.C. § 1983 claims against DHH. Plaintiffs’ Fourteenth Amendment claims against DHH shall be dismissed without prejudice on the grounds of sovereign immunity. Defendants’ Rule 12(b)(1) Motions are is DENIED in all remaining respects.
Defendant’s Rule 12(b)(6) Motion to Dismiss is DENIED. Signed in Baton Rouge, Louisiana on December 19, 2014.
S
JUDGE SHELLY D. DICK UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

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 CLOSED,LEAD CASE
U.S. District Court Middle District of Louisiana (Baton Rouge) CIVIL DOCKET FOR CASE #: 3:14-cv-00507-SDD-RLB

Cooper et al v. Kliebert et al Assigned to: Chief Judge Shelly D. Dick Referred to: Magistrate Judge Richard L. Bourgeois, Jr Member case:
3:15-cv-00751-SDD-RLB
Cause: 28:1331 Fed. Question: Civil Rights Violation

Date Filed: 08/14/2014 Date Terminated: 11/16/2016 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Brandon Cooper

represented by Laura Thornton Stratton 2120 Atchison Ave. 66047 Lawrence, KS 66047 434-466-9974 Email: thorntonlauralee@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald Kenneth Lospennato Advocacy Center 8325 Oak Street New Orleans, LA 70118 504-208-4679 Fax: 504-335-2890 Email: rlospennato@disabilityrightsla.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Concepcion Otero Advocacy Center 8325 Oak Street New Orleans, LA 70118 (504) 522-2337 Email: kotero@advocacyla.org ATTORNEY TO BE NOTICED

Elizabeth Cumming

MacArthur Justice Center 4400 S. Carrollton Ave LA New Orleans, LA 70119 504-620-2259 Email: elizabeth.cumming@macarthurjustice.org ATTORNEY TO BE NOTICED
Ellen B Hahn 2223 W St Mary Blvd Lafayette Lafayette, LA 70506 3372983831 Email: nellhahn2@gmail.com ATTORNEY TO BE NOTICED
Eric Andrew Foley MacArthur Justice Center 4400 S. Carrollton Ave. New Orleans, LA 70119 (504) 684-2364 Email: eric.foley@macarthurjustice.org ATTORNEY TO BE NOTICED
Evelyn Hsiao-Farn Chuang Disability Rights Louisiana 8325 Oak Street New Orleans, LA 70118 504-517-9101 Email: echuang@advocacyla.org ATTORNEY TO BE NOTICED
Katharine Murphy Schwartzmann Tulane University School of Law 6329 Freret Street Suite 130c New Orleans, LA 70118 504-862-8813 Email: kschwartzmann@tulane.edu TERMINATED: 11/28/2018 ATTORNEY TO BE NOTICED
Kathryn Fernandez Advocacy Center of Louisiana 8325 Oak Street

Plaintiff Louis Davenport
Plaintiff

New Orleans, LA 70118 (504) 708-1254 Fax: (504) 708-1260 Email: kfernandez@advocacyla.org ATTORNEY TO BE NOTICED
represented by Laura Thornton Stratton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald Kenneth Lospennato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Concepcion Otero (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Cumming (See above for address) ATTORNEY TO BE NOTICED
Ellen B Hahn (See above for address) ATTORNEY TO BE NOTICED
Eric Andrew Foley (See above for address) ATTORNEY TO BE NOTICED
Evelyn Hsiao-Farn Chuang (See above for address) ATTORNEY TO BE NOTICED
Katharine Murphy Schwartzmann (See above for address) TERMINATED: 11/28/2018 ATTORNEY TO BE NOTICED
Kathryn Fernandez (See above for address) ATTORNEY TO BE NOTICED

Ron Gatlin
Plaintiff Kenny Swatt

represented by Laura Thornton Stratton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald Kenneth Lospennato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Concepcion Otero (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Cumming (See above for address) ATTORNEY TO BE NOTICED
Ellen B Hahn (See above for address) ATTORNEY TO BE NOTICED
Eric Andrew Foley (See above for address) ATTORNEY TO BE NOTICED
Evelyn Hsiao-Farn Chuang (See above for address) ATTORNEY TO BE NOTICED
Katharine Murphy Schwartzmann (See above for address) TERMINATED: 11/28/2018 ATTORNEY TO BE NOTICED
Kathryn Fernandez (See above for address) ATTORNEY TO BE NOTICED
represented by Laura Thornton Stratton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald Kenneth Lospennato

Plaintiff Stephen Zeringue

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Concepcion Otero (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Cumming (See above for address) ATTORNEY TO BE NOTICED
Ellen B Hahn (See above for address) ATTORNEY TO BE NOTICED
Eric Andrew Foley (See above for address) ATTORNEY TO BE NOTICED
Evelyn Hsiao-Farn Chuang (See above for address) ATTORNEY TO BE NOTICED
Katharine Murphy Schwartzmann (See above for address) TERMINATED: 11/28/2018 ATTORNEY TO BE NOTICED
Kathryn Fernandez (See above for address) ATTORNEY TO BE NOTICED
represented by Laura Thornton Stratton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald Kenneth Lospennato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Concepcion Otero (See above for address)

ATTORNEY TO BE NOTICED

Elizabeth Cumming (See above for address) ATTORNEY TO BE NOTICED

Ellen B Hahn (See above for address) ATTORNEY TO BE NOTICED

Eric Andrew Foley (See above for address) ATTORNEY TO BE NOTICED

Evelyn Hsiao-Farn Chuang (See above for address) ATTORNEY TO BE NOTICED

Katharine Murphy Schwartzmann (See above for address) TERMINATED: 11/28/2018 ATTORNEY TO BE NOTICED

Plaintiff
William Pitzer On behalf of themselves and all other similarly situated individuals

Kathryn Fernandez (See above for address) ATTORNEY TO BE NOTICED
represented by Laura Thornton Stratton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald Kenneth Lospennato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Concepcion Otero (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Cumming (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Advocacy Center

Ellen B Hahn (See above for address) ATTORNEY TO BE NOTICED
Eric Andrew Foley (See above for address) ATTORNEY TO BE NOTICED
Evelyn Hsiao-Farn Chuang (See above for address) ATTORNEY TO BE NOTICED
Katharine Murphy Schwartzmann (See above for address) TERMINATED: 11/28/2018 ATTORNEY TO BE NOTICED
Kathryn Fernandez (See above for address) ATTORNEY TO BE NOTICED
represented by Laura Thornton Stratton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald Kenneth Lospennato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Concepcion Otero (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Cumming (See above for address) ATTORNEY TO BE NOTICED
Ellen B Hahn (See above for address) ATTORNEY TO BE NOTICED
Eric Andrew Foley (See above for address)

Plaintiff - Consolidated Monica Jackson

ATTORNEY TO BE NOTICED
Evelyn Hsiao-Farn Chuang (See above for address) ATTORNEY TO BE NOTICED
Katharine Murphy Schwartzmann (See above for address) TERMINATED: 11/28/2018 ATTORNEY TO BE NOTICED
Kathryn Fernandez (See above for address) ATTORNEY TO BE NOTICED
represented by Ronald Kenneth Lospennato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Cumming (See above for address) ATTORNEY TO BE NOTICED
Ellen B Hahn (See above for address) ATTORNEY TO BE NOTICED
Eric Andrew Foley (See above for address) ATTORNEY TO BE NOTICED
Evelyn Hsiao-Farn Chuang (See above for address) ATTORNEY TO BE NOTICED
Katharine Murphy Schwartzmann (See above for address) TERMINATED: 11/28/2018 ATTORNEY TO BE NOTICED
Kathryn Fernandez (See above for address) ATTORNEY TO BE NOTICED

Laura Thornton Stratton (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Kathy Kliebert Secretary of Louisiana Department of Health and Hospitals, in her official capacity

represented by Babatunde Mobolade Animashaun Louisiana Department of Justice - B.R. P.O. Box 94005 Baton Rouge, LA 70804-9005 225-326-6300 Fax: 225-326-6495 Email: anima-shaunt@ag.louisiana.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Garrison Evans Louisiana Department of Justice 1885 N. Third St., Fl 4 P.O. Box 94005 Baton Rouge, LA 70802 (225) 326-6402 Email: evansj@ag.louisiana.gov TERMINATED: 12/10/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca DeLaSalle Louisiana Department of Health & Hospitals P.O. Box 3836 Baton Rouge, LA 70821-3836 225-342-9359 Fax: 225-342-3805 Email: rebecca.delasalle@la.gov TERMINATED: 01/27/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie Borghardt Louisiana Department of Health and Hospitals PO Box 3836 Baton Rouge, LA 70821-3836 (225) 342-9286

Email: Stephanie.Borghardt@la.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Everett Zealandia Holding Company (in house) One Vance Gap Road Asheville, NC 28805 337-581-6968 Email: beverett@zhcompany.com TERMINATED: 01/15/2015 ATTORNEY TO BE NOTICED
James L. Hilburn Louisiana Department of Justice Litigation 1885 N. Third Street Third Floor Baton Rouge, LA 70802 225-326-6382 Fax: 225-326-6490 Email: hilburnj@ag.louisiana.gov TERMINATED: 06/23/2016 ATTORNEY TO BE NOTICED
Jeffrey K. Cody Shows, Cali, Berthelot & Walsh, LLP 628 St. Louis Street Baton Rouge, LA 70802 225-346-1461 Fax: 225-346-1467 Email: jeffreyc@scwllp.com TERMINATED: 06/23/2016 ATTORNEY TO BE NOTICED
Jenna Germany Young LA Dept of Health & Hospitals P.O. Box 3836 Baton Rouge, LA 70821 225-342-1128 Fax: 225-342-2232 Email: Jenna.Young@la.gov ATTORNEY TO BE NOTICED
Kimberly Lacour Sullivan Louisiana Department of Health &

Hospitals P.O. Box 3836 Baton Rouge, LA 70821-3836 225-342-0207 Fax: 225-342-2232 Email: kimberly.sullivan@la.gov ATTORNEY TO BE NOTICED

Lindsay L Pantaleo Department of Health and Hospitals P.O. Box 3836 Baton Rouge, LA 70821 225-342-8881 Email: lindsay.pantaleo@la.gov TERMINATED: 01/27/2016 ATTORNEY TO BE NOTICED

Defendant
Louisiana Department of Health and Hospitals

Ryan Jude Romero Louisiana Department of Health and Hospitals 628 North 4th Street Post Office Box 3836 Baton Rouge, LA 70821 (225) 342-1108 Fax: (225) 342-2232 Email: ryan.romero@la.gov ATTORNEY TO BE NOTICED
represented by Babatunde Mobolade Animashaun (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Garrison Evans (See above for address) TERMINATED: 12/10/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca DeLaSalle (See above for address) TERMINATED: 01/27/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie Borghardt (See above for address) TERMINATED: 12/22/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Everett (See above for address) TERMINATED: 01/15/2015 ATTORNEY TO BE NOTICED
Erica Schirling Aguillard Louisiana Department of Health 628 N. Fourth Street PO Box 3836 Baton Rouge, LA 70821 225-342-6055 Fax: 225-342-2232 Email: Erica.Aguillard@la.gov ATTORNEY TO BE NOTICED
James L. Hilburn (See above for address) TERMINATED: 06/23/2016 ATTORNEY TO BE NOTICED
Jeffrey K. Cody (See above for address) TERMINATED: 06/23/2016 ATTORNEY TO BE NOTICED
Jenna Germany Young (See above for address) ATTORNEY TO BE NOTICED
Kimberly Lacour Sullivan (See above for address) ATTORNEY TO BE NOTICED
Krystal Lynnette Airs La Department of Health and Hospitals 628 North 4th Street P.O. Box 3836 Baton Rouge, LA 70802 (281) 804-6350 Email: krystal.airs@la.gov

Material Witness Correcthealth Jefferson, LLC
V. Intervenor Plaintiff Tyrin Perkins

ATTORNEY TO BE NOTICED
Lindsay L Pantaleo (See above for address) TERMINATED: 01/27/2016 ATTORNEY TO BE NOTICED
Neal Risley Elliott , Jr. P.O. Box 80136 Baton Rouge, LA 70898 225-907-5763 Email: neal.elliott@la.gov ATTORNEY TO BE NOTICED
Ryan Jude Romero (See above for address) ATTORNEY TO BE NOTICED
represented by Kyle P. Kirsch Wanek Kirsch Davies LLC 1340 Poydras Street Suite 2000 New Orleans, LA 70112 504-324-6493 Fax: 504-324-6626 Email: kkirsch@wkdlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Laura Thornton Stratton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald Kenneth Lospennato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Cumming (See above for address) ATTORNEY TO BE NOTICED

Intervenor Plaintiff Dominick Pernicaro, III

Eric Andrew Foley (See above for address) ATTORNEY TO BE NOTICED
Evelyn Hsiao-Farn Chuang (See above for address) ATTORNEY TO BE NOTICED
Katharine Murphy Schwartzmann (See above for address) TERMINATED: 11/28/2018 ATTORNEY TO BE NOTICED
Kathryn Fernandez (See above for address) ATTORNEY TO BE NOTICED
represented by Laura Thornton Stratton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald Kenneth Lospennato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Concepcion Otero (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Cumming (See above for address) ATTORNEY TO BE NOTICED
Ellen B Hahn (See above for address) ATTORNEY TO BE NOTICED
Eric Andrew Foley (See above for address) ATTORNEY TO BE NOTICED
Evelyn Hsiao-Farn Chuang

Intervenor Plaintiff Scott Frye

(See above for address) ATTORNEY TO BE NOTICED
Katharine Murphy Schwartzmann (See above for address) TERMINATED: 11/28/2018 ATTORNEY TO BE NOTICED
Kathryn Fernandez (See above for address) ATTORNEY TO BE NOTICED
represented by Laura Thornton Stratton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald Kenneth Lospennato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Concepcion Otero (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Cumming (See above for address) ATTORNEY TO BE NOTICED
Ellen B Hahn (See above for address) ATTORNEY TO BE NOTICED
Eric Andrew Foley (See above for address) ATTORNEY TO BE NOTICED
Evelyn Hsiao-Farn Chuang (See above for address) ATTORNEY TO BE NOTICED
Katharine Murphy Schwartzmann (See above for address) TERMINATED: 11/28/2018

Intervenor Plaintiff Ryan Kasami
Intervenor Plaintiff

ATTORNEY TO BE NOTICED
Kathryn Fernandez (See above for address) ATTORNEY TO BE NOTICED
represented by Laura Thornton Stratton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald Kenneth Lospennato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Concepcion Otero (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Cumming (See above for address) ATTORNEY TO BE NOTICED
Ellen B Hahn (See above for address) ATTORNEY TO BE NOTICED
Eric Andrew Foley (See above for address) ATTORNEY TO BE NOTICED
Evelyn Hsiao-Farn Chuang (See above for address) ATTORNEY TO BE NOTICED
Katharine Murphy Schwartzmann (See above for address) TERMINATED: 11/28/2018 ATTORNEY TO BE NOTICED
Kathryn Fernandez (See above for address) ATTORNEY TO BE NOTICED

Francis Mary Watson TERMINATED: 06/23/2015
V. Interested Party NORTEC, LLC

represented by Ronald Kenneth Lospennato (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Concepcion Otero (See above for address) ATTORNEY TO BE NOTICED
Ellen B Hahn (See above for address) ATTORNEY TO BE NOTICED
Kathryn Fernandez (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin Ascher Luke Benjamin a. Luke, LLC 643 N. Main Street P. O. Box 427 Marksville, LA 71351 318-253-6565 Fax: 318-253-6511 Email: ben@benlukelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/14/2014
08/14/2014

# Docket Text
1 COMPLAINT against Kathy Kliebert, Louisiana Department of Health and Hospitals ( Filing fee $ 400 receipt number 053N-1113530.), filed by William Pitzer, Ron Gatlin, Louis Davenport, Brandon Cooper, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Attachment Civil Cover Sheet, # 2 Attachment Summons-Kliebert, # 3 Attachment SummonsDHH)(Lospennato, Ronald) (Attachment 1 replaced on 8/14/2014 to correct document orientation) (JDL). (Entered: 08/14/2014)
2 MOTION for Class Certification by Brandon Cooper, Louis Davenport, Ron Gatlin, William Pitzer, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Memorandum in Support, # 2 Affidavit Schartzmann, # 3 Affidavit Lospennato)(Lospennato, Ronald) Modified on 8/14/2014 to edit text (JDL). (Entered: 08/14/2014)

08/14/2014 09/02/2014 09/02/2014
09/10/2014 09/10/2014
09/26/2014 09/26/2014 10/01/2014 10/08/2014 10/08/2014

3 Summons Issued as to Kathy Kliebert, Louisiana Department of Health and Hospitals. (NOTICE: Counsel shall print and serve both the summons and all attachments in accordance with Federal Rule of Civil Procedure 4.) (JDL) (Entered: 08/14/2014)
4 Unopposed MOTION for Extension of Time Responsive documents by All Defendants. (Attachments: # 1 Attachment Proposed Order)(Borghardt, Stephanie) (Entered: 09/02/2014)
5 ORDER granting 4 Ex Parte Motion for Extension of Time to File Responsive Pleadings Pursuant to LR 7.6. Defendants Kathy Kliebert and Louisiana Department of Health and Hospitals responsive pleadings due by 9/26/2014. Signed by Magistrate Judge Stephen C. Riedlinger on 9/2/2014. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 09/02/2014)
6 MOTION to Enroll Nell Hahn as Additional Attorney by All Plaintiffs. (Lospennato, Ronald) (Entered: 09/10/2014)
7 ORDER granting 6 Plaintiffs' Motion to Add Counsel. Added attorney Nell Hahn for Brandon Cooper, Louis Davenport, Ron Gatlin, William Pitzer, Kenny Swatt and Stephen Zeringue. Signed by Magistrate Judge Stephen C. Riedlinger on 9/10/2014. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 09/10/2014)
8 MOTION to Dismiss Plaintiffs' Class Action Complaint by All Defendants. (Attachments: # 1 Memorandum in Support)(DeLaSalle, Rebecca) Modified to edit text on 9/29/2014 (SMG). (Entered: 09/26/2014)
9 MEMORANDUM in Opposition to 2 MOTION for Class Certification filed by All Defendants. (Borghardt, Stephanie) (Entered: 09/26/2014)
10 90-DAY CONFERENCE ORDER: Scheduling Conference set for 12/4/2014 at 9:00 AM in chambers before Magistrate Judge Stephen C. Riedlinger. Status Report due by 11/20/2014. Signed by Magistrate Judge Stephen C. Riedlinger on 10/1/14. (BNW) (Entered: 10/01/2014)
11 MOTION to Enroll Beth P. Everett as Additional Attorney by All Defendants. (Attachments: # 1 Proposed Pleading; Order)(Pantaleo, Lindsay) (Entered: 10/08/2014)
12 ORDER granting 11 Motion to Add Counsel of Record. Added attorney Elizabeth P. Everett for Kathy Kliebert and the Louisiana Department of Health and Hospitals. Signed by Magistrate Judge Stephen C. Riedlinger on 10/8/2014. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 10/08/2014)

10/09/2014 10/09/2014 10/09/2014
10/17/2014 10/29/2014 11/04/2014
11/05/2014 11/05/2014 11/06/2014

13 MOTION to Enroll James Hilburn as Additional Attorney by All Defendants. (Attachments: # 1 Proposed Pleading; Order)(Pantaleo, Lindsay) (Entered: 10/09/2014)
MOTION(S) REFERRED: 13 MOTION to Enroll James Hilburn as Additional Attorney . This motion is now pending before the USMJ. (LLH) (Entered: 10/09/2014)
14 ORDER granting 13 Motion to Add Counsel of Record. Added attorney James L. Hilburn for Kathy Kliebert and the Louisiana Department of Health and Hospitals. Signed by Magistrate Judge Stephen C. Riedlinger on 10/9/2014. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 10/09/2014)
15 Ex Parte MOTION to Extend Time to Respond to Motion to Dismiss and Opposition to Motion for Class Certification by All Plaintiffs. (Attachments: # 1 Attachment Proposed Order)(Lospennato, Ronald) Modified to edit text on 10/20/2014 (SMG). Modified on 10/29/2014 to edit event(LLH). (Entered: 10/17/2014)
16 ORDER granting 15 Motion for Extension of Time to File Response to 8 MOTION to Dismiss Plaintiffs' Class Action Complaint and 2 MOTION for Class Certification. Plaintiffs have until 11/7/2014 to file responsive pleadings. Signed by Judge Shelly D. Dick on 10/29/2014. (LLH) (Entered: 10/29/2014)
17 MOTION for Leave to Intervene Party Plaintiff and Amend the Class Action Complaint by Tyrin Perkins. (Attachments: # 1 Memorandum in Support, # 2 Attachment Proposed Order, # 3 Proposed Pleading;)(Lospennato, Ronald) Modified to edit text twice on 11/5/2014 (SMG). Added MOTION to Amend the Class Action Complaint on 11/5/2014 (SMG). (Entered: 11/04/2014)
MOTION(S) REFERRED: 17 MOTION for Leave to Intervene Party Plaintiff MOTION to Amend the Class Action Complaint. This motion is now pending before the USMJ. (SMG) (Entered: 11/05/2014)
18 NOTICE of Hearing on Motion 2 MOTION for Class Certification :(This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) Evidentiary Hearing set for 12/9/2014 at 09:30 AM in Courtroom 3 before Judge Shelly D. Dick. (DCB) (Entered: 11/05/2014)
19 MOTION for Leave to File Reply to Opposition to Motion for Class Certification by All Plaintiffs. (Attachments: # 1 Attachment Proposed Order On Motion for Leave, # 2 Proposed Pleading; Reply to Defendants' Opposition to Class Certification)(Lospennato, Ronald) (Entered: 11/06/2014)

11/07/2014 11/10/2014 11/10/2014 11/20/2014 11/20/2014
11/25/2014 12/01/2014 12/01/2014 12/02/2014

20 RESPONSE in Opposition to 8 MOTION to Dismiss Plaintiffs' Class Action Complaint filed by All Plaintiffs. (Lospennato, Ronald) (Entered: 11/07/2014)
21 ORDER granting 19 MOTION for Leave to File Reply to Opposition to Motion for Class Certification into the record filed by Brandon Cooper, Stephen Zeringue, Ron Gatlin, Kenny Swatt, William Pitzer, Louis Davenport. Signed by Judge Shelly D. Dick on 11/10/2014. (LLH) (Entered: 11/10/2014)
22 REPLY to 9 Memorandum in Opposition to 2 MOTION for Class Certification filed by Brandon Cooper, Louis Davenport, Ron Gatlin, William Pitzer, Kenny Swatt, Stephen Zeringue. (LLH) (Entered: 11/10/2014)
23 STATUS REPORT by All Plaintiffs. (Lospennato, Ronald) (Entered: 11/20/2014)
24 SCHEDULING ORDER: Considering the information in the status report, the following scheduling order is issued pursuant to FRCP 16. Amended Pleadings due by 12/30/2014. F.R.C.P. 26(a)(1) disclosures due by 12/5/2014. Discovery due by 6/1/2015. Plaintiff`s Expert Witness List due by 3/2/2015. Defendant`s Expert Witness List due by 4/1/2015. Plaintiff`s Expert Reports due by 7/31/2015. Defendant`s Expert Reports due by 8/31/2015. Discovery from Experts due by 10/15/2015. Dispositive and Dauber motions shall be filed by 11/30/2015. FURTHER ORDERED that the scheduling conference set for 12/4/2014 is canceled. Signed by Magistrate Judge Stephen C. Riedlinger on 11/20/2014. (JDL) (Entered: 11/20/2014)
25 STATUS REPORT by All Plaintiffs. (Lospennato, Ronald) (Entered: 11/25/2014)
26 Notice to Counsel: Plaintiff's Motion for Class Certification references exhibits that are not attached to the pleading. Counsel have until the close of business on 12/1/14 to file those exhibits in the record. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (DCB) (Entered: 12/01/2014)
27 List of Exhibits in Support of 2 MOTION for Class Certification, by All Plaintiffs. filed by All Plaintiffs. (Lospennato, Ronald) Modified to edit text and rotate pages on 12/1/2014 (BCL). Modified on 12/11/2014 to substitute pages in accordance with record document 40(NLT). (Entered: 12/01/2014)
28 ORDER granting 17 Plaintiffs' Motion for Leave to Intervene Party Plaintiff and 17 Amend the Class Action Complaint. No opposition or other response has been filed. Signed by Magistrate Judge Stephen C. Riedlinger on 12/2/2014. (This is a TEXT ENTRY ONLY. There is no

12/02/2014 12/05/2014 12/05/2014 12/07/2014 12/07/2014 12/07/2014
12/07/2014 12/08/2014 12/08/2014

hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 12/02/2014)
29 First AMENDED Class Action COMPLAINT against Kathy Kliebert, Louisiana Department of Health and Hospitals filed by William Pitzer, Tyrin Perkins, Ron Gatlin, Louis Davenport, Brandon Cooper, Kenny Swatt, Stephen Zeringue.(NLT) (Entered: 12/03/2014)
30 MOTION and Memorandum to Continue and to set Status Conference by Kathy Kliebert, Louisiana Department of Health and Hospitals. e(Attachments: # 1 ORDER)(Pantaleo, Lindsay) Modified to edit text on 12/5/2014 (BCL). Added MOTION for Conference on 12/5/2014 (BCL). (Entered: 12/05/2014)
31 MOTION and Memorandum in support Seeking to Quash Three Subpoenas Issued December 5, 2014 by All Defendants. (Attachments: # 1 Exhibit Exhibit A - Subpoenas)(Borghardt, Stephanie) Modified to edit text on 12/8/2014 (BCL). (Entered: 12/05/2014)
32 MOTION and Memorandum in Support to Substitute Exhibits by All Plaintiffs. (Attachments: # 1 Exhibit)(Lospennato, Ronald) Modified to edit text on 12/8/2014 (BCL). (Entered: 12/07/2014)
33 MOTION to Compel by Brandon Cooper, Louis Davenport, Ron Gatlin, Tyrin Perkins, William Pitzer, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Attachment, # 2 Attachment)(Lospennato, Ronald) (Entered: 12/07/2014)
34 MEMORANDUM in Opposition to 30 MOTION and Memorandum to Continue and to set Status Conference MOTION for Conference, 33 MOTION to Compel , 31 MOTION to Quash Three Subpoenas filed by Brandon Cooper, Louis Davenport, Ron Gatlin, Tyrin Perkins, William Pitzer, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Exhibit, # 2 Exhibit)(Lospennato, Ronald) (Entered: 12/07/2014)
35 MOTION to Enroll Kathryn Fernandez as Additional Attorney by Brandon Cooper, Louis Davenport, Ron Gatlin, Tyrin Perkins, William Pitzer, Kenny Swatt, Stephen Zeringue. (Lospennato, Ronald) (Entered: 12/07/2014)
36 Notice to Counsel: (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)Telephone Status Conference set for 12/8/2014 at 02:00 PM before Judge Shelly D. Dick. Counsel for Defendants shall initiate the conference call to chambers.(DCB) (Entered: 12/08/2014)
37 Minute Entry for proceedings held before Judge Shelly D. Dick: Telephone Status Conference held on 12/8/2014. The Motion to Continue and the Motion to Quash are denied. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (DCB) (Entered: 12/08/2014)

12/08/2014 12/08/2014
12/08/2014 12/08/2014
12/09/2014 12/09/2014 12/09/2014
12/19/2014 12/22/2014 12/30/2014

MOTION(S) REFERRED: 35 MOTION to Enroll Kathryn Fernandez as Additional Attorney . This motion is now pending before the USMJ. (BCL) (Entered: 12/08/2014)
ORDER granting 35 Plaintiffs' Motion to Add Counsel. Added attorney Kathryn E. Fernandez for Brandon Cooper, Louis Davenport, Ron Gatlin, Tyrin Perkins, William Pitzer, Kenny Swatt, and Stephen Zeringue. Signed by Magistrate Judge Stephen C. Riedlinger on 12/8/2014. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 12/08/2014)
38 STIPULATION of FACTS Regarding Named Plaintiffs by Brandon Cooper, Louis Davenport, Ron Gatlin, Tyrin Perkins, William Pitzer, Kenny Swatt, Stephen Zeringue. (Lospennato, Ronald) Modified on 12/9/2014 to edit text (LLH). (Entered: 12/08/2014)
39 Additional Exhibits to 2 MOTION for Class Certification by Brandon Cooper, Louis Davenport, Ron Gatlin, Tyrin Perkins, William Pitzer, Kenny Swatt, Stephen Zeringue. filed by Brandon Cooper, Louis Davenport, Ron Gatlin, Tyrin Perkins, William Pitzer, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Affidavit)(Lospennato, Ronald) (Entered: 12/08/2014)
40 ORDER granting 32 Plaintiff's Motion to Amend Exhibit List for Class Certification hearing. Signed by Judge Shelly D. Dick on 12/9/2014. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Dick, Shelly) (Entered: 12/09/2014)
41 ORDER finding as moot 33 Motion to Compel filed by Plaintiffs. Signed by Judge Shelly D. Dick on 12/9/2014. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Dick, Shelly) (Entered: 12/09/2014)
42 Minute Entry for proceedings held before Judge Shelly D. Dick: Oral Argument held on 12/9/2014 re 2 MOTION for Class Certification filed by Brandon Cooper, Stephen Zeringue, Ron Gatlin, Kenny Swatt, William Pitzer, Louis Davenport and the Court will take the matter under advisement. (Court Reporter Judy Francisco.) (DCB) (Entered: 12/10/2014)
43 RULING granting in part and denying in part 8 Motion to Dismiss Plaintiffs' Class Action Complaint brought pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Signed by Judge Shelly D. Dick on 12/19/2014. (NLT) (Entered: 12/19/2014)
44 RULING denying 2 Motion for Class Certification. Signed by Judge Shelly D. Dick on 12/22/2014. (LLH) (Entered: 12/22/2014)
45 MOTION for Leave to File Second Amended Complaint by Brandon Cooper, Louis Davenport, Ron Gatlin, Tyrin Perkins, William Pitzer, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Proposed Pleading;,

01/05/2015 01/15/2015 01/15/2015
01/26/2015
01/26/2015 02/04/2015 02/09/2015 02/11/2015
02/27/2015

# 2 Memorandum in Support, # 3 Attachment)(Lospennato, Ronald) Modified on 1/5/2015 to edit text (LLH). (Entered: 12/30/2014)
MOTION(S) REFERRED: 45 MOTION for Leave to File Second Amended Complaint . This motion is now pending before the USMJ. (LLH) (Entered: 01/05/2015)
46 MOTION for Beth P. Everett to Withdraw as Attorney by Kathy Kliebert, Louisiana Department of Health and Hospitals. (Everett, Elizabeth) (Entered: 01/15/2015)
47 ORDER granting 46 Motion to Withdraw as Counsel of Record. Attorney Beth P. Everett is withdrawn as attorney for Kathy Kliebert, Secretary of the Louisiana Department of Health and Hospitals, and the Louisiana Department of Health and Hospitals. Signed by Magistrate Judge Stephen C. Riedlinger on 1/15/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 01/15/2015)
48 ORDER granting 45 MOTION for Leave to File Second Amended Complaint filed by Tyrin Perkins, Brandon Cooper, Stephen Zeringue, Ron Gatlin, Kenny Swatt, William Pitzer, and Louis Davenport. No opposition has been filed. Signed by Magistrate Judge Stephen C. Riedlinger on 1/26/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 01/26/2015)
49 Second AMENDED Class Action COMPLAINT against Kathy Kliebert, Louisiana Department of Health and Hospitals, filed by William Pitzer, Tyrin Perkins, Ron Gatlin, Louis Davenport, Brandon Cooper, Kenny Swatt, Stephen Zeringue, Advocacy Center.(NLT) (Entered: 01/27/2015)
50 Notice to Counsel: (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) Status Conference set for 3/18/2015 at 02:30 PM in chambers before Judge Shelly D. Dick. (DCB) (Entered: 02/04/2015)
51 MOTION to Dismiss Second Amended Class Action Complaint by Kathy Kliebert, Louisiana Department of Health and Hospitals. (Attachments: # 1 Memorandum in Support)(Pantaleo, Lindsay) (Entered: 02/09/2015)
52 NOTICE of Briefing Schedule on 51 MOTION to Dismiss Second Amended Class Action Complaint : Opposition to the motion shall be filed within 21 days from the filing of the motion. The mover may file a reply brief within 14 days of the filing of the opposition and shall be limited to a total of 10 pages. No motion for leave will be required.(This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (DCB) (Entered: 02/11/2015)
53 MEMORANDUM in Opposition to 51 MOTION to Dismiss Second Amended Class Action Complaint filed by Advocacy Center, Brandon

03/13/2015 03/18/2015
03/27/2015 03/27/2015 03/27/2015 03/27/2015 04/01/2015 04/01/2015

Cooper, Louis Davenport, Ron Gatlin, Tyrin Perkins, William Pitzer, Kenny Swatt, Stephen Zeringue. (Lospennato, Ronald) (Entered: 02/27/2015)
54 REPLY to 53 Memorandum in Opposition to 51 MOTION to Dismiss Second Amended Class Action Complaint filed by Kathy Kliebert, Louisiana Department of Health and Hospitals. (Pantaleo, Lindsay) Modified to edit text on 3/13/2015 (BCL). (Entered: 03/13/2015)
55 Minute Entry for proceedings held before Judge Shelly D. Dick: Status Conference held on 3/18/2015. The status of the parties' ability to identify new potential plaintiffs was discussed. Additionally, the parties indicated that a settlement conference may be useful in a resolution of this matter. The Court advised the parties to contact Magistrate Judge Riedlinger to check his availability. In the event Magistrate Judge Riedlinger could not accommodate the parties' request, the Court instructed the parties to contact chambers about utilizing a magistrate judge from the Western District. The Court denied the 51 MOTION to Dismiss Second Amended Class Action Complaint filed by Kathy Kliebert, Louisiana Department of Health and Hospitals. (DCB) (Entered: 03/18/2015)
56 NOTICE TO COUNSEL: Telephone Status Conference set for 4/1/2015 at 2:00 PM before Magistrate Judge Stephen C. Riedlinger. The court will place the calls. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (BNW) (Entered: 03/27/2015)
57 NOTICE TO COUNSEL: (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)Telephone Conference set for 4/1/2015 at 1:30 PM before Magistrate Judge Stephen C. Riedlinger. This is a TIME CHANGE ONLY. (BNW) (Entered: 03/27/2015)
58 MOTION to Enroll as Additional Counsel of Record by All Defendants. (Attachments: # 1 Proposed Pleading; Proposed Order)(Hilburn, James) Modified to edit text on 3/30/2015 (BCL). (Entered: 03/27/2015)
59 ORDER granting 58 Motion to Enroll as Additional Counsel of Record. Added attorney Jeffrey K. Cody for Kathy Kliebert and the Louisiana Department of Health and Hospitals. Signed by Magistrate Judge Stephen C. Riedlinger on 3/27/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 03/27/2015)
60 ANSWER to 49 Amended Complaint by Kathy Kliebert, Louisiana Department of Health and Hospitals.(Young, Jenna) (Entered: 04/01/2015)
61 Minute Entry/Status Conference Report for proceedings held before Magistrate Judge Stephen C. Riedlinger: Telephone Status Conference held on 4/1/2015. The court agreed to hold August 3 or 5, 2015 open for a

04/16/2015 05/13/2015 05/13/2015
05/13/2015 05/19/2015 05/20/2015 05/20/2015

settlement conference, by which time fact discovery should be completed. The Scheduling Order deadlines remain in effect. Counsel will contact the court if a status conference isneeded. (SMG) (Entered: 04/02/2015)
62 Notice Setting Trial and Related Deadlines: Bench Trial set for 8/1/2016 at 09:00 AM in Courtroom 3 before Judge Shelly D. Dick. Affidavit of Settlement Efforts due by 6/20/2016. Pretrial Conference set for 7/19/2016 at 02:00 PM in chambers before Judge Shelly D. Dick. All other trial deadlines set as stated herein.(DCB) (Entered: 04/16/2015)
63 MOTION to Amend 49 Amended Complaint , MOTION to Intervene by Advocacy Center, Brandon Cooper, Louis Davenport, Ron Gatlin, Tyrin Perkins, William Pitzer, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Proposed Pleading; Third Amended Complaint, # 2 Attachment Proposed Order)(Lospennato, Ronald) (Entered: 05/13/2015)
64 ORDER granting 63 Plaintiffs' Motion for Leave to Intervene Party Plaintiffs and Amend the Class Action Complaint. Although the Plaintiff's Third Amended Class Action Complaint retains class allegations, granting the motion is consistent with the district judge's 55 denial of the defendants' 51 Motion to Dismiss Plaintiffs' Second Amended Class Action Complaint, and the defendants do not oppose the motion. Signed by Magistrate Judge Stephen C. Riedlinger on 5/13/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 05/13/2015)
65 Third AMENDED Class Action COMPLAINT against Kathy Kliebert, Louisiana Department of Health and Hospitals filed by William Pitzer, Tyrin Perkins, Ron Gatlin, Francis Mary Watson, Scott Frye, Ryan Kasami, Louis Davenport, Kenny Swatt, Brandon Cooper, Stephen Zeringue, Dominick Pernicaro, III.(NLT) (Entered: 05/14/2015)
66 CONSENT MOTION for Modification of Scheduling Order by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Francis Mary Watson, Stephen Zeringue. (Attachments: # 1 Attachment Proposed Order, # 2 Exhibit)(Lospennato, Ronald) Modified on 5/20/2015 to edit text (LLH). (Entered: 05/19/2015)
MOTION(S) REFERRED: 66 MOTION for Extension of Discovery Deadlines . This motion is now pending before the USMJ. (LLH) (Entered: 05/20/2015)
67 AMENDED SCHEDULING ORDER granting 66 Motion for Modification of Scheduling Order. Discovery due by 8/1/2015. Plaintiff`s Expert Reports due by 9/30/2015. Defendant`s Expert Reports due by 10/31/2015. Discovery from Experts due by 12/15/2015. Motions shall be filed by 1/30/2016. Signed by Magistrate Judge Stephen C. Riedlinger on 5/20/2015. (LLH) (Entered: 05/20/2015)

06/03/2015 06/08/2015 06/08/2015 06/08/2015 06/08/2015 06/08/2015 06/08/2015 06/08/2015 06/08/2015 06/08/2015
06/08/2015 06/08/2015 06/09/2015

68 RETURN OF SERVICE of subpoena(s) executed upon Jefferson Parish Correctional Center on 5-28-15 by Certified Mail (Hilburn, James) (Entered: 06/03/2015)
69 RETURN OF SERVICE of subpoena(s) executed upon Correcthealth St. Bernard, LLC on 06/03/15 by Certified Mail (Hilburn, James) (Entered: 06/08/2015)
70 RETURN OF SERVICE of subpoena(s) executed upon Correcthealth Iberia, LLC on 06/03/15 by Certified Mail (Hilburn, James) (Entered: 06/08/2015)
71 RETURN OF SERVICE of subpoena(s) executed upon Correcthealth Plaquemines, LLC on 06/03/15 by Certified Mail (Hilburn, James) (Entered: 06/08/2015)
72 RETURN OF SERVICE of subpoena(s) executed upon Correcthealth Lafourche, LLC on 06/03/15 by Certified Mail (Hilburn, James) (Entered: 06/08/2015)
73 RETURN OF SERVICE of subpoena(s) executed upon Correcthealth St. Mary, LLC on 06/03/15 by Certified Mail (Hilburn, James) (Entered: 06/08/2015)
74 RETURN OF SERVICE of subpoena(s) executed upon East Baton Rouge Parish Prison on 06/05/15 by Certified Mail (Hilburn, James) (Entered: 06/08/2015)
75 RETURN OF SERVICE of subpoena(s) executed upon Correcthealth St. Mary, LLC on 5/29/2015 by Personal Service (Fernandez, Kathryn) (Entered: 06/08/2015)
76 RETURN OF SERVICE of subpoena(s) executed upon Jean Llovet, Medical Director of Correcthealth Jefferson, LLC on 5/29/2015 by Personal Service (Fernandez, Kathryn) (Entered: 06/08/2015)
77 RETURN OF SERVICE of subpoena(s) executed upon Lisa Burns, LCSW at East Baton Rouge Parish Prison on 6/2/2015 by Personal Service (Fernandez, Kathryn) (Main Document 77 replaced on 6/9/2015) (ELW). Modified on 6/9/2015 to change page orientation (ELW). (Entered: 06/08/2015)
78 RETURN OF SERVICE of subpoena(s) executed upon Cindy Lachney on 5/19/2015 by Personal Service (Fernandez, Kathryn) (Entered: 06/08/2015)
79 RETURN OF SERVICE of subpoena(s) executed upon Dr. Richard W. Richoux on 5/19/2015 by Personal Service (Fernandez, Kathryn) (Entered: 06/08/2015)
80 RETURN OF SERVICE of subpoena(s) executed upon Kyle Kirsch, Registered Agent for Service of Process of Correcthealth Jefferson, LLC

06/09/2015 06/09/2015 06/09/2015 06/09/2015 06/19/2015 06/19/2015 06/22/2015 06/22/2015 06/22/2015

on 5/18/2015 by Personal Service (Attachments: # 1 Attachment Notice of of Rule 30(b)(6) Corporate Deposition)(Fernandez, Kathryn) Modified to rotate pages on 6/9/2015 (BCL). (Entered: 06/09/2015)
81 RETURN OF SERVICE of subpoena(s) executed upon Kyle Kirsch, Registered Agent for Service of Process for Correcthealth Iberia, LLC on 5/29/2015 by Personal Service (Attachments: # 1 Attachment Notice of Rule 30(b)(6) Corporate Deposition)(Fernandez, Kathryn) Modified to rotate pages on 6/10/2015 (BCL). (Entered: 06/09/2015)
82 RETURN OF SERVICE of subpoena(s) executed upon Kyle Kirsch, Registered Agent for Service of Process for Correcthealth Lafourche, LLC on 5/29/2015 by Personal Service (Attachments: # 1 Attachment Notice of Rule 30(b)(6) Corporate Deposition)(Fernandez, Kathryn) Modified to rotate pages on 6/10/2015 (BCL). (Entered: 06/09/2015)
83 RETURN OF SERVICE of subpoena(s) executed upon Kyle Kirsch, Registered Agent for Service of Process for Correcthealth Plaquemines, LLC on 5/29/2015 by Personal Service (Attachments: # 1 Attachment Notice of Rule 30(b)(6) Corporate Deposition)(Fernandez, Kathryn) Modified to rotate pages on 6/10/2015 (BCL). (Entered: 06/09/2015)
84 RETURN OF SERVICE of subpoena(s) executed upon Kyle Kirsch, Registered Agent for Service of Process for Correcthealth St. Bernard, LLC on 5/29/2015 by Personal Service (Attachments: # 1 Attachment Notice of Rule 30(b)(6) Corporate Deposition)(Fernandez, Kathryn) Modified to rotate pages on 6/10/2015 (BCL). (Entered: 06/09/2015)
85 RETURN OF SERVICE of subpoena(s) executed upon Brad Calvit, legal counsel for Sheriff William Earl Hilton on 6/18/2015 by Personal Service (Attachments: # 1 Exhibit Exhibit A listing documents to be produced)(Fernandez, Kathryn) (Entered: 06/19/2015)
86 Consent MOTION for Partial Voluntary Dismissal Without Prejudice by Francis Mary Watson. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading;)(Fernandez, Kathryn) Modified on 6/22/2015 to edit text (LLH). (Entered: 06/19/2015)
87 RETURN OF SERVICE of subpoena(s) executed upon Beauregard Parish Sheriff's Office on 06/11/2015 by Certified Mail (Shows, Edmond) (Entered: 06/22/2015)
88 RETURN OF SERVICE of subpoena(s) executed upon Bienville Parish Sheriff's Office on 06/11/2015 by Certified Mail (Shows, Edmond) (Entered: 06/22/2015)
89 RETURN OF SERVICE of subpoena(s) executed upon Bossier Parish Sheriff's Office on 06/15/2015 by Certified Mail (Shows, Edmond) (Entered: 06/22/2015)

06/22/2015 06/22/2015 06/22/2015 06/22/2015 06/22/2015 06/22/2015 06/22/2015 06/22/2015 06/22/2015 06/22/2015 06/22/2015 06/22/2015 06/22/2015

90 RETURN OF SERVICE of subpoena(s) executed upon East Baton Rouge Parish Prison, Prison Medical Services on 06/11/2015 by Certified Mail (Shows, Edmond) (Entered: 06/22/2015)
91 RETURN OF SERVICE of subpoena(s) executed upon East Feliciana Parish Sheriff's Office on 06/18/2015 by Certified Mail (Shows, Edmond) (Entered: 06/22/2015)
92 RETURN OF SERVICE of subpoena(s) executed upon Madison Parish Sheriff's Office on 06/11/2015 by Certified Mail (Shows, Edmond) (Entered: 06/22/2015)
93 RETURN OF SERVICE of subpoena(s) executed upon Morehouse Parish Sheriff's Office on 06/11/2015 by Certified Mail (Shows, Edmond) (Entered: 06/22/2015)
94 RETURN OF SERVICE of subpoena(s) executed upon Ouachita Parish Sheriff's Office on 06/11/2015 by Certified Mail (Shows, Edmond) (Entered: 06/22/2015)
95 RETURN OF SERVICE of subpoena(s) executed upon Richland Parish Sheriff's Office on 06/11/2015 by Certified Mail (Shows, Edmond) (Entered: 06/22/2015)
96 RETURN OF SERVICE of subpoena(s) executed upon St. John Parish Sheriff's Office on 06/11/2015 by Certified Mail (Shows, Edmond) (Entered: 06/22/2015)
97 RETURN OF SERVICE of subpoena(s) executed upon West Feliciana Parish Sheriff's Office on 06/15/2015 by Certified Mail (Shows, Edmond) (Entered: 06/22/2015)
98 RETURN OF SERVICE of subpoena(s) executed upon Beauregard Parish Sheriff's Office on 06/11/2015 by Certified Mail (Cody, Jeffrey) (Entered: 06/22/2015)
99 RETURN OF SERVICE of subpoena(s) executed upon Bienville Parish Sheriff's Office on 06/11/2015 by Certified Mail (Cody, Jeffrey) (Entered: 06/22/2015)
100 RETURN OF SERVICE of subpoena(s) executed upon East Feliciana Parish Sheriff's Office on 06/18/2015 by Certified Mail (Cody, Jeffrey) (Entered: 06/22/2015)
101 RETURN OF SERVICE of subpoena(s) executed upon Morehouse Parish Sheriff's Office on 06/11/2015 by Certified Mail (Cody, Jeffrey) (Entered: 06/22/2015)
102 RETURN OF SERVICE of subpoena(s) executed upon Ouachita Parish Sheriff's Office on 06/11/2015 by Certified Mail (Cody, Jeffrey) (Entered: 06/22/2015)

06/22/2015 06/22/2015 06/23/2015
06/24/2015 06/29/2015
07/01/2015 07/06/2015 07/09/2015 07/13/2015 07/13/2015
07/14/2015
07/15/2015 07/15/2015

103 RETURN OF SERVICE of subpoena(s) executed upon Richland Parish Sheriff's Office on 06/11/2015 by Certified Mail (Cody, Jeffrey) (Entered: 06/22/2015)
104 RETURN OF SERVICE of subpoena(s) executed upon West Feliciana Parish Sheriff's Office on 06/15/2015 by Certified Mail (Cody, Jeffrey) (Entered: 06/22/2015)
105 ORDER granting 86 Consent Motion for Partial Dismissal Without Prejudice. The claims of individually-named Plaintiff, Frances Mary Watson, are dismissed without prejudice from these proceedings. Signed by Judge Shelly D. Dick on 6/23/2015. (LLH) (Entered: 06/23/2015)
106 ANSWER to Third 65 Amended Complaint by Kathy Kliebert, Louisiana Department of Health and Hospitals.(Borghardt, Stephanie) Modified to edit text on 6/25/2015 (BCL). (Entered: 06/24/2015)
107 Ex Parte/Consent MOTION for Non-Sharing Protective Order by Correcthealth Jefferson, LLC. (Attachments: # 1 Proposed Pleading;, # 2 Exhibit)(Kirsch, Kyle) Modified on 6/30/2015 to edit text (ELW). (Entered: 06/29/2015)
108 MEMORANDUM in Support of 107 Unopposed MOTION for Protective Order filed by Correcthealth Jefferson, LLC. (Kirsch, Kyle) (Entered: 07/01/2015)
MOTION(S) REFERRED: 107 Unopposed MOTION for Protective Order . This motion is now pending before the USMJ. (ELW) (Entered: 07/06/2015)
109 NON-SHARING PROTECTIVE ORDER. Signed by Magistrate Judge Stephen C. Riedlinger on 7/9/2015. (BCL) (Entered: 07/09/2015)
110 First MOTION to Quash Subpoena Issued by Named Plaintiffs by NORTEC, LLC. (Attachments: # 1 Memorandum in Support, # 2 Attachment)(Luke, Benjamin) (Entered: 07/13/2015)
111 First MOTION to Quash Subpoena Issued by Louisiana Department of Heath and Hospitals by NORTEC, LLC. (Attachments: # 1 Memorandum in Support, # 2 Attachment)(Luke, Benjamin) (Entered: 07/13/2015)
MOTION(S) REFERRED: 111 First MOTION to Quash Subpoena Issued by Louisiana Department of Heath and Hospitals, 110 First MOTION to Quash Subpoena Issued by Named Plaintiffs. This motion is now pending before the USMJ. (LLH) (Entered: 07/14/2015)
112 RETURN OF SERVICE of subpoena(s) executed upon Nortec, LLC on 06/24/2015 by Certified Mail (Cody, Jeffrey) (Entered: 07/15/2015)
113 MOTION to Enroll Eric Foley as Additional Attorney by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Ryan

07/16/2015
07/16/2015 07/16/2015 07/20/2015 07/27/2015 07/27/2015 07/27/2015
07/28/2015

Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Proposed Pleading; Proposed Order)(Schwartzmann, Katharine) (Entered: 07/15/2015)
114 ORDER granting 113 Plaintiff's Motion to Add Counsel. Added attorney Eric Andrew Foley for the Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer and Kenny Swatt. Signed by Magistrate Judge Stephen C. Riedlinger on 7/16/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(Riedlinger, Stephen) (Entered: 07/16/2015)
115 ORDER: as to 113 Plaintiff's MOTION to Add Counsel. The motion is also granted as to Stephen Zeringue, enrolling Eric Andrew Foley as additional attorney. Signed by Magistrate Judge Stephen C. Riedlinger on 7/16/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(Riedlinger, Stephen) (Entered: 07/16/2015)
116 ORDER: At the request of parties a Settlement Conference is set for 8/3/2015 at 09:30 AM in chambers before Magistrate Judge Stephen C. Riedlinger. Signed by Magistrate Judge Stephen C. Riedlinger on 7/16/2015. (BCL) (Entered: 07/16/2015)
117 RETURN OF SERVICE of subpoena(s) executed upon Thomas Cupples, III, Registered Agent for Service of Process of NORTEC, LLC on 7/6/2015 by Personal Service (Attachments: # 1 Attachment Exhibit A to the subpoena.)(Fernandez, Kathryn) (Entered: 07/20/2015)
118 Letter dated 7/27/2015 from Stephanie M. Borghardt to Judge Riedlinger Re: settlement conference set for 8/3/2015. (LLH) (Entered: 07/27/2015)
119 Notice to Counsel: As requested by counsel for defendant Louisiana Department of Health and Hospitals in her 118 7/27/2015 letter to the court, the 8/3/2015 settlement conference is canceled. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 07/27/2015)
120 MEMORANDUM in Opposition to 110 First MOTION to Quash Subpoena Issued by Named Plaintiffs filed by All Plaintiffs. (Attachments: # 1 Exhibit 7/21 E-mail from Plaintiffs to NORTEC, # 2 Exhibit 7/23 E-mail from Plaintiffs to NORTEC, # 3 Exhibit 7/27 Email from NORTEC to Plaintiffs, # 4 Exhibit 7/27 E-mail from Plaintiffs to NORTEC, # 5 Exhibit NGBRI Waitlist Produced by Defendant DHH)(Foley, Eric) (Entered: 07/27/2015)
121 ORDER Setting Hearing on 110 First MOTION to Quash Subpoena Issued by Named Plaintiffs: Motion Hearing set for 8/7/2015 at 02:00 PM in Courtroom 5 before Magistrate Judge Stephen C. Riedlinger. Signed

08/06/2015
08/10/2015 08/17/2015 10/28/2015 10/29/2015 10/29/2015
11/02/2015 11/03/2015 11/03/2015 11/09/2015

by Magistrate Judge Stephen C. Riedlinger on 7/28/2015. (BCL) (Entered: 07/28/2015)
122 ORDER Cancelling Motion Hearing: The hearing set for 8/7/2015 on the 110 Motion of NORTEC, LLC to Quash Subpoena Issued by Named Plaintiffs is canceled. Counsel for the plaintiffs shall advise the court promptly after the subpoenaed documents are received, and the motion will then be denied as moot. Signed by Magistrate Judge Stephen C. Riedlinger on 8/5/2015. (BCL) (Entered: 08/06/2015)
123 RULING granting 111 Motion of NORTEC, LLC to Quash Subpoena Issued by Louisiana Department of Health and Hospitals. Signed by Magistrate Judge Stephen C. Riedlinger on 8/10/2015. (BCL) (Entered: 08/10/2015)
124 RULING denying as moot 110 Motion to Quash Subpoena. Signed by Magistrate Judge Stephen C. Riedlinger on 08/17/2015. (NLT) (Entered: 08/17/2015)
125 Unopposed MOTION for Extension of Time to Submit Defendants' Expert Report by All Defendants. ( # 1 Order) (Hilburn, James) Modified on 10/29/2015 to edit text (LLH). (Entered: 10/28/2015)
MOTION(S) REFERRED: 125 Unopposed MOTION for Extension of Time Defendants' Expert Report. This motion is now pending before the USMJ. (LLH) (Entered: 10/29/2015)
126 AMENDED SCHEDULING ORDER: The 125 Unopposed Motion to Extend Deadline to Submit Defendants' Expert Report and finding good cause as required by Rule 16, Fed.R.Civ.P., to grant the relief requested, the motion is GRANTED. Defendant`s Expert Reports due by 11/10/2015. Signed by Magistrate Judge Stephen C. Riedlinger on 10/29/2015. (BCL) (Entered: 10/29/2015)
127 Unopposed MOTION for Extension of Time to Complete Expert Discovery and to file Daubert/Dispositive Motions by All Defendants. (Hilburn, James) (Entered: 11/02/2015)
MOTION(S) REFERRED: 127 Unopposed MOTION for Extension of Time to Complete Expert Discovery and to file Daubert/Dispositive Motions. This motion is now pending before the USMJ. (ELW) (Entered: 11/03/2015)
128 AMENDED SCHEDULING ORDER granting 127 Motion to Extend Discovery Deadlines Defendant`s Expert Reports due by 11/10/2015. Discovery from Experts due by 1/15/2016. Dispositive and Daubert Motions shall be filed by 2/29/2016. Signed by Magistrate Judge Stephen C. Riedlinger on 11/3/2015. (LLH) (Entered: 11/03/2015)
129 MOTION to Consolidate Case with 15-cv-00751 Pursuant to RULE 42(A) by All Plaintiffs. (Attachments: # 1 Memorandum in

11/10/2015 11/10/2015 11/10/2015 11/12/2015
11/24/2015 11/25/2015 12/03/2015 12/03/2015
12/21/2015

Support)(Lospennato, Ronald) Modified on 11/9/2015 to edit text (LLH). (Entered: 11/09/2015)
130 NOTICE of Briefing Schedule on 129 MOTION to Consolidate Case with 15-cv-00751 : Opposition to the motion shall be filed within 21 days from the filing of the motion and shall not exceed 10 pages excluding attachments. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (DCB) (Entered: 11/10/2015)
131 Second Unopposed MOTION for Extension of Time to Submit Defendants' Expert Report by All Defendants. (Attachments: # 1 Exhibit Exhibit A)(Hilburn, James) Modified on 11/10/2015 (LLH). (Entered: 11/10/2015)
MOTION(S) REFERRED: 131 Unopposed MOTION for Extension of Time to Submit Defendants' Expert Report. This motion is now pending before the USMJ. (LLH) (Entered: 11/10/2015)
132 ORDER: Defendants, Kathy Kliebert, Secretary of the Louisiana Department of Health and Hospitals and Louisiana Department of Health and Hospitals, be and hereby are GRANTED a three (3) day extension of time, or until November 13, 2015, to submit their expert report. Signed by Magistrate Judge Stephen C. Riedlinger on 11/11/2015. (BCL) (Entered: 11/12/2015)
133 MOTION for Extension of Time to Oppose Plaintiff's 129 MOTION to Consolidate Case with 15-cv-00751 by All Defendants. (Borghardt, Stephanie) Modified on 11/24/2015 to edit text (ELW). (Entered: 11/24/2015)
134 ORDER granting 133 MOTION for Extension of Time to File Response to 129 MOTION to Consolidate Case with 15-cv-00751. The Defendants, Kathy Kliebert and the Louisiana Department of Health and Hospitals, have until 12/21/2015 to file their opposition. Signed by Judge Shelly D. Dick on 11/25/2015. (JDL) (Entered: 11/25/2015)
135 MOTION to Enroll Laura Thornton as Additional Attorney by All Plaintiffs. (Fernandez, Kathryn) (Entered: 12/03/2015)
136 ORDER granting 135 Plaintiffs' Motion to Add Counsel. Added attorney Laura Lee Thornton for plaintiffs Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Ryan Kazami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt and Stephen Zeringue. Signed by Magistrate Judge Stephen C. Riedlinger on 12/3/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 12/03/2015)
137 First MEMORANDUM in Opposition to 129 MOTION to Consolidate Case with 15-cv-00751 filed by Kathy Kliebert, Louisiana Department of Health and Hospitals. (DeLaSalle, Rebecca) (Entered: 12/21/2015)

12/22/2015 12/23/2015
01/04/2016 01/04/2016 01/07/2016 01/08/2016 01/15/2016 01/19/2016 01/19/2016

MOTION to Dismiss for Failure to State a Claim by Kathy Kliebert, Louisiana Department of Health and Hospitals. This Motion was originally filed in 15-CV-751-SDD-RLB and is moved to 14-CV-507SDD-RLB for case management purposes; see docket #13 in 15-CV-751 to view image. (LLH) (Entered: 02/03/2016)
138 MOTION for Leave to File Reply Memorandum and for Two Additional Pages for Reply by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Proposed Pleading;)(Thornton, Laura) Modified to edit text on 12/28/2015 (BCL). (Entered: 12/23/2015)
139 ORDER granting 138 MOTION for Leave to File Reply. Plaintiff's reply is to be filed into the record of these proceedings. Signed by Judge Shelly D. Dick on 01/04/2015. (BCL) (Entered: 01/04/2016)
140 REPLY to 137 Memorandum in Opposition to 129 MOTION to Consolidate Case with 15-cv-00751 filed by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III., William Pitzer, Kenny Swatt, Stephen Zeringue. (LLH) (Entered: 01/06/2016)
141 NOTICE: Pursuant to General Order 2016-02, this case is reassigned from Magistrate Judge Stephen C. Riedlinger to Magistrate Judge Erin Wilder-Doomes. Signed by Chief Judge Brian A. Jackson on 1/4/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(NLT) (Entered: 01/07/2016)
Case reassigned to Magistrate Judge Richard L. Bourgeois, Jr.. Magistrate Erin Wilder-Doomes no longer assigned to the case. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (NLT) (Entered: 01/08/2016)
142 MOTION for Extension of Time to Complete Expert Discovery by All Defendants. (Attachments: # 1 Memorandum in Support, # 2 Attachment Declaration with Attachments)(Borghardt, Stephanie) (Entered: 01/15/2016)
MOTION(S) REFERRED: 142 MOTION for Extension of Time to Complete Expert Discovery. This motion is now pending before the USMJ. (NLT) (Entered: 01/19/2016)
143 MEMORANDUM in Opposition to 142 MOTION for Extension of Time to Complete Expert Discovery filed by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Exhibit Defendants' designation of expert witnesses, # 2 Exhibit Plaintiffs' submission of expert witness report)(Foley, Eric) (Entered: 01/19/2016)

01/22/2016 01/22/2016 01/25/2016 01/25/2016
01/25/2016 01/27/2016
02/03/2016 02/03/2016 02/04/2016

144 MOTION to Substitute Kimberly Sullivan and Ryan Romero in place of Rebecca DeLaSalle and Lindsay Pantaleo as Attorney by All Defendants. (Borghardt, Stephanie) (Entered: 01/22/2016)
145 MOTION for Leave of Court to File Reply Memorandum by All Defendants. (Attachments: # 1 Proposed Pleading; Reply Memorandum, # 2 Attachment Attachment B)(Borghardt, Stephanie) Modified to edit text on 1/25/2016 (BCL). (Entered: 01/22/2016)
MOTION(S) REFERRED: 145 MOTION for Leave to File Reply Memorandum , 144 MOTION to Substitute Kimberly Sullivan and Ryan Romero in place of Rebecca DeLaSalle and Lindsay Pantaleo as Attorney . This motion is now pending before the USMJ. (BCL) (Entered: 01/25/2016)
146 ORDER granting 145 MOTION for Leave to File Reply Memorandum filed by Kathy Kliebert, Louisiana Department of Health and Hospitals. The Reply [145-1] shall be filed. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 1/25/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Bourgeois, Richard) (Entered: 01/25/2016)
147 REPLY Memorandum in Support of 142 MOTION for Extension of Time to Submit Expert Report and Complete Expert Discovery filed by Kathy Kliebert, Louisiana Department of Health and Hospitals. (Attachments: # 1 Exhibit)(LLH) (Entered: 01/26/2016)
148 ORDER granting 144 Motion to Substitute Attorney. Kimberly Lacour Sullivan & Ryan Jude Romero for Kathy Kliebert and Louisiana Department of Health and Hospitals replacing Rebecca DeLaSalle, Lindsay Pantaleo. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 1/27/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (JSL) (Entered: 01/27/2016)
149 RULING : The Court finds that common issues of fact predominate such that consolidation of these matters for discovery and trial is appropriate. Thus, Plaintiffs' 129 Motion to Consolidate is GRANTED. Signed by Judge Shelly D. Dick on 2/3/2016. (LLH) (Entered: 02/03/2016)
150 ORDER: The above captioned matters be consolidated. Signed by Judge Shelly D. Dick on 2/3/2016. (LLH) (Entered: 02/03/2016)
151 ORDER granting in part and denying in part 142 MOTION for Extension of Time to Complete Expert Discovery filed Defendants. Pursuant to Rule 16(b), the Scheduling Order is modified as follows: Defendant's Expert Reports due by 2/8/2016. Discovery from Experts due by 3/7/2016. Plaintiff's Rebuttal Expert Reports due by 3/7/2016. Dispositive and Daubert Motions shall be filed by 3/18/2016. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 2/4/2016. (JDL) (Entered: 02/04/2016)

02/05/2016 02/05/2016 02/08/2016
02/12/2016
02/16/2016
02/19/2016 03/03/2016

152 Joint MOTION to Continue February 11, 2016 Scheduling Conference by All Parties. (BCL) (Entered: 02/05/2016)
MOTION(S) REFERRED: 152 MOTION to Continue Joint MOTION to Continue February 11, 2016 Scheduling Conference. This motion is now pending before the USMJ. (BCL) (Entered: 02/05/2016)
153 ORDER granting 152 Motion to Continue February 11, 2016 Scheduling Conference. Scheduling Conference set for 2/11/2016 is RESET for 3/3/2016 at 10:00 a.m. The deadline for filing the joint status report is reset to 2/19/2016. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 2/8/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (JSL) (Entered: 02/08/2016)
154 MOTION for Separate Trials in Consolidated Cases by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Monica Jackson, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Memorandum in Support, # 2 Exhibit Exhibit A, # 3 Attachment Proposed Order)(Lospennato, Ronald) Modified on 2/16/2016 to edit text (ELW). (Entered: 02/12/2016)
155 NOTICE of Briefing Schedule on 154 MOTION for Separate Trials in Consolidated Cases : Opposition to the motion shall be filed within 21 days from the filing of the motion and shall not exceed 10 pages excluding attachments. The mover may file a reply brief within 14 days of the filing of the opposition and shall be limited to a total of 5 pages. No motion for leave will be required.(This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (DCB) (Entered: 02/16/2016)
169 JOINT STATUS REPORT by All Plaintiffs (Originally filed in the member case). (NLT) (Entered: 03/21/2016)
157 Minute Entry for proceedings held before Magistrate Judge Richard L. Bourgeois, Jr.: Scheduling Conference held on 3/3/2016. Parties discussed the status of this matter, including the representations in the Status Report as well as the potential effects of the current motions pending before the district judge. Although these matters have been consolidated, Parties acknowledges that fact discovery in 14-507 is complete. Although the parties do not agree on all of the deadlines proposed in the Status Report, those proposed deadlines would apply with respect to 15-751. Parties also acknowledge that some discovery in these two cases may overlap, but they are not in agreementas to the extent. Court will take the positions set forth in the status report under advisement and will issue a scheduling order at an appropriate time and after conferring with the district judge. Parties were advised that the deadlines previously set in 14-507 remain in effect and are applicable to

03/04/2016 03/16/2016 03/16/2016
03/16/2016
03/16/2016

that matter unless otherwise ordered by the court. (BCL) (Entered: 03/04/2016)
156 Opposition to Plaintiff's MOTION for Separate Trials in Consolidated cases filed by All Defendants. (Borghardt, Stephanie) Modified on 3/7/2016 to edit text (ELW). (Entered: 03/04/2016)
158 MOTION for Partial Summary Judgment in Cooper V. Gee, 15-cv00751 by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Memorandum in Support, # 2 Affidavit, # 3 Statement of Undisputed Facts)(Lospennato, Ronald) Modified on 3/17/2016 to edit text (ELW). (Entered: 03/16/2016)
159 Additional Exhibits to 158 MOTION for Summary Judgment by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Monica Jackson, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. filed by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Monica Jackson, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Exhibit Plaintiffs' Exh. 2, # 2 Exhibit Plaintiffs' Exh. 3, # 3 Exhibit Plaintiffs' Exh. 4, # 4 Exhibit Plaintiffs' Exh. 5, # 5 Exhibit Plaintiffs' Exh. 6, # 6 Exhibit Plaintiffs' Exh. 7, # 7 Exhibit Plaintiffs' Exh. 8, # 8 Exhibit Plaintiffs' Exh. 9, # 9 Exhibit Plaintiffs' Exh. 10)(Lospennato, Ronald) (Entered: 03/16/2016)
160 Additional Exhibits to 159 Additional Exhibit to Main Document,,, 158 MOTION for Summary Judgment by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. filed by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Exhibit Plaintiffs' Exh. 12, # 2 Exhibit Plaintiffs' Exh. 13, # 3 Exhibit Plaintiffs' Exh. 14, # 4 Exhibit Plaintiffs' Exh. 15, # 5 Exhibit Plaintiffs' Exh. 16, # 6 Exhibit Plaintiffs' Exh. 17, # 7 Exhibit Plaintiffs' Exh. 17(a), # 8 Exhibit Plaintiffs' Exh. 17(b), # 9 Exhibit Plaintiffs' Exh. 17(c), # 10 Exhibit Plaintiffs' Exh. 17(d))(Lospennato, Ronald) (Entered: 03/16/2016)
161 Additional Exhibits to 159 Additional Exhibit to Main Document,,, 158 MOTION for Summary Judgment , 160 Additional Exhibit to Main Document,,, by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. filed by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III,

03/16/2016 03/16/2016

William Pitzer, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Exhibit Plaintiffs' Exh. 17(e), # 2 Exhibit Plaintiffs' Exh. 17(f), # 3 Exhibit Plaintiffs' Exh. 17(g), # 4 Exhibit Plaintiffs' Exh. 17(h), # 5 Exhibit Plaintiffs' Exh. 17(j), # 6 Exhibit Plaintiffs' Exh. 17(k), # 7 Exhibit Plaintiffs' Exh. 17(l), # 8 Exhibit Plaintiffs' Exh. 17(m), # 9 Exhibit Plaintiffs' Exh. 17(n), # 10 Exhibit Plaintiffs' Exh. 17(o), # 11 Exhibit Plaintiffs' Exh. 17(p)1, # 12 Exhibit Plaintiffs' Exh. 17(p)2)(Lospennato, Ronald) (Attachment 11 & 12 replaced on 3/17/2016) (ELW). ( Modified on 3/17/2016 to rotate pages (ELW). (Entered: 03/16/2016)
162 Additional Exhibits to 159 Additional Exhibit to Main Document,,, 158 MOTION for Summary Judgment , 160 Additional Exhibit to Main Document,,, 161 Additional Exhibit to Main Document,,,, by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. filed by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Exhibit Plaintiffs' Exh. 17(r), # 2 Exhibit Plaintiffs' Exh. 17(s), # 3 Exhibit Plaintiffs' Exh. 17(t), # 4 Exhibit Plaintiffs' Exh. 17(u), # 5 Exhibit Plaintiffs' Exh. 17(v), # 6 Exhibit Plaintiffs' Exh. 17(w), # 7 Exhibit Plaintiffs' Exh. 17(x), # 8 Exhibit Plaintiffs' Exh. 17(y), # 9 Exhibit Plaintiffs' Exh. 17(z)(Lospennato, Ronald) (Attachment 5 replaced on 3/17/2016) (ELW). Modified on 3/17/2016 to rotate page (ELW). (Entered: 03/16/2016)
163 Additional Exhibits to 159 Additional Exhibit to Main Document,,, 158 MOTION for Summary Judgment , 160 Additional Exhibit to Main Document,,, 161 Additional Exhibit to Main Document,,,, 162 Additional Exhibit to Main Document,,, by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Monica Jackson, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. filed by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Monica Jackson, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Exhibit Plaintiffs' Exh. 17(bb), # 2 Exhibit Plaintiffs' Exh. 17(cc), # 3 Exhibit Plaintiffs' Exh. 17(dd), # 4 Exhibit Plaintiffs' Exh. 17(ee), # 5 Exhibit Plaintiffs' Exh. 17(ff), # 6 Exhibit Plaintiffs' Exh. 17(gg), # 7 Exhibit Plaintiffs' Exh. 17(hh), # 8 Exhibit Plaintiffs' Exh. 17(ii), # 9 Exhibit Plaintiffs' Exh. 17(jj), # 10 Exhibit Plaintiffs' Exh. 17(kk), # 11 Exhibit Plaintiffs' Exh. 17(ll), # 12 Exhibit Plaintiffs' Exh. 17(mm), # 13 Exhibit Plaintiffs' Exh. 17(nn), # 14 Exhibit Plaintiffs' Exh. 17(oo), # 15 Exhibit Plaintiffs' Exh. 17(pp))(Lospennato, Ronald) (Attachment 14

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replaced on 3/18/2016) (ELW). Modified on 3/18/2016 to rotate pages (ELW). (Entered: 03/16/2016)
164 Additional Exhibits to 159 Additional Exhibit to Main Document,,, 158 MOTION for Summary Judgment , 160 Additional Exhibit to Main Document,,, 161 Additional Exhibit to Main Document,,,, 163 Additional Exhibit to Main Document,,,,, 162 Additional Exhibit to Main Document,,, by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Monica Jackson, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Francis Mary Watson, Stephen Zeringue. filed by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Monica Jackson, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Francis Mary Watson, Stephen Zeringue. (Attachments: # 1 Exhibit Plaintiffs' Exh. 17(qq), # 2 Exhibit Plaintiffs' Exh. 17(rr), # 3 Exhibit Plaintiffs' Exh. 18, # 4 Exhibit Plaintiffs' Exh. 19, # 5 Exhibit Plaintiffs' Exh. 20, # 6 Exhibit Plaintiffs' Exh. 21, # 7 Exhibit Plaintiffs' Exh. 22, # 8 Exhibit Plaintiffs' Exh. 23, # 9 Exhibit Plaintiffs' Exh. 24, # 10 Exhibit Plaintiffs' Exh. 25)(Lospennato, Ronald) (Attachment 5 replaced on 3/18/2016) (ELW). Modified on 3/18/2016 to rotate pages (ELW). (Entered: 03/16/2016)
165 NOTICE of Briefing Schedule on 158 MOTION for Summary Judgment : Opposition to the motion shall be filed within 21 days from the filing of the motion and shall not exceed 10 pages excluding attachments. The mover may file a reply brief within 14 days of the filing of the opposition and shall be limited to a total of 5 pages. No motion for leave will be required.(This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(DCB) (Entered: 03/17/2016)
166 MOTION for Leave to File Memo in Excess of page limit in Reply to Defendants' Opposition to Motion for Separate Trials by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Monica Jackson, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Proposed Pleading; Reply to Defendants' Opposition to Motion for Separate Trials)(Foley, Eric) (Entered: 03/18/2016)
167 MOTION in Limine to Exclude Testimony from Dr. Harold M. Ginzburg by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Memorandum in Support, # 2 Exhibit)(Thornton, Laura) (Entered: 03/18/2016)
168 NOTICE of Briefing Schedule on 167 MOTION in Limine to Exclude Testimony from Dr. Harold M. Ginzburg : Opposition to the motion shall be filed within 21 days from the filing of the motion and shall not exceed

03/30/2016 03/30/2016 03/31/2016 03/31/2016 04/01/2016
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10 pages excluding attachments. The mover may file a reply brief within 14 days of the filing of the opposition and shall be limited to a total of 5 pages. No motion for leave will be required.(This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(DCB) (Entered: 03/21/2016)
170 Unopposed MOTION for Extension of Time to File Response to 158 MOTION for Partial Summary Judgment by All Defendants. (Borghardt, Stephanie) Modified on 3/30/2016 to edit text (LLH). (Entered: 03/30/2016)
171 Unopposed MOTION for Extension of Time to File Response to 167 MOTION in Limine to Exclude Testimony from Dr. Harold M. Ginzburg by All Defendants. (Borghardt, Stephanie) (Entered: 03/30/2016)
172 ORDER granting 166 MOTION for Leave to File Memo in Excess of Page Limit in Reply to Defendants' Opposition to Motion for Separate Trials . Signed by Judge Shelly D. Dick on 3/30/2016. (LLH) (Entered: 03/31/2016)
173 REPLY to 156 Memorandum in Opposition to 154 MOTION for Separate Trials in Consolidated Cases filed by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Monica Jackson, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III., William Pitzer, Kenny Swatt, Stephen Zeringue. (LLH) (Entered: 03/31/2016)
174 ORDER granting 170 Motion for Extension of Time to File Response to 158 MOTION for Summary Judgment . Defendants, Dr. Rebekah Gee, Secretary of the Louisiana Department of Health and Hospitals, and the Louisiana Department of Health and Hospitals, have until 5/8/2016 to file their opposition to Plaintiffs' Motion for Partial Summary Judgment into the record of these proceedings. Signed by Judge Shelly D. Dick on 3/31/2016. (LLH) (Entered: 04/01/2016)
Set/Reset Deadlines as to 158 MOTION for Summary Judgment . (LLH) (Entered: 04/01/2016)
175 ORDER granting 171 Motion for Extension of Time to File Response to 167 MOTION in Limine to Exclude Testimony from Dr. Harold M. Ginzburg. Defendants have until 5/9/2016 to file a response into the record of these proceedings. Signed by Judge Shelly D. Dick on 4/7/2016. (LLH) (Entered: 04/07/2016)
176 ORDER denying 154 Motion to Bifurcate. Plaintiff previously moved for and was granted an Order of Consolidation 129 . The Court denies the Motion to Bifurcate for the reasons stated in its Order of Consolidation 149 . Signed by Judge Shelly D. Dick on 05/06/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Dick, Shelly) (Entered: 05/06/2016)

05/09/2016 05/10/2016
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177 Notice to Counsel: Considering the attached letter from Defendants' counsel, the deadline to file opposition to Plaintiffs' Motion for Partial Summary Judgment and to Plaintiffs' Motion in Limine to Exclude Testimony from Dr. Harold M. Ginzburg is extended. Oppositions shall be filed on 5/10/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (DCB) (Entered: 05/09/2016)
178 MEMORANDUM in Opposition to 167 MOTION in Limine to Exclude Testimony from Dr. Harold M. Ginzburg filed by All Defendants. (Attachments: # 1 Exhibit Exhibit 1, Deposition of Dr. Ginzburg, # 2 Exhibit Exhibit 2, Defendants' Expert Report by Dr. Ginzburg, # 3 Exhibit Exhibit 3, Curriculum Vitae of Dr. Ginzburg, # 4 Exhibit Exhibit 4, Complete Case List of Dr. Ginzburg, # 5 Exhibit Exhibit 5, Waitlist of NGBRI Acquittees as of May 2, 2016)(Romero, Ryan) (Entered: 05/10/2016)
179 MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Proposed Pleading;, # 2 Statement of Contested Facts, # 3 Exhibit 1 - Current Wait List, # 4 Exhibit 2 - Deposition of Hampton P.S. Lea, # 5 Exhibit 3 - Deposition of Alana Bishop, # 6 Exhibit 4 Expert Report of Dr. Harold Ginzburg, # 7 Exhibit 5 - Deposition of Dr. Harold Ginzburg, # 8 Exhibit 6 - DFC Job Description, # 9 Exhibit 7 Brandon Cooper Order, # 10 Exhibit 8 - March 18, 2015 NGBRI Wait List)(Borghardt, Stephanie) (Entered: 05/10/2016)
180 ORDER granting 179 Motion for Leave to File Excess Pages. Defendants' Memorandum in Opposition to Plaintiffs' 158 Motion for Partial Summary Judgment is to be filed into the record of these proceedings. Signed by Judge Shelly D. Dick on 5/18/2016. (LLH) (Entered: 05/18/2016)
181 MEMORANDUM in Opposition to 158 MOTION for Summary Judgment filed by Kathy Kliebert, Louisiana Department of Health and Hospitals. (Attachments: # 1 Statement of Undisputed Facts, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8)(LLH) (Entered: 05/18/2016)
182 REPLY to 181 Memorandum in Opposition to Motion, 158 MOTION for Summary Judgment filed by All Plaintiffs. (Fernandez, Kathryn) (Entered: 05/24/2016)
183 REPLY to 167 MOTION in Limine to Exclude Testimony from Dr. Harold M. Ginzburg, 178 MEMORANDUM in Opposition, filed by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. (Thornton, Laura) (Entered: 05/24/2016)

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184 AFFIDAVIT of Settlement Efforts by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Monica Jackson, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. (Lospennato, Ronald) (Entered: 06/20/2016)
185 Motion to Withdraw and Motion to Substitute Gary Evans in place of E. Wade Shows, James L. Hilburn, and Jeffrey K. Cody as Attorney by All Defendants. (Hilburn, James) Modified on 6/21/2016 to edit text. (EDC). (Entered: 06/21/2016)
MOTION(S) REFERRED: 185 MOTION to Substitute Gary Evans in place of E. Wade Shows, James L. Hilburn, and Jeffrey K. Cody as Attorney . This motion is now pending before the USMJ. (EDC) (Entered: 06/21/2016)
186 ORDER granting 185 Motion to Substitute Attorney. James Garrison Evans substituted as counsel for Kathy Kliebert & Louisiana Department of Health and Hospitals replacing James L. Hilburn and Jeffrey K. Cody. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 6/23/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (JSL) (Entered: 06/23/2016)
187 MOTION to Continue August 1, 2016 Trial Date and Request for Status Conference by All Defendants. (Borghardt, Stephanie) Modified on 7/5/2016 to edit text and add motion for status conference (LLH). (Entered: 07/01/2016)
188 Notice to Counsel: Telephone Status Conference set for 7/7/2016 at 09:30 AM before Judge Shelly D. Dick. Counsel for Defendants shall initiate the conference call to chambers.(This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(DCB) (Entered: 07/05/2016)
189 Unopposed MOTION for Extension of Time to File Joint Pretrial Order by All Defendants. (Borghardt, Stephanie) (Entered: 07/05/2016)
190 ORDER granting 189 Motion for Extension of Time to File Joint Pretrial Order. The new deadline to file the Joint Pretrial Order will be set at the already scheduled telephone status conference. Signed by Judge Shelly D. Dick on 7/6/16. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (DCB) (Entered: 07/06/2016)
191 ORDER denying 187 Motion to Continue. Signed by Judge Shelly D. Dick on 07/07/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Dick, Shelly) (Entered: 07/07/2016)
192 Proposed Findings of Fact by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Monica Jackson, Ryan Kasami, Tyrin

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Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. (Foley, Eric) (Entered: 07/11/2016)
193 RULING denying 167 Motion in Limine to exclude Dr. Ginzburg. Signed by Judge Shelly D. Dick on 7/15/2016. (LLH) (Entered: 07/15/2016)
194 RULING denying MOTION to Dismiss Plaintiffs' Complaint (Rec. Doc. 13 in 15-cv-751). Signed by Judge Shelly D. Dick on 7/18/2016. (SGO) (Entered: 07/18/2016)
195 ORDER OF DISMISSAL: This action is hereby DISMISSED without prejudice to the right, upon good cause shown within sixty (60) days, to reopen the action if the settlement is not consummated. The final Pretrial conference scheduled for July 19, 2016 at 2pm is hereby CANCELLED. If the parties require assistance resolving collateral matters they are instructed to contact the Magistrate Judge. Signed by Judge Shelly D. Dick on 7/18/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(Dick, Shelly) (Entered: 07/18/2016)
196 MOTION to Reopen Case For Purpose of Approving, and Entering an Order On, Settlement Agreement by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Francis Mary Watson, Stephen Zeringue. (Attachments: # 1 Attachment)(Lospennato, Ronald) Modified on 9/6/2016 to edit the text (TNB). (Attachment 1 replaced on 11/17/2016) (ELW). Modified on 11/17/2016 as granted by the court (ELW). (Entered: 09/02/2016)
197 MOTION for Leave to File Settlement Agreement as Substitute Document by All Plaintiffs. (Attachments: # 1 Proposed Pleading;, # 2 Attachment Proposed Order)(Lospennato, Ronald) (Entered: 09/06/2016)
198 MEMORANDUM in Support of Motion To Reopen Case For Purpose of Approving, and Entering an Order on, Settlement Agreement 197 MOTION for Leave to File Settlement Agreement filed by All Plaintiffs. (Lospennato, Ronald) Modified on 9/7/2016 to edit the text (TNB). (Entered: 09/07/2016)
199 ORDER granting 196 Motion to Reopen Case. Signed by Judge Shelly D. Dick on 11/14/16. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (DCB) (Entered: 11/14/2016)
200 ORDER granting 197 MOTION for Leave to File Settlement Agreement as Substitute Document filed by Brandon Cooper, Advocacy Center, Stephen Zeringue, Ron Gatlin, Kenny Swatt, William Pitzer, Louis Davenport. Signed by Judge Shelly D. Dick on 11/16/2016. (ELW) (Entered: 11/17/2016)

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203 SETTLEMENT AGREEMENT. Signed by Judge Shelly D. Dick on 11/16/2016. (SGO) (Entered: 06/16/2017)
201 MOTION for Nell Hahn to Withdraw as Attorney by All Plaintiffs. (Attachments: # 1 Proposed order)(Hahn, Ellen) (Entered: 12/15/2016)
202 ORDER granting 201 Motion to Withdraw as Attorney. Attorney Ellen B Hahn is withdrawn as one of the attorneys of record for the plaintiff in this matter. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 12/22/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (JSL) (Entered: 12/22/2016)
204 MOTION for Katie Schwartzmann to Withdraw as Attorney by All Plaintiffs. (Attachments: # 1 Proposed Pleading;)(Schwartzmann, Katharine) (Entered: 11/28/2018)
MOTION(S) REFERRED: 204 MOTION for Katie Schwartzmann to Withdraw as Attorney . This motion is now pending before the USMJ. (KAH) (Entered: 11/28/2018)
205 ORDER granting 204 Motion to Withdraw as Counsel. Attorney Katie M. Schwartzmann is withdrawn as counsel for Plaintiffs in this matter. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 11/28/2018. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (JSL) (Entered: 11/28/2018)
206 MOTION to Enroll Elizabeth Cumming as Additional Attorney by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Monica Jackson, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Proposed Order)(Foley, Eric) (Entered: 11/13/2020)
207 MOTION to Enroll Evelyn Chuang as Additional Attorney by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Monica Jackson, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Proposed Order)(Foley, Eric) (Entered: 11/13/2020)
MOTION(S) REFERRED: 206 MOTION to Enroll Elizabeth Cumming as Additional Attorney , 207 MOTION to Enroll Evelyn Chuang as Additional Attorney . This motion is now pending before the USMJ. (KMW) (Entered: 11/16/2020)
208 Unopposed MOTION for Continued Reporting and Jurisdiction over the Settlement Agreement and Notice of Negotiations Related to a Supplemental Agreement by Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Monica Jackson, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order)(Foley, Eric) Modified on 11/17/2020 to edit the docket text (KMW). (Entered: 11/16/2020)

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209 ORDER granting 206 and 207 Motions to Enroll Additional Plaintiffs' Counsel. Attorneys Elizabeth Cumming and Evelyn Hsiao-Farn Chuang are enrolled as co-counsel for plaintiffs Advocacy Center, Brandon Cooper, Louis Davenport, Scott Frye, Ron Gatlin, Monica Jackson, Ryan Kasami, Tyrin Perkins, Dominick Pernicaro, III, William Pitzer, Kenny Swatt, Stephen Zeringue, and Louis Davenport. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 11/17/2020. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (SGO) (Entered: 11/17/2020)
210 ORDER granting 208 Unopposed MOTION for Continued Reporting and Jurisdiction over the Settlement Agreement and Notice of Negotiations Related to a Supplemental Agreement. Signed by Chief Judge Shelly D. Dick on 12/3/2020. (ELW) (Entered: 12/03/2020)
211 MOTION to Withdraw and Substitute Counsel of Record by Louisiana Department of Health and Hospitals. (Attachments: # 1 Attachment Proposed Order)(Evans, James). Added MOTION to Withdraw as Attorney on 12/10/2020 (EDC). Modified on 12/10/2020 to edit text. (EDC). (Entered: 12/09/2020)
212 MOTION to Substitute Counsel of Record by Louisiana Department of Health and Hospitals. (Aguillard, Erica) Modified on 12/10/2020 to edit text. (EDC). (Entered: 12/09/2020)
MOTION(S) REFERRED: 211 MOTION to Substitute Tunde Animashaun in place of James G. Evans as Attorney MOTION to Withdraw as Attorney, 212 MOTION to Substitute Krystal Brown and Erica Aguillard in place of Stephanie Borghardt as Attorney . This motion is now pending before the USMJ. (EDC) (Entered: 12/10/2020)
213 ORDER granting 211 Motion to Withdraw and Substitute Counsel of Record. Attorney Babatunde Mobolade Animashaun is substituted as counsel for defendant Louisiana Department of Health and Hospitals replacing James G. Evans. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 12/10/2020. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (SGO) (Entered: 12/10/2020)
214 ORDER denying 212 Motion to Substitute Counsel of Record for failure to comply with Local Rules 10(a)(1) and 83(b)(13) as the document was filed on legal size paper and withdrawing counsel did not sign the pleading. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 12/14/2020. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (SGO) (Entered: 12/14/2020)
215 MOTION for Stephanie Borghardt to Withdraw as Attorney , MOTION to Substitute Krystal Brown and Erica Aguillard in place of Stephanie Borghardt as Attorney by Louisiana Department of Health and Hospitals. (Aguillard, Erica) (Entered: 12/21/2020)

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MOTION(S) REFERRED: 215 MOTION for Stephanie Borghardt to Withdraw as Attorney MOTION to Substitute Krystal Brown and Erica Aguillard in place of Stephanie Borghardt as Attorney . This motion is now pending before the USMJ. (EDC) (Entered: 12/21/2020)
216 ORDER granting 215 Motion to Withdraw and Substitute Counsel of Record. Attorneys Erica Schirling Aguillard and Krystal Lynnette Airs are substituted as counsel for Defendant Louisiana Department of Health and Hospitals replacing Stephanie Borghardt. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 12/22/2020. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (SGO) (Entered: 12/22/2020)

PACER Service Center Transaction Receipt

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04/08/2021 13:43:56

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Docket Report

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3:14-cv-00507-SDDRLB

30

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