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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ADVOCACY CENTER and W.B., through his mother and next friend Charrie Butler,
PLAINTIFFS,
-AGAINST-
LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS, ALAN LEVINE, MARK ANDERS, and MICHELLE DUNCAN, in their official capacities,
DEFENDANTS.

CIVIL ACTION NO.: JUDGE: MAGISTRATE JUDGE: COMPLAINT

For the Complaint of Plaintiffs Advocacy Center and W.B., through his mother and next friend Chanie Butler, ("Plaintiffs") against Defendants Louisiana Department of Health and Hospitals (''DHH"), Alan Levine, Mark Anders, and Michelle Duncan ("Individual Defendants," and with DHH, "Defendants"), Plaintiffs allege on personal knowledge with respect to their own acts, and upon information and belief with respect to all other matters, as follows:

PRELIMINARY STATEMENT 1. This action for declaratory and injunctive relief is based on Defendants' refusal to accept prompt physical custody of pretrial detainees who have been found to lack the mental capacity to stand trial and have been remanded to the custody of the Fcliciana Forensic Facility. Defendants' reli.tsal to accept physical custody has resulted and is resulting in prolonged and unconstitutional confinement of such pretrial detainees in parish jails. 2. Under the laws of the State of Louisiana ("Louisiana" or "State"). a pretrial detainee who is found incompetent to stand trial must be given restorative treatment in state custody, subjected to civil commitment proceedings, or released from state custody. See La. Code Crim. Proc. Ann. art. 648 (2009) ("Article 648"). If he or she is (I) charged with a felony

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or select misdemeanors, (2) deemed likely to commit a crime of violence, and (3) his or her mental capacity is not likely to be restored within ninety days, and (4) inpatient restorative treatment is recommended, Louisiana law provides that he or she must be committed to the Fcliciana Forensic Facility ("Feliciana"). See Article 648(A)(2). Such detainees arc referred to herein as "Patient Detainees." By law, criminal proceedings against Patient Detainees are suspended until their competence is restored.
3. Plaintiffs bring this action because Patient Detainees who have been found by the courts to be incompetent to stand trial and in need of inpatient restorative treatment at Feliciana arc not being promptly transferred for treatment. Instead, Patient Detainees-who numbered 130 as of March 2010-are being held in parish prisons, without regard for their presumed innocence and despite never having been convicted ofa crime, for months and even years before being transferred in accordance with court orders.
4. DHH provided a list to the Advocacy Center showing Patient Detainees as of October 22, 2009. That list showed that in Caddo Parish, for example, one Patient Detainee has been awaiting transfer since August 13, 2008. In St. James Parish, the only Patient Detainee has been waiting since October 3, 2007. And in St. Tammany Parish, a Patient Detainee has waited since October 25, 2007. Indeed, the average wait time for Patient Detainees in Louisiana as of October 22, 2009 was 195 days-over 6 months. Across Louisiana the problem is the same: Patient Detainees wait months and even years for transfer from parish prisons to Feliciana.
5. The failure to promptly transfer Patient Detainees is a violation of the Patient Detainees' right to due process under the United States Constitution.
6. Plaintiffs seek (1) declaratory relief that Article 648 of the Louisiana Code of Criminal Procedure and Louisiana Revised Statute Section 28:25.1 are unconstitutional, and (2) permanent injunctive relief requiring Defendants to promptly provide Patient Detainees with the inpatient restorative treatment they need to proceed to trial.
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.JURISDICTION 7. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343, as Plaintiffs' claims arise under the Fourteenth Amendment to the United States Constitution. This Court may grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202. 8. Venue is appropriate under 28 U.S.C. § 1391(b)(2) because a substantial number of the events giving rise to this Complaint occurred in this district.

Plaintiffs: Advocacy Center

PARTIES

9. 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.
10. The Advocacy Center is part of a nationwide network of disability rights agencies ("Protection and Advocacy" organizations) created under federal law to provide legal representation and other advocacy services on behalf of persons with disabilities. 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 ("PAIM!") Act of 1986, 42 U.S.C. §10801 et seq. (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. See id.
11. In addition to a governing board, the Advocacy Center has an advisory board known as a "PAlMI Council." Ninety percent of its PAlMI Council members have received or are receiving mental health services or are family members of such individuals. The Advocacy Center's PAlMI Council also includes mental health professionals and individuals from the

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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.
12. The Advocacy Center has met with Patient Detainees who have been, or are being, held for extended periods in parish prisons despite having been found incompetent to stand trial and unlikely to be restored to competence in ninety days, and having been committed to Feliciana for inpatient restorative treatment. The mental state of some of these individuals is so severely impaired that they appear to be unable to understand their rights or to retain civil trial counsel. Each Patient Detainee 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. Patient Detainees 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.
13. The Advocacy Center brings this suit as an associational plaintiff on behalf of Patient Detainees who allege that the State's mental incapacity statutes violate the Fourteenth Amendment to the United States Constitution.
Plaintiffs: W.B.
14. Plaintiff W.B. is a resident citizen of Orleans Parish who was born in 1992. W.l3. brings this action through Charrie Butler, his mother and next friend.
15. As of the filing of this Complaint, W.B. has been incarcerated by the State of Louisiana for 251 days. W.B., like all Patient Detainees, has been arrested but not yet tried or convicted of a crime in connection with his incarceration. Because W.B., like all Patient Detainees, has been found to lack the mental capacity to proceed to trial, his prosecution has been suspended pursuant to Article 648(A).
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16. On September 3, 2009, W.B. was charged with two counts of violating Louisiana Revised Statute Section 14:64.3, Armed Robbery with a Firearm, and one count of violating Lcuisiana Revised Statute Section 14:30, Attempted First Degree Murder. He was booked into Orleans Parish Prison.
17. On October 1, 2009, W.B. was adjudged incompetent to stand trial and remanded to Fcliciana. As of the filing of this Complaint, W.B. has not been transferred to Feliciana and instead remains incarcerated at Orleans Parish Prison.
18. W.B. says that he dropped out of school in eighth grade. He reports that he is occasionally visited by a social worker at Orleans Parish Prison. W.B. denies a diagnosis of mental illness and says that he does not take any medication. He claims not to know why he is detained or the contents of the charges against him.
19. W.B. reports that he is being treated "terribly" in Orleans Parish Prison; his complaint stems mostly from the fact that "little men" visit him every night in his sleep--punching him, rmming away, and telling him "we'll be back." W.B. says that these "little men" began visiting him long before he was incarcerated.
20. W.B. claims that he tried to hurt himself with a razor before his current incarceration and that he has tried to hnrt himself again since being detained. W.B. says that he saw a psychiatrist after he tried to hurt himself in jail, although he does not believe the psychiatrist provided much help.
21. W.B.'s most recent court hearing was January 14, 2010, at which lime the court scheduled a follow-up status hearing for April15, 2010. W.B. would like to go to Fcliciana for assistance, but he is still awaiting transfer to Feliciana for the inpatient restorative treatment that he needs to have his day in court.
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Defendants 22. Defendant Louisiana Depm1ment of Health and Hospitals ("DHH") is the agency
responsible for the development and coordination of services for persons with mental illness, mental retardation, developmental disabilities, and addictive disorders; for public health services; and for services provided under the Medicaid program. See La. Rev. Stat. Ann.§ 36:251, et seq (2009).
23. As of the filing of this Complaint, Defendant Alan Levine is the Secretary of DHH. Pnrsnant to Louisiana Revised Statute Section 36:253-54, he is responsible for the policies of DHH and for the administration, control, and operation of DHH functions and programs. Mr. Levine is sued in his official capacity only.
24. As of the filing of this Complaint, Defendant Mark Anders is the Chief Executive Officer of the Eastern Louisiana Mental Health System ("ELMHS"), a part of DHH. ELMHS provides mental health evaluation, treatment, habilitation, and consultation for children, adolescents, and adults. ELMHS comprises two divisions-the East Division and the Forensic Division. Mr. Anders is sued in his official capacity only.
25. As of the filing of this Complaint, Defendant Michelle Duncan is the Director of the Forensic Services Division of ELMHS (as previously defined, "Fcliciana"). Fcliciana provides services to adults who are sent there through legal proceedings. Such services include assessment and therapies directed toward treatment and stabilization of psychiatric disorders, treatment of substance abuse disorders, behavior management, and enhancement of interpersonal skills. Ms. Duncan is sued in her official capacity only. Ms. Duncan and Messrs. Levine and Anders arc the "Individual Defendants."
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STATEMENT OF FACTS 26. Louisiana imprisons Patient Detainees for months, and even years, without providing them with the treatment needed to restore their competence. 27. As of October 22, 2009, approximately 104 Patient Detainees were awaiting transfer to Feliciana. That number may in fact be higher: according to a March 2010 DHH publication, 130 people were being held in local jails waiting for access to a bed at Feliciana Forensic Hospital. Each Patient Detainee has been judged mentally incompetent to stand trial, is charged with a felony or a misdemeanor classified as an offense against the person, has been deemed likely to commit a crime of violence, is unlikely to be restored within ninety days, and has been recommended for inpatient treatment. And each of these Patient Detainees is now being held in a parish prison without the ability to receive needed inpatient restorative treatment or to proceed to court to stand trial. Instead, these individuals sit in prison as if convicted on the charges for which they only stand accused. 28. As of October 22, 2009, nearly half of the 104 Patient Detainees had wailed over 180 days since they were ordered to be transferred to Feliciana. Moreover, some of these same detainees had either not received, or not timely received, the status conference lo which they were entitled after being held as a Patient Detainee in a parish prison for over 180 days. 29. As of October 22, 2009, almost twenty of these detainees-if not more-had been held in parish prisons for more than 360 days after being ordered lo Feliciana. As a result, they arc entitled to another hearing to determine whether they should be released or civilly committed-but such hearings rarely occur. 30. As of October 22, 2009, some Patient Detainees had been waiting for over two years for transfer to Feliciana. Depending on how long these detainees were incarcerated in parish prisons before competency was even raised, many-if not most-have spent more than two years of their lives incarcerated, waiting for restorative treatment that would simply enable them to stand trial.
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31. The most recent statistics for Orleans Parish further demonstrate the problem with Louisiana's treatment of Patient Detainees. The patient waiting list provided by Orleans Parish to the Advocacy Center on January 14, 2010 indicates that 28 Patient Detainees in Orleans were awaiting transfer to Feliciana. Within this group, the average wail lime since the court ordered transfer to Feliciana was 161 days. Several detainees have awaited transfer for more than 250 days, with some wait times exceeding 440 days.
32. The patient waiting list provided by DHH to the Advocacy Center on October 22, 2009, indicates that Patient Detainees experience similarly significant wait times across the State. These statistics speak for themselves: Louisiana's process for restoring the competence of Patient Detainees is broken.
• Caddo Parish, housing three Patient Detainees, one of whom had been awaiting transfer since August 13, 2008 (as of October 22, 2009, 435 days);
• East Baton Rouge Parish, housing eight Patient Detainees, one of whom had been awaiting transfer since April1, 2009 (as of October 22, 2009, 204 days);
• Jefferson Parish, housing thirteen Patient Detainees, one of whom had been awaiting transfer since June 4, 2008 (as of October 22, 2009, 505 days);
• Lincoln Parish, housing eight Patient Detainees, one of whom had been awaiting transfer since September 17, 2008 (as of October 22, 2009, 400 days);
• Livingston Parish, housing one Patient Detainee, awaiting transfer since May 14, 2009 (as of October 22, 2009, 161 days);
• Ouachita Parish, housing two Patient Detainees, one of whom had been awaiting transfer since October 1, 2008 (as of October 22, 2009, 386 days);
• Rapides Parish, housing four patient detainees, one of whom had been awaiting transfer since August 25, 2008 (as of October 22, 2009, 423 days), another since October 2, 2008 (385 days), another since November 3, 2008 (353 days), and the last since April I, 2009 (204 days);
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• Richland Parish, housing one Patient Detainee, awaiting transfer since May 13, 2009 (as of October 22, 2009, 162 days);
• St. Bernard Parish, housing one Patient Detainee, awaiting transfer since November 12, 2008 (as of October 22, 2009, 344 days);
• St. Helena Parish, housing one Patient Detainee, awaiting transfer since May 2, 2008 (as of October 22, 2009, 538 days);
• St. James Parish, housing one Patient Detainee, awaiting transfer since October 3, 2007 (as of October 22, 2009, 750 days);
• St. Tammany Parish, housing eight Patient Detainees, one of whom had been awaiting transfer since October 25, 2007 (as of October 22, 2009, 728 days);
• Tangipahoa Parish, housing three Patient Detainees, one of whom had been awaiting transfer since March 6, 2009 (as of October 22, 2009, 230 days);
• Union Parish, housing one Patient Detainee, awaiting transfer since July 22, 2009 (as of October 22, 2009, 92 days);
• Washington Parish, housing three Patient Detainees, one of whom had been awaiting transfer since July 4, 2008 (as of October 22, 2009, 475 days);
• Webster Parish, housing one Patient Detainee, awaiting transfer since April 13, 2009 (as of October 22, 2009, 192 days).
Louisiana Mental Incapacity Statutes
33. In Louisiana, a criminal defendant lacks the mental capacity to stand trial when, "as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense." La. Code Crim. Proc. Ann. mi. 641 (2009).
34. Mental incapacity may be raised at any time by the defense, the district attorney, or the court. !d. at art. 642. Importantly, "[w]hen the question of the defendant's mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution ... until
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the defendant is found to have the mental capacity to proceed." !d. As a result, a pretrial detainee who is found mentally incompetent cannot pursue his or her right to stand trial until mental capacity is restored.
35. When there is reasonable ground to doubt a defendant's mental capacity to proceed with a criminal prosecution, the court must issue an order for a mental examination. !d. at art. 643. Within seven days of such an order, a sanity commission must be appointed to examine and report on the pretrial detainee's mental condition. See id. at art. 644(A). 1
36. A sanity commission has thirty days to complete its mental examination of a defendant and file its report with the court, during which time a pretrial detainee will remain in custody unless he or she was already released on bail. A court may, however, extend the time a sanity commission has to file its report. See id. at art. 645(B). At this point, then, a mentally incompetent pretrial detainee may have been in custody for thirty-seven days-and is likely to have been in custody much longer. Because parish prisons are wholly unequipped to provide restorative mental health treatment for the vast majority of detainees, such detainees will not yet have started the restorative treatment needed to restore competence and advance to trial.
37. After the sanity commission has completed its repmt, the issue of the defendant's mental capacity to proceed is determined at a competency hearing. See id. at art. 647. At this point, a pretrial detainee has still not received the type of restorative mental health treatment needed to restore competence and advance to trial.
38. If a pretrial detainee is found by a preponderance of the evidence to lack the mental capacity to proceed to trial, all legal proceedings are suspended and one of three dispositions occurs. See Article 64~.
Pursuant to Louisiana Code of Criminal Procedure Article 644(0), a local mental health unit may be appointed in lieu of a sanily commission in cettain circumstances. Accordingly, use of the term ·'sanity commission" in the Louisiana Code of Criminal Procedure, and in this Complaint, also includes local mental health units. See id. at art. 644(0)(2)(a).
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39. If a court determines that (1) a pretrial detainee's mental capacity is likely to be restored by outpatient care within ninety days, (2) the detainee is not charged with a felony or a misdemeanor that is an offense against the person, and (3) the detainee is deemed unlikely to commit crimes of violence, then a court can order outpatient treatment. See id. al Art. 648(A)(l). Only pretrial detainees who are found to be nonviolent and unlikely to require more than ninety days of inpatient care are eligible for restorative treatment outside of slate custody. All other pretrial detainees fall under the second or third dispositions.
40. In those cases in which a pretrial detainee (1) has been charged with a felony or a misdemeanor classified as an offense against the person, (2) is deemed by a court to be likely to commit a crime of violence, and (3) is determined likely to have his or her mental capacity restored within 90 days as a result of treatment, the court may order such immediate jail-based treatment by DHH (i.e., not by the parish jail) for a period not to exceed 90 days. But if a detainee's mental capacity is not likely to be restored within ninety days and inpatient treatment has been recommended, Louisiana law provides that he or she must be commilled to the Feliciana Forensic Facility. See id. at Art. 648(A)(2). This is the group of persons referred to in this Complaint as "Patient Detainees." Feliciana is the only facility in Louisiana equipped to administer inpatient restorative treatment to Patient Detainees.
41. Simply because a Patient Detainee is remanded to Feliciana, however, does not mean that the detainee is immediately sent there. Louisiana law permits-indeed, requires-the administrator of Feliciana to refuse to admit Patient Detainees to Feliciana if transferring them to the facility would cause overcrowding, or if it "is unable to provide appropriate care or treatment." La. Rev. Stat. Ann.§ 28:25.l(C)(2)(a)(i) and (ii).
42. Louisiana law recognizes and even condones the failure to promptly transfer Patient Detainees to Feliciana, as it provides that if a Patient Detainee is held in a parish prison for 180 days following the detennination that he or she lacks the mental capacity to proceed to trial, a court shall call a status conference, which may then lead to a second hearing "to determine whether there has been a change in the defendant's condition or other circumstances
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sufficient to warrant a modification of the previous order." La. Code Crim. Proc. Ann. art. 648(A)(2)(b). At this point, a Patient Detainee will usually have remained in parish prisonwithout the type of restorative mental health treatment needed to restore competence and advance to trial-for over 210 days since his or her arrest, despite the fact that such Patient Detainee is presumed innocent and has not been convicted of any crime in connection with his or her incarceration.
43. Only if 360 days or more-nearly a year-has passed since the Patient Detainee was committed to Feliciana, yet is still being held in the parish jail, must the court hold a hearing to determine whether to release the Patient Detainee or order civil commitment proceedings. Article 648(A)(2)(c). No time limit is set for when the civil commitment proceedings must occur, and Article 648(A)(2)(c) specifies that the Patient Detainee remains in custody until the civil commitment proceedings arc completed.
44. Both facially and as applied, Article 648 of the Louisiana Code of Criminal Procedure and Louisiana Revised Statute Section 28:25.1 deny Patient Detainees their right not to be incarcerated for longer than the reasonable period of time necessary to determine their capacity to proceed to trial, and their right to the restorative treatment needed to attain that goal.
Louisiana's System Utterly Fails Mentally Incompetent Pretrial Detainees
45. Feliciana is Louisiana's only State inpatient forensic center for Patient Detainees, and the laws of Louisiana dictate that Patient Detainees shall be committed to Feliciana. Feliciana is the only place where a Patient Detainee can hope to receive inpatient restorative treatment enabling him or her to have competency restored and stand trial.
46. Fcliciana serves convicted prisoners and pretrial detainees by, for example, providing assessment and therapy for psychiatric disorders, behavior management, and enhancement of interpersonal skills.
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47. Feliciana is specifically designed to provide inpatient treatment to restore the Patient Detainees to competence, thereby enabling them to stand trial. At Feliciana, patients are housed in bedrooms connected to a secure common area instead of being confined to cells; are treated by an on-site psychiatrist and nurses who are trained to deal with psychotic and mentally ill patients; are watched by guards who are trained to deal with at-risk detainees; and receive direct observational therapy.
48. Parish prisons are not adequate substitutes for Feliciana. They do not, and cannot, supply the kind of inpatient restorative treatment that DHH is obligated to provide under Article 648(A)(2).
49. It is precisely because inpatient restorative treatment of Patient Detainees is the responsibility of DHH under Louisiana law that this action is not directed at parish prisons, which are in any event wholly unequipped to provide the type of restorative treatment needed to return Patient Detainees to competence. Indeed, parish prisons often struggle to provide even basic mental health treatment, leaving Patient Detainees in the general prison population-in the company of convicted offenders-or placing them in solitary confinement due to the disruptive behaviors caused by their illnesses. Many prisons lack psychiatric units entirely, and even those that have such units are unable to provide Patient Detainees the inpatient restorative care they need.
50. For example, a 2009 report by the U.S. Department of Justice criticized even the basic mental health treatment provided by Orleans Parish Prison, a problem caused, according to the Orleans Criminal Sherriff, by inadequate staffing due to inadequate funding.
51. Sheriffs themselves have recognized that local jails lack the proper facilities to care for incompetent pretrial detainees. For example, when Sheriff A.R. "Buddy'' Hodgkins of the Louisiana Sheriffs' Association testified before the Louisiana House Committee on the Administration of Criminal Justice on May 24, 2006, he explained that local jails lack the resources to properly care for incompetent detainees, and that any such efforts were dangerous to the detainees and others.
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52. In a November 20, 2009, article in the Times-Picayune, Dr. Demaree Inglese, medical director of St. Tammany Parishjail, echoed Sheriff Hodgkins's sentiment. Commenting on the suicide of an imnate with a history of mental illness, Dr. Inglese explained that the inmate should not have ended up in jail, but in a facility with the resources and personnel to treat him. Dr. Inglese warned: "[t]he more and more mentally ill patients we have being dumped on the correctional system, the more and more suicides we're going to see."
53. Without proper medical care and segregation from the general prison population, Patient Detainees often rapidly and radically destabilize. Depending on the individual detainee, these destabilizations can be-and often are-permanent, depriving the individual of much more than his or her chance to mount a defense in court. Indeed, some Patient Detainees experience such a lack of care that they undergo a deterioration of their psychological well-being and mental capacity to the point that rehabilitation becomes impossible.
54. Even parish prisons that have mental health units-such as Orleans Parish Prison and St. Tammany Parish Prison--cannot and do not provide inpatient restorative treatment as required under Article 648(A)(2) and are ill-equipped to properly protect Patient Detainees from further harm and mental deterioration. Orleans Parish Prison, for example, provides inadequate suicide prevention for mental health prisoners and has failed to timely assess and treat pretrial detainees with mental illnesses. St. Tammany Parish can only guarantee constant supervision for a suicidal Patient Detainee by holding him in a three-foot-by-three-foot intake cage. Putting aside competency restoration, this type of care causes unnecessary suffering to individuals who simply require medical attention.
55. By contrast, Feliciana does provide inpatient restorative treatment, as required under Article 648(A)(2), and is equipped to treat and restore Patient Detainees. Felieiana's treatment of suicidal detainees alone speaks to the difference between it and the parish prisons: at Feliciana, a guard is assigned to stay within arm's length of a detainee who is deemed suicidal.
56. Patient Detainees are not being transferred to Feliciana, as required by law, for one simple reason: Feliciana is full. Few, if any, beds are available for Patient Detainees. And,
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as discussed above, La. Rev. Stat. Ann. Section 28:25:1 (2009) requires the Feliciana administrator to refuse admission to a Patient Detainee if admission would cause overcrowding.
57. While the goal of avoiding overcrowding at Feliciana is worthy, the lack of beds at Feliciana callllot be used to deny Patient Detainees their constitutional rights.
58. As a direct and proximate result of the foregoing, W.B. and other Pretrial Detainees have suffered, continue to suffer, and will likely suffer in the future the loss of their freedom and deprivation of their liberties, as well as violation of their statutory and constitutional rights. Each of these persons is a constituent of the Advocacy Center.
59. By this action, Plaintiffs seck to vindicate the public interest by enforcing Patient Detainees' clearly established right not to be incarcerated for longer than the reasonable period of time necessary to determine their capacity to proceed to trial and their right to the restorative treatment needed to attain that goal.
60. Plaintiffs have no complete and adequate remedy at law.
CAUSE OF ACTION
VIOLATION OF DUE PROCESS UNDER FOURTEENTH AMENDMENT OF UNITED STATES CONSTITUTION 61. Plaintiffs incorporate by reference paragraphs 1 to 60 of this Complaint. 62. Due process requires that the nature and duration of confinement must bear reasonable relation to the purpose for which the individual is committed. 63. Once a Pretrial Detainee is found unable to aid and assist in his own defense, the only lawful purpose for continued criminal confinement is to treat the person so that he or she may be restored to competency. 64. Individuals found to be lacking the mental capacity to proceed to trial but whose capacity may be restored have a constitutional right to treatment that will give them a realistic opportunity to be cured or to improve their mental condition.
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65. Parish jails do not have the capacity to provide the restorative mental health treatment required by the U.S. Constitution.
66. Defendants have refused and are refusing to allow prompt transfer of Pretrial Detainees from parish jails to Feliciana.
67. Defendants, by requiring persons who have been found to lack the mental capacity to proceed to remain in parish jails, which are places of confinement, rather than promptly accepting them at Feliciana, have violated the Pretrial Detainees' rights under the due process clause of the Fourteenth Amendment to the U.S. Constitution.
68. Louisiana's above-described mental incapacity statutes are unconstitutional as written to the extent that they violate the clearly established rights of W.B. and all Patient Detainees under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, by depriving them of their right not to be incarcerated for longer than the reasonable period of time necessary to determine their capacity to proceed to trial and their right to the restorative treatment needed to attain that goal.
69. Louisiana's above-described mental incapacity statutes are also unconstitutional as applied because they violate the clearly established rights of W.B. and all Patient Detainees under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, by depriving them of their right not to be incarcerated for longer than the reasonable period of time necessary to determine their capacity to proceed to trial and their right to the restorative treatment needed to attain that goal.
70. By this action, Plaintiffs seek to vindicate the public interest by enforcing fundamental constitutional rights of Patient Detainees not to be incarcerated for longer than the reasonable period of time necessary to determine their capacity to proceed to trial and to the restorative treatment needed to attain that goal.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that judgment be entered in their favor and against Defendants as follows:
1. Granting preliminary and permanent injunctive relief requiring Defendants to promptly accept physical custody of W.B. and all other Pretrial Detainees (as defined above) within a reasonable period of time, not to exceed seven days from the date they arc committed to the Feliciana Forensic Facility for restorative treatment;
2. Declaring that Defendants must accept physical custody of Pretrial Detainees (as defined above) within a reasonable period of time, not to exceed seven days from the date they are committed to the Feliciana Forensic Facility for restorative treatment;
3. Declaring that Louisiana Code of Criminal Procedure Article 648(A)(2)(b) and (c) is unconstitutional as written because it violates the rights of W.B. and all Patient Detainees under the Due Process Clause of the Fourteenth Amendment of the United States Constitution not to be incarcerated for longer than the reasonable period of time necessary to determine their capacity to proceed to trial and their right to the restorative treatment needed to attain that goal;
4. Declaring that Louisiana Code of Criminal Procedure Article 648(A)(2)(b) and (c) and Louisiana Revised Statute Section 28:25.l(C)(2)(a)(i) and (ii) are unconstitutional as applied because they violate the rights of W.B. and all Patient Detainees under the Due Process Clause of the Fourteenth Amendment to the United States Constitution not to be incarcerated for longer than the reasonable period of time necessary to determine their capacity to proceed to trial and their right to the restorative treatment needed to attain that goal;
5. Awarding attorneys' fees and costs incutred in the prosecution of this action pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws;
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Dated: April12, 2010

Attomeys For Plaintiff~
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF LOUISIANA P.O. Box 56157 New Orleans, LA 70156 Telephone: (504) 592-8056 Facsimile: (888) 534-2996 E-mail: kschwartzmann@laaclu.org E-mail: bgcrharz@laaclu.org

Matjorie Press Lindblom* Adam T. Humann* Maura M. Klugman* Emily Lee*
Attorneys for Plaintiffs
KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, NY 10022-4611 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 E-mail: marjorie.lindblom@kirkland.com E-mail: adam.humann@kirkland.com E-mail: maura.klugman@kirkland.com E-mail: emily.lee@kirkland.com
*Motion for Admission Pro Hac Vice Pendinfi

Nell Hahn, Bar Number 22406 Koki Otero, Bar Number 29372 Miranda Tait, Bar Numbet· 28898
Attorneys For Plaintiffs
ADVOCACY CENTER OF LOUISIANA 600 Jefferson Street, Suite 812 Lafayelle, LA 70501 Telephone: (337) 237-7380 Facsimile: (337) 237-0486 E-mail: nhah@advocacyla.org E-mail: kotero@advocacyla.org E-mail: mtait@advocacyla.org

18

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ADVOCACY CENTER FOR THE ELDERLY AND DISABLED, ET AL.
VERSUS
LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS, ET AL.

CIVIL ACTION NO. 10-1088 SECTION R

ORDER AND REASONS Before the Court is defendants’ Motion to Dismiss (R. Doc. 20). For the following reasons, the motion is DENIED.
I. Introduction Plaintiffs in this matter are W.B., who brings this suit
through his mother and next friend, Charrie Butler, and also the Advocacy Center for the Elderly and Disabled. The Advocacy Center is part of a network of organizations established under federal law to advocate on behalf of people with disabilities. The federal laws under which the Advocacy Center was established include the Protection and Advocacy for Individuals with Mental Illness Act of 1986 (“PAIMI”).1
1 42 U.S.C. § 10801, et seq. The PAIMI Act is also occasionally called the Protection and Advocacy for Mentally Ill Individuals Act and abbreviated as “PAMII.” The two abbreviations refer to the same statute; the Court uses “PAIMI” for simplicity. In addition to the PAIMI Act, the Advocacy

Defendants are the Louisiana Department of Health and Hospitals, as well as three state officials who are sued in their official capacities. These officials include Alan Levine, the Secretary of the Department of Health and Hospitals; Mark Anders, the Chief Executive Officer of the Eastern Louisiana Mental Health System, which is a component of the Department of Health and Hospitals; and Michelle Duncan, the Director of the Forensic Services Division of the Eastern Louisiana Mental Health System.
Plaintiffs allege that Louisiana law requires criminal defendants in Louisiana courts who are found incompetent to stand trial to be transferred to the Feliciana Forensic Facility (“Feliciana”) if they require inpatient restorative treatment. Plaintiffs further contend that Feliciana is the only inpatient facility where these detainees can receive adequate mental-health treatment. But Feliciana is full. It can accept no more patients, and under Louisiana law it must reject any new patients once it has reached full capacity. The consequence of this, plaintiffs claim, is that incompetent detainees awaiting a vacancy at Feliciana simply languish in parish jails for extended
Center alleges that it is a creature of the Protection and Advocacy of Individual Rights Program of the Rehabilitation Act of 1973, 29 U.S.C. § 794e, as well as the Developmental Disabilities Assistance and Bill of Rights Act of 2000, 42 U.S.C. § 15041, et seq.
2

periods of time without having been convicted of any crime.2 Plaintiffs claim that, as of October of 2009, 104 Incompetent Detainees had been held for an extended period of time despite having been found incompetent to stand trial and committed, but not yet transferred, to Feliciana. Nearly half had waited over 180 days, they claim, and nearly 20 had been waiting more than a year. Some had been waiting for more than two years. Plaintiffs additionally claim that, as of January 8, 2010, 28 Detainees were awaiting transfer from Orleans Parish Prison. They assert that the average wait time for these Detainees was 161 days, and that some had been waiting for more than 250 days, while others more than 440.
Plaintiffs brought this suit in April of 2010 seeking declaratory and injunctive relief. Defendants now move to dismiss this suit. The Court rules as follows.
II. Discussion Defendants seek dismissal of this action on several grounds.
First, they contend that this suit is barred by the Eleventh Amendment. Second, they argue that neither plaintiff may maintain this suit. Third, they argue that plaintiffs’ complaint
2 The terms “Incompetent Detainees” or “Detainees” in the capitalized form, unless otherwise indicated, refers to these inmates who have been found incompetent to stand trial by a Louisiana court and ordered to be transferred to Feliciana, but have not yet been transferred.
3

is insufficient. Finally, they assert that venue is not proper in the Eastern District of Louisiana.
A. Legal Standard Defendants assert that this case must be dismissed under
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Rule 12(b)(1) requires dismissal of an action if the court lacks jurisdiction over the subject matter of the plaintiff’s claim. Motions submitted under that rule allow a party to challenge the court’s subject-matter jurisdiction based upon the allegations on the face of the complaint.3 In ruling on a Rule 12(b)(1) motion to dismiss, the court may rely on (1) the complaint alone, presuming the allegations to be true, (2) the complaint supplemented by undisputed facts, or (3) the complaint supplemented by undisputed facts and by the court’s resolution of disputed facts.4 The plaintiff bears the burden of demonstrating that subject-matter jurisdiction exists.5 When examining a factual challenge to subject-matter jurisdiction that does not
3 Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996); see also Lopez v. City of Dallas, Tex., No. 03-2223, 2006 WL 1450420, at *2 (N.D. Tex. May 24, 2006).
4 Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001); see also Barrera-Montenegro, 74 F.3d at 659.
5 See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
4

implicate the merits of plaintiff’s cause of action, the district court has substantial authority “to weigh the evidence and satisfy itself as to the existence of its power to hear the case.”6 Accordingly, the Court may consider matters outside the pleadings, such as testimony and affidavits.7 A court’s dismissal of a case for lack of subject-matter jurisdiction is not a decision on the merits, and the dismissal does not necessarily prevent the plaintiff from pursuing the claim in another forum.8
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts “to state a claim to relief that is plausible on its face.”9 A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.”10 A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of
6 Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997); see also Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986).
7 See Garcia, 104 F.3d at 1261. 8 See Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977). 9 Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007)). 10 Iqbal, 129 S.Ct. at 1940.
5

the plaintiff.11 But the Court is not bound to accept as true legal conclusions couched as factual allegations.12
A legally sufficient complaint must establish more than a “sheer possibility” that plaintiff's claim is true.13 It need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action.14 In other words, the face of the complaint must contain enough factual matter to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiff’s claim.15 If there are insufficient factual allegations to raise a right to relief above the speculative level, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, the claim must be dismissed.16
11 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
12 Iqbal, 129 S.Ct. at 1949. 13 Id. 14 Id. 15 Lormand, 565 F.3d at 256. 16 Twombly, 550 U.S. at 555; Jones v. Bock, 549 U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 & n.9 (5th Cir. 2007).
6

B. Sovereign Immunity
The Court addresses defendants’ subject-matter-jurisdiction
challenges first.17 Defendants first assert that the doctrine of
sovereign immunity bars all claims asserted against the Louisiana
Department of Health and Hospitals and all claims asserted
against Department employees acting in their official
capacities.18
Sovereign immunity prevents citizens from bringing suit in
federal court against states of the United States that have not
consented to the suit.19 This rule applies to state agencies
such as the Louisiana Department of Health and Hospitals.20 In
17 See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
18 Defendants bring this challenge to the Court’s subjectmatter jurisdiction under Rule 12(b)(1). A suit that is barred by sovereign immunity is not precisely the same as one that is barred for want of subject-matter jurisdiction; unlike subjectmatter jurisdiction, sovereign immunity is waivable. See Wis. Dept. of Corrections v. Schacht, 524 U.S. 381, 394 (1998) (Kennedy, J., concurring). Rule 12(b)(1) is still the appropriate rule for such a challenge. See, e.g., Warnock v. Pecos County, Tex., 88 F.3d 341, 343 (5th Cir. 1996) (“Because sovereign immunity deprives the court of jurisdiction, the claims barred by sovereign immunity can be dismissed only under Rule 12(b)(1) and not with prejudice.”).
19 U.S. CONST. amend. XI; Pennhurst State Sch. & Hosp., 465 U.S. 89, 97-103; Hans v. Louisiana, 134 U.S. 1, 21 (1890).
20 The Fifth Circuit has determined that the Department of Health and Hospitals’s predecessor was an alter ego of the State of Louisiana, and was thus entitled to sovereign immunity. See Darlak v. Bobear, 814 F.2d 1055, 1060 (5th Cir. 1987). Courts have made the same holding with respect to the current Department of Health and Hospitals. See, e.g., Johnson v. Easley, No. 01-
7

addition, lawsuits against state officials in their official capacities are typically suits against the state itself and cannot be brought absent a sovereign-immunity exception.21
Plaintiffs, in response, voluntarily dismiss the Department of Health and Hospitals as a defendant.22 They then suggest that this suit does fall into an exception to sovereign immunity, specifically the exception that was articulated by the Supreme Court in Ex Parte Young.23 This exception holds that a suit is not barred by sovereign immunity when it is brought against state officials to enjoin the enforcement of an allegedly unconstitutional law.24 This exception may be maintained because the enforcement of an unconstitutional law cannot be an official act on behalf of the state, “because the state cannot confer authority on its officers to violate the Constitution or federal law.”25 Accordingly, “[o]nly for the purposes of the Eleventh
3325, 2003 WL 203103, at *2 (E.D. La. Jan. 29, 2003) (“the Louisiana Department of Health and Hospitals is an alter ego of the state and is entitled to Eleventh Amendment immunity”).
21 See Kentucky v. Graham, 473 U.S. 159, 165 (1985). 22 R. Doc. 31 at 5 n.2. 23 209 U.S. 123 (1908). 24 See id. at 155-56; Meza v. Livingston, 607 F.3d 392, 41112 (5th Cir. 2010); Am. Bank & Trust Co. of Opelousas v. Dent, 982 F.2d 917, 920 (5th Cir. 1993). 25 Dent, 982 F.2d at 920-21 (emphasis in original); Ex Parte Young, 209 U.S. at 159.
8

Amendment are official-capacity actions for prospective relief not treated as actions against the state.”26 The exception
applies only to suits that seek prospective relief that is rooted
in federal authority; it does not apply to actions that seek
monetary relief for past harms or that pursue injunctive relief on the basis of state law.27 A court need not fully examine the
merits of a plaintiff’s claim before it determines that the Ex
Parte Young exception applies. Instead, “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.”28 Typically, Ex Parte
Young is adequately invoked when a plaintiff alleges an ongoing
violation of federal law.29
In their motion to dismiss, defendants assert generally that
Ex Parte Young does not apply to this case. They do not
26 McCarthy v. Hawkins, 381 F.3d 407, 414 (5th Cir. 2004) (quoting Graham, 473 U.S. at 167 n.14) (ellipsis and internal quotation marks omitted).
27 See Edelman v. Jordan, 415 U.S. 651, 668-69, 677 (1974); Pennhurst, 465 U.S. at 106.
28 See Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997) (O’Connor, J., concurring in part and concurring in the judgment)) (internal quotation marks and brackets omitted).
29 See Coeur d’Alene Tribe, 521 U.S. at 281 (“An allegation of an ongoing violation of federal law where the requested relief is prospective is ordinarily sufficient to invoke the Young fiction.”); see also McCarthy, 381 F.3d at 415-16.
9

specifically articulate why this is correct.30 The Court finds that there is little question that this case falls into the Ex Parte Young exception. First, plaintiffs allege an ongoing violation of federal constitutional law — specifically, the Fourteenth Amendment. They plead very clearly that they seek to vindicate the Fourteenth Amendment rights of the Incompetent Detainees who are awaiting transfer to Feliciana.31 Furthermore, the relief they seek is accurately characterized as prospective: they seek a declaration that the relevant laws are unconstitutional both facially and as applied, and they seek preliminary and permanent injunctive relief requiring defendants to accept custody of the Incompetent Detainees and provide them with proper restorative treatment.32 This is a sufficient showing under the Supreme Court’s case law to invoke the Ex Parte Young doctrine. The Seventh Circuit has recently reached a similar conclusion, finding that the Ex Parte Young exception covered an injunctive suit filed by a PAIMI organization to gain access to the records of mentally ill patients in state
30 R. Doc. 20 at 6. Defendants note that a lack of time prevented them from addressing this issue adequately. These motions were placed on an expedited briefing schedule with the consent of all the parties. R. Doc. 12. Defendants’ later filings, however, have not presented any reason why the Ex Parte Young exception would not apply.
31 R. Doc. 1 at 15-16. 32 Id. at 2, 17.
10

hospitals.33 Defendants’ sovereign-immunity challenge therefore
fails.
C. Justiciability: Advocacy Center
Defendants next challenge the Advocacy Center’s ability to
bring this suit. Specifically, they contend that the Center
lacks standing.
Standing is “an essential and unchanging part of the caseor-controversy requirement of Article III.”34 A plaintiff
bringing a lawsuit bears the burden of demonstrating three
elements of standing. First, the plaintiff must have an “injury
in fact,” which is an invasion of a legally protected interest that is “concrete and particularized” and “actual or imminent.”35
A conjectural or hypothetical injury will not suffice. Second,
the plaintiff must establish a causal connection between the
injury and a defendant’s conduct. “[T]he injury has to be fairly
33 Ind. Protection & Advocacy Servs. v. Ind. Family & Social Servs. Admin., 603 F.3d 365, 371-74 (7th Cir. 2010) (“In short, [plaintiffs’] lawsuit is a classic application of Ex Parte Young. It asks a federal court to order state officials to modify their conduct to comply with federal law.”); see also Mo. Protection & Advocacy Servs., Inc. v. Carnahan, 499 F.3d 803, 807 (8th Cir. 2007) (holding that by similar advocacy organization suit brought to enjoin enforcement of Missouri voting laws fell into the Ex Parte Young exception).
34 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); see also Cadle Co. v. Neubauer, 562 F.3d 369, 371 (5th Cir. 2009).
35 Lujan, 504 U.S. at 560. 11

traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court.”36 Third and finally, the plaintiff must demonstrate a likelihood — not merely a speculation or conjecture — that the injury will be redressed if it prevails in the action.37
With this in mind, defendants claim that the Advocacy Center lacks the necessary standing to bring this suit. They note that the Center has not suffered anything like the injury described in the complaint, and they further suggest that the Center is not empowered to “stand in the shoes” of the Incompetent Detainees who are awaiting transfer to Feliciana.
It is obviously true that the Advocacy Center, as an entity, has not suffered the injury described in the complaint. Plaintiffs, however, forward two arguments as to why the Center has standing to pursue this suit. They first argue that it has standing under the plain language of the PAIMI Act. They also suggest that the center has “associational” standing.
In enacting the PAIMI Act, Congress determined that “individuals with mental illness are vulnerable to abuse and serious injury.”38 To ensure that the rights of these
36 Id. (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)) (internal punctuation omitted).
37 Id. at 561. 38 42 U.S.C. § 10801 (a)(1).
12

individuals are safeguarded, Congress endeavored “to assist States to establish and operate a protection and advocacy system for individuals with mental illness.”39 The Secretary of Health and Human Services makes allotments under the Act to help establish and administer these systems.40 The systems also have the authority to “investigate incidents of abuse and neglect of individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred,” and they are similarly authorized to “pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care or treatment in the State.”41 Based on these provisions, plaintiffs argue that they have standing to pursue legal remedies for the protection of mentally ill individuals.
While the PAIMI Act might be relevant to the standing determination, it cannot be doubted that it is an act of Congress, whereas standing is a constitutional requirement. The language of the PAIMI Act cannot, without more, supply standing if the Advocacy Center lacks standing under the constitutional
39 Id. § 10801(b)(1)-(2). 40 Id. § 10803. 41 Id. § 10805(a)(1).
13

standards.42 Plaintiffs’ argument that the language of PAIMI
confers standing on the Advocacy Center therefore fails.43
The Court thus turns to plaintiffs’ second argument: that
the Advocacy Center has associational standing to bring this
suit. It is clear that an organization that has itself suffered
no injury may bring suit on behalf of its members who have.44
The Supreme Court explained the requirements for associational
standing in Hunt v. Washington State Apple Advertising
Commission:
[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.45
42 See Or. Advocacy Center v. Mink, 322 F.3d 1101, 1109 (9th Cir. 2003) (holding that the PAIMI Act did not itself confer standing on a PAIMI organization).
43 See also Ass’n for Retarded Citizens of Dallas v. Dallas County Mental Health & Mental Retardation Cent. Bd. of Trustees, 19 F.3d 241, 244 (5th Cir. 1994) (“The mere fact that an organization redirects some of its resources to litigation and legal counseling in response to actions or inactions of another party is insufficient to impart standing upon the organization. . . . Furthermore, that [the organization] is a federally funded program established in part to provide disabled individuals with legal representation does not enhance its assertion of organizational standing.”).
44 Warth v. Seldin, 422 U.S. 490, 511 (1975) (“Even in the absence of injury to itself, an association may have standing solely as the representative of its members.”).
45 432 U.S. 333, 343 (1977).
14

Certain of these requirements do not appear to be contested here. Defendants, for example, do not suggest that the interests that plaintiffs seek to protect are not germane to the Advocacy Center’s purpose. In addition, there is no suggestion that the Incompetent Detainees would categorically lack standing if suing in their own right. Disagreement arises, however, over the issue of whether the Incompetent Detainees are “members” of the Advocacy Center.46
As a literal matter, they are not, as plaintiffs have made no showing that the Incompetent Detainees are formally on the membership rolls of the Advocacy Center. But this level of formality it not required; associational standing may be asserted by organizations that do not have official members, as long as the beneficiaries of the suit have “indicia of membership” in the organization.47 In Hunt, for example, the Washington State Apple Advertising Commission brought suit on behalf of apple growers and dealers in Washington state. The Commission, however, had
46 The Supreme Court has determined that the third requirement is of prudential and not constitutional magnitude, and is thus subject to abrogation by Congress. See United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 555, 558 (1996). Several courts have determined that Congress abrogated the requirement for suits like the present one. See, e.g., Mink, 322 F.3d at 1113; Disability Advocates v. Paterson, 598 F. Supp. 2d 289, 308 n.22 (E.D.N.Y. 2009).
47 Hunt, 432 U.S. at 344. 15

“no members at all.”48 The Court held that it nevertheless could maintain its suit because the apple growers and dealers had all the indicia of membership. “They alone elect the members of the Commission; they alone may serve on the commission; they alone finance its activities, including the costs of this lawsuit, through assessments levied upon them.”49 The Court found that the Commission properly represented the views and interests of its “constituents,” and it allowed the suit to go forward.
Accordingly, plaintiffs argue that the Incompetent Detainees are constituents of the Advocacy Center such that the Center may claim standing to bring this suit. They rely on two appellate cases to support their arguments. The Eleventh Circuit faced this question in the 1999 case of Doe v. Stincer.50 There, a PAIMI organization sued a state official and doctors at a state hospital, alleging that the failure of these doctors to provide a patient with her medical records violated the Americans with Disabilities Act. The organization also challenged the enforcement of a Florida statute. The defendants mounted a standing challenge, and the organization asserted that it had associational standing under Hunt. The court found that the PAIMI organization was properly analogous to the Washington State
48 Id. at 342. 49 Id. at 344-45. 50 175 F.3d 879 (11th Cir. 1999).
16

Apple Advertising Commission in Hunt. It explained that PAIMI organizations act on behalf of the particular segment of the community — that is, individuals with mental illnesses — and that they performed the functions of traditional membership organizations.51 Furthermore, it held that mentally ill individuals display indicia of membership in such organizations. The governing boards and advisory councils of PAIMI organizations are required to include individuals who are either undergoing or have undergone mental-health treatment, or the families of such individuals.52 Accordingly, the Eleventh Circuit held, the PAIMI organization was sufficiently like a traditional membership association and its constituents would qualify as “members” under the first prong of the Hunt test.53
Similarly, in the 2003 case of Oregon Advocacy Center v. Mink, the Ninth Circuit found associational standing in a suit highly similar to the one before the Court: a PAIMI organization brought suit alleging that state-court defendants who had been found incompetent to stand trial were subject to delays in being
51 Id. at 886. 52 Id. (quoting 42 U.S.C. § 10805(a)(6)(B)-(C), (c)(1)(B)). 53 The Eleventh Circuit ultimately held that, although the PAIMI organization’s constituents were members for the purposes of the first Hunt factor, the organization had not established that one of these constituents had standing to sue in his own right. Id. at 886-88. Here, defendants do not challenge that the Incompetent Detainees have standing to sue in their own right.
17

transferred to the state mental hospital, which had refused to accept them timely. The organization claimed that these delays violated the Fourteenth Amendment rights of these incompetent detainees. As in Stincer, the state asserted that the organization lacked standing, and the plaintiffs asserted associational standing under Hunt. The Ninth Circuit described as “overly formalistic” the state’s argument that people with mental illnesses were not members because they did not actually control the organization’s activities and finances.54 Instead, the court found that “[g]iven [the organization’s] statutory mission and focus under [PAIMI], its consitutents — in this case, the mentally incapacitated defendants — are the functional equivalent of members for the purposes of associational standing.”55 Although the court stated that the PAIMI organization’s constituents did not bear all the indicia of membership that the Hunt beneficiaries had, the “constituents do possess many indicia of membership — enough to satisfy the purposes that undergird the concept of associational standing: that the organization is sufficiently identified with and subject to the influence of those it seeks to represent as to have a
54 Mink, 322 F.3d at 1110. 55 Id.
18

‘personal stake in the outcome of the controversy.’”56 Finding that the interests of the representative and the represented were properly shared, the court found that the first Hunt prong was satisfied, and additionally that the PAIMI organization had standing to maintain the suit.57
A number of district courts have held this way as well. For example, in Laflamme v. New Horizons, Inc., the District of Connecticut heard a suit brought by a PAIMI organization on behalf of disabled individuals challenging allegedly discriminatory practices by a state-supported housing facility.58 Upon a challenge to the standing of the organization, the court followed Mink, holding that the organization satisfied the Hunt test and could thus bring the suit on behalf of its constituents.59 Similarly, the Northern District of New York in Aiken v. Nixon held that a PAIMI organization could challenge the search policies of a mental-health center on behalf of its constituents under Hunt.60 Numerous other district courts have determined that PAIMI organizations may claim associational
56 Id. at 1111 (quoting Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 261 (1977)).
57 Id. at 1112-13. 58 605 F. Supp. 2d 378 (D. Conn. 2009). 59 Id. at 395-97. 60 236 F. Supp. 2d 211, 224 (N.D.N.Y. 2002).
19

standing on behalf of their constituents.61
Defendants counter plaintiffs’ arguments with the Fifth
Circuit case of Association for Retarded Citizens of Dallas v.
Dallas County Mental Health & Mental Retardation Center Board of Trustees.62 There, a mentally retarded minor with cerebral palsy
resided in a facility for children with developmental
disabilities. The Texas Department of Mental Health and Mental
Retardation decided to close the facility and move the minor to a
group home. The Department then cancelled the construction of
the group home, and the minor was forced to move into a temporary
home. An advocacy group for the protection of the
developmentally disabled, among others, brought a Fair Housing
Act challenge to the cancellation of the group home’s
construction and alleged that the move to the temporary home
caused irreparable injury to the minor. The district court
dismissed the advocacy group’s claims for lack of standing.
The Fifth Circuit affirmed and rejected the advocacy group’s
61 See, e.g., State of Conn. Office of Protection and Advocacy for Persons with Disabilities v. State of Conn., __ F. Supp. 2d __, 2010 WL 1416146, at *8-12 (D. Conn. 2010); Disability Advocates v. Paterson, 598 F. Supp. 2d 289, 308-10 (E.D.N.Y. 2009); New Jersey Protection & Advocacy v. Davy, No. 05-1784, 2005 WL 2416962, at *2-3 (D.N.J. Sept. 30, 2005); Univ. Legal Servs., Inc. v. St. Elizabeths Hospital, No. 05-0585, 2005 WL 3275915, at *4 & nn.3-4 (D.D.C. July 22, 2005); Risinger v. Concannon, 117 F. Supp. 2d 61, 69-71 (D. Me. 2000); see also Lakey v. Taylor, 278 S.W.3d 6, 13-15 (Tex. App.-Austin 2008); but see Carnahan, 499 F.3d at 809-10.
62 19 F.3d 241 (5th Cir. 1994).
20

arguments for associational standing. It held that the standing
inquiry failed at the first Hunt requirement because the mentally
retarded minor was not a “member” of the advocacy group, and that
“[t]he organization bears no relationship to traditional
membership groups because most of its ‘clients’ — handicapped and
disabled people — are unable to participate in and guide the
organization’s efforts.”63
This Court, of course, is bound to follow the decisions of
the Fifth Circuit. It finds, however, that the Retarded Citizens
63 Id. at 214. The organization in question was an advocacy organization established under a federal statute dedicated to the protection of the developmentally disabled. The Fifth Circuit’s decision makes clear that it examined the 1993 version of the statute applicable to the organization, 42 U.S.C. § 6042 (now codified in relevant part at 42 U.S.C. §§ 15043-44). See Retarded Citizens, 19 F.3d at 244 n.5. The 1993 version of the statute contained no requirements that the organization’s constituents participate in the organization’s functions. The statute required only that, if the organization had a multimember governing board, it should be composed of “members who broadly represent or are knowledgeable about the needs of the individuals served by the system.” 42 U.S.C. § 6042(d)(1) (West Supp. 1993). The Retarded Citizens holding was thus under this 1993 version of the statute. The statute was amended in 1994 to obligate such organizations to include “individuals with developmental disabilities who are eligible for services, or have received or are receiving services, or parents, family members, guardians, advocates, or authorized representatives of such individuals” in their advisory councils or governing boards. See Developmental Disabilities Assistance and Bill of Rights Act Amendments of 1994, Pub. L. No. 103-230, § 303, 108 Stat. 284, 314-319 (1994); see also 42 U.S.C. § 6042 (West Supp. 1995). These requirements, enacted later than the statute in Retarded Citizens, are similar to the PAIMI provisions that the Court finds relevant to the Advocacy Center’s ability to assert associational standing. The Court is aware of no Fifth Circuit decision interpreting the effect of the post-1994 version of the statute on an organization’s ability to assert associational standing.
21

decision is distinguishable from the case before the Court. In that case, the Fifth Circuit explicitly mentioned that the constituents of the organization were not able to participate in its activities. Here, however, the PAIMI organizations are required by federal statute to give its constituents a central role in its management and activities.
For example, as the Eleventh Circuit noted in Stincer, these organizations are required to establish an advisory council “which shall include attorneys, mental health professionals, individuals from the public who are knowledgeable about mental illness, a provider of mental health services, individuals who have received or are receiving mental health services, and family members of such individuals.”64 By statute, “at least 60 percent of the membership of which shall be comprised of individuals who have received or are receiving mental health services or are family members of such individuals.”65 The advisory council must be chaired by someone who has received or is receiving mentalhealth treatment, or by the family member of such a person.66
Furthermore, the PAIMI systems are required to have a “governing authority.” If the governing authority is either a private non-profit organization with a multimember governing
64 42 U.S.C. § 10805(a)(6)(B). 65 Id. 66 Id. § 10805(a)(6)(C).
22

board or a public system with a multi-member governing board, the composition of the board must include “members . . . who broadly represent or are knowledgeable about the needs of the clients served by the system.”67 This category “shall be construed to include individuals who have received or are receiving mental health services and family members of such individuals.”68 For PAIMI systems in which the governing authority is a private nonprofit group, the governing authority must consist of “members who broadly represent or are knowledgeable about the needs of the clients served by the system including the chairperson of the advisory council of such system.”69
In Retarded Citizens, the Fifth Circuit found that the nonPAIMI organization lacked the requisite nexus between its constituents and the management of the organization’s activities. But here, unlike in Retarded Citizens, the Advocacy Center is required by federal law to include its constituents in its activities.70 The constituents of the Center do play a significant role in the organization’s activities. The Court therefore holds that the scenario before it is not controlled by
67 Id. § 10805(c)(1)(B)(i). 68 Id. § 10805(c)(1)(B). 69 Id. § 10805(c)(1)(B)(ii). 70 Again, the Fifth Circuit’s Retarded Citizens decision invoked a version of a statute that did not require constituent participation in the organization’s activities.
23

Retarded Citizens because a PAIMI organization, unlike the organization in that case, is statutorily obligated to have its constituents “participate in and guide the organization’s efforts.”71 As the Mink and Stincer courts found, the constituents of PAIMI organizations bear many of the traditional indicia of membership in those organizations, and they play a critical role in the organizations’ control, direction, and activities. Furthermore, there is very little question that an entity like the Advocacy Center is allied with and representative of its constituents and will advocate on their behalf. The Court thus determines that the Advocacy Center is sufficiently analogous to the Washington State Apple Advertising Commission that the Supreme Court determined to have associational standing in Hunt. Defendants’ standing challenge to the Advocacy Center is rejected.
D. Justiciability: W.B. and Butler Defendants also contend that Butler and W.B. cannot bring
this suit. They first suggest that Butler lacks standing because she has not demonstrated that she is, in fact, W.B.’s mother and is capable of acting on his behalf. This argument is meritless.
71 See also Laflamme, 605 F. Supp. 2d at 397 (distinguishing Retarded Citizens because the constituents in that case, unlike with PAIMI organizations, did not participate in the organization’s efforts).
24

At the motion-to-dismiss stage, the allegations in the
plaintiffs’ complaint are taken as true.72 Plaintiffs’ complaint
clearly pleads that Butler is W.B.’s mother.73 Defendants’
standing challenge is measured against the presumptively accurate
allegations in the complaint. The Supreme Court, in the habeas
context, has found that an individual may pursue an action as a
next friend if that person provides a sufficient explanation why
the real party in interest cannot appear and if that person is
truly dedicated to the best interests of the real party in
interest.74 Here, W.B. has been determined incompetent to stand
trial, and defendants have marshaled nothing other than
speculation to suggest that the mother of an incompetent criminal
72 Den Norske Stats Oljeselskap As, 241 F.3d at 424 (on challenge under Rule 12(b)(1), “we must accept all factual allegations in the plaintiff’s complaint as true”). A court may look at additional facts in the record upon a Rule 12(b)(1) challenge, but neither party has presented evidence on this issue. Id. See also Lujan, 504 U.S. at 561 (elements of standing “are not mere pleading requirements but [are] rather an indispensable part of the plaintiff’s case, [and thus] each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation”).
73 R. Doc. 1 at 4. In addition, Butler testified during the preliminary-injunction hearing that she is W.B.’s mother. Prelim. Inj. Hr’g Trans. at 7-8, June 22, 2010. Defendants did not challenge this.
74 Whitmore v. Arkansas, 495 U.S. 149, 163-64 (1990); see also FED. R. CIV. P. 17(c)(1) (minor or incompetent person may be represented by a general guardian, a committee, a conservator, or a like fiduciary).
25

defendant might not act in her son’s best interest. This argument is thus unsuccessful.
Defendants next argue that W.B.’s case has been mooted because, since the filing of the complaint, he was transferred by a court order to a state hospital. He was transferred, according to defendants, because he is a juvenile, and Feliciana does not accept juveniles. The transfer took place on the very day that defendants filed their motion to dismiss. They now contend that W.B. is no longer one of the Detainees who is awaiting transfer to Feliciana, and that his case has thus become moot. Accordingly, they argue, neither he nor Butler may bring this lawsuit.
This argument fails. “It is well settled that, in a suit for injunctive relief, the voluntary cessation of the allegedly illegal conduct does not moot the controversy arising from the challenged activity.”75 The reasoning underlying this rule is manifest: a contrary rule would allow a defendant to refrain temporarily from the challenged conduct, thus defeating suit, and then resume its “old ways” once the plaintiff’s lawsuit is a
75 Donovan v. Cunningham, 716 F.2d 1455, 1461 (5th Cir. 1983); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)) (internal quotation marks omitted).
26

thing of the past.76 This rule is not absolute; even if a
defendant voluntarily ceases the conduct, “[a] case might become
moot if subsequent events made it absolutely clear that the
allegedly wrongful behavior could not be reasonably expected to recur.”77 Here, the defendants, as the parties asserting
mootness, bear the “heavy” and “formidable” burden of making this showing.78 A defendant’s “bare assurance” that it will not engage in the conduct again is insufficient to meet its burden.79
Defendants have not carried this burden. Their counsel
admitted at oral argument that W.B. was transferred upon her
motion, and only after she learned that he was actually a juvenile.80 This asserted restriction on juvenile admissions to
Feliciana appears to be a matter of custom and not a matter of law.81 Although special provisions of Louisiana law apply to
76 Friends of the Earth, 528 U.S. at 189; City of Mesquite, 455 U.S. at 289 n.10; Donovan, 716 F.2d at 1461.
77 Friends of the Earth, 528 U.S. at 189-90 (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968)).
78 Id. 79 Donovan, 716 F.2d at 1461. 80 Prelim. Inj. Hr’g Trans. at 6 (statement of Adrienne Bordelon). 81 Id. at 100-101 (statement of Michelle Duncan, director of Community Forensic Services at the Eastern Louisiana Mental Health System, that there is no legal provision preventing Feliciana from accepting juveniles); id. at 184 (statement of Dr. John Thompson, clinical director of Feliciana, suggesting that
27

juveniles, they may still be committed to Feliciana under the
Louisiana Code of Criminal Procedure.82 In addition, W.B. will
turn eighteen in a matter of months, and at this point he will be
transferred out of the hospital unit where he is currently being
held.83
Furthermore, W.B. is still in the system of the Department
of Health and Hospitals, he has not been transferred to
Feliciana, and there is little to no assurance that he will not
be transferred immediately back to parish prison upon the
termination of this lawsuit or when he turns eighteen. When
determining when a claim is moot because the unlawful conduct is
unlikely to recur, courts are cognizant that individuals who have
a history of institutional placements for mental illness are
often likely to be reinstitutionalized.84 The evidence indicates
the rule is a matter of custom). 82 See LA. CODE CRIM. PROC. art. 644.1(B) (juvenile defendants
transferred to criminal court are subject to LA. CODE CRIM. PROC. art. 648, which provides for transfer to Feliciana); see also LA. CHILD. CODE. art. 837 (allowing commitment of child to Department of Health and Hospitals if a court finds the child to lack the mental capacity to proceed to trial).
83 Defendants’ Hr’g Ex. 1 (Central Louisiana State Hospital record noting that W.B. was born in September of 1992); Prelim. Inj. Hr’g Trans. at 96 (statement of Christopher Arnold, admissions tech at Central Louisiana State Hospital, that once minors in W.B.’s unit turn eighteen, they are transferred out of the juvenile unit).
84 See Vitek v. Jones, 445 U.S. 480, 486-87 (1980); see also Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 594 n.6 (1999); Lynch v. Baxley, 744 F.2d 1452, 1456-57 (11th Cir. 1984).
28

that W.B. is mentally ill and institutionalized, he has not been transferred to Feliciana, and, although defendants have voluntarily ceased their challenged conduct and have transferred W.B. from parish jail, the Court is in no way convinced that his injury will not be repeated.
In a related analysis, courts recognize an exception to the mootness doctrine, which holds that a claim is not moot if the challenged conduct is capable of repetition but evades review.85 This case satisfies that exception.
First, there is little question that the complained-of activity in this matter has the tendency to evade review. Pretrial detention is by nature transitory. Even here, where the Incompetent Detainees are not awaiting an actual trial, they are eventually transferred to Feliciana in, according to the complaint, an average of 161 days.86 Plaintiffs admit that the injury they seek to redress is transitory. They at no point allege that Detainees are kept in parish prisons indefinitely. While it is not inconceivable that a lawsuit could commence and conclude within the times listed in the complaint, it is certainly unlikely. The possibility of securing an appellate decision is exceedingly remote. And the very notion assumes that
85 See Libertarian Party v. Dardenne, 595 F.3d 215, 217 (5th Cir. 2010).
86 R. Doc. 1 at 8. 29

the Detainee would have sufficient information to bring the claim at the commencement of his detention, which is even less likely.
Because the injury is capable of repetition, the second half of the exception is met as well. Assuming — but not, for the purposes of the mootness discussion, deciding that W.B.’s injury has temporarily ceased — the Court finds that he has shown a “reasonable expectation” that he will be subject to the same governmental action again.87 As explained above, W.B. was treated as if he were a legal adult and he was ordered to Feliciana by a Louisiana court. He was transferred to another hospital only when counsel for defendants in this lawsuit noticed that he was still a minor and would be for several months.88 And again, defendants have pointed to no authority to establish that Feliciana’s ban on the admission of minors is a matter of law and not a matter of custom.
Both the Supreme Court and the Fifth Circuit have noted, in the class-action context, that allegedly unlawful conduct that arises from the circumstances of pretrial detention is capable of repetition: “Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either
87 Libertarian Party, 595 F.3d at 217 (quoting Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002)).
88 Prelim. Inj. Hr’g Trans. at 6. 30

released or convicted. The individual could nonetheless suffer repeated deprivations, and it is certain that other persons similarly situated will be detained under the allegedly unconstitutional procedures. The claim, in short, is one that is distinctly ‘capable of repetition, yet evading review.’”89 So too here.90
In addition, plaintiffs challenge and seek an injunction against defendants’ policy of delaying transfers to Feliciana and not just the individual treatment of W.B. In Ukranian-American Bar Association v. Baker,91 the D.C. Circuit faced a scenario in which lawyers and a bar association challenged, on First Amendment grounds, the government’s policy of denying lawyers access to apparent Soviet asylum-seekers in certain circumstances. The court rejected an argument that the case had become moot because the particular asylum-seeker to which plaintiffs sought access no longer sought asylum. “That the particular situation that precipitated the constitutional challenge to the Government’s policy is no longer ‘live’ is not determinative . . . . The Government’s failure to contest the
89 Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975); see also Jones v. Diamond, 519 F.2d 1090, 1097-98 (5th Cir. 1975) (describing a mootness issue in similar circumstances to be an “illusory problem” given the Supreme Court’s discussion in Gerstein).
90 See also Olmstead, 527 U.S. at 594 n.6. 91 893 F.2d 1374 (D.C. Cir. 1990) (D. Ginsburg, J.).
31

existence of the alleged policy precludes it from prevailing in the argument that the controversy became moot once [the asylumseeker] left the country; the complaint challenges the Government’s policy, not merely the Government’s handling of the [particular] incident.”92 Here, plaintiffs challenge a policy of holding Incompetent Detainees in parish jails until room becomes available at Feliciana. Defendants do not contest the existence of this policy, and in fact they go to some length to explain it.
Finally, defendants claim that W.B.’s claim was never viable to begin with because he was never eligible for transfer to Feliciana. This argument is unavailing. As established, W.B. was treated like an adult Incompetent Detainee and remained in jail until counsel for defendants in this lawsuit noticed that he had not yet turned eighteen. He was subject to the same injury as any another adult Detainee in a similar circumstance. And the Court is aware of no legal provision that would bar his admission to Feliciana. As discussed previously, there is no guarantee that he will not shortly find himself in the same situation he was in before his transfer. Defendants’ mootness argument is therefore rejected.
E. Sufficiency of Plaintiffs’ Complaint Defendants next contend that plaintiffs’ complaint is
92 Id. at 1377. 32

insufficient. In order to comply with the Federal Rules of Civil Procedure, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief” and “a demand for the relief sought.”93 And again, to survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts “to state a claim to relief that is plausible on its face.”94 A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.”95
Defendants assert two grounds for this argument — both are hypertechnical and both fail. First, they contend that, although plaintiffs brought a Fourteenth Amendment claim for violation of the Incompetent Detainees’ due-process rights, they failed to specify whether their claim sounded in substantive due process or procedural due process. Defendants cite no authority for the proposition that a complaint is insufficient for failure to specify this. Plaintiffs’ complaint lays out their claim in some detail; it is not insufficient for a mere failure to specify whether their due-process claims are procedural or substantive.96
93 FED. R. CIV. P. 8(a). 94 Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 547). 95 Id. at 1940. 96 Courts have noted that a plaintiff’s complaint fails to make this clear without making any mention that the complaint
33

Defendants next contend that the complaint is insufficient
because it pleads only a violation of the Fourteenth Amendment
and does not refer to a specific cause of action — such as 42
U.S.C. § 1983 — through which it brings its suit. “To state a
claim under § 1983, a plaintiff must allege the violation of a
right secured by the Constitution and laws of the United States,
and must show that the alleged deprivation was committed by a person acting under color of state law.”97 Here, plaintiffs
unambiguously allege a violation of due process under the Fourteenth Amendment.98 And defendants do not seriously contest
that the complaint explains that defendants were acting under
color of state law when they took the alleged actions, even if
the complaint does not contain the phrase “under color of state
law.” This claim for relief is plausible on its face.
Furthermore, defendants were hardly confused about plaintiffs’
cause of action; in fact, they promptly identified that
might be per se insufficient. See, e.g., White v. City of Oklahoma City, No. 07-696, 2008 WL 341654, at *3 (W.D. Okla. Feb. 6, 2008) (“Plaintiff does not specify whether he believes that his substantive or his procedural due process claims have been violated. Accordingly, the Court will consider both types of claims.”); Medina v. District of Columbia, 517 F. Supp. 2d 272, 279 (D.D.C. 2007) (“plaintiff does not specify whether he is bringing substantive or procedural due process claims so the Court will analyze his claims under both.”).
97 Cornish v. Corr. Servs. Corp. 402 F.3d 545, 549 (5th Cir. 2005) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)).
98 R. Doc. 1 at 3, 15-16. 34

plaintiffs’ complaint sought to establish a claim through a “gateway statute” such as § 1983. The Court cannot find that a failure to cite § 1983 dooms their complaint.99 To find that a direct invocation of a statutory cause of action is required for a complaint to survive, especially when defendants know what that cause of action is and do not contest that plaintiffs have pleaded sufficient facts to make out their case, would be to apotheosize form at the expense of substance and to apply a much greater pleading standard than the law requires.
Defendants’ contention that the Fourteenth Amendment does not itself provide a private right of action is therefore beside the point. Plaintiffs do not suggest that they have a cause of action directly under the Fourteenth Amendment; they argue that they have adequately pleaded a claim under § 1983 even though they did not specifically cite to that statute in their complaint. Defendants do not appear to contest this latter point. The Court rejects defendants’ sufficiency arguments.
F. Venue Finally, defendants contend that venue in the Eastern
District of Louisiana is improper. Venue challenges are properly brought under Rule 12(b)(3) of the Federal Rules of Civil
99 See, e.g., Jenning v. Patton, No. 08-686, 2010 WL 706497, at *1 (S.D. Miss. Feb. 23, 2010).
35

Procedure. Upon such a challenge, the Court views all facts in the light most favorable to the plaintiff.100 When, as here, a case arises under the Court’s federal-question jurisdiction, a suit may be brought in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.101
Defendants suggest that venue in the Eastern District of Louisiana is improper because all of the defendants reside in and are located in East Feliciana Parish and East Baton Rouge Parish, which are located in the Middle District of Louisiana.102 Furthermore, they suggest that the acts and omissions complained of, which include the failure to admit W.B. and the other Incompetent Detainees to Feliciana, all occurred in these parishes as well.
Plaintiffs’ complaint asserts that W.B. is incarcerated at Orleans Parish Prison. Although Feliciana is located in the Middle District of Louisiana, the Eastern District is where W.B.
100 See Ginter ex rel. Ballard v. Belcher, Prendergast & Laporte, 536 F.3d 439, 448-49 (5th Cir. 2008).
101 28 U.S.C. § 1391(b). 102 28 U.S.C. § 98(b).
36

was being held and where his rights were allegedly being violated. Furthermore, the Eastern District is where W.B. was allegedly receiving inadequate mental-health treatment before his transfer. In addition, the Advocacy Center proceeds as an associational plaintiff on behalf of all Incompetent Detainees, many of whom are in Orleans Parish and the remainder of the Eastern District of Louisiana. It is amply clear that a substantial part of the events or omissions that give rise to this lawsuit transpired in the Eastern District of Louisiana. Defendants cannot seriously claim that the Eastern District is a venue that is remote or unrelated to the challenged acts and omissions.
As plaintiffs point out, defendants’ venue arguments have been rejected by a court in this district. In McNiece v. Jindal,103 a plaintiff brought suit because he was evicted from a nursing home in the Eastern District of Louisiana when he lost Medicaid coverage after the state found him ineligible for nursing home care. The state moved to transfer to the Middle District because plaintiff “questions the policies, procedures, and decisions of the defendant in his capacity as Secretary of the DHH, and that these policies, procedures, and decisions were arrived at and implemented in Baton Rouge, which is located in
103 No. 97-2421, 1997 WL 767665 (E.D. La. Dec. 9, 1997). 37

the Middle District of Louisiana.”104 The court rejected this argument, holding that the plaintiff’s eviction was a substantial event giving rise to the claim. Furthermore, the court noted that the state official was not being haled into a remote court having no relationship to the dispute: “[the Secretary of the Louisiana Department of Health and Hospitals] should be apprised that his decisions and their enforcement have effects throughout the State of Louisiana, not just in the Middle District where his office is located.”105 So too here. In addition, defendants cannot argue that venue is improper as a result of W.B.’s transfer because “venue must be determined based on the facts at the time of filing,” and the parties do not dispute that W.B. was incarcerated in Orleans Parish Prison when plaintiffs’ complaint was filed.106 Venue in the Eastern District of Louisiana is therefore proper.
104 Id. at *1. 105 Id. at *2. 106 Flowers Indus., Inc. v. F.T.C., 835 F.2d 775, 776 n.1 (11th Cir. 1987); see also Jones v. Cooper, No. 09–086, 2009 WL 4823837, at *3 (W.D. La. Dec. 14, 2009) (citing St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998)).
38

III. Conclusion For the foregoing reasons, defendants’ Motion to Dismiss is
DENIED. Plaintiffs have voluntarily dismissed the Louisiana Department of Health and Hospitals as a defendant.

New Orleans, Louisiana, this 9th

day of August, 2010.

SARAH S. VANCE UNITED STATES DISTRICT JUDGE

39

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ADVOCACY CENTER FOR THE ELDERLY AND DISABLED, ET AL.
VERSUS
LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS, ET AL.

CIVIL ACTION NO. 10-1088 SECTION R

ORDER AND REASONS Before the Court are plaintiffs’ Motion for Preliminary Injunction (R. Doc. 22), and defendants’ Motion to Strike Declarations of Adam Humann and Barry Gerharz (R. Doc. 43). For the following reasons, the motion for a preliminary injunction is GRANTED IN PART and DENIED IN PART and the motion to strike is DENIED. The Court orders injunctive relief as described at the end of this Order.
I. Introduction Plaintiffs in this matter are W.B., who brings this suit
through his mother and next friend, Charrie Butler, and also the Advocacy Center for the Elderly and Disabled. The Advocacy Center is part of a network of organizations established under

federal law to advocate on behalf of people with disabilities.1 Defendants are three Louisiana state officials who are sued
in their official capacities.2 These officials include Alan Levine, the Secretary of the Department of Health and Hospitals; Mark Anders, the Chief Executive Officer of the Eastern Louisiana Mental Health System, which is a component of the Department of Health and Hospitals; and Michelle Duncan, the Director of the Forensic Services Division of the Eastern Louisiana Mental Health System.
The essence of plaintiffs’ challenge is this: Louisiana law dictates that criminal defendants in Louisiana courts who are found incompetent to stand trial are to be transferred to the Feliciana Forensic Facility (“Feliciana”) if they require inpatient restorative treatment. Plaintiffs contend that Feliciana is the only inpatient facility where these detainees can receive adequate mental-health treatment. But Feliciana is full. It can accept no more patients, and under Louisiana law it must reject any new patients once it has reached full capacity.
1 The Advocacy Center alleges that it was established under a number of federal laws, including the Protection and Advocacy for Individuals with Mental Illness Act of 1986, 42 U.S.C. § 10801, et seq., the Protection and Advocacy of Individual Rights Program of the Rehabilitation Act of 1973, 29 U.S.C. § 794e, as well as the Developmental Disabilities Assistance and Bill of Rights Act of 2000, 42 U.S.C. § 15041, et seq.
2 Plaintiffs initially included the Louisiana Department of Health and Hospitals as a defendant, but voluntarily dismissed it in response to defendants’ Motion to Dismiss.
2

The consequence of this, plaintiffs claim, is that incompetent pretrial detainees awaiting a vacancy at Feliciana simply languish in parish jails for extended periods of time without having been convicted of any crime.3 They allege that, as of October of 2009, more than one hundred Detainees had been held for an extended period of time, despite having been found incompetent to stand trial and having been committed, but not yet transferred, to Feliciana.
The merits of this claim involve the entanglement and effect of several state statutes. In Louisiana, a defendant may be adjudged mentally incapacitated and unable to stand trial “when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.”4 The issue of the defendant’s mental incapacity may be raised at any time by the defense, the prosecution, or the court, and the criminal prosecution comes to a halt once the issue is raised.5 If the court “has reasonable ground to doubt the defendant’s mental capacity to proceed,” it is required to order an examination into the defendant’s mental
3 The terms “Incompetent Detainees” or “Detainees” in the capitalized form, unless otherwise indicated, refers to these inmates who have been found incompetent to stand trial by a Louisiana court and ordered to be transferred to Feliciana, but have not yet been transferred.
4 LA. CODE CRIM. PROC. art. 641. 5 Id. art. 642.
3

health.6 To assist in this inquiry, the court appoints a sanity commission that consists of two or three qualified physicians or, in lieu of one physician, a qualified clinical or medical psychologist with experience or training in forensic evaluations.7 This commission examines the defendant and issues a report. The court then holds a contradictory hearing in which the sanity commission’s report is admissible into evidence and the members of the commission may be called as witnesses and cross-examined by the defense, the prosecution, or the court.8
Article 648 of the Louisiana Code of Criminal Procedure governs what happens next. If the court determines, by a preponderance of the evidence, that a defendant lacks the capacity to proceed, this incapacity determination suspends all proceedings, and the court may make one of several dispositions depending on the defendant’s characteristics. One such disposition concerns defendants who are charged with a felony or a misdemeanor violation of domestic abuse battery, who are likely to commit crimes of violence, and who are not likely to have their mental health restored within ninety days.9 If
6 Id. arts. 643, 647. 7 Id. art. 644. 8 Id. art. 647. 9 Id. art. 648(A)(2)(a). “Domestic abuse battery” is “the intentional use of force or violence committed by one household member upon the person of another household member.” LA. REV.
4

inpatient treatment is recommended for such an individual, “the
court shall commit the defendant to the Feliciana Forensic
Facility.”10
If a defendant committed to Feliciana is still held in a
parish jail 180 days after the court determined that he lacked
competency to proceed, the court is required to convene a status
conference with the prosecution and the defense. On motion of
either party, the court may order a hearing to determine whether
there has been a change in defendants’ mental capacity or if the
court’s earlier order requires modification.11 If the defendant
is still in parish jail 180 days after this status conference,
the court is required to order a hearing to determine whether the
defendant should be released or the state should commence civil-
STAT. § 14:35.3(A). 10 LA. CODE CRIM. PROC. art. 648(A)(2)(a). If the defendant’s
is likely to be restored within ninety days, the court may order ninety days of jail-based treatment. This reflects the changes made to Article 648 by House Bill 462, which was signed into law the day before the Court held its preliminary-injunction hearing. 2010 La. Sess. Law Serv. 419 (H.B. 462). That amendment also amended Article 648 to alter the disposition of defendants who are charged with certain felony drug offenses or misdemeanor offenses against the person, except for domestic abuse battery. If the court finds such a defendant to be incompetent and also determines that defendant’s competency will not be restored within ninety days, the court is to release him for outpatient competency restoration or “other appropriate treatment.” These individuals may have, under the earlier law, been committed to Feliciana.
11 LA. CODE CRIM. PROC. art. 648(A)(2)(d).
5

commitment hearings.12 According to plaintiffs, Incompetent Detainees who are
awaiting transfer to Feliciana can languish for up to 360 days — nearly one year — before the state is required to take action. And these circumstances are exacerbated by Title 28, Section 25.1 of the Louisiana Revised Statutes, which governs the establishment of Feliciana and certain aspects of its operations. Specifically, the statute provides that “[t]he administrator of the Feliciana Forensic Facility shall refuse admission to any person if . . . [a]dmission of the person would cause overcrowding of the facility . . . [or if the] facility is unable to provide appropriate care or treatment for the person.”13
Thus, the essence of plaintiffs’ challenge is that Louisiana law requires that certain defendants, after being adjudged incompetent to stand trial in Louisiana state courts, be transferred to Feliciana. But if they are not transferred, the state is not required to act for nearly a year. And Louisiana law also requires Feliciana to turn away transferees if their admission would cause overcrowding or if appropriate care would be unavailable there. As of now, Feliciana is full and can admit no new patients until additional space in the facility becomes available.
12 Id. art. 648(A)(2)(e). 13 LA. REV. STAT. § 25.1(C)(2)(a)(i)-(ii).
6

In addition, plaintiffs allege the Detainees are receiving inadequate mental-health treatment in the parish jails where they are awaiting transfer. Therefore, they claim, Incompetent Detainees are receiving substandard mental-health care that is not related to regaining capacity, and they are subjected to unconstitutional delays and extended imprisonment when they have been convicted of no crime and are not awaiting trial.14
Plaintiffs brought this suit in April of 2010 seeking declaratory and injunctive relief. They now move for a preliminary injunction ordering all of the Incompetent Detainees at issue to be transferred to Feliciana. Defendants move to strike two declarations that were submitted as evidence in support of plaintiffs’ motion. The Court held a preliminaryinjunction hearing on June 22, 2010, and it now rules as follows.
II. Discussion A. Defendants’ Motion to Strike
The Court first addresses defendants’ motion to strike two of plaintiffs’ declarations. These two declarations, one submitted by Adam Humann and another submitted by Barry Gerharz,
14 Defendants maintain a list of the individuals who have been committed to Feliciana but have not been transferred. Patients are transferred to Feliciana ideally based on when the court ordered them committed, but the order in which they are transferred typically depends on how mentally ill the patient is. See Prelim. Inj. Hr’g Trans. at 165 (statement of Dr. John Thompson).
7

both describe interviews with W.B. in the parish jail where he was incarcerated before his transfer. These declarations contain statements that W.B. purportedly made during the course of these interviews that concern his background and the conditions under which he was being kept. Both Humann and Gerharz are among the counsel of record for plaintiffs in this matter.15
Defendants move to strike these declarations on two grounds. First, they contend that they are submitted in violation of Louisiana Rule of Professional Conduct 3.7, which provides that “[a] lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness.”16 Second, they contend that the statements made by W.B. constitute inadmissible hearsay.
The Court holds that Rule 3.7 does not require exclusion of the testimony. The animating purpose of the rule is to avoid juror confusion, and this purpose is little served by striking these declarations. The Fifth Circuit has noted that
the only justification for the attorney testimony rule that might be viewed as affecting the rights of the opposing party is that derived from the fear that the jury will either accord such testimony undue weight, or will be unable to distinguish between the attorney’s testimony, offered under oath, and his legal argument,
15 Gerharz recently withdrew as counsel for plaintiffs. R. Docs. 55, 56. Humann’s status has not changed.
16 The Court assumes without deciding that Rule 3.7 may serve as a basis for striking a declaration.
8

offered in rhetorical support of his client’s case.17 The justification collapses when no jury is involved.18 These
declarations were submitted to the Court. No jury will make any
determinations with respect to this motion. And the Court is not
confused about where Humann’s and Gerharz’s testimony ends and
their advocacy begins. The declarations need not be struck on
account of the Louisiana Rules of Professional Conduct.
In addition, the hearsay rule does not mandate that these
declarations be excluded from consideration. “[A]t the
preliminary injunction stage, the procedures in the district
court are less formal, and the district court may rely on
otherwise inadmissible evidence, including hearsay evidence,” as long as the record supports the court’s conclusion.19 It is
therefore not inappropriate for a court to rely partially on hearsay evidence at this stage.20
17 Crowe, 151 F.3d at 233-34; see also MODEL RULES OF PROF’L CONDUCT R. 3.7 ann.
18 Crowe, 151 F.3d at 234 (“this justification is inapplicable where, as here, the testimony is made to a judge, not a jury”).
19 Sierra Club, Lone Star Chapter v. Fed’l Deposit Ins. Corp., 992 F.2d 545, 551 (5th Cir. 1993).
20 See Fed’l Savings & Loan Ins. Corp. v. Dixon, 835 F.2d 554, 558 (5th Cir. 1987); see also University of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) (“a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits”); 11A CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE § 2949 (2d ed. 1994 & Supp. 2010).
9

The Court will not, however, admit the entirety of the declarations or accept them for the truth of their assertions. It will admit the portions of the declarations that relate to W.B.’s statements for the purpose of establishing that the statements were made, because this use is relevant to establish W.B.’s state of mind.
B. Plaintiffs’ Motion for Preliminary Injunction 1. Legal Standard A plaintiff seeking a preliminary injunction must make a
four-part showing before such an injunction will issue. It must demonstrate: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) that the threatened injury outweighs any harm that will result to the nonmovant if the court grants the injunction; and (4) that the injunction will not disserve the public interest.21 “A preliminary injunction is an extraordinary remedy and should only be granted if the plaintiffs have clearly carried the burden of persuasion on all four requirements.”22
21 La Union Del Pueblo Entero v. Fed. Emergency Mgmt. Agency, 608 F.3d 217, 219-20 (5th Cir. 2010); DSC Commc’ns Corp. v. DGI Tech., Inc., 81 F.3d 597, 600 (5th Cir. 1996).
22 Planned Parenthood of Houston & Se. Tex. v. Sanchez, 403 F.3d 324, 329 (5th Cir. 2005) (quoting Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d
10

2. Substantial Likelihood of Success on the Merits
i. Legal Framework
The allegations presented in this case implicate several
strains of the Supreme Court’s Fourteenth Amendment
jurisprudence. First, the Supreme Court has held that once a
state determines that a criminal defendant lacks the competency
to stand trial, due process requires that the defendant’s
continued confinement be related to the restoration of his
competency. In Indiana v. Jackson, a deaf-mute criminal
defendant with limited communication skills was found incompetent
to stand trial, and he was committed to a state mental-health facility until he could become competent to be tried.23 The
lower court ordered him to be committed despite physician
testimony that he was unlikely to improve to the point where he
could stand trial. The Supreme Court found the scenario incompatible with due process.24
[A] person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit
357, 363 (5th Cir. 2003)) (internal punctuation omitted). 23 406 U.S. 715, 719 (1972). 24 Id. at 717-20. 11

indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal.25 Put differently, “due process requires that the nature and duration of commitment bear some reasonable relationship to the purpose for which the individual is committed.”26 Second, in a related inquiry, the Due Process Clause prevents a detainee who has not yet been convicted from being subjected to conditions designed to punish him. In Bell v. Wolfish, the Supreme Court held that the determination of whether pretrial detention violates a detainee’s due-process rights depends on whether the conditions of detention amount to “punishment.”27 Specifically, “if a restriction or condition [of pretrial detention] is not reasonably related to a legitimate goal — if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.” Thus, similar to the inquiry in Jackson, a court must assess the rational relationship between the condition of confinement and a legitimate governmental objective.
25 Id. at 736. 26 Id. at 738. 27 441 U.S. 520, 539 (1979).
12

Finally, the Supreme Court has held in similar circumstances
that a court must determine whether a detainee’s substantive-due-
process rights have been violated by “balancing his liberty
interests against the relevant state interests.”28 In Youngberg
v. Romeo, the Court held that this balancing can be accomplished
by making certain that the condition of the inmate’s confinement
resulted from the exercise of professional judgment. “It is not
appropriate for the courts to specify which of several
professionally acceptable choices should have been made.”29 A
decision made by a professional is presumptively valid, and
“liability may be imposed only when such a substantial departure
from accepted professional judgment, practice, or standards
. . . demonstrate[s] that the person responsible did not base the
decision on such a judgment.”30 The Court noted that
28 Youngberg v. Romeo, 457 U.S. 307, 321 (1982). The detainee in Youngberg was an individual who had been involuntarily committed to a state hospital by his mother. The Supreme Court noted that the case differed from Jackson because the detainee there was committed by his mother who could not contain his violence, and “[t]hus, the purpose of [his] commitment was to provide reasonable care and safety, conditions not available to him outside of an institution.” Id. at 320 n.27. This distinction is not applicable here, as the purpose of the Incompetent Detainees’ commitment is either to restore their competency or determine that their competency cannot be restored. The Supreme Court in Youngberg also clarified that the Jackson test is one of procedural due process. 457 U.S. at 320 n.7.
29 Id. at 322 (citing the opinion below, 644 F.2d 147, 178 (3d Cir. 1980) (Seitz, C.J., concurring)).
30 Id. at 323; see also McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 425-26 (5th Cir. 2004) (Garza, J., concurring in
13

[b]y “professional” decisionmakers, we mean a person competent, whether by education, training, or experience, to make the particular decision at issue. Long-term treatment decisions normally should be made by persons with degrees in medicine or nursing, or with appropriate training in areas such as psychology, physical therapy, or the care and training of the retarded. Of course, day-to-day decisions regarding care — including decisions that must be made without delay — necessarily will be made in many instances by employees without formal training but who are subject to the supervision of qualified persons.31
Courts facing scenarios highly similar to the one before the
Court have relied on these strains of due-process jurisprudence
to assess the legality of detentions.32
ii. Overview
In the discussion that follows, the Court applies these
standards to the evidence presented and finds that plaintiffs
have demonstrated a substantial likelihood of success on the
merits of their Fourteenth Amendment challenge. The Court will
first examine plaintiffs’s largely unrebutted evidence as to the
part and dissenting in part).
31 Id. at 323 n.30. The Supreme Court also stated that budgetary concerns, which are present here, may insulate a professional from liability in a suit for damages against him in his individual capacity. Id. at 323. This concern is not present here, when none of the individual defendants are sued in their individual capacities.
32 See Oregon Advocacy Center v. Mink, 322 F.3d 1101, 112122 (9th Cir. 2003) (applying Youngberg and Jackson); Terry ex rel. Terry v. Hill, 232 F. Supp. 2d 934, 941-44 (E.D. Ark. 2002) (applying Bell).
14

professionally accepted standard of care and the availability of mental-health treatment in parish jails. It will then examine the evidence in support of defendants’ contention that they provide the Incompetent Detainees with additional mental-health care beyond what is available in local jails, and it will address defendants’ additional arguments and their efforts to address the problem. Finally, the Court will examine the decisions of courts that have confronted highly similar factual scenarios.
In sum, the evidence demonstrates that defendants’ policy of subjecting Incompetent Detainees to extended delays in jail before their transfer to Feliciana bears no rational relationship to the restoration of their competency or a determination that they will never become competent. Put differently, the Detainees are in jail not because their imprisonment is related to the restoration of their competency; they are incarcerated because there is no room for them elsewhere. The mental-health treatment that the Incompetent Detainees are receiving in local jails is minimal, and defendants provide them with virtually the same level of mental-health treatment that is available to the average inmate who has not been deemed incompetent to stand trial. In addition, defendants do not appear to contest that the failure to transfer the Detainees is not the result of any kind of professional or psychiatric decision-making, but rather a result of scarce state resources. Feliciana has only so many beds, and
15

once those beds are full, patients who are under court order to receive inpatient treatment instead remain in jail. This circumstance persists not because the Detainees’ mental health is better served in parish jails or because any medical professional has recommended this treatment, but because there are no more beds at Feliciana, and the state has not created additional space, despite an obvious surfeit of Incompetent Detainees.
iii. The Standard of Care for Incompetent Detainees Plaintiffs do not contend that the Incompetent Detainees have a constitutional right to commitment to one particular mental-health facility, nor could they. Rather, they have presented evidence as to the professional standard of care for defendants found to be incompetent to stand trial, and they contend that this standard is met in Feliciana and is absent in parish jails. Dr. Joel Dvoskin, a clinical psychologist with experience in prison mental-health treatment and an expert in clinical, forensic, and correctional psychology and administration of mental-health facilities, testified that there are two common reasons that a defendant is found incompetent to stand trial.33 Incompetent defendants typically have either severe or acute psychosis or they have cognitive difficulties or intellectual
33 Prelim. Inj. Hr’g Trans. at 69. 16

disabilities.34 There is a recognized standard of care for treating
Detainees who are incompetent to stand trial on account of psychosis: “In almost every state . . . they are sent to a state forensic hospital like Feliciana, and there they receive comprehensive psychiatric services.” In such a facility, Dvoskin stated, the Detainees “would have an interdisciplinary treatment team, they would have an individualized treatment plan with goals and objectives, both short and long term, and interventions that were aimed at each goal and each objective.”35 Part of this treatment is explicitly directed toward the restoration of competency. In addition, psychosis may be corrected through medication, typically in a therapeutic environment in a hospital that includes treatment staff, pro-social activities, and both group and individual therapies.36 In order to improve, it is important for psychotic patients to feel safe in their environment. A sense of safety is also important for the patients to take their medicine voluntarily instead of having it forced upon them. Dvoskin describes the relationship between the inmate and the treatment team as a “therapeutic alliance,” which means “the patient believes that the doctor and the nurses care
34 Id. at 69-70. 35 Id. at 80. 36 Id. at 72.
17

about their well-being.” He observed that “[w]e are much more likely to take advice and to sort of change our attitude based on the advice of somebody that we trust and that we think wants to help us than somebody we think of . . . with anger or fear.”37
For individuals with cognitive or intellectual disabilities, or with these disabilities combined with psychosis, the standard of care will focus more on education.38 “The standard in a habilitative center or a developmental center would be a wide array of developmental services aimed at teaching the person that they had the capacity to learn to live a better life, but again the main focus would be restoring them to competence through these competency groups that are largely educational.”39 This includes group meetings and classes three to five days a week.40
Furthermore, Dr. Dvoskin stressed the importance of prosocial activities for recovery, and he recounted different types of therapy — group, individual, recreational, occupational — that require trained staff. Inmates in jails, on the other hand, have large stretches of unoccupied and unproductive time that makes it difficult to cultivate a therapeutic environment.41
37 Id. at 73. 38 Id. at 81. 39 Id. at 84. 40 Id. at 83-84. 41 Id. at 75.
18

Dr. Dvoskin also noted that psychotic inmates are much more likely to be subject to discipline, which often results in their segregation from the rest of the inmates.42
Dr. Dvoskin also testified that, in general, although jails try to treat the mentally ill, it is difficult for them to maintain the necessary therapeutic environment in a jail setting. For example, it is difficult for inmates to feel safe while they are incarcerated. Dvoskin specifically noted that “they don’t want to take medication in jail because they are worried about not being able to be vigilant enough if they are tranquilized or if they are under the influence of medication.”43 Nursing staffs in jails, according to Dvoskin, are often overworked and do not have time to induce inmates to take their medication or take full account of the patients’ experience of side effects.44
Defendants did not present any evidence, through expert testimony or otherwise, to rebut plaintiffs’ evidence as to the professionally accepted standard of care for incompetent detainees. And the parties do not appear to disagree that this standard of care is met at Feliciana, or that much of the care at Feliciana is directly related to restoring a pretrial detainee to
42 Id. at 76. 43 Id. at 74. 44 Id. at 79-80.
19

competency.45 The testimony presented establishes that Feliciana provides treatment through highly qualified interdisciplinary teams, which include psychiatrists, psychiatric nurses, social workers, psychiatric aides, guards that are trained as psychiatric aides, psychologists, a recreational therapist, a dietitian, medical practitioners, and clergy.46 Feliciana has approximately 410 forensic patients, and its staff includes twelve to fourteen full- or part-time psychiatrists.47 The doctor-patient ratio is between thirty and thirty-five to one.48 These individuals routinely meet with patients at the facility and develop treatment programs that are based on each detainee’s needs and interests.49 Treatment at Feliciana includes treatment and stabilization of psychiatric disorders and substance-abuse disorders, behavior management, development of interpersonal skills, psychotherapy, and behavioral therapy.50 The facility
45 See id. at 33-35 (statements of Dr. Demaree Inglese that the staff at an inpatient center such as Feliciana is better at dealing with incompetent inmates than the staff at a local jail).
46 Id. at 197-98. 47 Id. at 183, 214. 48 Id. 49 Id. at 198. 50 Id. at 197-200. Dr. John Thompson indicated that psychotherapy is available at Feliciana, although it is “[p]robably more supportive but not specific psychotherapy, like cognitive behavioral therapy or those kinds of therapies.” Id. at 199.
20

also includes a maximum-security unit for patients with behavioral issues that allows twenty-four-hour supervision and nursing care.51
iv. Mental-Health Treatment in Parish Jails The level of mental-health treatment in parish jails falls far short of the care available at Feliciana. As is evident from the discussion that follows, the treatment available in these jails is far below the articulated standard of care. As a result, the Court cannot discern any rational relationship between the Incompetent Detainees’ continued confinement in parish jails and the restoration of their competency. It bears mentioning at the outset that when Incompetent Detainees are held in local jails awaiting their transfer to Feliciana, the conditions of their confinement are effectively the same as any other competent inmate. Put another way, they are simply in jail. And the mental-health treatment available in jail is minimal. Dr. Demaree Inglese, the medical director of the St. Tammany Parish Sheriff’s Office and the former medical director of the Orleans Parish Criminal Sheriff’s Office, conveyed a picture of the mental-health care available in parish jails. At the St. Tammany Parish Prison, the Incompetent Detainees receive the same
51 Id. at 200-202. 21

level of mental-health care as any of the other inmates.52 The prison has between 1,050 and 1,100 inmates, and that the entire medical staff includes one part-time psychiatrist as well as a psychiatry resident who sees patients when necessary.53 When a psychiatrist is not available, inmates’ psychiatric problems — including the treatment of potentially suicidal patients — are handled by non-psychiatric physicians.54 The prison has no registered nurses or psychiatrically trained nurses, and half of the licensed practical nurses who work at the prison have little if any experience.55
The St. Tammany Parish Prison is “not equipped or built to be a psychiatric facility housing severely ill psychiatric patients, whether they are chronically ill or acutely ill.”56 Problem patients at St. Tammany — particularly those on suicide watch or who otherwise pose a danger to themselves by, for example, repeatedly banging their heads against walls57 — are placed into isolation cells of approximately four feet by four or five feet in dimension, with mesh walls and nothing inside the
52 Id. at 25. 53 Id. at 20. 54 Id. at 45. 55 Id. at 34. 56 Id. at 27. 57 Id. at 28.
22

cell.58 Here they can be observed by jail staff twenty-four hours a day. The cells are not large enough to lie down in and most patients sleep sitting up.59 Inglese noted that “I’ve been aware of people in St. Tammany who have been in our little suicide cell for weeks because there is no other safe place in our facility to house that person.”60
The guards at St. Tammany have minimal training in dealing with mentally ill inmates, and they may not know which inmates are Incompetent Detainees. These guards are “trained to deescalate situations,” and in general they are “19 to 25-year old . . . young men, sometimes young women, who have little psychiatric training, mental health training, who are working in a jail.”61
Dr. Inglese specifically noted that jail-based treatment was “a very poor substitute for intensive inpatient rehabilitation.”62 The Incompetent Detainees, according to Inglese, might be in the prison for “quite a few months” before they are found incapable of standing trial, and then after that it could take “six months, a year, more than a year to actually
58 Id. at 27-28, 30-31. 59 Id. at 31. 60 Id. at 29. 61 Id. at 32. 62 Id. at 25.
23

find them a bed in an inpatient psychiatric facility.”63 It is
not unusual to have Incompetent Detainees in St. Tammany “well over a year.”64 Inglese summarized the position of the St.
Tammany Parish Prison as follows:
The St. Tammany Parish Jail is not funded, designed, or equipped to provide the type of comprehensive inpatient restorative mental health treatment that Patient Detainees require to restore their competency so they can proceed to trial. The Jail cannot, for example, provide rehabilitation or counseling services. St. Tammany Parish, like all Louisiana parishes, relies on the State of Louisiana to provide inpatient restorative mental health treatment.65
Other prisons within Louisiana have even less capability to
provide mental-health treatment. According to Dr. Inglese,
medical staff at St. Bernard Parish Prison includes neither a physician nor a psychiatrist physician.66 At other facilities in
Louisiana — including “Allen Parish, the Overland Jail, St.
Mary’s Parish Sheriff’s Office, Caldwell County Correctional, St.
James Parish” — and similar jails with small inmate populations,
physicians typically come in once a week or inmates are taken to see local physicians, and they lack psychiatric services.67
63 Id. at 24. 64 Id. at 38. 65 R. Doc. 22-8 at 2. 66 Id. at 23. 67 Id. at 23. In addition, Dr. John Thompson, clinical director of Feliciana, stated that Jefferson Parish had a regular psychiatrist on staff who may or may not be full time. East
24

The Orleans Parish Prison (“OPP”) has roughly 3,400 inmates,
which includes between twenty-eight and thirty Incompetent Detainees.68 Dr. Inglese noted that OPP “is probably equipped to
provide the best psychiatric care of any jail in this state,” and
that the facility has an inpatient ward and more personnel than other facilities.69 When he worked there, the prison had two
full-time psychiatrists and an active residency training program.70 Even still, when a patient in OPP proves to be a
suicide risk or is otherwise a source of problems, that patient
is tied to a bed in four- or five-point restraints. Dr. Inglese
stated that he was aware of patients at OPP who had been tied to beds for weeks.71
Marlin Gusman, the Sheriff of Orleans Parish, indicated that
OPP’s mental-health unit currently has one full-time psychiatrist
Baton Rouge Parish has a consulting psychiatrist. Other than that, he knows of no parishes that have full-time psychiatrists other than Orleans Parish, and he “would be surprised if any do.” Id. at 213. Susan Johannsen testified that the jails in Livingston Parish, St. Helena Parish, and Tangipahoa Parish have virtually no psychiatric staff. Washington Parish, she indicated, has a consulting doctor who is board-certified in psychiatry. Id. at 144-47.
68 Id. at 58. This figure, given by Sheriff Gusman, reflects the number of Incompetent Detainees in OPP at the time of the preliminary-injunction hearing.
69 Id. at 26. 70 Id. at 19. 71 Id. at 28.
25

and two social workers.72 This unit, however, focuses on “basically just maintaining [inmates’] medications” and not restoring the competency of the Incompetent Detainees.73 Restoration is not the mental-health unit’s primary focus, Gusman said, because OPP is a jail. “Our primary focus is to keep people in jail before they go to trial.”74 Gusman stated that he simply did not have the resources to make restoration to competency the main focus of how the jail deals with the Incompetent Detainees.75 He further testified that he would like to see the Detainees transferred to Feliciana as soon as possible.
Furthermore, a September 2009 report from the Department of Justice expressed great concern about the state of mental-health treatment in OPP. Specifically, it found that the suicideprevention practices at OPP were “grossly inadequate” and contrary to accepted professional standards.76 The first response to patients with suicidal ideation, the report indicates, is to place the prisoner in five-point restraints. In
72 Id. at 59-60. 73 Id. at 60. 74 Id. 75 Id. 76 R. Doc. 22-4 at 36 (report from Loretta King, Acting Attorney General of the Civil Rights Division, to Marlin Gusman, the Sheriff of Orleans Parish).
26

addition, the report explains that OPP fails to treat individuals with mental illnesses, which is “inconsistent with generally accepted professional standards and ha[s] resulted in mental health deterioration and unnecessary suffering.”77
Finally, a number of statements W.B. made while he was still incarcerated at Orleans Parish Prison strongly suggest that the his mental health was not improving during his imprisonment.78 He stated that “little men” would visit him at night while he was imprisoned in OPP, and that they would hit him, tell him that they would be back, and then run away.79 W.B. also asserted that he was placed in solitary confinement for “months,” and that during this time he talked to himself. He stated that “[i]t’s good to talk to yourself [because] you have fun.”80 According to Dr. Dvoskin, W.B.’s statement that he was seeing “little men” in the night was likely either a visual hallucination or a delusion or both, and both of these phenomena are examples of psychotic thinking.81 While none of W.B.’s statements is taken for the truth of the assertions, the statements do not paint a picture of
77 Id. at 40. 78 Again, the Court considers W.B.’s statements only insofar as they were made and not for the truth of the matters asserted. 79 R. Doc. 22-3 at 2. 80 Id. 81 Prelim. Inj. Hr’g Trans. at 72.
27

someone whose mental health is improving while he is incarcerated.
This evidence demonstrates that the mental-health treatment available in parish jails is virtually nonexistent in many parishes and in others appears to consist of little more than maintenance of medication and prevention of suicide. There are very few, if any, staff members who are trained to treat mentally ill patients, and the Incompetent Detainees are in large part treated like any other inmate in the facility. In response, defendants do not contest this portrayal of the state of mentalhealth treatment in parish jails, other than to point out that not all of the inmates who receive this treatment are Incompetent Detainees.
v. The CFS Jail-Based Restoration Program Defendants contend that they provide additional mentalhealth treatment to the Incompetent Detainees beyond what the jail provides while the Detainees await a vacancy at Feliciana. These services are administered through Community Forensic Services (“CFS”), which is a division of the Eastern Louisiana Mental Health System and the Louisiana Department of Health and Hospitals. CFS maintains a jail-based outreach program that provides additional services to the Incompetent Detainees.82
82 Id. at 101. 28

CFS’s involvement with the Incompetent Detainees appears to be the result of administrative action and not a requirement of Louisiana law.
The CFS program is no substitute for inpatient treatment at a mental-health facility. Dr. John Thompson, the clinical director of Feliciana, indicated that this program is not a substitute for hospitalization. Rather, it is directed toward those Incompetent Detainees who can be restored with “standard psychiatric medications” and “a minimal amount of education” while they await an opening at Feliciana.83
A total of nine “district forensic coordinators,” who are masters-level social workers, are the extent of the program for the entire state. These coordinators are not psychologists or psychiatrists, although they receive some training from a psychologist or a psychiatrist.84 Each coordinator is assigned to a particular region, and their duties include making visits to jails. A coordinator meets with detainees in jail at least twice a month, and their duties involve discussing medication with the detainee and filling out paperwork.85 They will also talk to prison staff and attempt to ensure that the detainee is receiving adequate medication. These nine coordinators do not spend all of
83 Id. at 173-74. 84 Id. at 102-04. 85 Id. at 103, 173, 216.
29

their time attending to the Incompetent Detainees. Indeed, Susan
Johannsen, one of the coordinators, testified that she spends 30 percent of her time working with the Incompetent Detainees.86
The coordinators are trained to perform various competency tests and to assess the competency of the Detainees.87 If the
coordinator believes that a pretrial detainee has been restored
to competency before transfer to Feliciana, the coordinator will
notify CFS, which will send a consultant to evaluate the
detainee’s competency. If the detainee is found competent, CFS will begin the process of having him reevaluated by the court.88
Defendants cannot seriously contend that the CFS program
solves the Detainee problem at the heart of this litigation.
Based on the evidence and testimony submitted by defendants,
which sought to place the program in the most positive light, the
program does not work for about 70 percent of the Incompetent Detainees.89 The establishment of a makeshift supplement such as
86 Id. at 152. 87 Id. at 102, 162, 169. 88 Id. at 106, 120; see also LA. CODE CRIM. PROC. art. 649(a)(b). 89 Michelle Duncan, the director of Community Forensic Services, testified that “30-something percent” of Incompetent Detainees who are committed to Feliciana are restored during jail-based treatment. Prelim. Inj. Hr’g Trans. at 121. Dr. Thompson testified that “about a third” of the people on the waiting list to come to Feliciana come off the list either because of restoration to competency or other forms of diversion. Id. at 175. These other forms of diversion appear to include
30

the CFS program does not establish that the continued
incarceration of the Incompetent Detainees is rationally related
to the restoration of their competency.
Defendants also produced testimony that Incompetent
Detainees could be admitted to Feliciana on an emergency basis,
such as if they were about to kill themselves or injure someone
else. The testimony presented was conflicting as to how quickly
such an admission could be accomplished. Although defendants’
witnesses testified that emergency transfers could be made in no
more than a few days,90 Dr. Inglese gave a completely different
account. He stated that a coordinator can get an emergency
patient transferred “within several weeks.”91 He recalled a few
having the charges against the detainee dropped or any other manner of getting off the Feliciana waiting list without actually being transferred to Feliciana. Id. at 121. It appears that not all forms of diversion discussed by defendants’ witnesses — such as finding the patient housing in the community — apply to the Incompetent Detainees. Id. at 178.
90 See id. at 104-05 (statement of Michelle Duncan). Susan Johannsen also testified that an emergency admission can be completed within a day or two. Id. at 135. Dr. Thompson testified that an Incompetent Detainee could be admitted on an emergency basis between twenty-four and seventy-two hours if he were involved. Id. at 166. Dr. Thompson also testified that occasionally the state mental-health clinic or the local inpatient unit would take Detainees when a Detainee needs to be moved to an inpatient hospital. Id. at 206-07. Dr. Inglese testified to the contrary — that to his knowledge no hospital in the state other than Feliciana would take inmates. Id. at 27. In any event, the Court has received no evidence on this option other than one sentence from Dr. Thompson.
91 Id. at 39.
31

instances in which the transfer took “a week or two,” but never within a few days.92 He stated that he does not attempt the transfer when a patient is merely acting out or is in severe psychosis, because “[t]hat encompasses a significant fraction of our pretrial detainees.”93 Rather, he seeks an immediate transfer when he perceives “an actual immediate threat to [the Detainee’s] health and safety.”94 He can make these transfers two or three times a year.95
Regardless of how quickly or how often emergency transfers are accomplished, this transfer procedure describes psychiatric triage that is a band-aid on a much larger problem. Unless a detainee presents a dire enough problem to his jailers to warrant an emergency transfer, he remains in the regular jail, not in the mental-health facility to which the Louisiana court ordered that he be sent.
The CFS program appears to have been started to address the very problem that plaintiffs identify. This, however, does not change the fact that the program essentially consists of nine
92 Id. at 55-56. 93 Id. at 53. 94 Id. In addition, he stated that he once had a “bad headbanger” who needed to get out quickly, and Orleans Parish accepted the prisoner because their restraint beds can prevent an inmate from banging his head. Id. at 55-56. 95 Id. at 39.
32

social workers who do not have advanced degrees or significant clinical training in psychology or psychiatry tending to every Incompetent Detainee in the state. They are required only to meet with each Detainee twice every month, and if the other coordinators have the same duties and work obligations as Johannsen, they spend only about 30 percent of their time on the Incompetent Detainees. This amounts to less interaction with the coordinators than what the Detainees would receive with three coordinators servicing all the Incompetent Detainees in the entire state full-time. And again, the parish jails lack comprehensive mental-health services and are often unequipped to provide adequate mental-health treatment during the twenty-eight days per month that the Detainee is not meeting with the coordinator.
Dr. Dvoskin characterized the CFS program as “a way of throwing a little bit of a service that a person needs a lot of, I assume because its cheaper, but it doesn’t compare at all. It’s light years short of inpatient psychiatric care.”96 He noted that at an inpatient hospital like Feliciana, a patient could receive comprehensive psychiatric services through an interdisciplinary treatment with individualized goals.97 Even Dr. Thompson specifically stated that the treatment provided by
96 Id. at 85, 87-88. 97 Id. at 80.
33

the CFS jail-based program is not equivalent to the level of care that patients receive at Feliciana, and that if there were additional room at Feliciana, he would admit the Incompetent Detainees much more quickly, although he would still allow a period in which the best place for a Detainee to be treated could be determined.98
vi. The Composition of the Waiting List Defendants also argue that the waiting list supplied to the Court does not consist exclusively of Incompetent Detainees who have been adjudged incompetent to stand trial and committed to Feliciana. They contend that this list also includes ten individuals who will receive outpatient restoration due to an intervening change in the law,99 three who have been restored and are awaiting a second sanity hearing, five who are living in the community pending transfer to Feliciana, and twelve who have been found not guilty by reason of insanity in state court. Plaintiffs do not dispute that the Feliciana waiting list supplied to the Court includes individuals who are not Detainees who have been found incompetent to stand trial and committed to Feliciana. In addition, the defendants suggest that there are other
98 Id. at 205. 99 See 2010 La. Sess. Law Serv. 419 (H.B. 462).
34

categories of individuals on the list. Dr. Thompson testified that some of the individuals on the list were committed to Feliciana for malingering evaluations.100 The Court has been presented with no court order or other record reflecting a commitment for such a purpose. Dr. Thompson did not explain why commitment to a mental hospital would be necessary to assess malingering. Further, the Court asked Dr. Thompson how many of the individuals on the list were committed to Feliciana for malingering evaluations, and he did not answer the question. Instead, he said that about five to seven percent of the individuals on the list “would meet a trigger to have [a malingering] evaluation done.”101 This figure, of course, is different from how many Detainees may have been ordered to Feliciana for the express purpose of a malingering assessment. In any event, the Court finds the testimony surrounding the malingering evaluations hard to believe. As noted, the Court has seen no court order committing an inmate to Feliciana for a malingering evaluation. In addition, this case was brought because of the acknowledged scarcity of space at Feliciana. Absent corroborating evidence, the Court finds it implausible that the state would make space available to potential malingerers while Incompetent Detainees who have been court-
100 Prelim. Inj. Hr’g Trans. at 170-73. 101 Id. at 173.
35

ordered to Feliciana await transfer for many months on end. In addition, Dr. Thompson mentioned that some individuals
who have been ordered by the court to ninety days of jail-based treatment and not committed to Feliciana appear on the Feliciana waiting list.102 Neither the waiting list itself, nor any court order or other record suggests that the list includes inmates who have not been judicially committed to Feliciana. In fact, Dr. Thompson, who was the only witness who mentioned that prisoners might get on the waiting list for malingering evaluations or when they are ordered to ninety days of jail-based treatment, specifically testified that he was not responsible for maintaining the list.103 Furthermore, defendants could not identify which inmates supposedly fell into either of these two categories. The Court has not been shown sufficient evidence to establish that inmates appear on the list for these specific reasons.
In any event, defendants freely acknowledge that forty-seven Incompetent Detainees are ready for transfer to Feliciana and face no obstacle to transfer, and they also admit that thirtynine inmates are waiting for their paperwork to be completed before they are eligible for transfer. The outcome of this case in no way depends on whether every individual on the list is an
102 Id. at 178-81. 103 Id. at 189.
36

Incompetent Detainee, as defined. And defendants do not contest
that there are numerous Incompetent Detainees who have been
awaiting transfer for many months, at least two of whom have been
awaiting transfer for over one year.104
vii. Paperwork Required by Statute
Defendants additionally argue that certain Incompetent
Detainees cannot be transferred because Feliciana cannot admit a
Detainee until the court furnishes particular information. This
information is detailed by statute, which provides as follows:
No superintendent of an institution shall admit a defendant found by the court to lack the mental capacity to proceed pursuant to Article 648 unless he is furnished by the court the following information:
(1) The name and address of the defendant’s attorney. (2) The crime or crimes with which the defendant is charged and the date of such charge or charges. (3) A copy of the report of the sanity commission. (4) Any other pertinent information concerning the defendant’s health which has come to the attention of the court such as injuries sustained following incarceration. (5) A copy of the defendant’s criminal history record. (6) A copy of the police report concerning the charged offense. (7) A copy of the judgment and order specifying the nature and purpose of the commitment or recommitment to the state institution.105
Michelle Duncan testified that although this information is
104 See R. Doc. 53-1 at 2, 5. 105 LA. CODE CRIM. PROC. art. 648.1.
37

supposed to be “furnished by the court,” her staff frequently has to get the documents.106 She indicated getting the documents is “not something we like to do” because “that’s not really our job.”107 Accordingly, defendants contend that these individuals may not be transferred immediately because their paperwork is not complete, and their transfer would thus be in violation of Louisiana law.
This argument that thirty-nine Detainees do not have their paperwork completed and thus cannot be transferred uses the term “completed” loosely. All the paperwork exists; it just has not been collected all in one place. Defendants cannot seriously suggest that the Incompetent Detainees’ continued and lengthy imprisonment without trial is justified by a failure to locate and assemble seven documents. Some of these Detainees whose paperwork has not been completed have been on the waiting list for months. At least ten of the individuals with incomplete paperwork were placed on the list in 2009.108 A few of these individuals have been awaiting the submission of these seven documents for more than nine months. The Court cannot fathom why these materials cannot be transported or transmitted immediately, and defendants have not even attempted to explain why their
106 Prelim. Inj. Hr’g Trans. at 99-100. 107 Id. at 117-18. 108 R. Doc. 53-2.
38

failure to make efforts to collect a small packet of paper would possibly justify the continued imprisonment without trial of thirty-nine individuals. Paperwork is simply not that great of a burden. And even though Louisiana law commands that the Detainees cannot be admitted to Feliciana without the completion of the paperwork and that the responsibility for the paperwork does not lie with defendants, defendants clearly share this responsibility in practice. This provision cannot be used to justify the deprivation of defendants’ constitutional rights.
viii. Defendants’ Attempts to Remedy the Problem The particular problem that plaintiffs identify is one that is chronic and structural. Defendants do not suggest that the lengthy detention of the Incompetent Detainees is a recent or temporary phenomenon. In fact, they acknowledge that the condition has persisted for some time. And the Court has been presented with nothing to indicate that defendants have been able to remedy the existing state of affairs. Dr. Thompson testified that since the CFS program was established in 1993, there has always been a waiting list for individuals who have been court-ordered to Feliciana but have not been transferred on account of lack of space.109 He stated that approximately two hundred individuals are committed to Feliciana
109 Prelim. Inj. Hr’g Trans. at 206. 39

every year, and that twenty-one of the individuals who were on the list in October of 2009 were still awaiting transfer as of June 22, 2010.110 Of the fifty-three people on the list who were eligible for immediate transfer at the time of the preliminaryinjunction hearing, Dr. Thompson expected that it would take between six and nine months for those individuals to be transferred.111 In that time, between one hundred and one hundred fifty new Incompetent Detainees would be added to the list, and a percentage would be removed from the list.112
Dr. Thompson also testified at some point before Hurricane Katrina in August of 2005, Feliciana opened up fifty new beds for specialized competency restoration, and after Katrina the hospital opened another twenty-five beds for a fast-track competency unit.113 This unit “is for individuals we think that are on the list but can be restored fairly quickly, or responded to antipsychotic meds in the past rather quickly, so we can admit them to that particular unit.”114 Even with these expansions, the waiting list has not been alleviated. Although the length of the list fluctuates, Dr. Thompson testified that it has gotten as
110 Id. at 194, 215. 111 Id. at 215. 112 Id. 113 Id. at 185. 114 Id.
40

short as thirty or forty transfer-eligible individuals, and on the other end, has reached the point where the number of these individuals was in the nineties.115 And these numbers reflect only Detainees with complete paperwork.
In addition, Dr. Inglese testified that the number of mentally ill individuals in Louisiana jails had increased after Hurricane Katrina because those individuals have “lost their providers; they went off their medication [and] drugs and alcohol use have skyrocketed.”116 His view is that “many, many, many more patients with serious mental illness [are being] arrested; many, many, many more people with serious drug and alcohol problems [are being] arrested.”117 He also testified that he understood that “there have been massive cuts in the number of inpatient beds at treatment facilities.”118 There is thus no reason to think that the number of Detainees who are imprisoned while awaiting transfer or that the length of their delays are decreasing. In fact, the evidence suggests that both figures are on the rise.
115 Id. at 186. 116 Id. at 42. 117 Id. at 43. 118 Id. at 43. This statement was allowed over the objection of defendants’ counsel, as Dr. Inglese heard this from Susan Johannsen, who is a representative of defendants. See FED. R. EVID. 801(d)(2).
41

ix. Additional Case Law and Conclusions Again, “due process requires that the nature and duration of commitment bear some reasonable relationship to the purpose for which the individual is committed.”119 And the continued imprisonment of the Incompetent Detainees in parish jails — even with the scant additional services provided by CFS’s jail-based treatment program — does not bear a reasonable relationship to either restoring the Detainees to competency or determining that they will never become competent. The Incompetent Detainees remain in jail because Feliciana is full, not because there is any suggestion that remaining in jail might restore their competency. Nothing in the evidence or testimony presented suggests otherwise. Thus, under the Supreme Court’s decision in Jackson, the Fourteenth Amendment rights of the Incompetent Detainees are being infringed upon. The Court’s holding in this matter is similar to the holdings of other courts that have confronted similar facts. In Oregon Advocacy Center v. Mink, the Ninth Circuit found that the Fourteenth Amendment rights of pretrial detainees were violated when they were incarcerated in county jails while awaiting transfer to the state mental hospital, which had refused to admit
119 Jackson, 406 U.S. at 738. 42

them in a timely manner.120 The pretrial detainees in that case
waited, on average, one month in county jails before being
transferred, and the court noted that “[i]n many cases, defendants had to wait two, three, or even five months.”121 In
holding that the regime violated the detainees’ constitutional
rights, the court looked to Jackson and found that, while
awaiting transfer, the continued confinement of the detainees
bore no legitimate relationship to the purposes for which they
remained confined — that is, to restore them to competency or to
determine that they would never be fit to stand trial. Only a
state facility and not a county jail furthered the goal of
evaluating, treating, and restoring the mental health of the
detainees.
Only [the state mental hospital] has the highly trained staff and other resources needed to identify and treat an incapacitated criminal defendant’s mental illness. County jails are simply unable to provide restorative treatment, and the jails’ disciplinary systems may exacerbate the defendants’ mental illnesses. Holding incapacitated criminal defendants in jail for weeks or months violates their due process rights because the nature and duration of their incarceration bear no reasonable relation to the evaluative and restorative purposes for which courts commit those individuals.122
The scenario presented in Mink is starkly similar to the one
before the Court, except, of course, that Incompetent Detainees
120 322 F.3d 1101 (9th Cir. 2003). 121 Id. at 1105. 122 Id. at 1122.
43

in Louisiana wait longer than those in Oregon. The U.S. District Court for the Eastern District of Arkansas
reached a similar conclusion. In the 2002 case of Terry ex rel. Terry v. Hill, the court examined a similar statutory scenario to the one involved here. Criminal defendants found to lack capacity were to be transferred to a state mental hospital, which was full. As a result, the detainees remained in jail. “The average wait [before transfer] is over eight months for inpatient evaluations [of competency] and over six months for inmates awaiting treatment.”123 The court found that the conditions of the state jails were highly inadequate to meet the mental-health needs of the inmates. “The lack of inpatient mental health treatment, combined with the prolonged wait in confinement, transgresses the constitution. The lengthy and indefinite periods of incarceration, without any legal adjudication of the crime charged, caused by the lack of space at [the state mental hospital], is not related to any legitimate goal, is purposeless and cannot be constitutionally inflicted upon the [incompetent detainees].”124
In addition, in Mink and Terry, the decision to keep the detainees in jail was not the result of any kind of professional decision-making. Here, too, there is no evidence that the
123 Terry, 232 F. Supp. 2d at 938. 124 Id. at 943-44.
44

decision to keep the Incompetent Detainees in parish jails for
lengthy durations of time was made by any mental-health
professional.125 In fact, the opinion of virtually all the
mental-health professionals appears to be that it is in the
Detainees’ best interest to get them to Feliciana quickly.126 A
state court and a sanity commission of mental-health
professionals have recommended inpatient treatment and have
specifically rejected jail-based treatment. Dr. Dvoskin
testified that a transfer of the Detainees to an inpatient
facility, even taking logistical concerns into account, should be
accomplished within a few days.127 Dr. Inglese noted that jails
are a “poor substitute” for inpatient rehabilitation, and he
recounted numerous ways in which the Incompetent Detainees would
benefit from treatment at a facility like Feliciana.128 Michelle
125 See Youngberg, 457 U.S. at 323 (infringement of an inmate’s substantive-due-process rights depends upon whether his conditions reflect “a substantial departure from accepted professional judgment, practice, or standards . . . [which] demonstrate[s] that the person responsible did not base the decision on [a professional] judgment”).
126 Only Susan Johannsen expressed the view that not all the Incompetent Detainees should be transferred to Feliciana. See Prelim. Inj. Hr’g Trans. at 150-51. But this view directly conflicts with the order of the state court as well as the recommendation of the sanity commission. The Court cannot find that the view of Johannsen, a social worker, can override the explicit order of a state court and the finding of a commission of psychologists and psychiatrists.
127 Id. at 82.
128 Id. at 25, 27-28, 33-35.
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Duncan stated that no psychiatrist or psychologist affiliated with Feliciana has made an independent determination that the Incompetent Detainees do not require inpatient treatment at Feliciana.129 Dr. Thompson testified that establishing the CFS jail-based treatment program was “a better way to do business” than not having such a program, and that the program would improve the relationship between Feliciana and the courts and “help the flow of patients go through the system more quickly.”130 But he did not testify that a mental-health professional had determined that the Detainees should remain in parish jails despite a court order, and he stated that the patients would move to Feliciana more quickly if there were more beds available.131
In sum, the evidence presented indicates that the decision to keep the Detainees in parish jail is an economic one and not one made out of concern for their mental-health treatment. The Court therefore cannot find that the state’s interest outweighs the Detainees’ liberty interests under the Youngberg inquiry.
Defendants present little evidence to contest these determinations. The thrust of their entire defense appears to be that the situation is not quite as bad as it appears. Although defendants attempt to chip away at plaintiffs’ arguments by
129 Id. at 116. 130 Id. at 203. 131 Id. at 205.
46

suggesting that there are fewer Incompetent Detainees awaiting transfer than the waiting list might suggest, or that not many of the Detainees remain in jails for many months on end, they do not dispute many of plaintiffs’ essential contentions.
It is critical to keep in mind that, for all the Incompetent Detainees in question, a Louisiana court has determined that they require inpatient restorative treatment and not the kind of outpatient treatment that is provided to them while they remain in jail. By statute, the state court makes this determination because the defendant’s capacity is not likely to be restored within ninety days, and a sanity commission has recommended inpatient treatment at Feliciana. Thus, the refusal to accept the Incompetent Detainees, which results in their continued incarceration, is not even in compliance with the order of the Louisiana court and the sanity commission. A state court and a panel of mental-health professionals have recommended inpatient treatment because a detainee is not likely to improve through jail-based treatment, but jail-based treatment is what the Detainees receive.
Furthermore, “[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of
47

confinement are designed to punish.”132 Here, by virtue of their detention in parish jails, the Incompetent Detainees who have been convicted of no crime are being held in conditions substantially similar to those designed to punish. Defendants suggest that they have established a proactive and non-punitive system for dealing with the Detainees. Nevertheless, the Supreme Court has observed that “confinement in prison is punitive and hence more onerous than confinement in a mental hospital.”133 That the Incompetent Detainees might have the hope that they will at some unidentifiable point in the future be transferred from jail to a mental-health facility in compliance with court order does not mean that their continued, lengthy imprisonment is nonpunitive. And the evidence presented to the Court establishes that during the twenty-eight days out of every month that the Incompetent Detainees are not being visited by a Coordinator, the level of mental-health treatment is indistinguishable from that available to any other inmate.
This determination is not, as defendants suggest, made upon
132 Youngberg, 457 U.S. at 321-22. Of course, the Detainees are in parish jails because they are alleged to have committed crimes. But they have not been convicted of those crimes, and thus cannot be subject to conditions designed to punish. See Bell, 441 U.S. at 535 (“under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law”).
133 Heller v. Doe ex rel. Doe, 509 U.S. 312, 315 (1993). 48

“a court’s idea of how best to operate a detention facility.”134 It is made in compliance with the law. Defendants have pointed to no legal authority that would suggest that their position is the correct one.
The Court recognizes the limitations that are placed upon defendants, and it acknowledges that defendants have made some attempt to provide a modicum of mental-health treatment for the Incompetent Detainees while they await one of the limited vacancies at Feliciana. Defendants’ limited resources are a concern, but lack of funding cannot justify the continued detention of defendants who have not been convicted of any crime, who are not awaiting trial, and who are receiving next to no mental-health services. While these Detainees are in parish jails, their continued confinement bears no rational relationship to the restoration of their competency. Their confinement is also not the result of any decision by a mental-health professional. And it is undisputed that they remain in parish jails for extended periods of time. Plaintiffs have therefore demonstrated a likelihood of success on the merits of their asapplied challenge to the continued detention of the Incompetent Detainees.
134 R. Doc. 53 at 11. 49

x. Plaintiffs’ Facial Challenge Again, plaintiffs have satisfied the first prong of the preliminary-injunction test for their as-applied challenge. They have not, however, demonstrated a likelihood of success on the merits on their claim that the Louisiana statutes are facially unconstitutional. Plaintiffs assert that in concert, Article 648 of the Louisiana Code of Criminal Procedure and Section 28:25 of the Louisiana Revised Statutes foster a regime under which Incompetent Detainees who are committed by court order to Feliciana for inpatient mental-health treatment must, by law, be turned away to await transfer in parish prisons. They therefore ask that both laws be declared unconstitutional. A plaintiff who seeks to bring a facial challenge to a statute must demonstrate that “no set of circumstances exist under which the Act would be valid, i.e., that the law is unconstitutional in all its applications.”135 It is insufficient for a plaintiff to establish that the statute would be unconstitutional under some conceivable set of circumstances.136 Here, plaintiffs have established that the challenged laws permit
135 Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)); see also Hersh v. United States ex rel. Mukasey, 553 F.3d 743, 762 n.23 (5th Cir. 2008).
136 See Salerno, 481 U.S. at 745; see also United States v. Robinson, 367 F.3d 278, 290 (5th Cir. 2004).
50

mentally ill Detainees to fall into a kind of purgatory of lengthy and unjustified detention. But this finding depends upon the condition that Feliciana can accept no additional patients, and new patients are thus placed on a waiting list. Plaintiffs have identified no constitutional problem that would arise if Feliciana has room for the Incompetent Detainees, and they are transferred shortly after they are determined to be incompetent. Although Louisiana Code of Criminal Procedure Article 648 contemplates that a Detainee might be held in parish jail for up to 360 days while awaiting transfer to Feliciana — which would certainly be a violation of the Detainee’s due-process rights — the Article does not require that the detainee be held for such a period. The laws do not mandate that Incompetent Detainees remain in parish jails for extended periods of time; the circumstances do. And plaintiffs have not made any argument that the statutes are vague or otherwise subject to facial challenge.
Because plaintiffs have not shown that Article 648 of the Louisiana Code of Criminal Procedure and Section 28:25 of the Louisiana Revised Statutes are unconstitutional in every circumstance, they have not demonstrated a likelihood of success on the merits for their facial challenge. They have established a substantial likelihood of success on the merits of their asapplied claim, and they have thus satisfied the first prong of the preliminary-injunction standard for this claim.
51

3. Substantial Threat of Irreparable Injury Plaintiffs have demonstrated a substantial threat of irreparable injury if the Court does not issue the injunction. The Incompetent Detainees, including W.B., are inmates in parish prisons.137 They have not been convicted of a crime and are not awaiting trial. There is little question that the state has the authority to detain incompetent defendants for the purposes of determining whether they are or will become competent to proceed.138 But, as explained, the Supreme Court has placed limits on such actions.139 State-imposed pretrial imprisonment without conviction is a “massive curtailment of individual liberty.”140 While such curtailment might be justified under certain circumstances, here plaintiffs have made a showing of substantial likelihood that it is not. “[U]nnecessary deprivation of liberty clearly constitutes irreparable harm.”141 The threat of irreparable harm
137 Again, W.B. was transferred out of OPP during the briefing of these motions. But, as explained above, the Court is not convinced that his injury is not capable of repetition.
138 See Jackson, 406 U.S. at 738. 139 Id. 140 See Boston v. Lafayette County, Miss., 743 F. Supp. 462 (N.D. Miss. 1990) (quoting Humphrey v. Cady, 405 U.S. 504, 509 (1972)). 141 United States v. Bogle, 855 F.2d 707, 710-11 (11th Cir. 1998); see also Burdine v. Johnson, 87 F. Supp. 2d 711, 717 (S.D. Tex. 2000) (habeas petitioner “suffers irreparable harm each day
52

typically exists when a possible violation of fundamental rights is at stake.142
In addition, plaintiffs have presented evidence that continued incarceration could exacerbate the Incompetent Detainees’ mental conditions. Dr. Dvoskin testified that the mental condition of psychotic inmates can be exacerbated by confinement in jail.143 Defendants do not contest this, and this finding is consistent with the evidence presented in other cases with similar fact patterns.144
Plaintiffs have therefore demonstrated that they will suffer irreparable harm if the preliminary injunction does not issue, and they have satisfied the second prong of the inquiry.
4. Whether the Threatened Injury to Plaintiffs Outweighs the Damage an Injunction Might Cause Defendants Defendants contend that the burden that an injunction would place on defendants outweighs the threatened injury to plaintiffs
that he is imprisoned in violation of the United States Constitution”).
142 See, e.g., Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992); Newdow v. Bush, 355 F. Supp. 2d 265, 292 (D.D.C. 2005); Lincoln Cercpac v. Health & Hosp. Corp., 920 F. Supp. 488, 495-96 (S.D.N.Y. 1996); United States v. State of Mich., 534 F. Supp. 668, 669 (W.D. Mich. 1982).
143 See Prelim. Inj. Hr’g Trans. at 78. 144 See Terry, 232 F. Supp. 2d at 940-41; see also Lynch v. Baxley, 744 F.2d 1452, 1458 (11th Cir. 1984).
53

because the state will have to reallocate money from elsewhere. The Court does not doubt defendants’ assertion that “[i]t is simply a fact that funding for health care in Louisiana has reached the point of being a zero-sum game; if DHH is ordered to spend more in one area, it must cut another area to obtain the necessary funding to comply with the order.”145 But such a concern is insufficient to prevent the issuance of a preliminary injunction. The Fifth Circuit has held that “[i]t is well established that inadequate funding will not excuse the perpetuation of unconstitutional conditions of confinement.”146 A state’s constitutional duties toward those involuntarily confined in its facilities does not wax and wane based on the state budget. Plaintiffs have therefore met the third prong of the preliminary-injunction standard.
5. Public Interest Finally, plaintiffs have adequately demonstrated that an injunction will not disserve the public interest. It cannot be denied that there is a strong public interest in protecting the Fourteenth Amendment rights of those in state custody who have
145 R. Doc. 29 at 17. 146 Smith v. Sullivan, 611 F.2d 1039, 1043-44 (5th Cir. 1980).
54

not been convicted of a crime.147 There is a similar public interest in having those charged with criminal offenses proceed speedily to trial. Again, defendants’ argument that it will have to reallocate resources from elsewhere in order to satisfy an injunctive order is not a legitimate consideration and will not prevent the issuance of the injunction.
Defendants have not presented the Court with any alternative other than transfer to Feliciana that would meet the needs of the Incompetent Detainees. Their position is that the Detainees should remain in parish jails, seeing a CFS coordinator twice a month, until there is space at Feliciana for them within months or even years. This alternative to transfer is hardly an advancement of the public interest. Plaintiffs have therefore satisfied the fourth and final prong of the preliminaryinjunction standard, and they are entitled to injunctive relief.
6. Requirement of Security for Injunctive Relief Rule 65(c) of the Federal Rules of Civil Procedure states that “[t]he court may issue a preliminary injunction or temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages
147 See Nobby Lobby, Inc. v. City of Dallas, 970 F.2d 82, 93 (5th Cir. 1992) (“the public interest is always served when public officials act within the bounds of the law and respect the rights of the citizens they serve”) (quoting case below, 767 F. Supp. 801, 821 (N.D. Tex. 1991)).
55

sustained by any party found to have been wrongfully enjoined or restrained.” The Fifth Circuit, however, has recognized an exception to this requirement for litigants who bring suit in the public interest.148 In addition, “[w]aiving the bond requirement is particularly appropriate where a plaintiff alleges the infringement of a fundamental constitutional right.”149 It is highly unlikely, furthermore, that W.B., an incarcerated minor who has been determined unfit to stand trial, would be able to afford the costs and damages suffered by defendants if they are later demonstrated to have been wrongfully enjoined. The requirement of security is therefore waived.
III. Conclusion For the foregoing reasons, defendants’ motion to strike is
DENIED. Plaintiffs’ Motion for a Preliminary Injunction is DENIED IN PART to the extent that they have failed to show a likelihood of success on the merits of their facial challenge to the statutes at issue. It is GRANTED in all other respects.
Defendants are hereby ENJOINED AND ORDERED to transfer to Feliciana within twenty-one days of the issuance of this Order all Incompetent Detainees who (1) have been committed to
148 City of Atlanta v. Metro. Atlanta Rapid Transit Auth., 636 F.2d 1084, 1094 (5th Cir. Unit B Feb 1981).
149 Complete Angler, LLC v. City of Clearwater, Fla., 607 F. Supp. 2d 1326, 1335 (M.D. Fla. 2009).
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Feliciana by court order, (2) are currently eligible for transfer to Feliciana, and (3) have not yet been transferred. This time period acknowledges that defendants will need time to prepare for the arrival of the Incompetent Detainees at Feliciana.
For those Detainees who have been committed to Feliciana by court order but are not currently eligible for transfer to Feliciana on account of incomplete paperwork, defendants are ENJOINED AND ORDERED to take all necessary steps to contact the appropriate courts in an effort to expedite the transmission of the Detainees’ paperwork. These contacts shall be made within ten days from the issuance of this Order.
This Order shall remain in effect until a trial is conducted on the merits, or until it is otherwise modified by the Court. It shall also apply to all Incompetent Detainees who are committed to Feliciana by Louisiana state courts after this Order becomes effective. If a defendant in Louisiana court is committed to Feliciana under Article 648 while the Order is in effect, defendants are ORDERED to transfer the defendant to Feliciana no later than twenty-one days from the court order.
Defendants are additionally ORDERED to submit a status report under seal to the Court thirty days after the issuance of this order. This report shall detail which of the individuals who have been committed to Feliciana by court order have been transferred, and the date upon which they were transferred. If
57

any of the Detainees have not yet been transferred on account of incomplete paperwork, this report shall include specific, detailed information about each Detainee that explains why the paperwork is still incomplete, what steps defendants have taken to obtain the paperwork, and when defendants expect the paperwork to be completed. This report shall also include information about those Detainees who are committed to Feliciana after the issuance of this Order, including the date of the order and the date of the transfer or expected transfer.
SO ORDERED.

New Orleans, Louisiana, this 9th

day of August, 2010.

SARAH S. VANCE UNITED STATES DISTRICT JUDGE

58

 
 Case 2:10-cv-01088-SSV-JCW Document 185 Filed 04/13/11 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

ADVOCACY CENTER et al.

*

Plaintiffs,

*

*

VS.

*

*

LOUISIANA DEPARTMENT OF *

HEALTH AND HOSPITALS, ,et al. *

*

Defendants.

*

* 02:10-cv-01088-SSV-DEK
JUDGE VANCE
MAGISTRATE JUDGE WILKINSON

CONSENT DECREE

I. Introduction:

Plaintiffs Advocacy Center and W.B., a minor, through his mother and next

friend Charrie Butler (“Plaintiffs”) filed this action on April 12, 2010, against

Defendants Louisiana Department of Health and Hospitals (“DHH”), Alan Levine, Mark Anders, and Michelle Duncan (“Individual Defendants,”1 and with DHH, “Defendants”).

Plaintiffs alleged that Defendants have refused and are continuing to refuse to accept

promptly physical custody of individuals who have been found to lack the mental

capacity to proceed to trial and have been remanded to the custody of the Feliciana

Forensic Facility pursuant to Art. 648, Louisiana Code of Criminal Procedure (such

individuals hereafter referred to as “Incompetent Detainees”). Plaintiffs alleged that

Defendants’ refusal to accept physical custody has resulted and is resulting in prolonged

and unconstitutional confinement of such Incompetent Detainees in parish jails, in

violation of their right to due process under the United States Constitution. Defendants

moved to dismiss Plaintiffs’ complaint on several grounds. Plaintiffs moved for a

1 The Individual Defendants were sued in their official capacities only. Since this case was filed, Bruce Greenstein has succeeded Alan Levine as Secretary of DHH, and has been substituted as a party.
1

Case 2:10-cv-01088-SSV-JCW Document 185 Filed 04/13/11 Page 2 of 11
preliminary injunction on May 27, 2010, requesting that the Court order Defendants to accept physical custody of plaintiff W.B. within seven days, and accept physical custody of other Incompetent Detainees at Feliciana within a reasonable period of time, not to exceed thirty days from the date they are committed to Feliciana for restorative treatment, and for other appropriate relief. A hearing on the motions for a preliminary injunction and to dismiss was held on June 22, 2010.
Defendants accepted physical custody of W.B. on May 27, 2010. The Court entered orders denying the motion to dismiss and granting in part and denying in part the preliminary injunction on August 9, 2010, requiring DHH: (1) to admit within 21 days all Incompetent Detainees whose paperwork was complete, (2) to complete paperwork within 10 days on other detainees who have been ordered admitted to Feliciana, and (3) to admit all future detainees ordered to Feliciana within 21 days. Defendants filed a notice of appeal and moved to stay the order pending appeal or, in the alternative, for an extension of time to implement the Court's order to transfer incompetent detainees to Feliciana Forensic Facility. On August 27, 2010, the Court denied the motion for stay, but granted Defendants’ motion to extend the deadlines for admitting Incompetent Detainees to Feliciana, and ordered further relief. The parties mutually desire to settle all of the claims asserted by the Plaintiffs without the need for further litigation and have therefore agreed to enter this Consent Decree. II. Definitions: 1. Incompetent Detainee: a person who has been found to lack the mental capacity to proceed to trial, is being held in jail, and has been remanded to the custody of the
2

Case 2:10-cv-01088-SSV-JCW Document 185 Filed 04/13/11 Page 3 of 11
Feliciana Forensic Facility pursuant to Art. 648, Louisiana Code of Criminal Procedure. 2. Sanity Commission: a commission appointed by a State court pursuant to Art. 644 of the Louisiana Code of Criminal Procedure to examine a criminal defendant whose mental capacity to proceed to trial is in question, and to make findings concerning his competency to proceed to trial. 3. Order for Inpatient Treatment: an order issued pursuant to Art. 648(A)(2)(a) of the Louisiana Code of Criminal Procedure committing the detainee to Feliciana Forensic Facility. 4. Sanity Commission Report: A report prepared by the Sanity Commission and submitted to the Court. 5. Feliciana Forensic Facility: The forensic unit at East Louisiana State Hospital designated by L.R.S. 28:25.1 and any other forensic facility operated by Defendants to which Incompetent Detainees may be committed by an Order for Inpatient Treatment. 6. Jail: A Parish detention facility in which an Incompetent Detainee is held pending admission to Feliciana or Feliciana-NO. 7. District Forensic Coordinator (DFC): a mental health professional employed by the Department of Health and Hospitals with at least a master’s degree in social work, psychology or related field, such as counseling or nursing, and who has been trained by and is under the active supervision of the Medical Director of Defendant’s Forensic Program or other Board-certified forensic psychiatrist. 8. Behavioral Health Assessment: a face-to-face assessment by a psychiatrist,
3

Case 2:10-cv-01088-SSV-JCW Document 185 Filed 04/13/11 Page 4 of 11
licensed psychologist, or District Forensic Coordinator for mental illness and addiction problems, using the Brief Psychiatric Rating Scale (BPRS) for mental health symptoms and the CAGE-AID for substance abuse issues. Also included in the term “Behavioral Health Assessment” is a review of any sanity 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 Incompetent Detainee’s need for mental health and substance abuse treatment, including whether the Incompetent Detainee is receiving medication, whether the Incompetent Detainee is compliant with his or her medication, efficacy and side effects of medication, physical health needs, and extent to which he or she has received jail-based competency restoration services. The Behavioral Health Assessment will result in a determination as to whether an Incompetent Detainee is an Incompetent Detainee with Emergency Mental Health Needs, an Incompetent Detainee with Major Mental Health Needs, or an Other Incompetent Detainee, all as defined below. If the Behavioral Health Assessment is conducted by a DFC as opposed to a psychiatrist or psychologist, the DFC must consult with Forensic Program Medical Director to interpret the results of the Behavioral Health Assessment in order to determine if the client needs emergency services, services for major mental health needs or services for incompetent detainees. (See Nos. 9, 10, and 11 below) 9. Incompetent Detainee with Emergency Mental Health Needs: an Incompetent Detainee who has a BPRS total score that is 50 or greater, or who is determined by the Forensic Program Medical Director, based on a Behavioral Health
4

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Assessment, to need immediate hospital treatment. 10. Incompetent Detainee with Major Mental Health Needs: an Incompetent
Detainee who is not an Incompetent Detainee with Emergency Mental Health needs and who has a BPRS score of 45 or greater; who has a score of 6 or 7 on the Resistance Scale; or who is determined by the Forensic Program Medical Director based on a Behavioral Health Assessment, to need inpatient care within ten (10) days of assessment for either successful restoration to competency to proceed to trial or for other reasons. 11. Other Incompetent Detainee: an Incompetent Detainee who is not an Incompetent Detainee with Emergency Mental Health Needs or an Incompetent Detainee with Major Mental Health Needs. 12. Brief Psychiatric Rating Scale (BPRS): a standardized 24-item psychiatric rating scale used to rate psychiatric symptoms and behaviors. The BPRS comprises 24 items that can be rated from not present (1) to extremely severe (7). 13. Resistance Scale: A subscale of the BPRS, composed of a combination of questions relating to issues of "hostility", "suspiciousness" and "uncooperativeness". The scoring on the scale is a result of the severity of the symptoms displayed by the patient in response to each question. The scoring is ultimately dependent on the interpretation of the evaluating doctor. A score of 6 or 7 in any one of the three areas, upon review of the evaluating doctor, may result in a finding of Major Mental Health Needs. 14. CAGE-AID questionnaire: a brief standardized questionnaire that is a widely used method of screening for alcoholism, adapted to include other types of substance
5

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abuse (drugs). 15. Diversion from the waiting list: Release from jail, less restrictive placement in the
community, or restoration to competency. III. Actions Required of Defendants: 1. Defendant shall maintain an updated summary or list of all persons who
are Incompetent Detainees on or after the date of the entry of this Consent Decree. The summary or list shall include, for each Incompetent Detainee:
a. The Incompetent Detainee’s name and docket number. b. The court that entered the Order for Inpatient Treatment. c. The date of the Incompetent Detainee’s Order for Inpatient Treatment. d. The date that DHH was notified of the Order for Inpatient Treatment. e. The jail or other facility in which the Incompetent Detainee is being held. f. The status of any paperwork that must be completed prior to admission to FFF. g. The dates of behavioral health assessments, the name of the person making the assessment, the name of the physician with whom the person making the assessment consulted, a list of the documents that were reviewed in connection with the assessment, and the results of the assessment, including the scores on tests that were administered. h. The date(s) and nature of all notifications by jail personnel to DHH of emergency mental health related incidents involving the Incompetent Detainee, and date(s) of any admission of the Incompetent Detainee for emergency mental health treatment. i. The date of admission to FFF.
6

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j. Date of removal from list due to diversion and reasons for removal, and k. Names and dates of DFC's contact with pretrial detainees. 2. Defendants shall take action to assure that court orders committing patients to FFF are being transmitted promptly by the committing court to FFF. Defendants will follow up as necessary. 3. Defendants shall take prompt action, after receiving notification of an Order for Inpatient Treatment, to insure the completion and/or assembly of all necessary paperwork for an Incompetent Detainee’s admission to FFF. 4. By July 10, 2011, Defendants shall insure that the wait-time for admission to FFF of each Incompetent Detainee is no more than 30 days following the Order for Inpatient Treatment. 5. From the date of the entry of this Consent Decree by the Court through July 9, 2011, Defendants shall insure that the wait-time for admission to FFF of each Incompetent Detainee is no more than 45 days following the Order for Inpatient Treatment. 6. In addition, by April 11, 2011, Defendants shall insure that all Incompetent Detainees receive a Behavioral Health Assessment, as defined above, within five (5) days of notification of an order for inpatient treatment. Defendants shall provide all Incompetent Detainees with jail-based competency restoration services. DFCs shall administer the Georgia Court Competency Test (GCCT) to each Incompetent Detainee to help determine areas of client deficiencies. DFCs will provide competency restoration to those who are not competent to stand trial using the ELMHS competency manual. Each Incompetent Detainee will receive individual face-to-face competency
7

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restoration services from a DFC or a psychologist at least two times per week. 7. Within thirty (30) days of the effective date of the Consent Decree, Defendants shall establish and publicize to the Court and to each sheriff or other personnel responsible for jails in which an Incompetent Detainee is held, or may be held now or in the future, an effective procedure whereby jail personnel may notify Defendants of emergency mental health related incidents involving Incompetent Detainees. 8. Defendants shall insure that Incompetent Detainees have access to needed emergency mental health care, which will be as follows:
a) Jail personnel call Director of CFS to report an emergency, b) The report of an emergency shall include:
(1) A description of the factors that substantiate the emergency. (c) Within 24 hours of the report of an emergency to the Director of CFS or his designee, the ELMHS Chief of Staff or his Designee will make the determination as to whether there is an actual emergency, and whether to admit or make further assessment. 9. Within thirty (30) days of the effective date of the Consent Decree, Defendants shall insure that, upon notification by any jail personnel of an emergency mental health incident involving an Incompetent Detainee, that the emergency protocol set forth in Section 7 above will be implemented. 10. By July 10, 2011, Defendants shall insure that all Incompetent Detainees with Emergency Mental Health Needs are admitted to Feliciana within two (2) working days following completion of a Behavioral Health Assessment. 11. By July 10, 2011, Defendants shall insure that all Incompetent Detainees with
8

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Major Mental Health Needs are admitted to Feliciana within ten (10) working days following completion of a Behavioral Health Assessment. 12. By July 10, 2011, Defendants shall ensure that all Other Incompetent Detainees are admitted to FFF within thirty (30) days of the Order for Inpatient Treatment. IV. Reporting provisions: 1. Defendants shall submit a report to the Court and Plaintiffs’ counsel on the
first working day of each month following July 10, 2011. Such report shall contain the information set forth in Part III (1) above and the number of Incompetent Detainees (by gender and facility to which admitted). 2. These reporting provisions shall terminate two (2) years following July 10, 2011, provided that Defendants have substantially complied during that time. V. Enforcement: This consent decree represents the entire agreement between the parties and it may only be enforced by the parties to this agreement. VI. Miscellaneous: 1. This Consent Decree is a settlement of disputed claims and shall not be considered to be an admission of liability by any party. 2. This Court shall retain jurisdiction to enforce this Consent Decree until this matter is dismissed. The matter shall be dismissed following three years from July 10, 2011, provided that Defendants have substantially complied during that time. 3. This Consent Decree renders moot Defendants’ appeal of the denial of their motion to dismiss and of the preliminary injunction previously entered in this case, and Defendants agree to dismiss that appeal. In consideration of Defendants'
9

Case 2:10-cv-01088-SSV-JCW Document 185 Filed 04/13/11 Page 10 of 11

dismissal of their appeal, Plaintiffs agree to accept $260,000.00 (two hundred sixty

thousand dollars) as attorneys' fees and costs in this matter, which shall be the full

and final amount for work done to and including the date of entry of this Decree.

Defendants are ordered to pay this amount to Plaintiffs within ninety days from the

date that this Decree is signed by counsel for the Department of Health and Hospitals.

4. Each party to this Consent Decree was assisted by counsel, understands the

meaning and consequences of the Consent Decree, and executes the Consent Decree

of his, her, its, or their own free will.

5. Each party to this Consent Decree has cooperated in the preparation and drafting

of this Consent Decree. Accordingly, the Consent Decree shall not be construed

more strictly against any party than it is against any other party. Hello This is a Test

SO ORDERED this 12th day of

April

, 2011, in New

Orleans, Louisiana.

Approved:

SARAH S. VANCE UNITED STATES DISTRICT JUDGE

/s/ Katie Schwartzmann Katie Schwartzmann, Bar No. 30295 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF LOUISIANA P.O. Box 56157 New Orleans, LA 70156 Telephone: (504) 592–8056 Facsimile: (888) 534–2996 E-mail: kschwartzmann@laaclu.org E-mail: bgerharz@laaclu.org
10

Case 2:10-cv-01088-SSV-JCW Document 185 Filed 04/13/11 Page 11 of 11
/s/ Nell Hahn Nell Hahn, Bar Number 22406 ADVOCACY CENTER OF LOUISIANA 600 Jefferson Street, Suite 812 Lafayette, LA 70501 Telephone: (337) 237–7380, ext. 11 Facsimile: (337) 205-6166 E-mail: nhahn@advocacyla.org
/s/ Marjorie Press Lindblom Marjorie Press Lindblom* Adam T. Humann* Maura M. Klugman* Emily Lee* KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, NY 10022–4611 Telephone: (212) 446–4800 Facsimile: (212) 446–4900 E-mail: marjorie.lindblom@kirkland.com E-mail: adam.humann@kirkland.com E-mail: maura.klugman@kirkland.com E-mail: emily.lee@kirkland.com *Admitted Pro Hac Vice Attorneys for Plaintiffs
Approved:
/s/ Neal R. Elliott, Jr. Neal R. Elliott, Jr., Bar No. 24084 Joanne Henig, Bar No. 06785 Douglas Cade, Bar No. 22747 Louisiana Department of Health and Hospitals 628 N. Fourth Street Bureau of Legal Services P.O. Box 3836 Baton Rouge, LA 70821-3836 Telephone: (225) 342-1103 Facsimile: (225) 342-2232 Attorneys for Defendants.
11

 
 Case 2:10-cv-01088-SSV-JCW Document 219 Filed 11/15/11 Page 1 of 1
14th

Case 2:10-cv-01088-SSV-JCW Document 217-1 Filed 11/09/11 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

ADVOCACY CENTER et al.

*

*

Plaintiffs,

*

vs.

* *

LOUISIANA DEPARTMENT OF *

HEALTH AND HOSPITALS, ,et al. *

*

Defendants.

*

*

02:10-cv-01088-SSV-DEK
JUDGE VANCE MAGISTRATE JUDGE WILKINSON

CONSENT DECREE

I. Introduction:

Plaintiffs Advocacy Center and W.B., a minor, through his mother and next friend

Charrie Butler ("Plaintiffs") filed this action on April 12, 201 0, against Defendants Louisiana

Department of Health and Hospitals ("DHH"), Alan Levine, Mark Anders, and Michelle Duncan

("Individual Defendants,"1 and with DHH, "Defendants"). Plaintiffs alleged that Defendants

have refused and are continuing to refuse to accept promptly physical custody of individuals who

have been found to lack the mental capacity to proceed to trial and have been remanded to the

custody ofthe Feliciana Forensic Facility pursuant to Art. 648, Louisiana Code of Criminal

Procedure (such individuals hereafter referred to as "Incompetent Detainees"). Plaintiffs alleged

that Defendants' refusal to accept physical custody has resulted and is resulting in prolonged and

unconstitutional confinement of such Incompetent Detainees in parish jails, in violation of their

right to due process under the United States Constitution. Defendants moved to dismiss

Plaintiffs' complaint on several grounds. Plaintiffs moved for a preliminary injunction on May

The Individual Defendants were sued in their official capacities only. Since this case was

filed, Bruce Greenstein has succeeded Alan Levine as Secretary ofDHH, and has been

substituted as a party.

·

1
K&E 20398324

Case 2:10-cv-01088-SSV-JCW Document 217-1 Filed 11/09/11 Page 2 of 12
27, 2010, requesting that the Court order Defendants to accept physical custody ofplaintiffW.B. within seven days, and accept physical custody of other Incompetent Detainees at Feliciana within a reasonable period of time, not to exceed thirty days from the date they are committed to Feliciana for restorative treatment, and for other appropriate relief. A hearing on the motions for a preliminary injunction and to dismiss was held on June 22, 2010.
Defendants accepted physical custody ofW.B. on May 27,2010. The Court entered orders denying the motion to dismiss and granting in part and denying in part the preliminary injunction on August 9, 2010, requiring DHH: (1) to admit within 21 days all Incompetent Detainees whose paperwork was complete, (2) to complete paperwork within 10 days on other detainees who have been ordered admitted to Feliciana, and (3) to admit all future detainees ordered to Feliciana within 21 days. Defendants filed a notice of appeal and moved to stay the order pending appeal or, in the alternative, for an extension oftime to implement the Court's order to transfer incompetent detainees to Feliciana Forensic Facility. On August 27, 2010, the Court denied the motion for stay, but granted Defendants' motion to extend the deadlines for admitting Incompetent Detainees to Feliciana, and ordered further relief. The parties mutually desire to settle all of the claims asserted by the Plaintiffs without the need for further litigation and have therefore agreed to enter this Consent Decree. II. Definitions: 1. Incompetent Detainee: a person who has been found to lack the mental capacity to proceed to trial, is being held in jail, and has been remanded to the custody of the Feliciana Forensic Facility pursuant to Art. 648, Louisiana Code of Criminal Procedure. 2. Sanity Commission: a commission appointed by a State court pursuant to Art. 644 of the Louisiana Code of Criminal Procedure to examine a criminal defendant whose mental
2

Case 2:10-cv-01088-SSV-JCW Document 217-1 Filed 11/09/11 Page 3 of 12
capacity to proceed to trial is in question, and to make findings concerning his competency to proceed to trial. 3. Order for Inpatient Treatment: an order issued pursuant to Art. 648(A)(2)(a) of the Louisiana Code of Criminal Procedure committing the detainee to Feliciana Forensic Facility. 4. Sanity Commission Report: A report prepared by the Sanity Commission and submitted to the Court. 5. Feliciana Forensic Facility: The forensic unit at East Louisiana State Hospital designated by L.R.S. 28:25.1 and any other forensic facility operated by Defendants to which Incompetent Detainees may be committed by an Order for Inpatient Treatment. 6. Jail: A Parish detention facility in which an Incompetent Detainee is held pending admission to Feliciana or Feliciana-NO. 7. District Forensic Coordinator (DFC): a mental health professional employed by the Department of Health and Hospitals with at least a master's degree in social work, psychology or related field, such as counseling or nursing, and who has been trained by and is under the active supervision of the Medical Director of Defendant's Forensic Program or other Board-certified forensic psychiatrist. 8. Behavioral Health Assessment: a face-to-face assessment by a psychiatrist, licensed psychologist, or District Forensic Coordinator for mental illness and addiction problems, using the Brief Psychiatric Rating Scale (BPRS) for mental health symptoms and the CAGEAID for substance abuse issues. Also included in the term "Behavioral Health Assessment" is a review of any sanity 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 Incompetent Detainee's need for mental health and substance abuse treatment,
3

Case 2:10-cv-01088-SSV-JCW Document 217-1 Filed 11/09/11 Page 4 of 12
including whether the Incompetent Detainee is receiving medication, whether the Incompetent Detainee is compliant with his or her medication, efficacy and side effects of medication, physical health needs, and extent to which he or she has received jail-based competency restoration services. The Behavioral Health Assessment will result in a determination as to whether an Incompetent Detainee is an Incompetent Detainee with Emergency Mental Health Needs, an Incompetent Detainee with Major Mental Health Needs, or an Other Incompetent Detainee, all as defined below. If the Behavioral Health Assessment is conducted by a DFC as opposed to a psychiatrist or psychologist, the DFC must send the BPRS and CAGE-AID test results and documentation, and all other documentation described above that has been obtained, to the Forensic Aftercare Clinic (FAC) Medical Director, or another psychiatrist on staff designated by the Eastern Louisiana Mental Health System's (ELMHS) Chief of Staff, to interpret the results of the Behavioral Health Assessment in order to determine if the client needs emergency services, services for major mental health needs or services for incompetent detainees. (See Nos. 9, 10, and 11 below). In the case of an Incompetent Detainee that has scored 50 or higher on a BPRS test administered by a DFC the following should take place: Within 24 hours of the DFC's scoring and assessment of the Incompetent Detainee, the reviewing physician shall certify that he or she has personally reviewed the BPRS and CAGE-AID scores and documentation which shall be specified in the certification, that he or she has discussed the detainee's mental health condition with the DFC, and that in his or her clinical judgment the Incompetent Detainee has been properly placed in the designated mental health needs category. In the case of an Incompetent Detainee that has scored 45 or higher, but less than 50, on a BPRS test administered by a DFC the following should take place: The reviewing physician shall
4

Case 2:10-cv-01088-SSV-JCW Document 217-1 Filed 11/09/11 Page 5 of 12
certify that he or she has personally reviewed the BPRS and CAGE-AID scores and documentation, that he or she has discussed the detainee's mental health condition with the DFC, and that in his or her clinical judgment the Incompetent Detainee has been properly placed in the designated mental health needs category specified in the certification. 9. Incompetent Detainee with Emergency Mental Health Needs: an Incompetent Detainee who has a BPRS total score that is 50 or greater, and who is determined by the FAC Medical Director, or another psychiatrist on staff designated by the Eastern Louisiana Mental Health System (ELMHS) Chief of Staff, based on a Behavioral Health Assessment, to need immediate hospital treatment. 10. Incompetent Detainee with Major Mental Health Needs: an Incompetent Detainee who is not an Incompetent Detainee with Emergency Mental Health needs and who has a BPRS score of 45 or greater; who has a score of 6 or 7 on one or more of the three components (hostility, suspiciousness, and uncooperativeness) ofthe Resistance Scale; and who is determined by the FAC Medical Director, or another psychiatrist on staff designated by the ELMHS Chief of Staff, based on a Behavioral Health Assessment, to need inpatient care within ten (1 0) days of assessment for either successful restoration to competency to proceed to trial or for other reasons. 11. Notwithstanding the provisions of'lf'lf9 and 10 above, any Incompetent Detainee who is determined by the FAC Medical Director, or other psychiatrist on staff designated by the ELMHS Chief of Staff, based on a Behavioral Health Assessment, to need immediate mental health treatment, shall be classified as an Incompetent Detainee with Emergency Mental Health Needs; and any Incompetent Detainee who is determined by the FAC Medical Director, or other psychiatrist on staff designated by the ELMHS Chief of Staff, based on a
5

Case 2:10-cv-01088-SSV-JCW Document 217-1 Filed 11/09/11 Page 6 of 12
Behavioral Health Assessment, to need inpatient care within ten (1 0) days of assessment for either successful restoration to competency to proceed to trial or for other reasons, shall be classified as an Incompetent Detainee with Major Mental Health Needs. 12. Other Incompetent Detainee: an Incompetent Detainee who is not an Incompetent Detainee with Emergency Mental Health Needs or an Incompetent Detainee with Major Mental Health Needs. 13. Brief Psychiatric Rating Scale (BPRS): a standardized 24-item psychiatric rating scale used to rate psychiatric symptoms and behaviors. The BPRS comprises 24 items that can be rated from not present (1) to extremely severe (7). 14. Resistance Scale: A subscale of the BPRS, composed of a combination of questions relating to issues of"hostility", "suspiciousness" and "uncooperativeness". The scoring on the scale is a result of the severity of the symptoms displayed by the patient in response to each question. The scoring is ultimately dependent on the interpretation of the evaluating doctor. A score of 6 or 7 in any one of the three areas, upon review of the evaluating doctor, may result in a finding of Major Mental Health Needs. 15. CAGE-AID questionnaire: a brief standardized questionnaire that is a widely used method of screening for alcoholism, adapted to include other types of substance abuse (drugs). 16. Diversion from the waiting list: Release from jail, less restrictive placement in the community, or restoration to competency. III. Actions Required of Defendants: 1. Defendant shall maintain an updated summary or list of all persons who are Incompetent Detainees on or after the date of the entry of this Consent Decree. The summary or list shall include, for each Incompetent Detainee:
a. The Incompetent Detainee's name and docket number.
6

Case 2:10-cv-01088-SSV-JCW Document 217-1 Filed 11/09/11 Page 7 of 12
b. The court that entered the Order for Inpatient Treatment. c. The date of the Incompetent Detainee's Order for Inpatient Treatment. d. The date that DHH was notified of the Order for Inpatient Treatment. e. The jail or other facility in which the Incompetent Detainee is being held. f. The status of any paperwork that must be completed prior to admission to FFF. g. The dates of behavioral health assessments, the name of the person making the assessment, the name of the physician with whom the person making the assessment consulted, a list of the documents that were reviewed in connection with the assessment, and the results of the assessment, including the scores on tests that were administered. h. The date(s) and nature of all notifications by jail personnel to DHH of emergency mental health related incidents involving the Incompetent Detainee, and date(s) of any admission of the Incompetent Detainee for emergency mental health treatment. i. The date of admission to FFF. j. Date of removal from list due to diversion and reasons for removal, and k. Names and dates ofDFC's contact with pretrial detainees. 2. Defendants shall take action to assure that court orders committing patients to FFF are being transmitted promptly by the committing court to FFF. Defendants will follow up as necessary. 3. Defendants shall take prompt action, after receiving notification of an Order for Inpatient Treatment, to insure the completion and/or assembly of all necessary paperwork for an Incompetent Detainee's admission to FFF. 4. By July 10, 2011, Defendants shall insure that the wait-time for admission to FFF of each Incompetent Detainee is no more than 30 days following the Order for Inpatient Treatment.
7

Case 2:10-cv-01088-SSV-JCW Document 217-1 Filed 11/09/11 Page 8 of 12
5. From the date of the entry of this Consent Decree by the Court through July 9, 2011, Defendants shall insure that the wait-time for admission to FFF of each Incompetent Detainee is no more than 45 days following the Order for Inpatient Treatment.
6. In addition, by April11, 2011, Defendants shall insure that all Incompetent Detainees receive a Behavioral Health Assessment, as defined above, within five (5) days of notification of an order for inpatient treatment. Defendants shall provide all Incompetent Detainees with jail-based competency restoration services. DFCs shall administer the Georgia Court Competency Test (GCCT) to each Incompetent Detainee to help determine areas of client deficiencies. DFCs will provide competency restoration to those who are not competent to stand trial using the ELMHS competency manual. Each Incompetent Detainee will receive individual face-to-face competency restoration services from a DFC or a psychologist at least two times per week.
7. Within thirty (30) days of the effective date of the Consent Decree, Defendants shall establish and publicize to the Court and to each sheriff or other personnel responsible for jails in which an Incompetent Detainee is held, or may be held now or in the future, an effective procedure whereby jail personnel may notify Defendants of emergency mental health related incidents involving Incompetent Detainees.
8. Defendants shall insure that Incompetent Detainees have access to needed emergency mental health care, which will be as follows: a) Jail personnel call Director of CFS to report an emergency, b) The report of an emergency shall include: (1) A description of the factors that substantiate the emergency.
8

Case 2:10-cv-01088-SSV-JCW Document 217-1 Filed 11/09/11 Page 9 of 12
c) Within 24 hours of the report of an emergency to the Director of CFS or his designee, the ELMHS Chief of Staff or his Designee will make the determination as to whether there is an actual emergency, and whether to admit or make further assessment.
9. Within thirty (30) days of the effective date of the Consent Decree, Defendants shall insure that, upon notification by any jail personnel of an emergency mental health incident involving an Incompetent Detainee, that the emergency protocol set forth in Section 7 above will be implemented.
10. By July 10, 2011, Defendants shall insure that all Incompetent Detainees with Emergency Mental Health Needs are admitted to Feliciana within two (2) working days following completion of a Behavioral Health Assessment.
11. By July 10,2011, Defendants shall insure that all Incompetent Detainees with Major Mental Health Needs are admitted to Feliciana within ten (1 0) working days following completion of a Behavioral Health Assessment.
12. By July 10, 2011, Defendants shall ensure that all Other Incompetent Detainees are admitted to FFF within thirty (30) days of the Order for Inpatient Treatment.
IV. Reporting provisions: 1. Defendants shall submit a report to the Court and Plaintiffs' counsel on the first working day
of each month following July 10, 2011. Such report shall contain the information set forth in Part III (1) above,. all certifications by the FAC Medical Director or other psychiatrists on staff pursuant to Part II (8) above, and the number of Incompetent Detainees (by gender and facility to which admitted). 2. These reporting provisions shall terminate two (2) years following July 10, 2011, provided that Defendants have substantially complied during that time.
9

Case 2:10-cv-01088-SSV-JCW Document 217-1 Filed 11/09/11 Page 10 of 12
V. Enforcement: This consent decree represents the entire agreement between the parties and it may only be enforced by the parties to this agreement. VI. Miscellaneous: 1. This Consent Decree is a settlement of disputed claims and shall not be considered to be an
admission of liability by any party. 2. This Court shall retain jurisdiction to enforce this Consent Decree until this matter is
dismissed. The matter shall be dismissed following three years from July 10,2011, provided that Defendants have substantially complied during that time. 3. This Consent Decree renders moot Defendants' appeal of the denial of their motion to dismiss and of the preliminary injunction previously entered in this case, and Defendants agree to dismiss that appeal. In consideration of Defendants' dismissal of their appeal, Plaintiffs agree to accept $260,000.00 (two hundred sixty thousand dollars) as attorneys' fees and costs in this matter, which shall be the full and final amount for work done to and including the date of entry of this Decree. Defendants are ordered to pay this amount to Plaintiffs within ninety days from the date that this Decree is signed by counsel for the Department of Health and Hospitals. 4. Each party to this Consent Decree was assisted by counsel, understands the meaning and consequences of the Consent Decree, and executes the Consent Decree of his, her, its, or their own free will. 5. Each party to this Consent Decree has cooperated in the preparation and drafting of this Consent Decree. Accordingly, the Consent Decree shall not be construed more strictly against any party than it is against any other party.
10

Case 2:10-cv-01088-SSV-JCW Document 217-1 Filed 11/09/11 Page 11 of 12

SO ORDERED this _ Louisiana.

day o f - - - - - - - - ' 2011, in New Orleans,

SARAH S. VANCE UNITED STATES DISTRICT JUDGE
Approved:
Is/ Katie Schwartzmann Katie Schwartzmann, Bar No. 30295 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF LOUISIANA P.O. Box 56157 New Orleans, LA 70156 Telephone: (504) 592-8056 Facsimile: (888) 534-2996 E-mail: kschwartzmann@laaclu.org E-mail: bgerharz@laaclu.org
Is/Nell Hahn Nell Hahn, Bar Number 22406 ADVOCACY CENTER OF LOUISIANA 600 Jefferson Street, Suite 812 Lafayette, LA 70501 Telephone: (337) 237-7380, ext. 11 Facsimile: (337) 205-6166 E-mail: nhahn@advocacyla.org
Is/ Marjorie Press Lindblom Marjorie Press Lindblom* Adam T. Humann* Maura M. Klugman* Emily Lee* KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, NY 10022-4611 Telephone: (212) 446-4800 Facsimile: (212) 446-4900
11

Case 2:10-cv-01088-SSV-JCW Document 217-1 Filed 11/09/11 Page 12 of 12
E-mail: marjorie.lindblom@kirkland.com E-mail: adam.humann@kirkland.com E-mail: maura.klugman@kirkland.com E-mail: emily.lee@kirkland.com *Admitted Pro Hac Vice Attorneysfor Plaintiffs Approved:
Is/ Neal R. Elliott, Jr. Neal R. Elliott, Jr., Bar No. 24084 Joanne Henig, Bar No. 06785 Douglas Cade, Bar No. 22747 Louisiana Department of Health and Hospitals 628 N. Fourth Street Bureau of Legal Services P.O. Box 3836 Baton Rouge, LA 70821-3836 Telephone: (225) 342-1103 Facsimile: (225) 342-2232 Attorneysfor Defendants.
12

 
 Case 2:10-cv-01088-SSV-JCW Document 260 Filed 12/08/14 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ADVOCACY CENTER, et al. Plaintiffs,
VERSUS

CIVIL ACTION NO: 10-1088

LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS, et al.
Defendants.

SECTION: R(2)

ORDER Before the Court is defendants Louisiana Department of Health and Hospitals, Alan Levine, Mark Andres, and Michelle Duncan's motion to terminate consent decree and dismiss this matter with prejudice. Plaintiffs filed suit on April 12, 2010 alleging that defendants were not timely admitting criminal defendants who had been judicially determined incompetent to Feliciana Forensic Facility for restorative treatment in violation of the Due Process Clause of the United States Constitution.1 A Consent Decree was entered on April 13, 2011, which required defendants to (1) ensure that criminal defendants committed to Feliciana Forensic Facility were admitted into the facility in a timely manner, (2) and file a monthly report to the Court and plaintiffs' counsel detailing the number of incompetent detainees admitted to the facility.2 Section VI of the Consent Decree and Modified Consent Decree provide that

1 R. Doc. 1.
2 R. Doc. 185. The Consent Decree was subsequently modified by an Amended Consent Decree on November 15, 2011. R. Doc. 219.

Case 2:10-cv-01088-SSV-JCW Document 260 Filed 12/08/14 Page 2 of 2
"[t]he matter shall be dismissed following three years from July 10, 2011, provided that Defendants have substantially complied during that time."3
Defendants now move the Court to terminate the Consent Decree in accordance with Section VI of the agreement. Defendants contend that they have substantially complied with the terms of the Consent Decree and that the three-year period has elapsed. Plaintiffs concede that defendants have substantially complied with the Consent Decree and do not oppose defendants' motion to terminate the Consent Decree and to dismiss this matter with prejudice.4
The Court, having considered the parties' briefing, the record, and the applicable law, finds that defendants have substantially complied with the terms of the Consent Decree and are therefore entitled to termination of the Consent Decree in accordance with Section VI of the agreement.
Therefore, IT IS ORDERED that the Consent Decree5 and Amended Consent Decree6 are hereby terminated.
IT IS FURTHER ORDERED that this case is DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this _8_th_ day of December, 2014.
_____________________________________ SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
3 R. Doc. 185 at 9. 4 R. Doc. 256. 5 R. Doc. 185. 6 R. Doc. 219.

 
 Case: 2:10-cv-1088 As of: 05/19/2016 10:33 PM CDT 1 of 23
CLOSED,PROTO
U.S. District Court Eastern District of Louisiana (New Orleans) CIVIL DOCKET FOR CASE #: 2:10−cv−01088−SSV−JCW

Advocacy Center for the Elderly and Disabled et al v. Louisiana Department of Health and Hospitals et al Assigned to: Chief Judge Sarah S. Vance Referred to: Magistrate Judge Joseph C. Wilkinson, Jr Case in other court: USCA, 5th Circuit, 10−30779
USCA, 5th Circuit, 10−30779
22nd JDC, St. Tammany Parish, 410991 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/12/2010 Date Terminated: 04/13/2011 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Advocacy Center for the Elderly and Disabled

represented by Marjorie Press Lindblom Kirkland &Ellis, LLP (New York) 601 Lexington Ave. New York, NY 10022 (212) 446−4800 Email: marjorie.lindblom@kirkland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam T. Humann Kirkland &Ellis, LLP (New York) 601 Lexington Ave. New York, NY 10022 212−446−6447 Email: adam.humann@kirkland.com PRO HAC VICE ATTORNEY TO BE NOTICED

Barry James Gerharz Collective Legal Services 1611 Telegraph Avenue Suite 7 Oakland, CA 94612 510−452−4541 Email: barry@gerharz.com TERMINATED: 07/30/2010

Ellen Bentley Hahn Advocacy Center (Lafayette) 600 Jefferson St. Suite 812 Lafayette, LA 70501 337−237−7380 Email: nhahn@advocacyla.org ATTORNEY TO BE NOTICED

Emily C. Lee Kirkland &Ellis, LLP (New York) 601 Lexington Ave. New York, NY 10022 212−446−4966 TERMINATED: 07/08/2011 PRO HAC VICE

Katharine Murphy Schwartzmann Roderick and Solange MacArthur Justice Center

Case: 2:10-cv-1088 As of: 05/19/2016 10:33 PM CDT 2 of 23

4400 S. Carrollton Avenue New Orleans, LA 70119 504−620−2259 Email: katie.schwartzmann@macarthurjustice.org TERMINATED: 05/24/2011

Maura Martin Klugman Kirkland &Ellis, LLP (New York) 601 Lexington Ave. New York, NY 10022 212−446−4868 PRO HAC VICE

Plaintiff
Charrie Butler mother and next friend of W.B.

represented by Katharine Murphy Schwartzmann (See above for address) TERMINATED: 05/24/2011 LEAD ATTORNEY

Marjorie Press Lindblom (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam T. Humann (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Barry James Gerharz (See above for address) TERMINATED: 07/30/2010

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

Emily C. Lee (See above for address) TERMINATED: 07/08/2011 PRO HAC VICE

Maura Martin Klugman (See above for address) PRO HAC VICE

V.
Defendant
Louisiana Department of Health and Hospitals in their official capacities

represented by Fernin F. Eaton Louisiana Department of Health &Hospitals (Baton Rouge) Bureau of Legal Services Bienville Building 628 N. 4th St. P. O. Box 3836 Baton Rouge, LA 70821−3836 225−342−1128 Email: fernin.eaton@la.gov TERMINATED: 05/28/2010 LEAD ATTORNEY
Joanne Henig

Case: 2:10-cv-1088 As of: 05/19/2016 10:33 PM CDT 3 of 23

Louisiana Department of Health &Hospitals (Baton Rouge) Bureau of Legal Services Bienville Building 628 N. 4th St. P. O. Box 3836 Baton Rouge, LA 70821−3836 504−452−7630 Email: jhenig@cox.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neal Risley Elliott , Jr. Louisiana Department of Health &Hospitals (Baton Rouge) Bureau of Legal Services Bienville Building 628 N. 4th St. P. O. Box 3836 Baton Rouge, LA 70821−3836 225−342−1128 Email: neal.elliott@la.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adrienne T. Bordelon Louisiana Department of Civil Service P. O. Box 94111 Baton Rouge, LA 70804−9111 225−342−4442 Email: adrienne.bordelon@la.gov TERMINATED: 12/15/2010

Douglas L. Cade Louisiana Department of Health &Hospitals (Baton Rouge) Bureau of Legal Services Bienville Building 628 N. 4th St. P. O. Box 3836 Baton Rouge, LA 70821−3836 225−342−9939 Email: douglas.cade@la.gov

Stephen Robert Russo Louisiana Department of Health &Hospitals (New Orleans) Bureau of Legal Services 1450 Poydras St. Suite 1657 New Orleans, LA 70112 225−342−1112 Fax: 504−599−1432 Email: Stephen.russo@la.gov ATTORNEY TO BE NOTICED

Defendant
Alan Levine in their official capacities TERMINATED: 12/13/2010

represented by Fernin F. Eaton (See above for address) TERMINATED: 05/28/2010 LEAD ATTORNEY

Joanne Henig (See above for address)

Case: 2:10-cv-1088 As of: 05/19/2016 10:33 PM CDT 4 of 23

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neal Risley Elliott , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adrienne T. Bordelon (See above for address) TERMINATED: 12/15/2010

Douglas L. Cade (See above for address)

Stephen Robert Russo (See above for address) ATTORNEY TO BE NOTICED

Defendant
Mark Anders in their official capacities

represented by Fernin F. Eaton (See above for address) TERMINATED: 05/28/2010 LEAD ATTORNEY

Joanne Henig (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neal Risley Elliott , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adrienne T. Bordelon (See above for address) TERMINATED: 12/15/2010

Douglas L. Cade (See above for address)

Stephen Robert Russo (See above for address) ATTORNEY TO BE NOTICED

Defendant
Michelle Duncan in their official capacities

represented by Fernin F. Eaton (See above for address) TERMINATED: 05/28/2010 LEAD ATTORNEY

Joanne Henig (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neal Risley Elliott , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adrienne T. Bordelon (See above for address)

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TERMINATED: 12/15/2010

Douglas L. Cade (See above for address)

Stephen Robert Russo (See above for address) ATTORNEY TO BE NOTICED

Defendant
Bruce Greenstein in his official capacity as Secretary of the Department of Health and Hospitals having succeeded Alan Levine

represented by Joanne Henig (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neal Risley Elliott , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas L. Cade (See above for address)

Stephen Robert Russo (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/12/2010 04/12/2010
04/12/2010
04/12/2010
04/12/2010
04/12/2010 04/20/2010

# Docket Text
1 COMPLAINT against All Defendants (Filing fee $ 350 receipt number 053L−2390038) filed by Advocacy Center for the Elderly and Disabled, Charrie Butler. (Attachments: # 1 Civil Cover Sheet)(Schwartzmann, Katharine) (Entered: 04/12/2010)
2 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice Marjorie P. Lindblom (Filing fee $ 5 receipt number 053L−2390540) by Advocacy Center for the Elderly and Disabled, Charrie Butler. (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Proposed Order)(Schwartzmann, Katharine) Modified on 4/13/2010 to edit text (rll, ). (Entered: 04/12/2010)
3 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice Adam T. Humann (Filing fee $ 5 receipt number 053L−2390579) by Advocacy Center for the Elderly and Disabled, Charrie Butler. (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Proposed Order)(Schwartzmann, Katharine) Modified on 4/13/2010 to edit text (rll, ). (Entered: 04/12/2010)
4 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice Maura M. Klugman (Filing fee $ 5 receipt number 053L−2390590) by Advocacy Center for the Elderly and Disabled, Charrie Butler. (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Proposed Order)(Schwartzmann, Katharine) Modified on 4/13/2010 to edit text (rll, ). (Entered: 04/12/2010)
5 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice Emily C. Lee (Filing fee $ 5 receipt number 053L−2390599) by Advocacy Center for the Elderly and Disabled, Charrie Butler. (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Proposed Order)(Schwartzmann, Katharine) Modified on 4/13/2010 to edit text (rll, ). (Entered: 04/12/2010)
6 Initial Case Assignment to Chief Judge Sarah S. Vance and Magistrate Judge Daniel E. Knowles, III. (mmf, ) (Entered: 04/12/2010)
7 ORDER granting 2 Motion to Appear Pro Hac Vice and Trial Counsel as to Marjorie Press Lindblom. Signed by Chief Judge Sarah S. Vance on 4/20/2010. (rll, ) (Entered: 04/20/2010)

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04/21/2010 04/21/2010 04/21/2010 04/21/2010 05/06/2010 05/14/2010 05/19/2010
05/20/2010 05/20/2010 05/21/2010 05/21/2010
05/27/2010

8 ORDER granting 3 Motion to Appear Pro Hac Vice as to Adam T. Humann. Signed by Chief Judge Sarah S. Vance on 4/20/2010. (rll, ) (Entered: 04/21/2010)
9 ORDER granting 4 Motion to Appear Pro Hac Vice as to Maura Martin Klugman. Signed by Chief Judge Sarah S. Vance on 4/20/2010. (rll, ) (Entered: 04/21/2010)
10 ORDER granting 5 Motion to Appear Pro Hac Vice as to Emily C. Lee. Signed by Chief Judge Sarah S. Vance on 4/20/2010. (rll, ) (Entered: 04/21/2010)
11 Summons Issued as to Mark Anders, Michelle Duncan, Alan Levine, Louisiana Department of Health and Hospitals. (Attachments: # 1 Summons − Alan Levine, # 2 Summons − Mark Anders, # 3 Summons − Michelle Duncan)(rll, ) (Entered: 04/21/2010)
12 Minute Entry for proceedings held before Chief Judge Sarah S. Vance: Status Conference held on 5/6/2010 to establish dates for plas' proposed motion for preliminary injunction; hearing on said motion to be held on 6/22/2010 at 10:00 AM; other procedures &deadlines as set forth herein (rll, ) (Entered: 05/06/2010)
13 DEFICIENT: MOTION for Protective Order by Charrie Butler. Motion(s) referred to Daniel E. Knowles, III. (Attachments: # 1 Proposed Order)(Gerharz, Barry) Modified on 5/17/2010 (rll, ). (Entered: 05/14/2010)
14 ORDER: at 5/6/2010 Status Conference parties were ordered to draft consent protective order re a list of patients awaiting transfer to the Feliciana Forensic Facility as set forth herein; it has come to the Court's attention that dfts object to production of the list and have not filed any consent protective order; IT IS THEREFORE ORDERED that by 5:00 PM on 5/20/2010, dfts shall file memorandum into the record outlining basis of their objection to production of unredacted copy of the list; FURTHER ORDERED that dfts shall submit an unredacted, complete and up−to−date copy of the list to the Court for in camera review by 5:00 PM on 5/19/2010 as set forth herein. Signed by Chief Judge Sarah S. Vance on 5/19/2010.(rll, ) (Entered: 05/19/2010)
15 MEMORANDUM filed by All Defendants in response to 14 Order re 13 MOTION for Protective Order Outlining Objections to Production. (Eaton, Fernin) (Additional attachment(s) added on 5/21/2010: # 1 Exhibit) (rll, ). Modified on 5/21/2010 to edit text &add attachment (rll, ). (Entered: 05/20/2010)
16 ERROR: DUPLICATE OF DOC #15. Amendment/Supplement to Document by All Defendants re 15 Memorandum Exhibit attachments (Attachments: # 1 Exhibit Attachments)(Eaton, Fernin) Modified on 5/21/2010 (rll, ). (Entered: 05/20/2010)
17 Correction of Docket Entry by Clerk re 16 Amendment/Supplement to Document. Document #16 is a duplicate of document #15 and will be noted as such. Attachments to doc #16 now attached to doc #15. No further action is necessary. (rll, ) (Entered: 05/21/2010)
18 ORDERED that the parties confer on a consent protective order governing access to and use of the document in question and to file such order by 5/28/2010 5:00 PM. Further ORDERED that defendants produce an unredacted, complete, and up−to−date copy of the list to plaintiffs by this same time. If the parties cannot agree on an appropriate protective order, they are each to submit a proposed protective order to the Court by this same time. Signed by Chief Judge Sarah S. Vance.(gec, ) (Entered: 05/21/2010)
19 DEFICIENT: MOTION for Preliminary Injunction by Advocacy Center for the Elderly and Disabled, Charrie Butler. Motion Hearing set for 6/22/2010 10:00 AM before Chief Judge Sarah S. Vance. (Attachments: # 1 Memorandum in Support Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Injunction, # 2 Affidavit Declaration of Adam T. Humann in Support of Motion for Preliminary Injunction, # 3 Exhibit Exs. A−D to Declaration of Adam T. Humann in Support of Motion for Preliminary Injunction, # 4 Exhibit Exs. E−G to Declaration of Adam T. Humann in Support of Motion for Preliminary Injunction, # 5 Affidavit Declaration of Barry Gerharz in Support of Motion for Preliminary Injunction, # 6 Affidavit Affidavit of Joel Dvoskin in Support of Motion for Preliminary Injunction, # 7 Affidavit Affidavit of Demaree Inglese, M.D. in Support of Motion for Preliminary Injunction)(Lindblom, Marjorie) Modified on 5/27/2010 (rll, ).

Case: 2:10-cv-1088 As of: 05/19/2016 10:33 PM CDT 7 of 23

05/27/2010 05/27/2010 05/27/2010
05/27/2010
05/27/2010 05/27/2010 05/28/2010 05/28/2010 06/04/2010 06/09/2010 06/09/2010

(Entered: 05/27/2010)
20 MOTION to Dismiss Case with memorandum in support and certificate of service by Mark Anders, Michelle Duncan, Alan Levine, Louisiana Department of Health and Hospitals. Motion Hearing set for 6/22/2010 10:00 AM before Chief Judge Sarah S. Vance. (Attachments: # 1 Memorandum in Support)(Russo, Stephen) (Additional attachment(s) added on 5/27/2010: # 2 Notice of Hearing) (rll, ). Modified on 5/27/2010 to attach Notice of Hearing (rll, ). (Entered: 05/27/2010)
21 Letter to the Court from Attorney Adrienne T. Bordelon dated 5/27/2010 (rll, ) (Entered: 05/27/2010)
22 MOTION for Preliminary Injunction by Advocacy Center for the Elderly and Disabled, Charrie Butler. Motion Hearing set for 6/22/2010 10:00 AM before Chief Judge Sarah S. Vance. (Attachments: # 1 Memorandum of Law in Support of Motion for Preliminary Injunction, # 2 Table of Authorities to Memo of Law in Support of Motion for Preliminary Injunction, # 3 Affidavit (Declaration) of Adam T. Humann in Support of Motion for Preliminary Injunction, # 4 Exhibit Exs. A−D to Declaration of Adam T. Humann, # 5 Exhibit Exs. E−G to Declaration of Adam T. Humann, # 6 Affidavit (Declaration) of Barry Gerharz in Support of Motion for Preliminary Injunction, # 7 Affidavit of Joel Dvoskin in Support of Motion for Preliminary Injunction, # 8 Affidavit of Demaree Inglese in Support of Motion for Preliminary Injunction)(Lindblom, Marjorie) Modified on 5/27/2010 (rll, ). (Additional attachment(s) added on 5/27/2010: # 9 Notice of Hearing) (rll, ). Modified on 5/27/2010 to attach Notice of Hearing (rll, ). (Entered: 05/27/2010)
23 Correction of Docket Entry by Clerk re 20 MOTION to Dismiss Case with memorandum in support and certificate of service. Name of attorney who electronically filed this document does not match name of signatory attorney on pleading. E−filer and attorney signature on pleading must match. Filing attorney did not include a notice of hearing. Notice of Hearing subsequently provided to Clerk and has now been attached to the motion and hereto. No further action is necessary. (rll, ) (Entered: 05/27/2010)
24 Correction of Docket Entry by Clerk re 22 MOTION for Preliminary Injunction. Filing attorney did not include a notice of hearing. Notice of Hearing subsequently provided to Clerk and has now been attached to the motion and hereto. No further action is necessary. (rll, ) (Entered: 05/27/2010)
25 EXPARTE/CONSENT MOTION to Substitute Attorney. Attorney Stephen R. Russo; Neal R. Elliott, Jr.; Adrienne T. Bordelon to be substituted in place of Fernin F. Eaton with attached certificate of service by Mark Anders, Michelle Duncan, Alan Levine, Louisiana Department of Health and Hospitals. (Attachments: # 1 Proposed Order)(Russo, Stephen) (Entered: 05/27/2010)
26 EXPARTE/CONSENT MOTION for Protective Order by Michelle Duncan, Alan Levine, Louisiana Department of Health and Hospitals. (Attachments: # 1 Proposed Order)(Russo, Stephen) Modified on 5/28/2010 to remove referral per Case Manager (rll, ). (Entered: 05/28/2010)
27 ORDER granting 25 Motion to Substitute Attorney. Added attorney Neal Risley Elliott, Jr, Adrienne T. Bordelon, Stephen R. Russo for Mark Anders, Michelle Duncan, Alan Levine, Louisiana Department of Health and Hospitals. Attorney Fernin F. Eaton terminated. Signed by Chief Judge Sarah S. Vance on 5/28/2010. (rll, ) Modified on 6/7/2010 to edit text (rll, ). (Entered: 05/28/2010)
28 PROTECTIVE ORDER. Signed by Chief Judge Sarah S. Vance on 6/4/2010.(rll, ) (Entered: 06/04/2010)
29 RESPONSE/MEMORANDUM in Opposition filed by All Defendants re 22 MOTION for Preliminary Injunction with attachments. (Attachments: # 1 Affidavit Dr. John Thompson, # 2 Affidavit Susan Johannsen, # 3 Exhibit current redacted waiting list)(Russo, Stephen) (Entered: 06/09/2010)
30 Correction of Docket Entry by Clerk re 29 Response/Memorandum in Opposition to Motion. Name of attorney who electronically filed this document does not match name of signatory attorney on pleading. E−filer and attorney signature on pleading

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06/09/2010
06/09/2010 06/14/2010 06/14/2010 06/14/2010
06/14/2010
06/14/2010 06/14/2010
06/14/2010 06/15/2010
06/15/2010 06/15/2010 06/16/2010

must match. No further action is necessary. (rll, ) (Entered: 06/09/2010)
31 RESPONSE/MEMORANDUM in Opposition filed by Advocacy Center for the Elderly and Disabled, Charrie Butler re 20 MOTION to Dismiss Case with memorandum in support and certificate of service. (Lindblom, Marjorie) (Additional attachment(s) added on 6/10/2010: # 1 Certificate of Service) (rll, ). Modified on 6/10/2010 to attach Certificate of Service filed separately (rll, ). (Entered: 06/09/2010)
32 ERROR: DOCKETED AS SEPARATE DOCUMENT. CERTIFICATE OF SERVICE by Advocacy Center for the Elderly and Disabled, Charrie Butler re 31 Response/Memorandum in Opposition to Motion. (Lindblom, Marjorie) Modified on 6/10/2010 (rll, ). (Entered: 06/09/2010)
33 EXPARTE/CONSENT Third MOTION to Enroll as Counsel of Record Douglas L. Cade by Mark Anders, Michelle Duncan, Alan Levine, Louisiana Department of Health and Hospitals. (Attachments: # 1 Proposed Order)(Russo, Stephen) Modified on 6/14/2010 to add filer &edit text (rll, ). (Entered: 06/14/2010)
34 ERROR: DUPLICATE OF DOC #33. EXPARTE/CONSENT Third MOTION to Enroll as Counsel of Record by Mark Anders. (Attachments: # 1 Proposed Order)(Russo, Stephen) Modified on 6/14/2010 (rll, ). (Entered: 06/14/2010)
35 EXPARTE/CONSENT MOTION for Leave to File Excess Pages by Advocacy Center for the Elderly and Disabled, Charrie Butler. (Attachments: # 1 Memorandum in Support Motion to Exceed Page Limit By One Page, # 2 Proposed Order Motion to Exceed Page Limit By One Page, # 3 Proposed Pleading, # 4 Exhibit Table of Contents and Table of Authorities to Reply Brief)(Lindblom, Marjorie) Modified on 6/14/2010 to edit text (rll, ). (Entered: 06/14/2010)
36 DEFICIENT: REPLY to Response to Motion filed by All Defendants re 20 MOTION to Dismiss Case with memorandum in support and certificate of service Defendants' Reply Memorandum to Plaintiffs' Memoradum of Law in Opposition to Defendants' Rule 12 Motion to Dismiss. (Bordelon, Adrienne) Modified on 6/14/2010 (rll, ). (Entered: 06/14/2010)
37 Correction of Docket Entry by Clerk re 33 Third MOTION to Enroll as Counsel of Record. Filing attorney did not select Mark Anders as a filer. Clerk added filer. No further action is necessary. (rll, ) (Entered: 06/14/2010)
38 Additional Correction of Docket Entry by Clerk re 33 Third MOTION to Enroll as Counsel of Record. Name of attorney who electronically filed this document does not match name of signatory attorney on pleading. E−filer and attorney signature on pleading must match. No further action is necessary. (rll, ) (Entered: 06/14/2010)
39 Correction of Docket Entry by Clerk re 34 Third MOTION to Enroll as Counsel of Record. This is a duplicate filing of document #33 and will be noted as such. No further action is necessary. (rll, ) (Entered: 06/14/2010)
40 EXPARTE/CONSENT MOTION for Leave to File Defendants' Reply Memorandum to Plaintiffs' Memorandum of Law in Opposition to Defendants' Rule 12 Motion to Dismiss by Michelle Duncan, Alan Levine, Louisiana Department of Health and Hospitals. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading)(Bordelon, Adrienne) (Entered: 06/15/2010)
41 First Witness List by All Defendants. (Bordelon, Adrienne) (Entered: 06/15/2010)
42 Witness List by Advocacy Center for the Elderly and Disabled, Charrie Butler. (Lindblom, Marjorie) (Entered: 06/15/2010)
43 MOTION to Strike Declarations of Adam Humann and Barry Gerharz re 22 Motion for Preliminary Injunction by Mark Anders, Michelle Duncan, Alan Levine, Louisiana Department of Health and Hospitals. Motion Hearing set for 6/22/2010 10:00 AM before Chief Judge Sarah S. Vance. (Attachments: # 1 Proposed Order, # 2 Notice of Hearing)(Bordelon, Adrienne) Modified on 6/16/2010 to edit text (rll, ). (Entered: 06/16/2010)

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06/16/2010 06/18/2010 06/22/2010
06/24/2010 06/24/2010 06/24/2010 06/24/2010 06/24/2010 06/24/2010 06/30/2010
06/30/2010 07/21/2010 07/30/2010

44 Correction of Docket Entry by Clerk re 43 MOTION to Strike Declarations of Adam Humann and Barry Gerharz. As this motion is set for hearing, filing attorney should have selected 'N' at question 'Is this an Exparte/Consent Motion Y/N?'. Clerk has modified docket text to remove 'Exparte'. No further action is necessary. (rll, ) (Entered: 06/16/2010)
45 RESPONSE/MEMORANDUM in Opposition filed by Advocacy Center for the Elderly and Disabled, Charrie Butler re 43 MOTION to Strike Declarations of Adam Humann and Barry Gerharz. (Lindblom, Marjorie) (Entered: 06/18/2010)
46 Minute Entry for proceedings held before Chief Judge Sarah S. Vance: Motion Hearing held on 6/22/2010 re dfts' 20 MOTION to Dismiss Case, plas' 22 MOTION for Preliminary Injunction, dfts' 43 MOTION to Strike Declarations of Adam Humann and Barry Gerharz re plas' mtn for prelinj; plas' witnesses sworn &testified; plas rest; dfts' 43 Motion to Strike TAKEN UNDER ADVISEMENT; dfts' witnesses sworn &testified; exhibits offered &admitted; exh D−3 offered &admitted UNDER SEAL; dfts rest; post−trial briefs due by 5:00 PM 6/30/2010. (Court Reporter Toni Tusa.) (Attachments: # 1 Exhibit &Witness List) (rll, ). (Entered: 06/23/2010)
47 ORDER granting 33 Motion to Enroll as Counsel of Record for Attorney Douglas L. Cade for dfts. Signed by Chief Judge Sarah S. Vance on 6/24/2010. (rll, ) (Entered: 06/24/2010)
48 ORDER granting plas' 35 Motion for Leave to File Reply Memorandum in Support of Motion for Preliminary Injunction in Excess of Page Limit. Signed by Chief Judge Sarah S. Vance on 6/24/2010. (rll, ) Modified on 6/24/2010 to correct link (rll, ). (Entered: 06/24/2010)
49 REPLY Memorandum in Support filed by Advocacy Center for the Elderly and Disabled, Charrie Butler re 22 MOTION for Preliminary Injunction. (Attachments: # 1 Exhibit TOC and TOA)(rll, ) (Entered: 06/24/2010)
50 Correction of Docket Entry by Clerk re 48 Order on Motion for Leave to File. Docket Clerk incorrectly linked Order to Doc. #40 instead of Doc. #35. Clerk has correct link to doc #35. No further action is necessary. (rll, ) (Entered: 06/24/2010)
51 ORDER granting dfs' 40 MOTION for Leave to File Reply Memorandum to Plaintiffs' Memorandum of Law in Opposition to Defendants' Rule 12 Motion to Dismiss. Signed by Chief Judge Sarah S. Vance on 6/24/2010.(rll, ) (Entered: 06/24/2010)
52 REPLY to Response to Motion filed by All Defendants re 20 MOTION to Dismiss Case . (rll, ) (Entered: 06/24/2010)
53 MEMORANDUM filed by All Defendants re 22 MOTION for Preliminary Injunction Defendants' Post−hearing Memorandum. (Attachments: # 1 Exhibit Patient Waiting List − Complete Paperwork, # 2 Exhibit Patient Waiting List − Incomplete Paperwork, # 3 Exhibit Patient Waiting List − Subject to Act 419, # 4 Exhibit Patient Waiting List − O/R Competent, # 5 Exhibit Patient Waiting List − Community, # 6 Exhibit Patient Waiting List − NGBRI)(Bordelon, Adrienne) (Entered: 06/30/2010)
54 MEMORANDUM filed by Advocacy Center for the Elderly and Disabled, Charrie Butler re 22 MOTION for Preliminary Injunction Plaintiffs' Post−Hearing Brief. (Attachments: # 1 Certificate of Service)(Lindblom, Marjorie) (Entered: 06/30/2010)
55 EXPARTE/CONSENT MOTION to Withdraw Barry Gerharz as Attorney by Advocacy Center for the Elderly and Disabled, Charrie Butler. (Attachments: # 1 Proposed Order)(Gerharz, Barry) Modified on 7/21/2010 to edit text (rll, ). (Entered: 07/21/2010)
56 ORDER granting 55 Motion to Withdraw as Attorney. Attorney Barry James Gerharz terminated. Signed by Chief Judge Sarah S. Vance on 7/30/2010. (rll, ) (Entered: 07/30/2010)

Case: 2:10-cv-1088 As of: 05/19/2016 10:33 PM CDT 10 of 23

08/09/2010 08/09/2010 08/10/2010 08/11/2010 08/12/2010 08/17/2010
08/18/2010
08/19/2010 08/20/2010
08/25/2010 08/30/2010
08/30/2010

57 ORDER &REASONS denying dfts' 20 Motion to Dismiss Case as set forth herein. Signed by Chief Judge Sarah S. Vance on 8/9/2010. (rll, ) Modified on 8/9/2010 to edit doc type (rll, ). (Entered: 08/09/2010)
58 ORDER &REASONS: for the reasons stated, dfts' 43 Motion to Strike is DENIED; plas' 22 Motion for Preliminary Injunction is DENIED IN PART AND GRANTED IN PART. Signed by Chief Judge Sarah S. Vance on 8/9/2010. (rll, ) (Entered: 08/09/2010)
59 NOTICE OF APPEAL as to 57 Order on Motion to Dismiss Case, 58 Order on Motion to Strike, Order on Motion for Preliminary Injunction by All Defendants. (Filing fee $ 455, receipt number 053L−2560907.) (Bordelon, Adrienne) Modified on 8/27/2010 to add links &edit text (rll, ). (Entered: 08/10/2010)
60 AMENDED NOTICE OF APPEAL as to 57 Order on Motion to Dismiss Case, 58 Order on Motion to Strike, Order on Motion for Preliminary Injunction by All Defendants. (Fee previously paid) (Bordelon, Adrienne) Modified on 8/27/2010 to add links &edit text (rll, ). (Entered: 08/11/2010)
61 NOTICE Scheduling Conference set for 9/2/2010 10:15 AM before courtroom deputy by telephone, by Clerk.(rll, ) (Entered: 08/12/2010)
62 First MOTION for Extension of Deadlines set forth in the Court's August 9, 2010 Order, First MOTION to Stay Pending Appeal or, alternatively, for temporary stay pending resolution by Court of Appeals of Request for Emergency Stay or, alternatively, for an extension of time to implement the Court's order to transfer incompetent detainees to feliciana forensic facility by Michelle Duncan, Alan Levine, Louisiana Department of Health and Hospitals. (Attachments: # 1 Proposed Order, # 2 Memorandum in Support)(Bordelon, Adrienne) (Entered: 08/17/2010)
63 ORDERED that plas' shall submit no later than 5:00 P.M. 8/20/2010 a response to dft's 62 Motion for Stay Pending Appeal or in the Alternative for a Temporary Stay Until Resolution By the Court of Appeals of an Emergency Stay Request or in the Alternative an Extension of Time to Implement Court's Order to Transfer Incompetent Detainees to Feliciana Forensic Facility; Status Conference set for 8/25/2010 03:00 PM before Chief Judge Sarah S. Vance. Signed by Chief Judge Sarah S. Vance on 8/18/2010.(rll, ) (Entered: 08/18/2010)
64 APPEAL TRANSCRIPT REQUEST by Louisiana Department of Health and Hospitals for proceedings held on 6/22/2010 re 60 Amended Notice of Appeal, 59 Notice of Appeal. (rll, ) (Entered: 08/20/2010)
65 RESPONSE/MEMORANDUM in Opposition filed by Advocacy Center for the Elderly and Disabled, Charrie Butler re 62 First MOTION for Extension of Deadlines set forth in the Court's August 9, 2010 Order, First MOTION to Stay Pending Appeal or, alternatively, for temporary stay pending resolution by Court of Appeals of Request for Emergency Stay or, alternatively, for an extension of time to implement the Court's order to transfer incompetent detainees to Feliciana Forensic Facility. (Lindblom, Marjorie) Modified on 8/20/2010 (rll, ). (Entered: 08/20/2010)
69 Minute Entry for proceedings held before Chief Judge Sarah S. Vance: Status Conference held on 8/25/2010. (bbc, ) (Entered: 08/30/2010)
68 ORDER: Status conf held 8/25/10 to discuss dfts' pending mtn 62 , determine dfts' efforts to comply w/Court's preliminary injunction 58 , and to discuss settlement possibilities. Dfts' 62 MOTION for stay pending appeal is DENIED; mtn for a temporary stay until resolution by Court of Appeals of an emergency stay request is DENIED. However, the deadlines set in prel injunction order are vacated &the mtn for extension of time to implement the Court's order to transfer incompetent detainees to Feliciana Forensic Facility is GRANTED. FURTHER ORDERS for dfts set forth herein. Signed by Chief Judge Sarah S. Vance on 8/27/10.(bbc, ) (NEF: Wilkinson) (Additional attachment(s) added on 8/30/2010: # 1 sealed document) (bbc, ). (Entered: 08/30/2010)
70 ORDER REASSIGNING CASE. Case reassigned to Magistrate Judge Joseph C. Wilkinson, Jr for all further proceedings. Magistrate Judge Daniel E. Knowles, III

Case: 2:10-cv-1088 As of: 05/19/2016 10:33 PM CDT 11 of 23

08/30/2010
09/01/2010
09/01/2010 09/01/2010 09/01/2010 09/01/2010 09/01/2010 09/07/2010
09/10/2010 09/14/2010 09/14/2010 09/14/2010 09/14/2010 09/14/2010 09/15/2010

no longer assigned to case. Signed by Chief Judge Sarah S. Vance. (NEF − MJ2, MJ3)(car, ) (Entered: 08/30/2010)
71 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted defendants' first weekly interim report (which has been separately filed under seal for security and medical privacy reasons), indicating that the first four of the previously identified 13 next Phase I patients have timely been transferred.. Signed by Magistrate Judge Joseph C. Wilkinson, Jr. (NEF − J. Vance)(car, ) (Entered: 08/31/2010)
72 ORDER − defense counsel has submitted defendants' revised first weekly interim report (which has been separately filed under seal for security and medical privacy reasons), indicating that six (6) of the previously identified 13 'Phase I' patients have timely been transferred as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr. (NEF − J. Vance)(car, ) (Entered: 09/01/2010)
73 ORDER: Clerk is directed to file attached report submitted to the court by defense counsel UNDER SEAL in record of captioned case for institutional security and medical records privacy reasons. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 8/30/2010.(rll, ) (Entered: 09/01/2010)
74 **SEALED** Report by defense counsel (rll, ) Modified on 9/1/2010 (rll, ). (Entered: 09/01/2010)
75 ORDER: Clerk is directed to file attached report submitted to the court by defense counsel UNDER SEAL in record of captioned case for institutional security and medical records privacy reasons. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 8/31/2010.(rll, ) (Entered: 09/01/2010)
76 **SEALED** Report by defense counsel (rll, ) (Entered: 09/01/2010)
77 NOTICE Scheduling Conference set for 9/2/2010 is continued without date. Signed by Clerk for Chief Judge Sarah S. Vance.(rll, ) (Entered: 09/01/2010)
78 APPEAL TRANSCRIPT of Proceedings held on 06/22/2010 before Judge Sarah S. Vance. Court Reporter/Recorder Toni Tusa, Telephone number 504−589−7778. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 21 days from the filing of this transcript to file with the Court a Redaction Request. Release of Transcript Restriction set for 12/6/2010. (bgh, ) (Entered: 09/07/2010)
79 ORDER − in compliance with the court's order, 68 , defense counsel has submitted defendants' third weekly interim report as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr.(car, ) (Entered: 09/13/2010)
80 ORDER: Clerk is directed to file attached report submitted to the court by defense counsel UNDER SEAL in record of captioned case for institutional security and medical records privacy reasons. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 9/10/2010.(rll, ) (Entered: 09/14/2010)
81 **SEALED** Report by defense counsel (rll, ) (Entered: 09/14/2010)
82 ORDER: Clerk is directed to file attached report submitted to the court by defense counsel UNDER SEAL in record of captioned case for institutional security and medical records privacy reasons. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 9/13/2010.(rll, ) (Entered: 09/14/2010)
83 **SEALED** Report by defense counsel (rll, ) (Entered: 09/14/2010)
84 ORDER: in compliance with the Court's Order, 68 , defense counsel has submitted defendants' fourth weekly interim report as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 9/14/2010.(rll, ) (NEF to Chief Judge Vance) (Entered: 09/14/2010)
85 Certified and Transmitted Record on Appeal to US Court of Appeals re 60 Amended Notice of Appeal, 59 Notice of Appeal. USCA Case Number 10−30779. (rll, ) (Entered: 09/15/2010)

Case: 2:10-cv-1088 As of: 05/19/2016 10:33 PM CDT 12 of 23

09/16/2010 09/21/2010 09/22/2010
09/23/2010 09/23/2010 09/28/2010 09/28/2010 09/30/2010
09/30/2010 09/30/2010 09/30/2010 10/04/2010
10/05/2010 10/05/2010 10/06/2010 10/06/2010 10/13/2010
10/15/2010

86 ORDER of USCA as to 60 Amended Notice of Appeal, dismissing same by Clerk. (car, ) (Entered: 09/17/2010)
87 ORDER of USCA to Reinstate the 60 Amended Notice of Appeal filed by Mark Anders, Alan Levine, Louisiana Department of Health and Hospitals, Michelle Duncan (rll, ) (Entered: 09/22/2010)
88 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted defendants' fifth weekly interim report as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr. (NEF − J. Vance)(car, ) (Entered: 09/22/2010)
89 ORDER: Clerk is directed to file report submitted by defense counsel UNDER SEAL for institutional security and medical records privacy reasons. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 9/22/10.(bbc, ) (Entered: 09/23/2010)
90 **SEALED** Report by defense counsel (bbc, ) (Entered: 09/23/2010)
91 STATUS REPORT by Advocacy Center for the Elderly and Disabled, Charrie Butler Plaintiffs' Position on Defendants' Proposed Compliance Plan (Lindblom, Marjorie) Modified on 9/29/2010 to edit text (rll, ). (Entered: 09/28/2010)
92 STATUS REPORT Letter to Judge Vance by All Defendants (Attachments: # 1 Supplement)(Bordelon, Adrienne) (Entered: 09/28/2010)
93 EXPARTE/CONSENT First MOTION to Seal Document Phase II of Patient Plan by Mark Anders, Michelle Duncan, Alan Levine, Louisiana Department of Health and Hospitals. (Attachments: # 1 Proposed Order)(Bordelon, Adrienne) (Entered: 09/30/2010)
94 STATUS REPORT Compliance Plan with attached September 27, 2010 proposed compliance plan by All Defendants (Attachments: # 1 Exhibit)(Bordelon, Adrienne) (Entered: 09/30/2010)
95 ORDER granting 93 Motion to Seal Phase II of Patient Plan. Signed by Chief Judge Sarah S. Vance on 9/30/2010. (rll, ) (Entered: 09/30/2010)
96 **SEALED** Phase II of Patient Plan by defense counsel (rll, ) (Entered: 09/30/2010)
97 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Telephone Conference held on 10/4/2010. ORDER setting deadline herein; Status Conference set for 10/22/2010 10:00 AM before Chief Judge Sarah S. Vance. (NEF − J. Vance) (car, ) (Entered: 10/05/2010)
98 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Telephone Conference held on 10/5/2010. (NEF − J. Vance) (car, ) (Entered: 10/06/2010)
99 ORDER − defense counsel has submitted defendants sixth and seventh weekly interim reports as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr.(NEF − J. Vance)(car, ) (Entered: 10/06/2010)
100 ORDER: Clerk is directed to file reports from defense counsel UNDER SEAL for institutional security and medical records privacy reasons. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 10/5/2010.(rll, ) (Entered: 10/06/2010)
101 **SEALED** Reports by defense counsel (rll, ) (Entered: 10/06/2010)
102 EXPARTE/CONSENT Fourth MOTION to Enroll as Counsel of Record of Joanne Henig by Mark Anders, Michelle Duncan, Alan Levine, Louisiana Department of Health and Hospitals. (Attachments: # 1 Proposed Order)(Bordelon, Adrienne) (Entered: 10/13/2010)
103 EXPARTE/CONSENT MOTION − COMPLIANCE PLAN to Court's 10/4/10 order − and request to Seal Documents by Mark Anders, Michelle Duncan, Alan Levine, Louisiana Department of Health and Hospitals. (Attachments: # 1 Proposed Order)(Bordelon, Adrienne) Modified on 10/15/2010 to edit text (bbc, ). (Entered: 10/15/2010)

Case: 2:10-cv-1088 As of: 05/19/2016 10:33 PM CDT 13 of 23

10/15/2010
10/15/2010 10/15/2010 10/15/2010 10/20/2010 10/21/2010
10/21/2010 10/21/2010 10/22/2010
11/01/2010
11/01/2010 11/01/2010 11/04/2010
11/04/2010

104 EXPARTE/CONSENT MOTION to File Under Seal a list of the names &associated personal medical info of pretrial detainees by Mark Anders, Michelle Duncan, Alan Levine, Louisiana Department of Health and Hospitals. (Attachments: # 1 Proposed Order)(Bordelon, Adrienne) Modified on 10/15/2010 to edit text (bbc, ). (Entered: 10/15/2010)
105 COMPLIANCE PLAN by All Defendants (Attachments: # 1 Exhibit − LSU Progress Report )(Bordelon, Adrienne) Modified on 10/15/2010 to edit text (bbc, ). (Entered: 10/15/2010)
106 ORDER granting 103 Motion − COMPLIANCE PLAN to Court's 10/4/10 order − and request to Seal Documents. Signed by Chief Judge Sarah S. Vance on 10/15/10. (bbc, ) (Entered: 10/15/2010)
107 ORDER granting 104 Motion to File Under Seal a list of the names &associated personal medical info of pretrial detainees. Signed by Chief Judge Sarah S. Vance on 10/15/10. (bbc, ) (Additional attachment(s) added on 10/15/2010: # 1 Sealed Report) (bbc, ). (Entered: 10/15/2010)
108 ORDER granting 102 Motion to Enroll as Counsel of Record for Attorney Joanne Henig for Mark Anders, Michelle Duncan, Alan Levine, Louisiana Department of Health and Hospitals. Signed by Chief Judge Sarah S. Vance on 10/19/2010. (rll, ) (Entered: 10/20/2010)
109 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted defendants' eighth and ninth weekly interim reports (which have been separately filed under seal for security and medical privacy reasons), indicating that nine (9) additional Phase 2 inmates previously awaiting transfer paperwork completion have been transferred. Signed by Magistrate Judge Joseph C. Wilkinson, Jr. (NEF − J. Vance)(car, ) (Entered: 10/21/2010)
110 ORDER: Clerk is directed to file reports from defense counsel UNDER SEAL for institutional security and medical records privacy reasons. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 10/21/2010.(rll, ) (Entered: 10/22/2010)
111 **SEALED** Reports by defense counsel (rll, ) (Entered: 10/22/2010)
112 Minute Entry for proceedings held before Chief Judge Sarah S. Vance: Status Conference held on 10/22/2010; Court Orders various deadlines as set forth herein; FURTHER ORDERED that another Status Conference is set for 12/10/2010 10:00 AM before Chief Judge Sarah S. Vance. (rll, ) (NEF to MJ Wilkinson) (Entered: 10/26/2010)
113 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted dfts' tenth weekly interim report (which has been separately filed under seal for security and medical privacy reasons), indicating that eight (8) additional Phase 2 inmates previously awaiting transfer paperwork completion have been transferred. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 10/29/2010.(rll, ) (NEF to Chief Judge Vance) (Entered: 11/01/2010)
114 ORDER: Clerk is directed to file report from defense counsel UNDER SEAL for institutional security and medical records privacy reasons. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 10/29/2010.(rll, ) (Entered: 11/01/2010)
115 **SEALED** Report by defense counsel (rll, ) (Entered: 11/01/2010)
116 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted dfts' eleventh weekly interim report (which has been separately filed under seal for security and medical privacy reasons), indicating that seven (7) additional Phase 2 inmates previously awaiting transfer paperwork completion have been transferred. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 11/3/2010.(rll, ) (NEF to Chief Judge Vance) (Entered: 11/04/2010)
117 ORDER: Clerk is directed to file report from defense counsel UNDER SEAL for institutional security and medical records privacy reasons. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 11/3/2010.(rll, ) (Entered: 11/04/2010)

Case: 2:10-cv-1088 As of: 05/19/2016 10:33 PM CDT 14 of 23

11/04/2010 11/09/2010
11/09/2010 11/09/2010 11/09/2010 11/16/2010
11/16/2010 11/16/2010 11/23/2010
11/23/2010
11/24/2010 11/24/2010 12/02/2010
12/02/2010 12/02/2010 12/06/2010 12/07/2010

118 **SEALED** Report by defense counsel (rll, ) (Entered: 11/04/2010)
119 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted dfts' twelvth weekly interim report (which has been separately filed under seal for security and medical privacy reasons). Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 11/9/2010.(rll, ) (NEF to Chief Judge Vance) (Entered: 11/09/2010)
120 ORDER: Clerk is directed to file report from defense counsel UNDER SEAL for institutional security and medical records privacy reasons. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 11/9/2010.(rll, ) (Entered: 11/09/2010)
121 **SEALED** Report by defense counsel (rll, ) (Entered: 11/09/2010)
122 Supplemental Record on Appeal transmitted to US Court of Appeals re 60 Amended Notice of Appeal, 59 Notice of Appeal (rll, ) (Entered: 11/15/2010)
123 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted defendants' thirteenth weekly interim report (which has been separately filed under seal for security and medical privacy reasons). Four additional transfers have been completed since the last report. The women inmate transfers target date remains November 30, 2010.. Signed by Magistrate Judge Joseph C. Wilkinson, Jr. (NEF − J. Vance)(car, ) (Entered: 11/16/2010)
124 ORDER: Clerk is directed to file report from defense counsel UNDER SEAL for institutional security and medical records privacy reasons. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 11/15/2010.(rll, ) (Entered: 11/17/2010)
125 **SEALED** Report by defense counsel (rll, ) (Entered: 11/17/2010)
126 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Telephone Conference held on 11/23/2010. Defendants requested an extension of today's deadline in Judge Vance's October 26, 2010 order, Record Doc. No. 112, to deliver "the final LSU study." Plaintiffs objected. The request was DENIED. All previously set deadlines remain unaltered. (NEF − J. Vance) (car, ) (Entered: 11/23/2010)
127 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted defendants' fourteenth weekly interim report (which has been separately filed under seal for security and medical privacy reasons). Four additional transfers have been completed since the last report. The women inmate transfers target date remains November 30, 2010.. Signed by Magistrate Judge Joseph C. Wilkinson, Jr. (NEF − J. Vance)(car, ) (Entered: 11/24/2010)
128 ORDER: Clerk is directed to file report from defense counsel UNDER SEAL for institutional security and medical records privacy reasons. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 11/23/10.(bbc, ) (Entered: 11/24/2010)
129 **SEALED** Report by defense counsel (bbc, ) (Entered: 11/24/2010)
130 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted defendants' fifteenth weekly interim report dated November 29, 2010 as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr. (NEF − J. Vance)(car, ) (Entered: 12/02/2010)
131 ORDER: Clerk is directed to file report from defense counsel UNDER SEAL for institutional security and medical records privacy reasons. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 12/2/2010.(rll, ) (Entered: 12/02/2010)
132 **SEALED** Report by defense counsel (rll, ) (Entered: 12/02/2010)
133 RESPONSE − Plaintiffs' Position on Defendants Provisional Proposal (Lindblom, Marjorie) Modified on 12/7/2010 (rll, ). Modified on 12/7/2010 to edit text (bbc, ). (Entered: 12/06/2010)
134 Correction of Docket Entry by Clerk re 133 Remark. Document has been stricken. Letters are not to be filed in the court's record. This document is to be delivered to chambers. (rll, ) (Entered: 12/07/2010)

Case: 2:10-cv-1088 As of: 05/19/2016 10:33 PM CDT 15 of 23

12/07/2010 12/07/2010 12/08/2010
12/08/2010 12/08/2010 12/10/2010 12/10/2010
12/13/2010 12/15/2010 12/15/2010 12/15/2010 12/15/2010 12/21/2010
12/21/2010 12/21/2010 01/04/2011

135 Correction of Docket Entry by Clerk re 133 Remark. Document previously marked stricken has been accepted by chambers. All future responses will contain the proper case heading &caption. No further action is necessary. (bbc, ) (Entered: 12/07/2010)
136 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted defendants' sixteenth weekly interim report dated December 6, 2010 as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 12/7/2010.(rll, ) (NEF to Judge Vance) (Entered: 12/07/2010)
137 RESPONSE − Settlement proposal Defendants' Settlement Proposal in Response to October 27, 2010 Court Order by Mark Anders, Michelle Duncan, Alan Levine, Louisiana Department of Health and Hospitals. (Attachments: # 1 Exhibit LSU Study Report, # 2 Exhibit Email to La. Supreme Court Exhibit A)(Bordelon, Adrienne) Modified on 12/9/2010 to edit text (rll, ). (Entered: 12/08/2010)
138 ORDER: Clerk is directed to file report from defense counsel UNDER SEAL for institutional security and medical records privacy reasons. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 12/7/2010.(rll, ) (Entered: 12/08/2010)
139 **SEALED** Report by defense counsel (rll, ) (Entered: 12/08/2010)
140 Minute Entry for proceedings held before Chief Judge Sarah S. Vance and Magistrate Judge Joseph C. Wilkinson, Jr.: Status Conference held on 12/10/2010. (rll, ) (Entered: 12/10/2010)
141 ORDER re 140 Status Conference: IT IS ORDERED that dfts shall provide plas with written proposal for consent decree no later than 1/10/2011; plas shall respond no later than 1/18/2011; FURTHER ORDERED that Status Conference is set for 1/21/2011 10:00 AM before Chief Judge Sarah S. Vance. Signed by Chief Judge Sarah S. Vance on 12/10/2010.(rll, ) (NEF to MJ Wilkinson) (Entered: 12/10/2010)
142 EXPARTE/CONSENT First MOTION to Substitute Attorney and Trial Attorney by Michelle Duncan, Alan Levine, Louisiana Department of Health and Hospitals. (Attachments: # 1 Proposed Order)(Bordelon, Adrienne) Modified on 12/13/2010 to edit event (rll, ). (Entered: 12/13/2010)
143 ORDER granting 142 Motion to Substitute Attorney. Attorney Joanne Henig added. Attorney Adrienne T. Bordelon terminated. Signed by Chief Judge Sarah S. Vance on 12/14/2010. (rll, ) (Entered: 12/15/2010)
144 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted defendants' seventeenth weekly interim report dated December 13, 2010 as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 12/15/2010.(rll, ) (NEF to Judge Vance) (Entered: 12/15/2010)
145 ORDER: Clerk is directed to file report and amendment from defense counsel UNDER SEAL for institutional security and medical records privacy reasons. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 12/15/2010.(rll, ) (Entered: 12/15/2010)
146 **SEALED** Report &amendment by defense counsel (rll, ) (Entered: 12/15/2010)
147 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted defendants' eighteenth weekly interim report dated December 20, 2010 as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 12/21/2010.(rll, ) (NEF to Chief Judge Vance) (Entered: 12/21/2010)
148 ORDER: Clerk is directed to file report and amendment from defense counsel UNDER SEAL for institutional security and medical records privacy reasons. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 12/21/2010.(rll, ) (Entered: 12/21/2010)
149 **SEALED** Report by defense counsel (rll, ) (Entered: 12/21/2010)
150 ORDER − the attach reports are filed under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr. (NEF − J. Vance)(car, ) (Additional

Case: 2:10-cv-1088 As of: 05/19/2016 10:33 PM CDT 16 of 23

01/11/2011
01/11/2011 01/19/2011
01/19/2011 01/21/2011 01/26/2011
01/26/2011 02/01/2011
02/01/2011 02/07/2011
02/07/2011 02/15/2011
02/15/2011 02/22/2011
02/22/2011
02/22/2011 03/01/2011

attachment(s) added on 1/5/2011: # 1 Sealed Exhibits) (car, ). (Entered: 01/05/2011)
151 ORDER: Clerk is directed to file report and amendment from defense counsel UNDER SEAL for institutional security and medical records privacy reasons. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 1/10/2011.(rll, ) (NEF to Chief Judge Vance) (Entered: 01/11/2011)
152 **SEALED** Report by defense counsel (rll, ) (Entered: 01/11/2011)
153 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted defendants' twenty−second weekly interim report dated January 18,2011 as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 1/18/2011.(rll, ) (NEF to Chief Judge Vance) (Entered: 01/19/2011)
154 **SEALED** Report by defense counsel (rll, ) (Entered: 01/19/2011)
155 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Status Conference held on 1/21/2011. (NEF: Chambers) (caa, ) (Entered: 01/21/2011)
156 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted defendants' twenty−third weekly interim report dated January 24, 2011 as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 1/25/2011.(rll, ) (NEF to Chief Judge Vance) Modified on 1/26/2011 to add NEF (rll, ). (Entered: 01/26/2011)
157 **SEALED** Report by defense counsel (rll, ) (Entered: 01/26/2011)
158 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted defendants' twenty−fourth weekly interim report dated January 31, 2011 as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 1/31/2011.(rll, ) (NEF to Chief Judge Vance) (Entered: 02/01/2011)
159 **SEALED** Report by defense counsel (rll, ) (Entered: 02/01/2011)
160 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted defendants' twenty−fifth weekly interim report dated February 7, 2011 as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 2/7/2011.(rll, ) (NEF to Chief Judge Vance) (Main Document 160 replaced on 2/9/2011) (rll, ). (Entered: 02/08/2011)
161 **SEALED** Report by defense counsel (rll, ) (Main Document 161 replaced on 2/9/2011) (rll, ). (Entered: 02/08/2011)
162 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted defendants' twenty−sixth weekly interim report dated February 14, 2011 as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 2/15/2011.(rll, ) (NEF to Chief Judge Vance) (Entered: 02/15/2011)
163 **SEALED** Report by defense counsel (rll, ) (Entered: 02/15/2011)
164 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Status Conference held on 2/22/2011. ORDERED that, if all parties are able to reach agreement, they must submit a joint motion for entry of a consent decree no later than FRIDAY, MARCH 11, 2011 as stated herein. (NEF − J. Vance) (car, ) (Entered: 02/22/2011)
165 ORDERED that the Clerk file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr. (NEF − J. Vance)(car, ) Modified on 2/23/2011 − Report entered as SEALED entry doc #166 (bbc, ). (Entered: 02/23/2011)
166 **SEALED** Report by defense counsel (bbc, ) (Entered: 02/23/2011)
167 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted defendants' twenty−eighth weekly interim report dated

Case: 2:10-cv-1088 As of: 05/19/2016 10:33 PM CDT 17 of 23

03/01/2011 03/14/2011 03/14/2011 03/15/2011
03/15/2011 03/18/2011
03/22/2011 03/22/2011 03/25/2011 03/29/2011
03/29/2011 04/05/2011
04/05/2011 04/08/2011
04/11/2011
04/12/2011
04/12/2011 04/13/2011 04/28/2011

February 28, 2011 as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 2/28/2011.(rll, ) (NEF to Chief Judge Vance) (Entered: 03/02/2011)
168 **SEALED** Report by defense counsel (rll, ) (Entered: 03/02/2011)
169 ORDERED that the Clerk file the attached report (29th weekly interim report dated 3/7/11) under seal as stated herein.. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 3/14/11.(NEF: Vance)(bbc, ) (Entered: 03/14/2011)
170 **SEALED** Report by defense counsel (bbc, ) (Entered: 03/14/2011)
171 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted defendants' thirtieth weekly interim report dated March 14, 2011 as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 3/14/2011.(rll, ) (NEF to Chief Judge Vance) (Entered: 03/16/2011)
172 **SEALED** Report by defense counsel (rll, ) (Entered: 03/16/2011)
173 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Status Conference held on 3/18/2011 re possible settlement via entry of consent decree. A follow−up telephone conference between counsel and the court will be initiated by me next week. (car, ) (Entered: 03/21/2011)
174 ORDER − the Clerk is directed to file the aforementioned report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr. (Attachments: # 1 Sealed Ntc)(car, ) (Entered: 03/23/2011)
175 Sealed attachment to doc 174. (car, ) (Entered: 03/23/2011)
176 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Settlement Conference held on 3/25/2011. (NEF: Chambers) (caa, ) (Entered: 03/25/2011)
177 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted defendants' thirty−second weekly interim report dated March 28, 2011 as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 3/29/2011.(rll, ) (NEF to Chief Judge Vance) (Entered: 03/29/2011)
178 **SEALED** Report by defense counsel (rll, ) (Entered: 03/29/2011)
179 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted defendants' thirty−third weekly interim report dated April 4, 2011 as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 4/4/2011.(rll, ) (NEF to Chief Judge Vance) (Entered: 04/05/2011)
180 **SEALED** Report by defense counsel (rll, ) (Entered: 04/05/2011)
181 EXPARTE/CONSENT First MOTION to Approve Consent Judgment by Mark Anders, Michelle Duncan, Louisiana Department of Health and Hospitals. (Attachments: # 1 Proposed Order Consent Decree)(Elliott, Neal) Modified on 4/11/2011 to add filers (rll, ). (Entered: 04/08/2011)
182 Correction of Docket Entry by Clerk re 181 First MOTION to Approve Consent Judgment. Filing attorney did not select Michelle Duncan and Louisiana Department of Health and Hospitals as filers. Clerk added filers. No further action is necessary. (rll, ) (Entered: 04/11/2011)
183 ORDER − In compliance with the court's order, Record Doc. No. 68, defense counsel has submitted defendants' thirty−fourth weekly interim report dated April 11, 2011 as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 4/11/2011.(rll, ) (Entered: 04/12/2011)
184 **SEALED** Report by defense counsel (rll, ) (Entered: 04/12/2011)
185 CONSENT JUDGMENT. Signed by Chief Judge Sarah S. Vance on 4/12/2011.(rll, ) (Entered: 04/13/2011)
186 ORDER of USCA as to 59 Notice of Appeal, 60 Amended Notice of Appeal; Appeal dismissed as of 4/27/2011 pursuant to appellant's motion by USCA Clerk.

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05/19/2011 05/24/2011 06/30/2011 07/01/2011 07/08/2011 08/04/2011 08/04/2011 08/15/2011 09/06/2011
09/07/2011
09/08/2011
09/19/2011 09/19/2011 09/19/2011

(rll, ) (Entered: 05/02/2011)
187 EXPARTE/CONSENT MOTION to Withdraw Katharine Schwartzmann as Attorney by Advocacy Center for the Elderly and Disabled. (Attachments: # 1 Proposed Order)(Schwartzmann, Katharine) (Entered: 05/19/2011)
188 ORDER granting 187 Motion to Withdraw as Attorney. Attorney Katharine Murphy Schwartzmann terminated. Signed by Chief Judge Sarah S. Vance on 5/24/2011. (rll, ) (Entered: 05/24/2011)
189 EXPARTE/CONSENT MOTION to Withdraw Emily C. Lee as Attorney by Advocacy Center for the Elderly and Disabled, Charrie Butler. (Attachments: # 1 Proposed Order Motion to Withdraw as Counsel for Plaintiffs−Emily C. Lee)(Lindblom, Marjorie) (Entered: 06/30/2011)
190 STIPULATION by All Parties regarding payment of attorneys fees (Lindblom, Marjorie) (Entered: 07/01/2011)
191 ORDER granting 189 Motion to Withdraw as Attorney. Attorney Emily C. Lee terminated. Signed by Chief Judge Sarah S. Vance on 7/7/2011. (rll, ) (Entered: 07/08/2011)
192 ORDER − the Clerk is directed to file dfts' 8/1/2011 document re 185 Consent Decree under seal. Signed by Magistrate Judge Joseph C. Wilkinson, Jr. (NEF − J. Vance)(car, ) (Entered: 08/05/2011)
193 Sealed Report (car, ) (Entered: 08/05/2011)
194 ORDER − the Clerk is directed to file the attached submission under seal. Signed by Magistrate Judge Joseph C. Wilkinson, Jr.(car, ) (Additional attachment(s) added on 8/15/2011: # 1 Sealed attachment) (car, ). (Entered: 08/15/2011)
195 ORDER − the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr. (Attachments: # 1 Sealed attachment) (NEF − J. Vance)(car, ) (Sealed attachment(s) added on 9/7/2011: # 1 Sealed attachment) (car, ). Modified on 9/7/2011 (car, ). (Entered: 09/07/2011)
196 MOTION for Civil Contempt by Advocacy Center for the Elderly and Disabled. Motion set for 9/28/2011 10:00 AM before Chief Judge Sarah S. Vance. (Attachments: # 1 Notice of Submission, # 2 Memorandum in Support of Motion for Civil Contempt with Ex A)(Lindblom, Marjorie) (Attachment 2 replaced on 9/8/2011) (rll, ). (Additional attachment(s) added on 9/8/2011: # 3 Exhibit A, # 4 Proposed Order) (rll, ). Modified on 9/8/2011 to edit event &split and reattach Memo, exhibit &proposed order (rll, ). (Entered: 09/07/2011)
197 Correction of Docket Entry by Clerk re 196 MOTION for Order to Show Cause. Filing attorney selected incorrect event. Correct event is Motion for Miscellaneous Relief wherein attorney can text in relief requested − Motion for Civil Contempt. Clerk took corrective action by changing the event. Multiple documents were incorrectly filed as one PDF. The Memorandum in Support, Proposed Order and Exhibit should have been filed as attachments to this Motion. All future filings should be entered this way. Clerk took corrective action. No further action is necessary. (rll, ) (Entered: 09/08/2011)
198 ERROR: DUPLICATE OF DOC #199. RESPONSE/MEMORANDUM in Opposition filed by All Defendants re 196 MOTION for Civil Contempt. (Attachments: # 1 Exhibit)(Elliott, Neal) Modified on 9/19/2011 to edit event (rll, ). Modified on 9/19/2011 (rll, ). (Entered: 09/19/2011)
199 RESPONSE/MEMORANDUM in Opposition filed by All Defendants re 196 MOTION for Civil Contempt. (Attachments: # 1 Exhibit)(Elliott, Neal) Modified on 9/19/2011 to edit event (rll, ). (Entered: 09/19/2011)
200 Correction of Docket Entry by Clerk re 198 Memorandum. This is a duplicate filing of document #199 and will be noted as such. No further action is necessary. (rll, ) (Entered: 09/19/2011)

Case: 2:10-cv-1088 As of: 05/19/2016 10:33 PM CDT 19 of 23

09/19/2011 09/20/2011 09/20/2011
09/21/2011 09/21/2011 09/30/2011 09/30/2011
10/05/2011 10/19/2011 10/20/2011 10/20/2011 10/24/2011

201 First MOTION to Amend/Correct 185 Consent Judgment by Louisiana Department of Health and Hospitals. Motion set for 10/12/2011 10:00 AM before Chief Judge Sarah S. Vance. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission)(Elliott, Neal) Modified on 9/20/2011 to remove referral &edit hearing date (rll, ). (Entered: 09/19/2011)
202 Correction of Docket Entry by Clerk re 201 First MOTION to Amend/Correct 185 Consent Judgment. Filing attorney incorrectly changed 'N' to 'Y' at the question 'Is this motion to be decided by the Magistrate Judge Y/N?'. This motion will be decided by the district judge. Clerk took corrective action. No further action is necessary. (rll, ) (Entered: 09/20/2011)
203 ADDITIONAL Correction of Docket Entry by Clerk re 201 First MOTION to Amend/Correct 185 Consent Judgment. Filing attorney selected incorrect submission/hearing date. Correct date is 10/12/2011. Clerk took corrective action. Signature line of main document is blank. All future documents must reflect either an original signature or an electronic signature of the filing attorney following the format 's/ (attorney name)'. No further action is necessary. (rll, ) (Entered: 09/20/2011)
204 EXPARTE/CONSENT MOTION to Continue by Advocacy Center for the Elderly and Disabled, Charrie Butler. (Attachments: # 1 Proposed Order)(Hahn, Ellen) (Entered: 09/21/2011)
205 Request/Statement of Oral Argument by All Plaintiffs regarding 201 First MOTION to Amend/Correct 185 Consent Judgment, 196 MOTION for Civil Contempt. (Hahn, Ellen) Modified on 9/22/2011 to remove duplicate text (rll, ). (Entered: 09/21/2011)
206 ORDER granting 204 MOTION to Continue Hearing on 196 MOTION for Civil Contempt: Motion reset for 11/9/2011 10:00 AM before Chief Judge Sarah S. Vance. Signed by Chief Judge Sarah S. Vance on 9/30/2011.(rll, ) (Entered: 09/30/2011)
207 ORDER granting 205 Request/Statement of Oral Argument filed by Charrie Butler, Advocacy Center for the Elderly and Disabled re 196 MOTION for Civil Contempt, 201 First MOTION to Amend/Correct 185 Consent Judgment: Motions reset for 11/9/2011 10:00 AM before Chief Judge Sarah S. Vance with oral argument. Signed by Chief Judge Sarah S. Vance on 9/30/2011.(rll, ) (Entered: 09/30/2011)
208 ORDERED that the third DHH monthly report be filed under seal. Signed by Magistrate Judge Joseph C. Wilkinson, Jr. (NEF − J. Vance)(car, ) (Additional attachment(s) added on 10/5/2011: # 1 Sealed Report) (car, ). (Entered: 10/05/2011)
209 EXPARTE/CONSENT MOTION for Authorization to present testimony by Louisiana Department of Health and Hospitals, Mark Anders, Michelle Duncan, Alan Levine. (Elliott, Neal) Modified on 10/20/2011 (blg). (Additional attachment(s) added on 10/20/2011: # 1 Proposed Order) (blg). (Entered: 10/19/2011)
210 Correction of Docket Entry by Clerk re 209 MOTION for Authorization to present testimony; Filing attorney did not include a proposed order. Proposed Order subsequently provided to Clerk and has now been attached to the motion. (blg) (Entered: 10/20/2011)
211 Correction of Docket Entry by Clerk re 209 MOTION for Authorization to present testimony; Filing attorney should have selected 'Yes' at the question 'Is this an Exparte/Consent Motion Y/N?. Exparte/Consent motions are not set for hearing. Clerk has removed hearing date. No further action is necessary. (blg) (Entered: 10/20/2011)
212 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Telephone Conference held on 10/24/2011. Counsel will conduct further discussions among themselves and attempt to draft a resolution of the dispute as set forth in document. Follow−up Telephone Conference set for 10/31/2011 10:30 AM before Magistrate Judge Joseph C. Wilkinson Jr. (lag, ) (Entered: 10/24/2011)

Case: 2:10-cv-1088 As of: 05/19/2016 10:33 PM CDT 20 of 23

10/26/2011 10/31/2011
11/02/2011 11/03/2011 11/09/2011 11/10/2011 11/15/2011 12/05/2011 01/04/2012 02/03/2012 03/05/2012 04/03/2012 05/02/2012

213 ORDER granting dfts' 209 Motion for Authorization to present testimony of Dr. John Thompson at the combined hearing of plas' Motion for Civil Contempt and dfts' Motion to Modify scheduled for 11/9/2011 10:00 AM. Signed by Chief Judge Sarah S. Vance on 10/26/2011. (rll, ) (Entered: 10/26/2011)
214 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Telephone Conference held on 10/31/2011. ORDERED that the deadline for plaintiffs to file their memorandum in opposition to defendants motion is hereby extended to November 7, 2011. Follow−up Telephone Conference set for 11/3/2011 11:00 AM before Magistrate Judge Joseph C. Wilkinson Jr. (NEF − J. Vance) (car, ) (Entered: 10/31/2011)
215 ORDER − the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr. (NEF − J. Vance)(car, ) (Additional attachment(s) added on 11/2/2011: # 1 Sealed attachmeeent) (car, ). (Entered: 11/02/2011)
216 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Telephone Conference held on 11/3/2011. The hearing that was scheduled to occur before Chief Judge Vance on November 9, 2011, is CANCELLED. (car, ) (Entered: 11/04/2011)
217 EXPARTE/CONSENT MOTION to Amend/Correct 185 Consent Judgment by Louisiana Department of Health and Hospitals, Mark Anders, Michelle Duncan. (Attachments: # 1 Exhibit Revised Consent Decree, # 2 Proposed Order)(Elliott, Neal) Modified on 11/10/2011 to correct linkage &add filers (rll, ). (Entered: 11/09/2011)
218 Correction of Docket Entry by Clerk re 217 MOTION to Amend/Correct 185 Consent Judgment. Filing attorney did not select Mark Anders, Michelle Duncan as filers. Clerk added filers. Clerk took corrective action to remove unnecessary links. Document should only be linked to document #185. No further action is necessary. (rll, ) (Entered: 11/10/2011)
219 AMENDED CONSENT JUDGMENT modifying 185 Consent Judgment as set forth in document. Signed by Chief Judge Sarah S. Vance on 11/14/2011.(rll, ) (Entered: 11/15/2011)
220 ORDERED that clerk file under seal the monthly report re Court's 185 Consent Decree. Signed by Magistrate Judge Joseph C. Wilkinson, Jr.(car, ) (NEF − J. Vance). (Additional attachment(s) added on 12/5/2011: # 1 Sealed report) (car, ). (Entered: 12/05/2011)
221 ORDER: the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 1/4/2012.(rll, ) (NEF to Chief Judge Sarah S. Vance) (Additional attachment(s) added on 1/4/2012: # 1 Sealed Attachment) (rll, ). (Entered: 01/04/2012)
222 ORDER: the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 2/1/2012.(rll, ) (NEF to Chief Judge Sarah S. Vance) (Additional attachment(s) added on 2/3/2012: # 1 Sealed Attachment) (rll, ). (Entered: 02/03/2012)
223 ORDERED that clerk file under seal the monthly report re Court's 185 Consent Decree. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 3/2/2012.(rll, ) (Additional attachment(s) added on 3/5/2012: # 1 Sealed report) (rll, ). (Entered: 03/05/2012)
224 ORDER − the attached report is to be filed under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr. (NEF − J. Vance)(car, ) (Additional attachment(s) added on 4/3/2012: # 1 Sealed Report) (car, ). (Entered: 04/03/2012)
225 ORDER: the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 5/1/2012.(rll, ) (NEF to Chief Judge Sarah S. Vance) (Additional attachment(s) added on 5/2/2012: # 1 Sealed report) (rll, ). (Entered: 05/02/2012)

Case: 2:10-cv-1088 As of: 05/19/2016 10:33 PM CDT 21 of 23

06/04/2012 07/02/2012 08/02/2012 09/05/2012 10/02/2012 11/05/2012 12/04/2012 01/03/2013 02/04/2013 03/01/2013 04/04/2013 05/03/2013 06/03/2013 07/02/2013

226 ORDER the Clerk is directed to file the attached report under seal as stated herein.. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 6/4/12. (NEF to Chief Judge Vance)(jjs, ) (Additional attachment(s) added on 6/4/2012: # 1 Sealed Report) (jjs, ). (Entered: 06/04/2012)
227 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 7/2/2012. (NEF: J. Vance)(lag, ) (Additional attachment(s) added on 7/6/2012: # 1 Sealed Report) (lag, ). (Entered: 07/06/2012)
228 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 8/1/12.(tbl) [NEF: Hon. Sarah S. Vance] (Additional attachment(s) added on 8/2/2012: # 1 Sealed Report) (tbl). (Entered: 08/02/2012)
229 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 8/1/12.(tbl) [NEF: Hon. Sarah S. Vance] (tbl) (Additional attachment(s) added on 9/5/2012: # 1 Sealed Report) (tbl). (Entered: 09/05/2012)
230 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 10/1/12. [NEF: Hon. Sarah S. Vance] (sek, ) (Additional attachment(s) added on 10/2/2012: # 1 Sealed Report) (sek, ). (Entered: 10/02/2012)
231 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 11/2/12.(tbl) [NEF: Hon. Sarah S. Vance] (Additional attachment(s) added on 11/6/2012: # 1 Sealed Report) (tbl). (Entered: 11/06/2012)
232 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 12/3/12.(tbl) (Additional attachment(s) added on 12/4/2012: # 1 Sealed Report) (tbl). [NEF: Hon. Sarah S. Vance] (Entered: 12/04/2012)
233 ORDER: The Clerk is to file the attached report UNDER SEAL. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 1/2/2013. (cc: SSV)(mmm) (Additional attachment(s) added on 1/3/2013: # 1 SEALED) (mmm). (Entered: 01/03/2013)
234 ORDER: The Clerk is to file the attached report UNDER SEAL. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 2/4/13.(tbl) [NEF: Hon. Sarah S. Vance] (Additional attachment(s) added on 2/4/2013: # 1 Exhibit) (tbl). (Entered: 02/04/2013)
235 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 3/1/13.(tbl) [NEF: Hon. Sarah S. Vance] (Additional attachment(s) added on 3/4/2013: # 1 Sealed Report) (tbl). (Entered: 03/04/2013)
236 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 4/2/13.(tbl) [NEF: Hon. Sarah S. Vance] (Additional attachment(s) added on 4/4/2013: # 1 Sealed Report) (tbl). (Entered: 04/04/2013)
237 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 5/2/13.(tbl) [NEF: Hon. Sarah S. Vance] (Additional attachment(s) added on 5/6/2013: # 1 Sealed Report) (tbl). (Entered: 05/06/2013)
238 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 6/3/13.(tbl) (Additional attachment(s) added on 6/3/2013: # 1 Sealed Report) (tbl). [NEF: Hon. Sarah S. Vance] (Entered: 06/03/2013)
239 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 7/1/13.(tbl) [NEF: Hon. Sarah S. Vance] (Additional attachment(s) added on 7/2/2013: # 1 Sealed

Case: 2:10-cv-1088 As of: 05/19/2016 10:33 PM CDT 22 of 23

08/02/2013 09/05/2013 10/02/2013 11/04/2013 12/04/2013 01/02/2014 02/05/2014 03/06/2014 04/03/2014 05/02/2014 06/04/2014 07/01/2014 08/05/2014

Report) (tbl). (Entered: 07/02/2013)
240 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 8/2/2013. (NEF: Hon. Sarah S. Vance)(mmm) (Additional attachment(s) added on 8/2/2013: # 1 Sealed Report) (mmm). (Entered: 08/02/2013)
241 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 9/4/13.(tbl) [NEF: Hon. Sarah S. Vance] (Additional attachment(s) added on 9/5/2013: # 1 Sealed Report) (tbl). (Entered: 09/05/2013)
242 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 10/1/2013. (NEF: Hon. Sarah S. Vance)(mmm) (Additional attachment(s) added on 10/2/2013: # 1 Sealed) (mmm). (Entered: 10/02/2013)
243 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 11/4/13.(tbl) [NEF: Hon. Sarah S. Vance] (Additional attachment(s) added on 11/8/2013: # 1 Sealed Report) (tbl). (Entered: 11/08/2013)
244 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 12/3/13.(tbl) [NEF: Hon. Sarah S. Vance] (Additional attachment(s) added on 12/5/2013: # 1 Sealed Report) (tbl). (Entered: 12/05/2013)
245 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 1/2/14.(tbl) [NEF: Hon. Sarah S. Vance] (Additional attachment(s) added on 1/3/2014: # 1 Sealed Report) (tbl). (Entered: 01/03/2014)
246 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 2/3/14.(tbl) (Additional attachment(s) added on 2/10/2014: # 1 Sealed Report) (tbl). (Entered: 02/10/2014)
247 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 3/5/14.(tbl) (tbl) [NEF: Hon. Sarah S. Vance] (Additional attachment(s) added on 3/6/2014: # 1 Sealed Report) (tbl). (Entered: 03/06/2014)
248 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 4/2/14.(tbl) [NEF: Hon. Sarah S. Vance] (Additional attachment(s) added on 4/8/2014: # 1 Sealed Report) (tbl). (Entered: 04/08/2014)
249 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 5/2/14.(tbl) [NEF: Hon. Sarah S. Vance] (Additional attachment(s) added on 5/5/2014: # 1 Sealed Report) (tbl). (Entered: 05/05/2014)
250 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 6/3/14.(tbl) [NEF: Hon. Sarah S. Vance] (Additional attachment(s) added on 6/4/2014: # 1 Sealed Report) (tbl). (Entered: 06/04/2014)
251 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 7/1/14.(tbl) (Additional attachment(s) added on 7/2/2014: # 1 Sealed Report) (tbl). (Entered: 07/02/2014)
252 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 8/4/14.(tbl) (Additional attachment(s) added on 8/6/2014: # 1 Sealed Report) (tbl). (Entered: 08/06/2014)

Case: 2:10-cv-1088 As of: 05/19/2016 10:33 PM CDT 23 of 23

08/18/2014
08/19/2014 09/08/2014 09/16/2014 10/08/2014 11/03/2014 12/01/2014 12/08/2014

253 MOTION for Termination of Consent Decree and Dismissal of Matter with Prejudice by Louisiana Department of Health and Hospitals, Mark Anders, michelle Duncan. Motion set for 9/24/2014 10:00 AM before Chief Judge Sarah S. Vance. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission)(Elliott, Neal) Modified filers on 8/19/2014 (mmm). (Entered: 08/18/2014)
254 Correction of Docket Entry by Clerk re 253 MOTION for Termination of Consent Decree and Dismissal of Matter with Prejudice. Filing attorney did not enter additional filer(s) in the blank text box on the docket text screen. For future filings of joint motions, additional filers must be added in this manner. Clerk added filer(s). (mmm) (Entered: 08/19/2014)
255 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 9/3/14.(tbl) (Additional attachment(s) added on 9/8/2014: # 1 Sealed Report) (tbl). (Entered: 09/08/2014)
256 RESPONSE to Motion filed by Advocacy Center for the Elderly and Disabled re 253 MOTION for Termination of Consent Decree and Dismissal of Matter with Prejudice . (Hahn, Ellen) (Entered: 09/16/2014)
257 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 10/7/14.(tbl) [NEF: Hon. Sarah S. Vance] (Additional attachment(s) added on 10/8/2014: # 1 Sealed Report) (tbl). (Entered: 10/08/2014)
258 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 11/3/2014.(tbl) [NEF: Hon. Sarah S. Vance] (Additional attachment(s) added on 11/3/2014: # 1 Sealed Report) (tbl). (Entered: 11/03/2014)
259 ORDER that the Clerk is directed to file the attached report under seal as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 12/1/2014.(tbl) [NEF: Hon. Sarah S. Vance] (Additional attachment(s) added on 12/2/2014: # 1 Sealed Report) (tbl). (Entered: 12/02/2014)
260 ORDER AND REASONS − that the Consent Decree and Amended Consent Decree are hereby terminated. IT IS FURTHER ORDERED that this case is DISMISSED WITH PREJUDICE.. Signed by Chief Judge Sarah S. Vance on 12/8/14. (NEF: Mag 2) (jjs) (Entered: 12/08/2014)