IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

________________________________________

)

LACOYA FLUELLEN, FRANKLIN ALLEN, )

ANTARES BANKS, MCKLOYD BROOKS, )

ROME BURNETT, LANE CHERRY,

)

CHADWICK COCHRAN, ALBERT LEE

)

ELLISON, EDDIE EVANS, ROBERT

)

HAMPTON, CURTIS HERRING, JONAS

)

HOPKINS, JEFFREY HUGHES, ALBERT )

JONES, NORMAN MADDOX, JEFFREY

)

MCDONALD, RICHARD RALPH, FRANKLIN )

RIVERS, LARRY SMITH, GRADY VAUGHN )

and TONY WISE, on behalf of themselves and all )

persons similarly situated,

)

Plaintiffs

)

)

v.

)

)

)

JIM WETHERINGTON, Commissioner of the )

Georgia Department of Corrections;

)

)

)

JAMES DEGROOT, Statewide Mental Health )

and Mental Retardation Program Supervisor for )

the Georgia Department of Corrections;

)

)

MICHELLE MARTIN, Warden of Phillips

)

) FIRST AMENDED COMPLAINT (REFILED)
Civil Case No.: 1:02-CV-479-JEC
Class Action

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State Prison;

)

)

CYNTHIA NELSON, Deputy Warden for

)

Security at Phillips State Prison;

)

)

JAMES BROWN, Deputy Warden for Care and )

Treatment at Phillips State Prison; and )

)

ELEANOR BROWN, Director of Mental Health )

at Phillips State Prison, in their official capacities, )

)

Defendants

)

________________________________________ )

I. INTRODUCTION

1. This suit is brought by prisoners at Phillips State Prison who are

mentally ill and/or mentally retarded, seeking protection from physical, mental and

sexual abuse; from excessive use of force; from improper and prolonged placement

in administrative and disciplinary segregation for manifestations of their mental

impairments; and from the ongoing risk of suicide, self-injury and death that now

exists at the prison.

2. Plaintiffs and members of the class suffer from mental illnesses, such

as schizophrenia and bipolar disorder, which cause them to experience delusions or

other symptoms that interfere with their ability to comprehend and relate rationally

to what is happening around them. Some plaintiffs and members of the class are

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also mentally retarded; their intellectual functioning is so limited that they are not capable of understanding and processing information beyond a basic level. In addition, some plaintiffs and class members take extremely powerful anti-psychotic medications – in some instances against their will – which impair their thought processes. All of the plaintiffs and the class they seek to represent are impaired with regard to their abilities to cope with the demands of life within the prison and are in need of monitoring, care and treatment.
3. The approximately three hundred mentally ill and/or mentally retarded inmates at the prison do not receive monitoring, care and treatment that is individualized to meet the specific mental health needs of inmates. Instead, the prison staff attempts to control the mentally ill and the mentally retarded by force, intimidation and an excessive use of physical and medical restraint and seclusion. Prisoners who are mentally ill and/or mentally retarded are punished for manifestations of their impairments and limitations which are beyond their control. They are also punished for failure to comply with institutional rules even though it is extremely difficult or impossible for some prisoners to comply with the rules because of their mental impairments and the abusive and chaotic environment of the prison. Prisoners are improperly punished by excessive force, mental abuse,
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psychological intimidation and placement in administrative and disciplinary segregation for extended and repeated periods, where isolation and discrimination causes their mental health to decline even further.
4. The defendants are six public officials who bear final responsibility for the treatment, care and custody of the mentally ill and mentally retarded prisoners at Phillips State Prison. Through their practices, policies and customs, these officials have acted with deliberate indifference to the systematic physical and mental abuse and mistreatment of named plaintiffs and the plaintiff class. They have failed to protect class members from the substantial risk of sexual abuse and serious physical abuse, including death, and at the hands of other prisoners, or from the substantial risk of self-harm and suicide.
5. Accordingly, the plaintiffs bring this action on behalf of themselves and all other similarly situated prisoners at Phillips State Prison in Buford, Georgia, pursuant to 42 U.S.C. § 1983, the First, Eighth and Fourteenth Amendments to the United States Constitution, 29 U.S.C. § 794 (the Rehabilitation Act), and 42 U.S.C. § 12131 et seq. (the Americans with Disabilities Act of 1990), seeking declaratory and injunctive relief.
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II. JURISDICTION 6. This action is brought pursuant to 42 U.S.C. § 1983, 29 U.S.C. § 794, and 42 U.S.C. § 12131 et seq. This Court has jurisdiction over plaintiffs' claims pursuant to 28 U.S.C. §§ 1331 and 1343, and the United States Constitution. 7. This Court is authorized to grant declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202.
III. VENUE 8. The Northern District of Georgia is an appropriate venue for this action under 28 U.S.C. § 1391(b)(2) because a "substantial part of the events or omissions giving rise to the claim[s] occurred" in this district, at Phillips State Prison in Buford, Georgia.
IV. PARTIES 9. The twenty-one named plaintiffs are currently in Georgia Department
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of Corrections (“GDC”) custody at Phillips State Prison, where they are subjected to unconstitutional and unlawful treatment. The named plaintiffs seek to represent themselves and all other current and future prisoners at Phillips State Prison whose abilities to cope with the demands of life within the correctional environment are impaired or in need of monitoring due to mental illness and/or mental retardation. The named plaintiffs are individuals with a disability, as that term is defined in 29 U.S.C. § 705(9) and 42 U.S.C. § 12102.
10. Defendant JIM WETHERINGTON is Commissioner of the Georgia Department of Corrections. As Commissioner, WETHERINGTON is responsible for the daily supervision of operations at the Georgia Department of Corrections. He is the highest ranking official in the Georgia Department of Corrections. Defendant WETHERINGTON is sued in his official capacity as Commissioner of the Georgia Department of Corrections.
11. Defendant JAMES DEGROOT is the Statewide Mental Health and Mental Retardation Program Supervisor. Defendant DEGROOT is responsible for developing, implementing and overseeing a comprehensive system of mental health and mental retardation services to treat the seriously mentally ill and mentally retarded inmates and probation detainees in accordance with Georgia Department of
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Corrections policy and procedures and professional standards of care. Defendant JAMES DEGROOT is sued in his official capacity as Statewide Mental Health and Mental Retardation Program Supervisor.
12. Defendant MICHELLE MARTIN is Warden of Phillips State Prison. Defendant Martin is responsible for the day-to-day operations of Phillips. She, in conjunction with the Deputy Warden for Security, establishes and implements conditions, practices and policies of the prison relating to security. Defendant MARTIN is sued in her official capacity as Warden of Phillips State Prison.
13. Defendant CYNTHIA NELSON is Deputy Warden for Security at Phillips State Prison. Defendant NELSON is responsible for the general supervision and control of the prison’s security staff. She, in conjunction with the Warden, establishes and implements conditions, practices and policies of the prison relating to security. Defendant NELSON is sued in her official capacity as Deputy Warden of Security at Phillips State Prison.
14. Defendant JAMES BROWN is Deputy Warden for Care and Treatment at Phillips State Prison. Defendant BROWN has authority over the operation of all medical, mental health and mental retardation programs at Phillips State Prison. As Deputy Warden for Care and Treatment, defendant BROWN is
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responsible for the general supervision and control of the prison’s medical staff. Defendant BROWN is sued in his official capacity as Deputy Warden for Care and Treatment at Phillips State Prison.
15. Defendant ELEANOR BROWN is Director of Mental Health at Phillips State Prison. Defendant BROWN is responsible for the general supervision and control of the prison’s psychiatric staff. Defendant BROWN is sued in her official capacity as Director of Mental Health at Phillips State Prison.
16. At all times relevant to the events described herein, defendants were employed by and acted under color of law of the state of Georgia.
V. CLASS ACTION ALLEGATIONS 17. The plaintiffs bring this action on behalf of themselves and on behalf of all others who are similarly situated pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure. The class consists of all individuals whose abilities to cope with the demands of life within the correctional environment are impaired or in need of monitoring due to mental illness and/or mental retardation, who are now or will be in the future incarcerated at Phillips State Prison. 18. The class is so numerous that joinder of all members is impracticable.
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The prison houses approximately three hundred mentally ill and/or mentally retarded prisoners. This population changes often as prisoners are transferred in and out of the prison or released.
19. There are questions of law and fact common to the class. These include the nature and constitutionality of conditions, practices, policies and treatment of mentally ill and/or mentally retarded persons at Phillips State Prison.
20. The conditions, policies, practices and treatment challenged in this action apply with equal force to the named plaintiffs and all members of the class so that the claims of the named plaintiffs are typical of those of the class.
21. The named plaintiffs will fairly and adequately represent the interests of the class. They possess the requisite personal interest in the subject matter of the lawsuit. They are represented by a law office that is experienced in class-action litigation involving excessive use of force in prisons and jails, and prison and jail conditions, including the provision of constitutionally adequate medical and mental health care.
22. Defendants have acted and refused to act on grounds generally applicable to the class, thereby making appropriate final declaratory and injunctive relief with respect to the class as a whole.
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VI. STATEMENT OF FACTS A. Background.
23. Phillips State Prison is located in Buford, Georgia, with 1,036 beds in the main building and approximately 150 beds in an Annex building. Many of the men at Phillips State Prison have been found to be “guilty but mentally ill” under § 17-7-131 of the Georgia Code. Phillips State Prison is one of only two prisons in the Georgia Department of Corrections that is designated and purportedly equipped to confine and treat the most severely mentally ill male prisoners in the State of Georgia. Such prisoners are classified as mental health “Level IV”. Prisoners at other prisons whose psychiatric condition deteriorates to a Level IV classification cannot be accommodated at those prisons; therefore, those prisoners are transferred to Augusta State Medical Prison or Phillips State Prison for treatment and incarceration. Phillips State Prison also incarcerates prisoners who are classified at lower mental health levels, known as Level II and Level III patients.
24. With the exception of the probation detainees described below, nearly all prisoners who are mentally ill and/or mentally retarded are housed together at Phillips State Prison in buildings D1, D2, E1, E2, F1, F2, and G2. Approximately
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twelve cells in the F1 building are designated as Acute Care Units (“ACU”). Another five cells in the infirmary are designated as Crisis Stabilization Units (“CSU”).1 Administrative segregation, protective custody and punitive isolation cells for mentally ill and/or mentally retarded prisoners are located in D2 and F1. Mentally ill probation detainees are housed together in an open dormitory in building 1 of the Annex (“Annex-1"), unless they are locked down in an isolation unit in D or F buildings or in CSU.
25. Mental health patients at Phillips State Prison suffer from illnesses including, but not limited to, schizophrenia, schizoaffective disorder, major depressive disorder, bipolar disorder, psychotic disorder not otherwise specified (“NOS”), and depressive disorder NOS, and post-traumatic stress disorder. Many of the mental health patients at Phillips State Prison are mentally retarded in that they have limited intellectual functioning far below that of an average person, which further compromises their ability to cope with the ordinary demands of life within the correctional environment.
26. Mentally ill prisoners at Phillips State Prison also include
1 The Georgia Department of Corrections’ Standard Operating Procedure VF01-0010 specifies that mental health patients who are suffering an acute mental health crisis are classified as Level V, and must be placed in a Crisis Stabilization Unit.
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approximately 50 individuals who violated the conditions of their probation and were sentenced as probation detainees to Probation Detention Centers (“PDCs”), but because of their mental illnesses have been transferred to be held in detention at Phillips State Prison. These individuals were sentenced to detention at the West Georgia PDC, Larmore PDC, Northwest PDC, Rockdale-Dekalb PDC, Camp Phillips PDC, Davis PDC, or the Whitworth PDC. When such individuals displayed symptoms of mental illness, or requested mental health treatment, however, they were transferred to Phillips State Prison.
27. According to the Georgia Department of Corrections’s Health Services Overview for 2001, defendants estimate that approximately 14% of the state’s total male prison population consists of mental health patients. The provision of humane and adequate medical and mental health treatment and services to these patients is essential to the orderly administration of the prison system as a whole, and for the protection of the general public when mentally ill and mentally retarded individuals return to the community. Nevertheless, mental health programming is treated as an extraneous expense by the defendants, who rely upon kickbacks from prisoners’s collect phone calls to fund services for prisoners with mental illness.
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B. Mentally ill and/or mentally retarded prisoners are subjected to systematic mental abuse and physical brutality at the hands of correctional staff. 28. The correctional staff who have contact with mentally ill and mentally
retarded prisoners at Phillips State Prison have not consistently received adequate specialized training to safely manage the special needs and problems of mentally ill and mentally retarded prisoners, and to recognize signs and symptoms of mental illness. Instead, prison staff use force and threats of force indiscriminately to control and terrorize this vulnerable population.
29. Due to the defendants’ failure to train, supervise and discipline prison staff, staff members frequently respond to any perceived misbehavior of mentally ill and mentally retarded prisoners by physically assaulting them or threatening to beat or kill them if they do not change their behavior. Often in such instances, prison staff issue disciplinary reports against the prisoners in order to justify their unnecessary brutality.
30. In some cases, the unnecessary and inappropriate use of physical force and intimidation by prison staff provokes the mentally ill and/or mentally retarded prisoner, who is already having difficulty coping with the prison environment. This
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provocation creates an increased risk that the prisoner will attempt to defend himself from a threat or perceived threat, necessitating an even greater use of force to control the prisoner. Mentally ill and/or mentally retarded prisoners who are engaged in these physical altercations with correctional staff are often beaten and restrained in shackles and handcuffs, or placed in five-point restraints and involuntarily injected with Haloperidol (“Haldol”) or other anti-psychotic drugs. In several instances, correctional staff have continued to beat prisoners even after the prisoner was physically restrained.
31. Some staff at Phillips State Prison sexually abuse or threaten to sexually abuse mentally ill and/or mentally retarded prisoners by taunting them with sexual gestures and remarks, making inappropriate advances towards them, or forcing them to engage in sexual conduct.
32. Defendants do not properly discipline, train or supervise, prison staff who use inappropriate and indiscriminate violence and intimidation against or sexually abuse mentally ill and/or mentally retarded prisoners. Defendants are aware of this conduct and the harm it causes mentally ill and/or mentally retarded prisoners, but nevertheless fail to respond adequately. As a result, these prisoners live in constant fear of unjustified and unpredictable physical violence at the hands
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of the prison staff, and do not have anywhere to turn to obtain relief from this
violence.
33. The following incidents, presented upon information and belief, took
place within the ten months preceding this complaint, and typify the physical and
verbal abuse to which prisoners who are mentally ill and/or mentally retarded are
regularly subjected at Phillips State Prison:
A. In or around May 2001, Prisoner 1, who is mentally ill, was requesting a grievance form from his counselor in order to write a formal grievance about having been raped by five prisoners three months earlier in Autry State Prison. When an officer came by and ordered everyone to lock down, Prisoner 1 felt it was imperative that he get the grievance form before it was too late to file a grievance, so he continued talking with his counselor. The officer grabbed Prisoner 1's arm, Prisoner 1 pulled his arm back, and the officer called for backup from another officer. Together, the two officers threw Prisoner 1 to the ground and broke his nose. Afterwards, Prisoner 1 was stripped naked and locked down in an isolation cell with nothing but a metal bed and a paper gown. Prisoner 1 filed an administrative grievance about this incident, but never received a response to his grievance. He has asked his counselors about the grievances, but has not gotten a response from them either.
B. On or about May 31, 2001, Prisoner 2, who is mentally ill, spit on a counselor in the presence of a lieutenant. In response, the counselor and lieutenant both spit on Prisoner 2. The lieutenant then entered the cell, pushed Prisoner 2 and kicked his feet out from under him, put his knee in Prisoner 2's back, grabbed his head and bashed it against the floor. After placing Prisoner 2 in handcuffs and leg shackles, the lieutenant walked Prisoner 2 through the sallyport gate. He then put Prisoner 2 in a headlock and dragged the prisoner in leg shackles on a forced run to the second gate, about 75 feet away. At the infirmary, Prisoner 2 was put in five-point
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restraints and shot with Haldol. Prisoner 2 filed an administrative grievance about this incident and filed a timely appeal.
C. In or around July 2001, while locked down in an isolation cell, Prisoner 3 was unable to get any medical attention for a toothache. He banged on his cell door until two officers responded. They placed Prisoner 3 in cuffs and took him to the shower area. From the shower area, a different two officers escorted Prisoner to an isolation cell. After Prisoner 3 complied with an order to remove all his clothing and was placed in a paper gown, the officers dragged Prisoner 3 behind the fence separating the strip cells from the regular cells. One officer took a swing at Prisoner 3 as the other officer grabbed Prisoner 3 from behind and threw him to the ground. While on the ground, Prisoner 3 was stomped on and kicked by the two officers. Prisoner 3 was issued a disciplinary report. Internal affairs investigated the incident, and the disciplinary report was subsequently dismissed. Prisoner 3 is housed in one of the mental health units.
D. In or around July 2001, Prisoner 4, who is mentally ill, stopped up his toilet and flooded his cell because his mental health medication was making him feel sick. A lieutenant came to Prisoner 4's cell and told him, "I'll beat your ass for that." The officer accompanying the lieutenant left the cell with Prisoner 4's cellmate. Now alone in the cell with Prisoner 4, the lieutenant ordered Prisoner 4 to sit down. When Prisoner 4 refused, the lieutenant put him in a choke hold, struck him with his fists, and kicked him, breaking one of Prisoner 4's teeth. Prisoner 4 then refused to take a shot of Haldol, and was put in five-point restraints. The lieutenant who beat him in his cell came and struck him again while he was in five-point restraints, knocking out Prisoner 4's front bottom tooth.
E. In or around August 2001, Prisoner 5, who is mentally ill, was placed in handcuffs and ordered to pack up his belongings so he could be transferred to another cell. A second officer entered Prisoner 5's cell and jumped him from behind. Still in handcuffs, Prisoner 5 attempted to stab the officer with a pen. The officer struck Prisoner 5 numerous times, knocking his teeth loose, bloodying his nose and mouth, and leaving him in severe pain. A third officer watched the assault but did not intervene. As the
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officers left the cell, they told Prisoner 5 that they would assault him again. Prisoner 5 wrote a grievance and directed it to Defendant Nelson, who told him that she believed his story. Prisoner 5 never received a response to his grievance.
F. On or around September 11, 2001, Prisoner 6 was on the 18th day of a 14-day lockdown sentence. When he could not get a counselor to talk to him about why he remained on lockdown status, Prisoner 6 kicked the door of his cell. Prisoner 6 is mentally ill. An officer ordered Prisoner 6 to "stop kicking the door or I'll beat your ass." The officer and a lieutenant then entered the cell of Prisoner 6. The officer kicked the prisoner’s feet out from under him, and then hit him in the face with a pair of metal handcuffs. Prisoner 6 was then dragged to the shower, where he was left handcuffed and with shackles around his legs. Officers yelled at Prisoner 6 in an effort to intimidate him while he was handcuffed and shackled. Prisoner 6 attempted to file a grievance on or around September 11, 2001, about this incident, but his counselor talked him out of it. Prisoner 6 filed a grievance on or around November 5, 2001, and in late November 2001, he received a response stating that the grievance had been forwarded to Internal Affairs.
G. On or about September 17, 2001, Prisoner 7, who is mentally ill, was roused from sleep by an officer. He was struck from behind by the officer, and then handcuffed by a second officer. The first officer then hit Prisoner 7 in the face with a pair of handcuffs, and then again with his radio. A third officer entered the cell and stood on the prisoner’s legs. The first officer struck Prisoner 7 again in the face. Prisoner 7 was written up with a disciplinary report. The day Prisoner 7 was placed in disciplinary lockdown (D2), he requested a grievance form from his counselor. The counselor did not give him a form.
H. On or around November 2, 2001, Prisoner 8, who is mentally ill, was punched in the face, kicked, and had his head knocked against the wall by two lieutenants and a sergeant. Prisoner 8 is mentally ill. Following the assault, Prisoner 8 requested that he be sent to the infirmary to receive medical care. He was not sent. Prisoner 8 filed a grievance and believes it was sent to Internal Affairs.
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I. On or around November 5, 2001, Prisoner 9 was kicking on his cell door asking to speak to a lieutenant about a recent disciplinary report he had received for refusing to take his hands out of his pockets. An officer entered the cell of Prisoner 9, grabbed him by his throat, and threw him against the wall. The officer than pushed Prisoner 9 to the ground and stepped on his hand. He kicked Prisoner 9 in his side at least once before allowing him to get up. Prisoner 9 is a mentally ill prisoner housed in general population. Prisoner 9 wrote a grievance about this incident and appealed it.
J. On or around November 8, 2001, prisoners from the E building were coming back from the gym. An officer stopped Prisoner 7, a mentally ill prisoner housed in building E, and asked him to remain outside while everyone went back into the unit. The officer told Prisoner 7 to take a shower and change his shirt. The officer then demanded that Prisoner 7 show him his penis. Prisoner 7 became scared and walked away. The officer gave Prisoner 7 a disciplinary report for failure to follow instructions and insubordination. Prisoner 7 filed a grievance on the sexual harassment about two or three days after it happened, but he never received a response. When he let out of disciplinary lockdown, he asked his counselor about his grievance, but the counselor said he did not know anything about it.
K. On or around November 15, 2001, an officer accused Prisoner 10, who is mentally ill, of attempting to stab the officer. Three officers and a lieutenant came to Prisoner 10 and ordered him to cuff up through the tray slot. Fearful for his safety, Prisoner 10 said he did not want to cuff up, believing the officers would have to videotape their own actions if Prisoner 10 refused to cuff up. The lieutenant told him, “Cuff up or I’ll make you,” as he and the officers opened the door. One of the officers threw Prisoner 10 on the floor, and his head hit the concrete floor. The lieutenant continued to curse at Prisoner 10, and put him in a choke hold until Prisoner 10 passed out. When Prisoner 10 regained consciousness, he was being pushed into the shower while handcuffed. He hit his head against the wall of the shower. An officer ordered Prisoner 10 to take a shower to wash off the blood from his forehead and mouth. Prisoner 10 filed a grievance about this incident, which was returned to him on or around the end of December 2001, stating that it was forwarded to Internal Affairs. Prisoner 10 also appealed the disciplinary report he
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received after this incident.
L. In or around November 2001, Prisoner 11, who is mentally ill, was in an isolation cell when a lieutenant entered his cell, grabbed him by his shirt, and jerked his feet off the ground. The lieutenant told Prisoner 11, “I’m going to whoop your ass and make your brains swell up in your head.” The lieutenant set Prisoner 11 down, then pushed the prisoner’s face into the cell door, injuring him.
M. In or around November 2001, Prisoner 12 exchanged argumentative words with a lieutenant. The lieutenant punched Prisoner 12 in the jaw, slammed him to the ground and kneed him in the face. Prisoner 12 is mentally ill.
N. On or around December 14, 2001, Prisoner 13 was pulled out of his morning mental health class at the annex and sent up the hill to the “shakedown shack.” On the way up the hill, Prisoner 13 vomited, and some of the vomit hit the boot of a Certified Emergency Response Team (“CERT”) officer. The officer cursed at Prisoner 13. At the shakedown shack, the CERT officer pushed Prisoner 13 against the fence, choked him until he fell to the ground, then grabbed Prisoner 13 neck with both hands and choked him. The CERT officer then took Prisoner 13 inside the building, slammed him against the wall, choked him again, and threw him to the floor. After Prisoner 13 was stripped, the CERT officer ordered Prisoner 13 to pick up his clothes, and “karate-chopped” him on the back of his neck when Prisoner 13 reached for his clothes. A second CERT officer participated in the beating inside the building, and a third officer saw the beatings and did not intervene. The CERT officer yelled at Prisoner 13, “The only convict I like is a dead convict.” Prisoner 13 was handcuffed throughout the beatings. Internal Affairs took a statement from Prisoner 13 on or around January 21, 2002. He could not file a timely grievance about this incident because he was locked down for two weeks and did not have a writing instrument.
34. These practices are ongoing at the Phillips State Prison. Plaintiffs and
other class members continue to suffer the treatment typified by the incidents
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described above.
C. Defendants fail to take reasonable measures to protect class members from the risk of serious physical injury - including death, physical assault, and sexual abuse - at the hands of fellow prisoners. 35. Prisoners at Phillips State Prison who are mentally ill and/or mentally
retarded are subjected to physical and sexual abuse and intimidation by other prisoners. Defendants know about the abuse and fail to take even the most basic steps to prevent it. The constant threat of sexual assault leads to an increased risk of violence among Plaintiffs and to further decline in their mental health.
36. The defendants place mentally ill and/or mentally retarded prisoners together in administrative and disciplinary segregation cells without adequate consideration of whether the prisoners are a danger to one another and without taking proper precautions to prevent physical and sexual assault.
37. Phillips State Prison does not have sufficient correctional staff who are adequately trained to monitor and supervise mentally ill and/or mentally retarded prisoners who may pose a risk of violence to other prisoners. Nor does the prison have sufficient correctional staff who are adequately trained to protect those mentally ill and/or mentally retarded prisoners who are particularly vulnerable to physical and sexual assault and intimidation.
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38. Sexual abuse among prisoners is condoned, ignored, or encouraged by prison staff, who fail to take adequate steps to reduce or prevent the incidence of abuse. For example, when Prisoner 14 first arrived at Phillips State Prison in 1999, he was raped repeatedly by several prisoners. He was transferred to Augusta State Medical Prison for over a week as a result of the injuries he sustained during this assault. Since this incident, Prisoner 14 as been raped again by other prisoners. In addition, Prisoner 14, who is seriously mentally ill and mildly retarded, feels compelled to exchange sex for commissary items such as cigarettes and coffee because he has no money. As a result of these numerous sexual encounters and assaults at Phillips State Prison, Prisoner 14's mental health has declined. Defendants have not taken adequate steps to prevent the sexual abuse of prisoners such as Prisoner 14. Prisoner 14 asked his counselor in early December 2001 for a grievance form, and the counselor said he would bring one back, but never did.
39. Prisoners who are particularly vulnerable to physical and sexual assault and intimidation include juveniles, especially those with mental illness or mental retardation. When these juveniles and other vulnerable prisoners attempt to protect themselves from harm, there is a substantial risk that they will be assaulted by guards and issued a disciplinary report.
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40. Due to defendants’ deliberate indifference to risk of harm, in the past
ten months at least two prisoners have been killed by other prisoners at Phillips
State Prison:
A. On or around April 3, 2001, Ricky Lamar was killed by another prisoner while working outside the Annex. Ricky Lamar died of massive head injuries. Prisoners working in and around the Annex are consistently in contact with mentally ill probation detainees housed in the mental health dorm of the annex.
B. On or around October 21, 2001, David Strickland was killed while double-bunked in an administrative segregation cell. Before he died, David Strickland had repeatedly told guards that he was fearful for his life and asked them to move him from the cell. Both Mr. Strickland and his cellmate, who was accused of causing the death of Mr. Strickland, suffered from serious psychiatric disorders, and had been placed in segregation for disciplinary reasons.
41. Because of practices described herein, and because of defendants’ deliberate indifference to the threats created by these ongoing practices, there is substantial likelihood of similar deaths in the future.
D. Defendants fail to take reasonable measures to protect mentally ill prisoners from the risk of self-inflicted serious physical harm, including extreme forms of self-mutilation and suicide.
42. Because of their mental illness, many mental health patients at Phillips
State Prison cut themselves with razors and other sharp instruments. Prisoners who
hurt themselves are punished for this behavior, and do not receive appropriate
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treatment for their underlying mental health problems. The punitive response to and inadequate treatment of self-mutilating prisoners result in repeated and escalating episodes of self-injury.
43. Mental health patients who enter Phillips State Prison with a known history of serious suicide attempts and other self-injurious behaviors, as well as those who repeatedly cut or otherwise injure themselves while at Phillips State Prison, are not monitored adequately to prevent further attempts. One extreme form of self-injurious behavior engaged in by mental health patients at Phillips State Prison includes “cutting parties,” where several prisoners engage in self-mutilation by repeatedly cutting themselves. Defendants are aware of self-cutting and, in particular, “cutting parties”; yet, razors and other sharp metal objects are readily available and their use inadequately monitored.
44. Defendants’ failure to monitor and protect mental health patients from self-injury has resulted in serious injuries and death that could have been prevented. The following incidents, presented upon information and belief, demonstrate the actual harm that has already resulted from the lack of adequate monitoring, supervision and treatment of mental health patients:
A. Prisoner 12 arrived at Phillips State Prison with a known history of numerous serious suicide attempts using sharp objects to cut and gouge
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himself. On or around September 21, 2001, Prisoner 12 was given a razor from the unit control room. He took the razor to his cell, cut his arms several times, and made a four-inch gash on his leg. The CERT team took Prisoner 12 to the infirmary and placed him in four-point restraints, where he remained from that Friday evening until Monday morning when a doctor came on duty and was able to evaluate him. Prisoner 12 did not file a grievance about his self-cutting, because his self-cutting has been treated as a disciplinary infraction.
B. Prisoner 15 cut himself on his arms, throat, and chest on numerous occasions while at Philips SP, even while he was in an administrative segregation unit. Although he was placed in a crisis stabilization unit each time he cut himself at Phillips State Prison, the treatment he received in this unit and the follow-up treatment he received after he was stabilized did not address his mental health needs. Prisoner 15 did not file a grievance about his self-cutting (self-cutting is a disciplinary infraction).
C. In or around July 2001, David Moates died during a “cutting party.” Before the death of Mr. Moates, a mental health aide informed defendant Nelson that there was a knife blade in a certain cell. Despite the warning, Mr. Moates was placed in that cell. Mr. Moates cut himself so severely that he bled to death. The prison has concluded that his subsequent death was a suicide. Mr. Moates obviously could not file a grievance about this incident prior to his death.
45. Defendants’ failure to take reasonable measures to protect class members from self-inflicted harm is an ongoing omission and creates an impermissible risk of serious physical harm, including extreme instances of selfmutilation and suicide.
E. Defendants fail to provide prisoners who suffer from psychiatric disorders such as schizophrenia, bipolar disorder and major depressive disorder constitutionally adequate assessment, evaluation, treatment, and monitoring for their mental illnesses.
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46. Treatment plans for mental health patients at Phillips State Prison are not designed to meet the specific treatment needs of the mentally ill individual, but rather serve the need of the prison for convenience.
47. Defendants do not provide adequate mental health staff to deliver individualized mental health treatment to prisoners and probation detainees suffering from serious mental illnesses such as schizophrenia, bipolar disorder and major depression. The number of mental health counselors, mental health nurses, psychologists, and psychiatrists is insufficient to meet the basic mental health needs of the mentally ill prisoners at Phillips State Prison.
48. Supportive counseling, when it occurs at all, generally consists of cursory “interviews” in public spaces where there is no possibility of confidential conversation. Because of high caseloads or for other reasons, mental health counselors in the “supportive living units” do not develop, implement or monitor individualized treatment plans for prisoners in their care. Meaningful mental health counseling is in such short supply that prisoners are often pressed into service as “mental health aides” to assist in counseling other prisoners with serious mental illnesses.
49. Defendants do not provide adequate access to mental health therapy
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and counseling for mentally ill prisoners who require these services. In particular, Phillips State Prison lacks rehabilitation services, individual therapy, sexual abuse therapy, and other appropriate programming to serve the individual mental health needs of its patients.
50. Because Phillips State Prison is responsible for securing mentally ill probation detainees from the six probation detention centers named in paragraph 26, and is one of only two men’s state prisons providing any mental health programming for Level IV patients, the defendants shuffle prisoners between the various crisis stabilization units, acute care units, segregation units, and supportive living units to make room for the constant influx of prisoners and detainees transferred from other institutions. As a result, housing assignments for mentally ill prisoners are often determined more by the administrative needs of the prison and the Georgia Department of Corrections than by the mental health needs of the prisoner.
51. Mentally ill patients at Phillips State Prison are not informed of their right to refuse medication nor are they afforded sufficient protection from involuntary administration of medication, despite the existence of written Standard Operating Procedures (“SOPs”) that, if followed by prison security and medical
26

staff, might provide adequate protection. Involuntary administration of medication includes not only those instances where an administrative review board has determined medication may be forced, but also the much more common practice of security staff and mental health counselors forcing prisoners to take medication by telling them they will be stripped of all their clothing and placed in an isolation cell, “taken care of” by the CERT team, or otherwise punished if they refuse.
52. There is inadequate review of the mental health progress of patients who are involuntarily medicated, resulting in prolonged and unnecessary use of forced medication. Both official and ad hoc decisions to forcibly medicate prisoners are made for the convenience of staff and not for the protection or treatment of the mental health patient.
53. Upon information and belief, the following incidents typify the inadequately supervised and cavalier use of forced medications at Phillips State Prison:
A. Prisoner 16 suffers from schizoaffective disorder and has been on Haldol since 1992, when he was at Augusta State Medical Prison. He would like to discontinue the Haldol shots, but has been told repeatedly that he will be locked down in an isolation cell if he refuses to take the shot. When Prisoner 16 was placed in disciplinary lockdown (D2), he twice asked for a grievance form because he had been locked down for so long. Both times, the counselors agreed to bring him one, but never did.
27

B. After Prisoner 1 was assaulted and had his nose broken by two officers in or around May 2001, as described in paragraph 33.A., he was stripped naked and locked down in an isolation cell with nothing but a metal bed and a paper gown. He did not receive any mental health counseling. Rather, Prisoner 1 was prescribed a total of fourteen pills. He does not know the names or effects of these drugs. He informed the prison that he would like more counseling and does not want to take all of these medications. Prison staff informed Prisoner 1 that he would be returned to the isolation cell if he refuses to take all the pills.
C. Prisoner 17 was forced to take monthly Haldol injections against his will. On or around November 26, 2001, Prisoner 17 filed a grievance requesting that he no longer be forced to take Haldol shots. A week after he submitted the grievance, Prisoner 17 was ordered to remove all his clothing and was placed in an isolation cell containing nothing but a metal bunk. Prisoner 17 continues to receive Haldol shots. Six weeks after filing his grievance, Prisoner 17 had not received any response.
D. Prisoner 4 was placed in five-point restraints in or about July 2001 for refusing to take a Haldol shot. While restrained, he continued to verbally refuse to take any medication. Despite his protests, he remembers being administered two Haldol shots and additional pills.
E. Prisoner 18 was locked down in an isolation cell on or around November 2001 for refusing to take his medication for schizophrenia. He stayed in lockdown for two weeks, and nurses or counselors told him that he would never get out unless he took his medication. He was transferred out of lockdown when he agreed to start taking the medications, but was soon moved back to a more restrictive setting when he refused to take his medications. Prisoner 18 would like to discontinue his medication and receive more counseling, but has been told that he will be thrown into a isolation cell and forcibly medicated if he does not continue to take his medication. Prisoner 18 has filed a grievance about being forced to take medication. It is uncertain whether he has received a response.
F. Prisoner 19, who is severely mentally ill and mentally retarded,
28

strongly believes that he will be killed by guards if he refuses to take a Haldol shot every two weeks and pills every day. Accordingly, he submits to the pills and Haldol shots. On some occasions, Prisoner 19 has not been able to get a grievance form from his counselor or his counselor has told Prisoner 19 that the issues he wants to complain about are “not grievable.” One time Prisoner 19 was able to write a grievance about his mental health treatment, but Defendant Nelson wrote back to him that the allegations did not support the facts. When Prisoner 19 asked Defendant Nelson to appeal the grievance, she responded that the grievance did not need to be appealed.
G. Prisoner 20 is involuntarily administered Haldol every two weeks, because he is concerned that he has soap in his saliva, and has expressed this concern to mental health staff. However, he is not functionally impaired, nor is he a danger to himself or others. Prisoner 20 has repeatedly requested mental staff not to forcibly medicate him with Haldol because it impairs his ability to concentrate. Prisoner 20 asked his counselor for a grievance to write about needing medication for the side effects of his mental health medication. His counselor told him that this was not a grievable issue. He also wanted to grieve the fact that he was forced to take injections of Haldol. Prisoner 20 was told by his counselor that this was not a grievable issue either.
54. The practice of forcibly medicating mental health patients against their
will, even when the patient is not functionally impaired or a threat to the safety of
himself of others, is ongoing and continues to affect plaintiffs and other class
members.
55. The wholesale subordination of treatment goals to security interests in
the forced-medication of mental health patients negates any positive therapeutic
effects that may be achieved by the mental health staff with the current level of
29

evaluation, treatment and monitoring. 56. The abusive and volatile environment created by security staff
exacerbates the psychiatric symptoms of mental health patients, including but not limited to feelings of paranoia, dissociation from reality, and feelings of extreme hopelessness. The current level of evaluation, treatment and monitoring by mental health staff is insufficient to overcome this hostile, anti-therapeutic environment.
F. Defendants punish class members at Phillips State Prison for exhibiting symptoms of mental illness and/or mental retardation, causing their mental health to worsen. 57. Prisoners with mental illness are punished when they exhibit
symptoms of their illness, such as when they cut themselves with razor blades or other sharp instruments, when they move slowly due to the side effects of their medication, or when they speak in response to auditory or visual hallucinations.
58. Defendants do not provide adequate independent psychiatric evaluation of the connection between a prisoner’s disciplinary infraction and his mental illness to determine whether the mental health patient should be punished, which increases the risk of inappropriately punishing prisoners because they are sick. The disciplinary procedure as written and as applied does not reasonably accommodate mentally ill or mentally retarded prisoners.
30

59. After the prison determines that a mental health patient should be
disciplined, defendants do not provide adequate independent psychiatric evaluation
to determine a disciplinary measure appropriate to the prisoner’s mental illness.
Mental health patients who are punished for exhibiting symptoms of mental illness
are repeatedly locked down in isolation cells, typically for two or three weeks at a
time, but sometimes for months at a time. Locking these mentally ill individuals in
isolation cells for extended periods of time often leads to decompensation of their
mental state, resulting in further mental breakdown.
60. Upon information and belief, the use of punitive isolation cells in
response to symptoms of mental illness are typified by the following incidents:
A. After cutting himself in the incident described in paragraph 44.A., Prisoner 12 was given a disciplinary report for “cutting” and locked down in a punitive isolation cell for 42 days.
B. Prisoner 21 is a mentally ill juvenile. In or around the middle of December, 2001, Prisoner 21 heard officers telling other prisoners that he was a “snitch,” and felt his life was in grave danger. After officers ignored his repeated requests to see the captain, Prisoner 21 “snapped” and smeared peanut butter from his lunch tray on his face and body and on the walls of his cell. He was given a disciplinary report for “insubordination and threatening an officer.” Prisoner 21 appealed his disciplinary report.
C. Prisoner 22 is a mental health patient with an extensive history of selfmutilation. In October 2001, Prisoner 22 was housed in the D2 unit and heard Mr. Strickland being killed in a nearby cell. Prisoner 22 responded to the stress by cutting himself, and was subsequently given a disciplinary
31

report and placed in an isolation cell for “destruction of state property.” 61. The ongoing practice of issuing disciplinary reports for behavior arising out of mental health and/or mental retardation, along with the failure to adequately treat mental illness and the lack of access to rehabilitative and treatment programming, results in class members serving longer sentences than prisoners in general population. The accrual of disciplinary sanctions plays a significant role in causing class members to spend more time in prison by delaying their parole eligibility date and/or increasing the chances that they will be denied parole.
G. Defendants have acted and continue to act with deliberate indifference to plaintiffs’ serious mental health
needs and to the substantial risk of serious harm caused by the
brutality of prison staff, self-injurious conduct and assaults by other
prisoners. 62. The practices, policies and procedures
challenged in this lawsuit were developed and implemented with deliberate indifference to the
32

substantial risk of serious harm faced by mentally ill and/or mentally retarded prisoners at Phillips State Prison. Defendants have known about this risk, which is longstanding, pervasive, well-documented, and apparent to any knowledgeable observer. They have been placed on notice by numerous documented examples of drastic deterioration in prisoner mental health resulting from improper treatment; and through numerous complaints, oral and written, formal and informal, by prisoners and family members of prisoners affected by the prison’s constitutional deficiencies. Defendants have also been put on notice by the occurrence of three violent deaths in less than a year, a number far higher than normal for the state’s prisons. The defendants’ practices, policies and procedures have caused and, unless changed, will continue to cause, needless human suffering, deterioration of mental status, and an increased risk of death.
33

H. Defendants have established an administrative grievance procedure that discriminates against mentally ill
and mentally retarded prisoners, and has interfered with their
access to the courts. 63. The administrative grievance procedure of the prison requires a
prisoner to complete an informal grievance process before he can even receive a formal grievance form. This policy discriminates against mentally ill and/or mentally retarded prisoners who are strongly encouraged by their mental health counselors - the gatekeepers to the grievance procedure - to forego or withdraw a grievance. There is no reasonable accommodation in the grievance process for mentally ill and/or mentally retarded prisoners.
64. Defendants have interfered with the access of lawyers from the Southern Center for Human Rights, a non-profit law office, to class members for the purpose of providing legal assistance and legal information to them. This interference has taken the form of prison staff opening legal mail outside the presence of prisoners, demanding that mentally ill and/or mentally retarded prisoners return opened legal mail to prison staff, and, upon a request by lawyers and paralegals from the Southern Center for Human Rights for a legal visit,
34

interrogating the prisoners about their interest in seeing a lawyer. These practices needlessly interfered with the ability of prisoners to understand and pursue administrative and legal remedies for the mistreatment and abuse described in this Complaint.
65. In addition to preventing mentally ill and/or mentally retarded prisoners from obtaining relief in federal court, the lack of an available grievance process increases the risks of negative responses to their environment, including self-mutilation and rages.
VI. EXHAUSTION OF ADMINISTRATIVE REMEDIES 66. The plaintiffs have exhausted all administrative remedies to the extent that they were available.
35

67. Administrative remedies are not available to many members of the putative class due to the refusal of prison staff to provide prisoners with grievance forms, prison staff’ coercion of and interference with efforts by mentally ill and/or mentally retarded prisoners to file timely grievances and appeals, explicit threats by prison staff toward mentally ill and/or mentally retarded prisoners, and lack of access to the grievance process due to prisoners’ mental illness, mental retardation, illiteracy, and/or the effects of medication. To make matters worse, prison staff continually change the rules or the application of the rules for prisoners to obtain, file and appeal a grievance. For example, some counselors tell prisoners that they can get a grievance form only from the chief counselor, which can take several days or longer; other counselors give prisoners grievance forms immediately. Some prisoners are told that forced medication is not grievable, others are told that it is grievable. Some prisoners receive responses to their grievances, others do not. The lack of consistency makes the process impossibly confusing for persons who are already compromised by mental illness and/or mental retardation.
VII. CAUSES OF ACTION 68. Plaintiffs support the following claims by reference to paragraphs 1-5, 9-27, and 62-67 of this Complaint, in addition to the paragraphs cited below in
36

support of each claim: 69. Defendants’ policies and practices in failing adequately to train,
supervise and discipline prison staff who physically, sexually and verbally abuse class members constitute deliberate indifference to a substantial risk of serious harm and amount to cruel and unusual punishment in violation of plaintiffs' rights under the Eighth and Fourteenth Amendments to the United States Constitution. In support of this claim, plaintiffs incorporate by reference paragraphs 28-41of this Complaint.
70. Defendants’ policies and practices in failing to administer minimally adequate mental health treatment to class members, forcing them to take medication against their will, and punishing them for exhibiting symptoms of their mental illness, constitute deliberate indifference to inmates’ serious psychiatric needs and amount to cruel and unusual punishment in violation of plaintiffs' rights under the Eighth and Fourteenth Amendments to the United States Constitution. In support of this claim, plaintiffs incorporate by reference paragraphs 46-61 of this Complaint.
71. Defendants’ policies and practices in failing to protect class members from physical and sexual abuse by other prisoners constitute deliberate indifference
37

to a substantial risk of serious harm and amount to cruel and unusual punishment in violation of plaintiffs' rights under the Eighth and Fourteenth Amendment to the United States Constitution. In support of this claim, plaintiffs incorporate by reference paragraphs 35-41 of this Complaint.
72. Defendants’ policies and practices in failing to protect class members from self-inflicted serious injury and suicide constitute deliberate indifference to a substantial risk of serious harm and amount to cruel and unusual punishment in violation of plaintiffs' rights under the Eighth and Fourteenth Amendments to the United States Constitution. In support of this claim, plaintiffs incorporate by reference paragraphs 42-45 of this Complaint.
73. Despite the existence of Standard Operating Procedures ("SOP") designed to regulate the forced medication of mental health patients, defendants’ failure to in fact apply minimally adequate procedural
38

safeguards when force-medicating mentally ill prisoners violates plaintiffs’ rights to substantive and procedural due process under the Fourteenth Amendment to the United States Constitution. In support of this claim, plaintiffs incorporate by reference paragraphs 51-56 of this Complaint.
74. Defendants’ discrimination against class members in the provision of programming, including a failure to modify their programs to accommodate prisoners with mental illness and/or mental retardation, violates § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, as amended by the Civil Rights Restoration Act of 1987, and Title II of the Americans with Disabilities Act, as codified in 24 U.S.C. § 12131 et seq. In support of this claim, plaintiffs incorporate by reference paragraphs 46-50, 58, 61 and 63 of this Complaint.
75. Defendants’ discrimination against class members in the grievance and disciplinary system, including the failure to reasonably accommodate the needs of mentally ill and/or mentally retarded prisoners, violates § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, as amended by the Civil Rights Restoration Act of 1987, and Title II of the Americans with Disabilities Act, as codified in 24 U.S.C. §
39

12131 et seq. In support of this claim, plaintiffs incorporate by reference paragraphs 33, 38, 57-61 and 63-65 of this Complaint.
76. Defendants’ failure to train prison staff adequately to manage the special needs and problems of mentally ill and/or mentally retarded prisoners discriminates against class members in violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, as amended by the Civil Rights Restoration Act of 1987, and Title II of the Americans with Disabilities Act, as codified in 24 U.S.C. § 12131 et seq. In support of this claim, plaintiffs incorporate by reference paragraphs 28-45 of this Complaint.
77. Defendants’ discrimination against class members in recreational and/or vocational programs, including the failure to provide recreational and/or vocational programs reasonable and appropriate for mentally ill and/or mentally retarded prisoners, violates § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, as amended by the Civil Rights Restoration Act of 1987, and Title II of the Americans with Disabilities Act, as codified in 24 U.S.C. § 12131 et seq. In support of this claim, plaintiffs incorporate by reference paragraphs 49 and 61 of this Complaint.
40

78. Defendants’ interference with mentally ill and/or mentally retarded prisoners’ use of the prison’s administrative grievance procedure as described in paragraphs 63, 64 and 67, above, has denied class members access to the courts in violation of their rights under the First and Fourteenth Amendments to the United States Constitution. In support of this claim, plaintiffs incorporate by reference paragraphs 63-67 of this Complaint.
PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully pray that this Court: 79. Assume jurisdiction over this action; 80. Adjudge and declare that the acts and omissions of the defendants with regard to the class members violate the First, Eighth and Fourteenth Amendments of the United States Constitution; the Rehabilitation Act, 29 U.S.C. § 794; and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132 et seq.; 81. Enjoin defendants, their agents, officials, employees, and all persons acting in concert with them, under color of State law or otherwise, from continuing the unconstitutional and illegal acts, conditions, and practices described in this complaint;
41

82. Award plaintiffs the costs of this lawsuit and reasonable attorney's fees; and
83. Order such additional relief as the Court may deem just and proper.

Respectfully submitted this 15th day of March, 2002 (and refiled March 20, 2002),

____________________________________ Lisa Kung, GA Bar No. 430302 Tamara Serwer, GA Bar No. 617053 Marion D. Chartoff, GA Bar No. 002525 Stephen B. Bright, GA Bar No. 082075
SOUTHERN CENTER FOR HUMAN RIGHTS 83 Poplar Street, N.W. Atlanta, Georgia 30303-2122 Telephone: (404) 688-1202 Facsimile: (404) 688-9440
Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

___________________________________

)

LACOYA FLUELLEN, et al.,

)

)

Plaintiffs,

)

) Civil Case No.

42

v.

)

)

JIM WETHERINGTON, et al.,

)

)

Defendants.

)

___________________________________ )

1:02-CV-479-JEC Class Action

CERTIFICATE OF COMPLIANCE

I, Lisa Kung, do hereby certify that the foregoing document has been

prepared in 14-point Times New Roman font and complies with LR 5.1B.

Respectfully submitted this 20th day of March, 2002.
____________________________________ Lisa Kung, GA Bar No. 430302 83 Poplar Street, N.W. Atlanta, Georgia 30303-2122 Telephone: (404) 688-1202 Facsimile: (404) 688-9440

43

44

45

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

___________________________________

)

LACOYA FLUELLEN, et al.,

)

)

Plaintiffs,

)

) Civil Case No.

v.

) 1:02-CV-470-JEC

)

JIM WETHERINGTON, et al.,

) Class Action

)

Defendants.

)

___________________________________ )

CERTIFICATE OF SERVICE

I, Lisa Kung, do hereby certify that on this date I have caused to be served a copy of the First Amended Complaint (Refiled) by hand delivery upon defendants'

attorney at the following address:

John C. Jones Senior Assistant Attorney General 40 Capitol Square, S.W. Atlanta, GA 30334-1300

Respectfully submitted this 20th day of March, 2002.

____________________________________ Lisa Kung, GA Bar No. 430302 83 Poplar Street, N.W. Atlanta, Georgia 30303-2122 Telephone: (404) 688-1202

Facsimile: (404) 688-9440

 
 r Lc

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

1 LACOYA FLUELLEN, et al .,

Plaintiffs, v.

) Civil Case No . 1 :02-CV-979-JEC

JIM WETHERINGTON, et al ., Defendants .

Class Action
) 1

~rrss ~

ORDER PURSUANT TO FEDERAL RULE 41 GRANTING VOLUNTARY DISMISSAL OF CIVIL ACTION Pursuant to Federal Rule of Civil Procedure 41(a)(1) and Local Rule 41 .1, the court dismisses without prejudice the lawsuit of Lacoya Fluellen against Jim Wetherington, James DeGroot, Michelle Martin, Cynthia Nelson, Eleanor Brown and James Brown .

Done this -T day of r

'~

, 2003 .

~kerk of 'Court united States District Court " Northern District of Georgia

 
 Fluellen v. Wetherington
United States District Court for the Northern District of Georgia, Atlanta Division March 21, 2003, Decided
CIVIL ACTION NO. 1:02-CV-479-JEC

Reporter: 2003 U.S. Dist. LEXIS 21712 Lacoya Fluellen, Franklin Allen, Antares Banks, Mckloyd Brooks, Rome Burnett, Lane Cherry, Chadwick Cochran, Albert Lee Ellison, Eddie Evans, Robert Hampton, Curtis Herring, Jonas Hopkins, Jeffrey Hughes, Albert Jones, Norman Maddox, Jeffrey McDonald, Richard Ralph, Franklin Rivers, Larry Smith, Grady Vaughn, and Tony Wise, on behalf of themselves and all others similarly situated, Plaintiffs, v. Jim Wetherington, James DeGroot, Michelle Martin, Cynthia Nelson, James Brown, and Elanor Brown, Defendants.
Disposition: [*1] Defendants' Motion for More Definite Statement denied without prejudice; Plaintiffs' Motion for Class Certification denied without prejudice; Defendants' PreAnswer Motion to Dismiss denied without prejudice; Plaintiffs' Motion for Leave to Supplement Response to Defendants' Pre-Answer Motion to Dismiss granted, and Motion to Dismiss Plaintiffs Lane Cherry, Robert Hampton, and Norman Maddox Based Upon Mootness denied without prejudice.
Counsel: For LACOYA FLUELLEN, FRANKLIN ALLEN, ANTARES BANKS, MCKLOYD BROOKS, ROME BURNETT, LANE CHERRY, CHADWICK COCHRAN, ALBERT LEE ELLISON, ROBERT HAMPTON, CURTIS HERRING, JONAS HOPKINS, JEFFREY HUGHES, ALBERT JONES, NORMAN MADDOX, JEFFREY MCDONALD, RICHARD RALPH, FRANKLIN RIVERS, LARRY SMITH, GRADY VAUGHN, TONY WISE, plaintiffs: Stephen Brooks Bright, Tamara H. Serwer, Marion Dawn Chartoff, Lisa L. Kung, Atlanta, GA.
For JIM WETHERINGTON, JAMES DEGROOT, MICHELLE MARTIN, CYNTHIA NELSON, JAMES BROWN, BILL WALTON, defendants: John C. Jones, Kathleen Mary Pacious, Thurbert E. Baker, Office of State Attorney General, Atlanta, GA.

Opinion
ORDER
This case is before the Court on Defendants' Motion for More Definite Statement [3]; Plaintiffs' Motion for Class Certification [8]; Defendants' Pre-Answer Motion to Dismiss [13]; Plaintiffs' Motion for Leave to Supplement Response to Defendants' Pre-Answer Motion to Dismiss [20]; and Motion to Dismiss Plaintiffs Lane Cherry, Robert Hampton, and Norman Maddox Based Upon Mootness [21]. The Court has reviewed the record and the arguments of the parties and, for the reasons set forth below, concludes that Defendants' Motion for More Definite Statement [3] should be DENIED WITHOUT PREJUDICE; Plaintiffs' Motion for Class Certification [8] should be DENIED WITHOUT PREJUDICE; Defendants' Pre-Answer Motion to Dismiss [13] should be DENIED WITHOUT PREJUDICE; Plaintiffs' Motion for Leave to Supplement Response to Defendants' Pre-Answer Motion to Dismiss [20] should be GRANTED; and Motion to Dismiss Plaintiffs [*3] Lane Cherry, Robert Hampton, and Norman Maddox Based Upon Mootness [21] should be DENIED WITHOUT PREJUDICE.
I. THE COMPLAINT
Plaintiffs in this case describe themselves as mentally ill and/or mentally retarded prisoners at Phillips State Prison. They originally filed their Complaint [1] and Motion for Class Certification [2] on February 20, 2002. This Court struck those pleadings in an Order [6] dated March 19, 2002, for failure to comply with the Northern District of Georgia's local rule regarding font size. See LR 5.1B, NDGa. Plaintiffs then filed a First Amended Complaint [10] and refiled their motion for class certification [8] on the next day.

For EDDIE EVANS, plaintiff: Stephen Brooks Bright, Marion Dawn Chartoff, Lisa L. Kung, [*2] Atlanta, GA.
For ELEANOR BROWN, defendant: John C. Jones, Kathleen Mary Pacious, Thurbert E. Baker, Office of State Attorney General, Atlanta, GA.
Judges: JULIE E. CARNES, UNITED STATES DISTRICT JUDGE.

Plaintiffs allege that they are subject to physical, mental, and sexual abuse, excessive use of force, improper and prolonged placement in administrative and disciplinary segregation, and to an on-going risk of suicide, self-injury, and death. Plaintiffs bring this suit pursuant to 42 U.S.C. § 1983, asserting claims under the Eighth and Fourteenth Amendments to the United States Constitution, the Rehabilitation Act, 29 U.S.C. § 794, and the Americans

Opinion by: JULIE E. CARNES

2003 U.S. Dist. LEXIS 21712, *3

Page 2 of 17

with [*4] Disabilities Act, 42 U.S.C. § 12131, et seq. State Prison ("Phillips"). (Id. at P3.) Phillips is one of only

Plaintiffs bring their claims on behalf of themselves and of all two prisons in the Georgia Department of Corrections that is

others similarly situated: a class they define as "all individuals designated to house and treat the most severely mentally ill

whose abilities to cope with the demands of life within the prisoners in the State of Georgia. (Id. at P23.) All prisoners in

correctional environment are impaired or in need of the state who are classified as mental health status "Level IV,"

monitoring due to mental illness and/or mental retardation, the most severe level of impairment, are housed at Phillips or

who are now or will be in the future incarcerated at Phillips Augusta State Medical Prison. (Id.) Phillips also houses

State Prison." (First Amended Compl. [10] at P17.) Plaintiffs prisoners who are classified as Level II and Level III mental

attempt to assert their claims on behalf of this entire class, as health patients and who are not as severely impaired as those

a class action pursuant to Rule 23(b)(2) of the Federal Rules who are classified at Level [*7] IV. (Id.) Mentally ill

of Civil Procedure. (Id.)

prisoners at Phillips also include approximately 50 individuals

who violated the conditions of their probation and were The defendants in this action include Jim Wetherington, sentenced as probation detainees to Probation Detention Commissioner of the Georgia Department of Corrections. Centers; because of their mental illnesses they are held in

Wetherington is responsible for the daily supervision of detention at Phillips. (Id. at P26.) operations at the Georgia Department of Corrections and is

the highest ranking official in the Department. (Id. at P6.) With the exception of the probation detainees, nearly all

Defendant James DeGroot is the statewide Mental Health and prisoners who are mentally ill and/or mentally retarded are

Mental Retardation Program Supervisor and is responsible for housed together at Phillips in certain buildings. (Id. at P24.)

developing, implementing, and overseeing the system of The mental health patients at Phillips suffer from such

services to treat the mentally [*5] ill and mentally retarded illnesses as schizophrenia, schizoaffective disorder, major

inmates in accordance with Georgia Department of depressive disorder, bipolar disorder, psychotic disorder not

Corrections policy and professional standards of care. (Id. at otherwise specified, and post-traumatic stress disorder. (Id. at

P11.) Defendant Michelle Martin is Warden of Phillips State P25.) Many of the mental health patients are also mentally

Prison. (Id. at P12.) Defendant Cynthia Nelson is Deputy retarded and have intellectual functioning well below that of

Warden for Security at Phillips State Prison. She, in the average person. (Id.)

conjunction with the Warden, establishes and implements

conditions, practices, and policies of the prison relating to security. (Id. at P13.) Defendant James Brown is Deputy Warden for Care and Treatment at Phillips State Prison and has responsibility for the operation of all medical, mental health, and mental retardation programs there. (Id. at P14.) Finally, defendant Elanor Brown is Director of Mental Health

Plaintiffs allege that the Phillips correctional staff who have contact with mentally ill and mentally retarded prisoners have not "received adequate specialized training to safely manage the special needs and problems of mentally ill and mentally retarded prisoners, and to recognize signs and symptoms of mental [*8] illness." (Id. at P28.) Plaintiffs complain that

at Phillips State Prison and is responsible for the general supervision and control of the prison's psychiatric staff. (Id. at P15.)

prison staff sometimes use force or threats of force to control and frighten these inmates who are misbehaving. (Id. at PP2829.) According to plaintiffs, this use of force by the prison staff sometimes prompts the mentally ill and/or mentally

This case is before the Court on plaintiffs' motion for class retarded person to respond in kind, which then necessitates an

certification and defendants' motions to dismiss, as well as even greater use of force by the staff member to control the

other miscellaneous motions. Accordingly, all facts are taken prisoner. (Id. at P30.) Plaintiffs also complain that prison staff

from plaintiffs' First Amended Complaint and are assumed to sometimes beat mentally ill and/or retarded prisoners who

be true, for purposes of these motions.

become involved in altercations with prison staff and/or

Plaintiffs allege that some members [*6] of the class suffer from mental illnesses, such as schizophrenia and bipolar disorder, "which cause them to experience delusions or other

restrain these inmates in shackles and handcuffs, place them in five-point restraints, or inject them with Haldol or other anti-psychotic drugs. (Id.)

symptoms that interfere with their ability to comprehend and In addition to excessive discipline directed toward prisoners,

relate rationally to what is happening around them." (Id. at plaintiffs alleged that some correction staff sexually abuse or

P2.) Some members take anti-psychotic drugs as a result of threaten to abuse mentally ill and/or mentally retarded

their disorders. (Id.) Plaintiffs also allege that some class prisoners by taunting them with sexual gestures and remarks,

members are mentally retarded and are not capable of making inappropriate advances toward them, or forcing them

understanding beyond a basic level. (Id.)

to engage in sexual conduct. (Id. at P31.)

According to the Complaint, there are approximately 300 mentally ill and/or mentally retarded inmates at Phillips

2003 U.S. Dist. LEXIS 21712, *8

Page 3 of 17

Plaintiffs' Complaint lists several incidents that they contend or encouraged by the prison staff, who do not take steps to

typify the above stated [*9] allegations. (Id. at P33.) These stop it from occurring. (Id. at P38.) Furthermore, plaintiffs

incidents include a mentally ill prisoner who was allegedly allege that due to defendants' deliberate indifference, in the

thrown to the floor by two officers and placed in an isolation ten months before the filing of their Complaint, at least two

cell for continuing to talk to a counselor after a lock-down prisoners were [*12] killed by other prisoners at Phillips. (Id.

was ordered. 1 (Id.) Another mentally ill prisoner was at P40.)

allegedly beaten, put in restraints, and injected with Haldol after he had spit on a counselor. (Id.) A third prisoner was allegedly beaten and placed in an isolation cell for banging on his cell door to try to get attention for a toothache from which he was suffering. (Id.) "Prisoner 4," who is mentally ill, was allegedly beaten and placed in restraints for stopping up his toilet and flooding his cell because his mental health medication was making him sick. (Id.) "Prisoner 6" was allegedly kept in lock-down for 18 days when he had supposedly been given only a 14-day assignment. He

Plaintiffs also complain that prison staff do not adequately protect prisoners who inflict injuries on themselves. Plaintiffs contend that mentally ill prisoners at Phillips sometimes cut themselves with razors and other sharp instruments because of their mental illness, and that they are then punished for this behavior. (Id. at P42.) Plaintiffs also contend that the corrections staff does not adequately monitor mentally ill prisoners with known histories of suicide attempts and other self-injurious behaviors. (Id. at P43.) Plaintiffs allege that

complains that, after he kicked the door of his cell in protest, defendants are aware that groups of mentally ill patients

he was beaten with metal handcuffs and then handcuffed and shackled in the shower. (Id.) "Prisoner 7" was allegedly roused from sleep and then handcuffed and beaten by three officers. (Id.) On another occasion, "Prisoner 7" was allegedly accosted [*10] by an officer who demanded that he show him

sometimes engage in "cutting parties," in which they engage in self-mutilation by repeatedly cutting themselves, but that defendants improperly allow plaintiffs to have access to razors and sharp metal objects that plaintiffs then use to hurt themselves. (Id.)

his penis. (Id.) "Prisoner 10," who had been accused of stabbing an officer, was allegedly beaten and thrown to the floor for refusing to place his hands through the tray slot of his cell door so that he could be handcuffed. (Id.)

Plaintiffs' allegations of physical violence and sexual abuse clearly constitute their most serious claims. They raise other less serious claims concerning what they believe to be less than optimal mental health treatment. For example, they also

Plaintiffs allege that the named defendants do not properly discipline, train, or supervise prison staff and are aware of the "indiscriminate violence and intimidation" and sexual abuse against mentally [*11] ill and/or mentally retarded prisoners, but they do not take steps to stop these behaviors. (Id. at P32.)

complain that [*13] the treatment plans for mental health patients at Phillips are inadequate or inappropriate. (Id. at P46.) They further allege that defendants do not provide adequate mental health staff to deliver individualized mental health treatment to prisoners suffering from serious mental illnesses. (Id. at P47.) Plaintiffs complain that defendants do

In addition to complaining about excessive physical discipline not provide enough mental health therapy and counseling for

that they allegedly receive at the hands of prison staff, mentally ill prisoners who might benefit from these services.

plaintiffs also allege that other mentally ill or retarded (Id. at P49.) Plaintiffs also contend that mentally ill patients

prisoners are permitted to physically abuse and intimidate are not always informed of their right to refuse medication.

their fellow prisoners. (Id. at P35.) Plaintiffs allege that (Id. at P51.) As a result, plaintiffs complain that some patients

defendants place mentally ill and/or retarded prisoners in are medicated for a longer period of time than might be

administrative and disciplinary segregation cells without optimal. (Id. at P52.)

taking steps to prevent them from physically and sexually assaulting each other. (Id. at P36.) Plaintiffs contend that Phillips does not have sufficient correctional staff who are adequately trained to monitor and supervise these mentally ill and/or retarded prisoners who could pose a risk to other prisoners. (Id. at P37.) They also allege that sexual abuse among prisoners is condoned, ignored,

As part of their complaint that defendants often do not administer appropriate therapeutic care, plaintiffs allege that prisoners with mental illness are punished when they exhibit symptoms of their illness. (Id. at P57.) That is, plaintiffs believe that defendants sometimes treat misbehavior by a prisoner as a disciplinary infraction, when, in fact, defendants should perceive that the

1 The prisoners involved in these incidents are not referred to by name but rather by numbers (Prisoner 1, Prisoner 2, and so on). The Court is under the impression that these unspecified prisoners are in fact the named plaintiffs in this case, but that the numbers by which they are referred to in the Complaint have nothing to do with the order in which they are listed in the case caption. This method of pleading is problematic for several reasons, as the Court will discuss in the section of this Order on class certification below.

2003 U.S. Dist. LEXIS 21712, *13

Page 4 of 17

misbehavior is caused by the plaintiff's mental risk of serious harm and amount to cruel and unusual

illness. [*14] (Id. at P58-59.) This reaction to the prisoner's punishment in violation of plaintiffs' rights under the Eighth

misbehavior can lead to what plaintiffs believe is excessive and Fourteenth Amendments to the United States

and inappropriate discipline, such as placing prisoners in Constitution." Plaintiffs also allege that defendants' policies

isolation cells for long periods of time or issuing disciplinary and practices that fail to protect prisoners from physical and

reports to prisoners as a result of their misbehavior, accrual of sexual abuse by other prisoners constitute deliberate

which reports can delay parole eligibility dates and increase indifference to a substantial risk of serious harm and amount

the chances that they will be denied parole. (Id. at PP59,61.) to cruel and unusual punishment under the Eighth and

Plaintiffs also complain about the prison grievance procedure, which requires a prisoner to complete an informal grievance process before he can receive a formal grievance form. Plaintiffs contend that prisoners are sometimes strongly encouraged by their mental health counselors not to file

Fourteenth Amendments. (Id. at P71.) (Id. at P69.) Plaintiffs also complain that "Defendants' policies and practices in failing to administer minimally adequate health treatment to class members, forcing them to take medication against their will, and punishing them for exhibiting symptoms of their mental illness, [*17] constitute deliberate indifference to

grievances. (Id. at P63.) Plaintiffs further allege that the defendants have interfered with the access of lawyers to prisoners for the purpose of providing legal services by interfering with legal mail addressed to prisoners and by interrogating prisoners about their interest in seeing a lawyer.

inmates' serious psychiatric needs and amount to cruel and unusual punishment in violation of plaintiffs' rights under the Eighth and Fourteenth Amendments to the United States Constitution." (Id. at P70.)

(Id. at P64.)

Plaintiffs further allege that defendants' policies and practices

Albeit complaining about the operation of the grievance procedures, plaintiffs allege that they have exhausted all administrative remedies "to the extent [*15] that they are available." (Id. at P66.) They allege that administrative remedies are not available to many prisoners "due to the refusal of prison staff to provide prisoners with grievance forms, prison staff'[s] coercion of and interference with efforts by mentally ill and/or mentally retarded prisoners to file timely grievances and appeals, explicit threats by prison staff toward mentally ill and/or mentally retarded prisoners, and lack of access to the grievance process due to prisoners' mental illness, mental retardation, illiteracy, and/or the effects

that fail to protect prisoners from their own self-inflicted serious injury and suicide constitute deliberate indifference to a substantial risk of serious harm and amount to cruel and unusual punishment under the Eighth and Fourteenth Amendments. (Id. at P72.) Plaintiffs allege that defendants' failure to apply minimally adequate procedural safeguards when force-medicating mentally ill prisoners violates plaintiffs' right to substantive and procedural due process under the Fourteenth Amendment. (Id. at P73.) Further, plaintiffs contend that defendants discriminate against class members in the provision of programming, by failing to modify their programs to accommodate prisoners with mental illness and/or mental retardation, in violation of § 504 of the

of medication." (Id. at P67.) Plaintiffs assert that prison staff "continually change the rules or the application of the rules for prisoners to obtain, file and appeal a grievance" and that some prisoners receive responses to their grievances, while others do not. (Id.)

Rehabilitation Act of 1973, 29 U.S.C. § 794, as amended by the Civil Rights Restoration Act of 1987, [*18] and Title II of the Americans with Disabilities Act, as codified in 42 U.S.C. § 12161 et seq. (Id. at P74.) Plaintiffs further allege that the defendants' discrimination against mentally ill and/or retarded

Plaintiffs allege that the defendants have acted with deliberate indifference to the substantial risk of serious harm that their policies have created for the mentally ill and/or retarded prisoners under their supervision. (Id. at P62.) Plaintiffs further allege that the defendants have been placed on notice of the ill effects of their policies [*16] by such things as the deterioration in prisoner mental health, complaints by prisoners and their families, and the violent deaths of three prisoners in less than a year. (Id.)

prisoners in the grievance and disciplinary system, their failure to train prison staff adequately to manage the special needs of mentally ill and/or retarded prisoners, and their discrimination against class members in recreational and/or vocational programs, including the failure to provide recreational and/or vocational programs that are appropriate for mentally ill and/or retarded prisoners, all violate and Title II of the section 504 of the Rehabilitation ActAmericans with Disabilities Act. (Id. at PP75, 76, 77.) Finally, plaintiffs allege that defendants' interference with mentally ill and/or retarded

Plaintiffs allege that "defendants' policies and practices in failing adequately to train, supervise and discipline prison staff who physically, sexually, and verbally abuse class members constitute deliberate indifference to a substantial

prisoners' use of the prison's administrative grievance procedure has denied these prisoners access to the courts in violation of their rights under the First and Fourteenth Amendments. (Id. at P78.)

2003 U.S. Dist. LEXIS 21712, *18

Page 5 of 17

Plaintiffs seek declaratory relief that the acts and omissions of the defendants with regard to the class members violate the First, [*19] Eighth, and Fourteenth Amendments of the United States Constitution, the Rehabilitation Act, and the Americans with Disabilities Act. (Id. at P80.) Plaintiffs ask that this Court enjoin defendants and their agents from

(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or

continuing "the unconstitutional and illegal acts, conditions,

(B) adjudications with respect to

and practices described in this complaint," and that this Court

individual [*21] members of the class

award plaintiffs the costs of this lawsuit and reasonable

which would as a practical matter be

attorney's fees. (Id. at PP81, 82.)

dispositive of the interests of the other

Plaintiffs have filed a motion to certify the class [8]. Defendants oppose that motion [11]. Defendants have also filed a motion to dismiss on the grounds that plaintiffs have failed to exhaust their administrative remedies and have failed to state a claim for which relief may be granted. (Defs' PreAnswer Mot. to Dismiss [13].) Defendants have also moved to dismiss certain plaintiffs on the ground of mootness, as these plaintiffs have allegedly been transferred to other

members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

prisons or released [21].

(3) the court finds that the questions of law or fact

II. Motion for Class Certification

common to the members of the class predominate over any questions affecting only individual

A. Standards for a Class Action Under Rule 23

members, and that a class action is superior to other available methods for the fair and efficient

Plaintiffs have moved for this action to be certified as a class action pursuant to Federal Rule of Civil Procedure 23 [*20] , which governs the class certification process.

adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the

Rule 23(a) provides as follows:

extent and nature of any litigation concerning the controversy already commenced by or against

(a) Prerequisites to a Class action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of

members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management [*22] of a class action.Fed. R. Civ. P. 23(b) (emphasis added).

the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.Fed. R. Civ. P. 23(a).

Plaintiffs seek certification as a Rule 23(b)(2) class. (Pl.'s Mot. for Class Certification [8] at 1.) A class certification as a Rule 23(b)(2) class means that the plaintiffs are seeking only injunctive and declaratory relief, not monetary damages.

Rule 23(b) provides as follows:
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of

In order to establish that this action should proceed as a class action under Rule 23, the plaintiffs must first establish that all four of the prerequisites of Rule 23(a) --numerosity, commonality, typicality, and adequacy of representation--are met. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613, 138 L. Ed. 2d 689, 117 S. Ct. 2231 (1997); Prado-Steiman v. Bush, 221 F.3d 1266, 1278

2003 U.S. Dist. LEXIS 21712, *22

Page 6 of 17

(11th Cir. 2000). After first establishing that all four of the and they are designed to limit class claims to those fairly

factors of Rule 23(a) are present, the plaintiffs must then encompassed by the named plaintiffs' individual claims."

establish that one of the three requirements of Rule 23(b) is Piazza v. Ebsco Indus., Inc., 273 F.3d 1341, 1346 (11th Cir.

met; that is: (1) that the prosecution of separate actions by the 2001) (citing Gen. Tel. Co. of S.W. v. Falcon, 457 U.S. 147,

individual class members would create a risk of inconsistent 156, 72 L. Ed. 2d 740, 102 S. Ct. 2364 (1982)) (internal

judgments or would impair the ability to protect their quotation marks omitted). "These four requirements 'serve as

interests; or (2) that the defendant [*23] has acted on grounds guideposts for determining whether under the particular

generally applicable to the class, making appropriate final circumstances maintenance of a class action is economical

injunctive or declaratory relief with respect to the class as a and whether the named plaintiff's claim and the class claims

whole; or (3) that questions of law or fact common to the are so interrelated that the interests of the class members will

members of the class predominate over any questions be fairly and adequately protected in their absence.'" Id.

affecting only individual members, and a class action is (quoting Prado-Steinman, 221 F.3d at 1279). The

superior to other available methods for the fair and efficient representative party or parties seeking class certification bear

adjudication of the controversy. Fed. R. Civ. P. 23(b); see the burden of proving these prerequisites. Hudson v. Delta Air

Amchem, 521 U.S. at 614. As noted, plaintiffs argue that Rule Lines, 90 F.3d 451, 456 (11th Cir. 1996) [*26] (citations

23(b)(2) applies in this case.

omitted). In Falcon, the Supreme Court held that "actual, not

In considering all of these factors, a district court has considerable discretion in deciding whether to certify an action as a class action. See, e.g., Griffin v. Dugger, 823 F.2d 1476, 1486 (11th Cir. 1987); Walker v. Jim Dandy Co., 747 F.2d 1360, 1363 (11th Cir. 1984); Freeman v. Motor Convoy,

presumed, conformance with Rule 23(a) [is] indispensable." Falcon, 457 U.S. at 160. Therefore, a trial court may certify a class action only after "a rigorous analysis" and determination that all the prerequisites of Rule 23(a) have been satisfied. Id. at 161.

Inc., 700 F.2d 1339, 1347 (11th Cir. 1983). In making its Accordingly, the Court must first determine whether the

determination, the Court may consider the allegations of the plaintiffs have established that this action fulfills all four

complaint, as well as any supplemental evidentiary prerequisites of a class action under Rule 23(a): numerosity,

submissions from the parties. Buford v. H & R Block, Inc., commonality, typicality, and adequacy of representation.

168 F.R.D. 340, 346 (S.D. Ga. 1996) [*24] (citing Blackie v.

Barrack, 524 F.2d 891, 901 n.17 (9th Cir. 1975)). Class 1. Numerosity

certification is strictly a procedural matter, however, and courts are not to consider the merits of the plaintiffs' claims in determining whether the action should be allowed to proceed as a class action. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 40 L. Ed. 2d 732, 94 S. Ct. 2140 (1974). Furthermore, any doubts are to be resolved in favor of certification, because class certification is conditional only and the court may amend the certification order or decertify the class at any time prior to a final judgment on the merits. Fed. R. Civ. P. 23(c)(1); Prado-Steiman, 221 F.3d at 1273.

The first requirement of Rule 23(a) is that the class be so large that joinder of all members is impracticable. Fed. R. Civ. P. 23(a)(1). "Practicability of joinder depends on many factors, including, for example, the size of the class, ease of identifying its numbers and determining their addresses, facility of making service on them if joined and their geographic dispersion." Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986). When a class is extremely large, the numbers alone may suggest [*27] that joinder is not feasible. See Buford, 168 F.R.D. at 348. Though there is no

The plaintiffs have filed a motion for class certification pursuant to Rule 23(b)(2). They argue that they have presented sufficient evidence that this action meets all four of the prerequisites for class actions required by Rule 23(a), and also that it meets the requirements of Rule 23(b)(2): that the defendants have acted or refused to act on grounds generally applicable to the class, thereby making declaratory and injunctive relief [*25] appropriate with respect to the class as

established threshold figure for determining whether a proposed class satisfies the numerosity requirement, the Eleventh Circuit has explained that "generally less than twenty-one is inadequate, more than forty adequate, with numbers between varying according to other factors." Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.), cert. denied,479 U.S. 883, 93 L. Ed. 2d 250, 107 S. Ct. 274, (1986).

a whole. As noted, defendants have opposed the plaintiffs'

motion.

Plaintiffs allege that, of the 1000 inmates at Phillips State

Prison, approximately 300 are mentally ill and/or mentally

B. Prerequisites of Rule 23(a)

retarded. (Pls.' Mot. for Class Certification [8] at 2.) They further allege that joinder of all putative class members is

The four requirements of Rule 23(a) "commonly are referred highly impracticable in this case because inmates are

to as the prerequisites of numerosity, commonality, typicality

and adequacy of representation,

2003 U.S. Dist. LEXIS 21712, *27

Page 7 of 17

continually entering and leaving the prison through

commitments, transfers, and releases, so that the class

Class definition is of critical importance because it

includes numerous future inmates who cannot be joined.

identifies the persons (1) entitled to relief, (2) bound

(Mem. of Law in Supp. of Pls.' Mot. for Class Certification

by a final judgment, and (3) entitled to notice in a

[8] (hereinafter, "Mem. in Supp. of Class Cert.") at 5.)

Rule 23 (b) (3) action. It is therefore necessary to

Assuming, for the moment, that all three hundred inmates

arrive at a definition that is precise, objective, and

with mental [*28] impairments would be members of the

presently ascertainable.Manual for Complex

class, 2 the class seems large enough to satisfy the numerosity

Litigation, Third § 30.14 at 235 (2002); see also

requirement.

Buford, 168 F.R.D. at 346.

[*29] In addition to the sheer size of the class, however, a second element of the numerosity requirement is that the proposed class must meet a minimal standard of identifiability. 3In re Polypropylene Carpet Antitrust Litig., 178 F.R.D. 603, 612 (N.D. Ga. 1997) (Murphy, J.). Indeed, it is "elementary" that a class must be adequately defined so that all members of the class are clearly ascertainable before a class action can be certified under Rule 23. See De Bremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970). Although "it is not necessary that the members of the class be so clearly identified that any member can be presently ascertained, . . . [Plaintiffs] must establish that there exists a legally definable 'class' that can be ascertained through reasonable effort." In re Polypropylene Carpet Antitrust Litig., 178 F.R.D. at 612 (quoting Earnest v. General Motors Corp., 923 F. Supp. 1469, 1473 & n.4 (N.D. Ala. 1996) (quotations and citations omitted)). In short, the class must meet a "minimum standard of definiteness" that will permit the trial court to identify the members of the proposed class. Id.
[*30] Establishing a precise definition of the class early in the litigation serves two functions: (1) it allows the court to determine whether the case is suitable for certification as a class action and (2) it "'insures that those actually harmed by defendants' wrongful conduct will be recipients of the relief eventually provided.'" Buford v. H & R Block, Inc., 168 F.R.D. 340, 346 (S.D. Ga. 1996) (quoting Simer v. Rios, 661 F.2d 655, 670 (7th Cir. 1981)).

In their motion for class certification, the plaintiffs have

moved the Court to certify a class as follows: "all persons

who are now or will in the future be incarcerated at Phillips

State Prison in Buford, Georgia, whose abilities to cope with

the

demands

of

life

within

the

correctional [*31] environment are impaired or in need of

monitoring due to mental illness and/or mental retardation."

(Pls.' Mot. for Class Certification [8] at 1.) The Court

concludes that this proposed class is not adequately defined so

that all members of the class are clearly ascertainable. See De

Bremaecker, 433 F.2d at 734. In short, for the reasons stated

below, the class definition is so vague and amorphous that the

Court cannot, at this stage of the litigation, effectively

determine the membership of the proposed class.

There are three major problems with the class definition as it stands. First is the issue of who, exactly, is mentally ill. In their First Amended Complaint, plaintiffs state that mentally ill prisoners suffer from illnesses including, but not limited to schizophrenia, schizoaffective disorder, major depressive disorder, bipolar disorder, psychotic disorder not otherwise specified, depressive disorder not otherwise specified, and post-traumatic stress disorder. (First Amended Compl. [10] at P25.) This is a virtual laundry list of mental illnesses, and by its own terms, does not even include all those disorders suffered by members of the proposed class. [*32] When a current or future

2 Because plaintiffs have urged so many different types of allegations in this Complaint, however, it is not certain that all three hundred inmates are members of the same class, to the extent that this class is defined by objectionable behavior by defendants. That is, it is not clear-probably because it is as yet unknown to plaintiffs--how many prisoners, for example, have been subjected to excessive physical punishment. If, by way of example, only ten prisoners out of three hundred had been so subjected, it would seem odd to have a class of three hundred. Of course, this is another way of stating that it is unclear whether this case is anything more than a few individuals who have colorable § 1983 claims, or rather whether the unfolding of the facts will demonstrate widespread, systemic problems that call out for specific, injunctive relief. Of course, if the latter is shown, it would seem that a remedy could be devised, whether or not a class is certified.
3 Some courts have held that the adequacy of the definition of the class is not part of the numerosity analysis of Rule 23(a), but instead is an independent question that must be considered before the court addresses the four prerequisites of Rule 23(a). See, e.g., Buford v. H & R Block, Inc., 168 F.R.D. 340, 346 (S. D. Ga. 1996) ("Before considering the requirements of Rule 23, however, a court must determine whether a class exists that can adequately be defined. . . . Thus, class definition is an implicit requirement which must be met before a Rule 23 analysis can be undertaken by the district court.") In any event, whether the class definition is addressed by the court before the Rule 23 analysis, or as part of the numerosity analysis required by Rule 23(a), the law is clear that a class must be adequately and clearly defined before the class action may be certified. De Bremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970).

2003 U.S. Dist. LEXIS 21712, *32

Page 8 of 17

inmate of Phillips State Prison appears and is diagnosed with that the numerosity requirement is not met, for lack of a

an illness not listed above, but who claims to be "mentally definable class.

ill," how is one to determine if he is a member of the wouldbe class or not? It seems that a class definition seeking to 2. Commonality

encompass all of the "mentally ill," without some sort of medical or psychological definition to guide the Court, now and/or in the future, is so broad and vague as to be unworkable. 4

The second requirement of Rule 23(a) is that "there are questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). It is not required that the claims of all putative class members be absolutely identical, only that they share

[*33] Second is the similar issue of who is to be considered "mentally retarded." The Court is aware of no universally accepted definition, and plaintiffs point to none, of who is mentally retarded and who is not. Again, it seems that some medical or psychological criteria would be necessary to make

questions of either law or fact in common. See Johnson v. Am. Credit Co. of Georgia, 581 F.2d 526, 532 (5th Cir. 1978); [*35] Buford, 168 F.R.D. at 349. The commonality requirement demands that a class action must involve issues that are susceptible to class-wide proof. Murray v. Auslander,

a judgment as to who the class members are. For example, if 244 F.3d 807, 811 (11th Cir. 2001) (citation omitted).

intelligence quotient (IQ) scores were to be the measuring stick, it would be necessary to know if an inmate scoring a 59 would be included in the class, while an inmate scoring a 60 would be excluded as not "mentally retarded."

The Eleventh Circuit has noted that in many ways, the commonality and typicality requirements overlap, as both requirements demand a nexus between the legal claims of the named class representatives and those of individual class

The final problem is that part of plaintiffs' definition that reads "whose abilities to cope with the demands of life within the correctional environment are impaired or in need of monitoring." Again, this wording is so vague as to be unworkable. It is conceivable that an inmate might be technically mentally ill and/or mentally retarded, but might still be able to cope with the demands of life in prison. It seems equally plausible that an inmate not objectively mentally ill or mentally retarded might not be able to cope with life in prison, but for other reasons. Because of the vagueness problems with the definitions [*34] of "mentally ill" and "mentally retarded" discussed above, the latter inmate could be swept into the class. The basic problem is that the

members sufficient to warrant class certification. PradoSteinman v. Bush, 221 F.3d 1266, 1278 (11th Cir. 2000). "Traditionally, commonality refers to the group characteristics of the class as a whole . . ." Id. at 1279. Plaintiffs argue that all members of the would-be class are mentally ill and/or mentally retarded prisoners who are or will be incarcerated at Phillips State Prison and are all therefore equally subject to the conditions, practices, and policies that constitute the factual core of the class claims. (Mem. in Supp. of Class Cert. [8] at 8.) They also argue that the legal issues raised by each member of the class's challenge to these conditions, practices, [*36] and policies involve common constitutional rights, and therefore common questions of law. (Id.)

Court is provided with no guide as to who is to be considered unable to cope with life in prison, and thus in need of special monitoring, and who is not.

Certainly at some very broad level of commonality, it could be said that the class has questions of fact in common. Specifically, the class claims essentially boil down to a claim

The Eleventh Circuit has held that Rule 23(c)(1) grants district courts broad discretion to alter or amend the definition of the class at any time throughout the litigation, prior to a final decision on the merits of the action. Prado-Steiman v. Bush, 221 F.3d 1266, 1273 (11th Cir. 2000). Because the Court finds other problems with class certification, discussed below, it will not exercise this discretion at this time, however. The Court therefore finds

that many mentally ill and/or mentally retarded prisoners at Phillips are being treated badly, and that this bad treatment is severe enough to violate the Constitution's prohibition against Cruel and Unusual Punishment. Even though the commonality bar is set low, the Court will not read it to be set this low. A closer reading of the plaintiffs' Complaint shows that it sets forth a wide array of factual situations affecting the various

4 The requirement of a definable class might at first blush seem less important in a 23(b)(2) class since only injunctive relief is requested that would cover the class as a whole, and since there are no monetary damages to be doled out to individuals, as there would be in a 23(b)(3) class. This requirement is just as important in a (b)(2) class, however, because it must be determined who would be bound by a final judgment. For example, suppose the Court were to certify a class based on the definition that the plaintiffs request. Further suppose that the certified plaintiff class goes on to lose their case, either on summary judgment or at trial. In the future the Court would have to know which inmates would be bound by that final judgment on the merits of this case, and which would be free to sue later, either in their individual capacities or as part of a new class. The current class definition is simply too amorphous for the Court to make that decision.

2003 U.S. Dist. LEXIS 21712, *36

Page 9 of 17

plaintiffs. The types of mistreatment that plaintiffs complain 1280 (10th Cir. 1999). [*39] In that case, the plaintiffs were

of varies wildly from case to case. Some inmates claim that mentally or developmentally disabled children who were in

they were beaten and forcibly restrained; others claim they the custody of the State of New Mexico and who brought suit

were medicated against their will; others complain that they for declaratory and injunctive relief, alleging that the

were beaten and sexually assaulted, not by prison officials, defendants, those state officials responsible for their care, had

but by other inmates; others claim that they injured and failed to provide protections and therapeutic services required

mutilated themselves because they were not properly by federal statute and the United States Constitution. Id. at

monitored; still others claim that they have been locked away 1282. The sixteen named plaintiffs sought to represent a class

in isolation [*37] cells for exhibiting symptoms of their comprised of all children who were currently, or could in the

mental illnesses. When lined up side by side, it becomes future be, in state custody and who were determined by the

apparent that what the plaintiffs have is a hodgepodge, or defendants to have any form of mental and/or developmental

grabbag, of many different kinds of claims. Plaintiffs may disability for which they would require some kind of

fairly respond that it is not their fault that Phillips suffers from therapeutic services or support. Id. In denying class

a wide array of problems, if the allegations are in fact true. certification, the district court noted that the named plaintiffs

Yet, this response does not negate the fact that, at this all had varied backgrounds, needs, and custodial situations.

juncture, plaintiffs' claims do not appear to involve issues that Id. at 1284. In affirming the district court's refusal to certify a

are susceptible to class-wide proof. 5See Murray, 244 F.3d at class, the Tenth Circuit pointed out that "the diverse situations

811 (citation omitted). The Court would have to take evidence of the named plaintiffs show there is no question of fact

on whether certain beatings occurred, on whether certain common to the class." Id. at 1288. "Other than being disabled

inmates were medicated against their will, and so on. The in some way and [*40] having had some sort of contact with

proceeding would almost immediately degenerate into a series New Mexico's child welfare system, no common factual link

of mini-trials, all with separate facts, 6 some with different joins these plaintiffs." Id. at 1289.

elements to prove, and all with different factual defenses.

Such a class would be totally unmanageable. [*38]

The Tenth Circuit also agreed with the district court's finding

that there was no common question of law. Id. Plaintiffs

The Court is therefore forced to conclude that commonality of argued "that systemic failures in the defendants' child welfare

facts is lacking here. There are too many different kinds of delivery system deny all members of the class access to

allegations, involving too many factually different scenarios, legally-mandated services which plaintiffs need because of

to allow the Court to get its arms around all of them at once, their disabilities." Id. The court responded by saying "we

in a class action. Similar problems arise when one attempts to refuse to read an allegation of systematic failures as a moniker

find a common issue of law. Again, at the broadest level, the for meeting the class action requirements. … For a common

plaintiffs have a common complaint which is, essentially: that question of law to exist, the putative class must share a

the system for treating and incarcerating mentally ill or discrete legal question of some kind." Id. Instead of advancing

mentally retarded inmates at Phillips State Prison is so lacking a discrete question of law, however, the plaintiffs had merely

that prison staff are regularly in violation of Constitutional attempted to "broadly conflate a variety of claims to establish

standards. Again, however, the Court will not read the commonality via an allegation of 'systematic failures.'" Id.

commonality bar to be set this low.

The Tenth Circuit therefore refused to hold, as a matter of

law, the mere allegation of a systematic violation of various

The situation in the case at hand is very similar to the one the laws automatically meets Rule 23(a)(2). Tenth Circuit considered in J.B. v. Valdez, 186 F.3d

5 Hundreds, if not thousands, of claims are filed each year by prisoners in Georgia prisons, claiming unlawful conditions of confinement. A plaintiff could collect all the claims directed against any one prison and argue that a class, defined of people who are prisoners in this prison, has been identified and that the Court should intervene to direct the particular practices of the prison. Yet, class actions, based on the fact that a given prison has been the subject of multiple claims, are rarely filed, and, if filed, courts would presumably deny class certification on the ground that each individual claim presents different facts that call for an individualized adjudication.
In making this observation, the Court does not intend to dismiss the possibility that there could be a situation where a prison had, as a systemic matter, so broken down that some broad systemic relief might be necessary to provide an effective remedy. In making that decision, however, the plaintiffs would have to meet whatever burden is required for the issuance of injunctive relief. Further, if proper, such injunctive relief would presumably be appropriate whether or not a class had ever been certified.
6 For example, in some instances, the finder may conclude that the force administered was reasonable or that the prison official acted properly in medicating the prisoner; in other instances, the finder of fact may reach a different conclusion as to the behavior complained of.

2003 U.S. Dist. LEXIS 21712, *40

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The plaintiffs in the above case had also contended that all a variety of different claims to establish commonality via a

their class members [*41] had suffered violations of the systematic failure. They have essentially attempted to add

Medicaid Act, the Americans with Disabilities Act (ADA), together claims that some mentally ill prisoners were beaten,

and the Rehabilitation Act. Id. The Tenth Circuit pointed out some were forcibly medicated, and so on, to reach the

that their complaint failed to specifically tie the particular overarching claim that all mentally ill prisoners' rights are

allegations with individual children, but instead merely stated being violated in a systematic way by the policies and

the factual circumstances of each child and then, in very practices [*43] of Phillips prison officials. They have

general terms, alleged violations of various statutory presented no discrete legal question common to all of them. 7

provisions. Id. at 1290. The Tenth Circuit determined,

however, that there was no common allegation of a Medicaid [*44] Further, as in J.B., it appears to the Court that there is

Act violation for all named plaintiffs and that only a few no one statutory or constitutional claim common to all named

asserted claims under the Fourteenth Amendment. Id. plaintiffs and all putative class members. Even if the plaintiffs

Likewise, all named plaintiffs had alleged that they had been here had alleged that all the named plaintiffs were subject to denied benefits or services in violation of the ADA and treatment in violation of the Eighth Amendment, or the ADA, Rehabilitation Act. Id. Yet, the Tenth Circuit noted that "even or the Rehabilitation Act8--which is impossible to tell based

if this were sufficient to establish a common legal question as on the way the Complaint was drafted, with prisoners referred

to the named plaintiffs, plaintiffs had not shown that such to by unexplained numbers instead of names--and even if the

denials were common to all putative class members under the plaintiffs were able to establish a common legal question as to

proposed class definition." Id.

the named plaintiffs, they have not shown that this legal question is common to all putative class members under their

Plaintiffs sought to certify a class of all children in state custody who "have any form of mental and/or developmental disability for which [*42] they require some kind of therapeutic services or support." (emphasis in original). This broad definition would include not just children whom New Mexico improperly denied assistance, but also children who actually receive all services under the ADA and Rehabilitation Act. Children receiving appropriate services have no claim under these statutes.Id. (emphasis in original). Thus, the Tenth

proposed class definition. Plaintiffs seek to certify a class of all prisoners at Phillips State Prison who are mentally ill and/or mentally retarded. This broad definition would include not only prisoners who were treated improperly, but also those who were never treated improperly--who were never beaten, or medicated against their will, and so on. Yet, prisoners who were not subject to any alleged ill treatment would have no claims under the Eighth Amendment, ADA, or Rehabilitation Act. Thus, there is no one statutory [*45] or constitutional claim that is common to all named plaintiffs and putative class members.

Circuit concluded that the district court had correctly stated that there was no one statutory or

3. Typicality

constitutional claim that was common to all named plaintiffs and putative class members. Id.

In order to meet the third prerequisite for class actions under Rule 23(a), the plaintiff must establish that the claims or

The similarities betweenJ.B. and the case at hand are striking. Though the plaintiffs here have not explicitly stated their case as such, it appears to the Court that they, like the J.B. plaintiffs, have attempted to broadly conflate

defenses of the representative parties are typical of the claims or defenses of the class. Fed. R. Civ. P. 23(a)(3). As the Supreme Court has explained, "we have repeatedly held that a class representative must be part of the class and possess the same interest and suffer the same

7 In contrast to the present case is Anderson v. Garner, 22 F. Supp. 2d 1379 (N.D. Ga. 1997). In Anderson, Judge Harold Murphy certified a 23(b)(2) class composed of all prison inmates housed in Georgia Department of Correctional Facilities who will be subjected to "shakedowns" by the defendant administrators. Id. at 1390. In that case, the class did present the discrete legal questions of whether excessive force had been used in the shakedown in question and whether the defendants, through a custom or policy, encouraged, facilitated, and ratified the use of excessive force during all such shakedowns. Id. at 1385. Along with the common discrete legal question, this class also had common facts: all the class members had been or could be subjected to shakedowns, not to a wide array of alleged violations, such as beatings, or forced medications, or improper confinement, and so on.
8 The Court is especially perplexed about the plaintiffs' allegation that the defendants violated the Rehabilitation Act by discriminating against them in recreational and vocational programs. (First Amended Compl. at P77.) There appears to be no factual allegation anywhere in the First Amended Complaint to back up this paragraph.

2003 U.S. Dist. LEXIS 21712, *45

Page 11 of 17

injury as the class members." Gen. Tel. Co. of S.W. v. Falcon, confinement improperly, and so forth. From this varied group

457 U.S. 147, 156, 72 L. Ed. 2d 740, 102 S. Ct. 2364 of complaints, they seek to certify a class consisting of all

(1982) [*46] (quoted in Prado-Steiman v. Bush, 221 F.3d mentally ill and/or retarded prisoners at Phillips. All the

1266, 1278 (11th Cir. 2000)). One of the "core purposes" of named plaintiffs could only be considered to be typical of the

this "typicality" requirement is to "ensure that 'the named class as a whole only at the most heightened level of

plaintiffs have incentives that align with those of absent class generality: that they are all mentally ill and/or retarded

members so as to assure that the absentees' interests will be prisoners at Phillips who claim to have been mistreated. At a

fairly represented.'" Prado-Steiman, 221 F.3d at 1279 more particular level, however, the Court cannot say that the

(quoting Baby Neal v. Casey, 43 F.3d 48, 57 (3rd Cir. 1994)). claim of a named plaintiff who alleges that he was beaten

Though typicality tends to overlap with the commonality excessively is typical of the claim of a putative class member

requirement, as noted above, because traditionally, "typicality who allegedly was forcibly medicated. Any common sensical

refers to the individual characteristics of the named plaintiff appraisal leads one to conclude that this Complaint comprises

in relation to the class." Id.

dramatically different claims, with different elements of

proof, different possible defenses, and so on. Therefore, the Typicality may be satisfied "even if some factual differences factual posture of the representative's claim would seem, exist between the claims of the named representatives and the necessarily, to differ from that of some of the would-be class

claims of the class at large." Id. at 1279 n.14 (citing members in question here.

Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir. 1985)

(citation omitted)). Yet, in order for the plaintiffs to establish In short, all of the claims of the named plaintiffs and of the

that their claims are typical of the claims of the other class would-be class members are not substantially similar, so

members, they must establish that their claims share the same the [*49] plaintiffs cannot carry their burden here. Likewise,

"essential characteristics as the claims of the class at large." there is no strong similarity of legal theories that would

Id. [*47] at 1279 n.14 (quoting Appleyard v. Wallace, 754 satisfy the typicality requirement, despite the substantial

F.2d 955, 958 (11th Cir. 1985) (citation omitted)). If the factual differences among all of the different claims. 9

claims are substantially similar, a plaintiff can usually meet this burden because "a strong similarity of legal theories will satisfy the typicality requirement despite substantial factual differences." Id. at 1279 n.14 (quoting Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir. 1985)see also Kornberg v.

[*50] Furthermore, the way in which the Complaint was drafted does not aid the Court in making the typicality judgment. The manner of referring to the named plaintiffs in the body of the Complaint, not by their names, but by

Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. numbers, makes it very difficult to determine what exactly

1984) ("A factual variation will not render a class happened to which individuals. Rule 23(a) requires that the

representative's claim atypical unless the factual position of claims of the named plaintiffs be typical of the claims of the

the representative markedly differs from that of other class as a whole. This requirement is not satisfied by a bare

members of the class.").

assertion that the claims of several numbered, unnamed

individuals, who may or may not all match up to the named

The Court is forced to conclude, for many of the reasons plaintiffs, have claims that are typical of the class as a whole.

discussed above, that typicality is lacking here as well. The Though the conclusion of the Court on the typicality

named plaintiffs cannot establish that their claims share the requirement would no doubt be the same based on these facts,

same "essential characteristics as the claims of the class at even with a properly pled class action complaint, the method

large." Prado-Steiman, 221 F.3d at 1279 n.14. What the First by which plaintiffs have drafted this Complaint has not aided

Amended Complaint essentially shows is that some named their efforts to create a class. Ultimately, the burden of

plaintiffs claim they were beaten or otherwise victims of proving that the Rule 23(a) prerequisites are met is on the

excessive force, some named plaintiffs claim [*48] they were representative parties seeking class certification. Hudson v.

medicated against their will, some claim to have been placed Delta Air Lines, 90 F.3d 451, 456 (11th Cir. 1996) (citations

in disciplinary

omitted).

9 Through all of this analysis runs the Court's judgment that the plaintiffs seek to stretch both the typicality and commonality requirements to levels that the Court simply cannot manage in a single action. For example, plaintiffs might argue that they all have similar legal theories in the sense that they all allege a pattern or practice on the part of the defendants of abusing and/or neglecting them, though this manifests itself in different ways with different class members (a beating of one versus the forced medication of another). Yet, the legal theory supporting an Eighth Amendment claim regarding a beating is very different than the legal theory supporting an ADA claim regarding discrimination in the level of care provided to mentally ill and/or retarded inmates, for example. All of these different claims are simply too disparate to place them under one umbrella and to say that the same group of named plaintiffs can be typical of all the class members with these different claims.

2003 U.S. Dist. LEXIS 21712, *50

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4. Adequacy of Representation

to conduct further inquiry into whether the class would satisfy

The fourth and [*51] final prerequisite of Rule 23(a) is that the plaintiffs must show that they will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a)(4).

Rule 23(b)(2). Since the basic requirements of Rule 23 are not met in this case, Plaintiffs' Motion for Class Certification is DENIED WITHOUT PREJUDICE.

Courts have traditionally held that, in order to satisfy this At this juncture, the Court would typically break the case

prerequisite, the plaintiff must show that: (1) the plaintiff's down into twenty-one (21) separate cases, representing the

attorney is qualified, experienced, and will vigorously twenty-one individual plaintiffs. Given the way the case was

prosecute the action; and (2) the interest of the class pled, however, the Court is unable to determine which

representative is not antagonistic to or in conflict with the plaintiff would pursue which grievance. Further, as it is not

other members of the class. Griffin v. Carlin, 755 F.2d 1516, clear that all individual plaintiffs will wish to proceed with

1533 (11th Cir. 1985); Buford, 168 F.R.D. at 351.

their individual claims, the Court will not attempt to break

down the existing Complaint into different cases. Instead, the

The Court assumes that defendants do not question the Court will maintain, as a single case, the action styled:

qualifications of the organization representing plaintiffs to prosecute a class action. On the other hand, the Court does question whether the interests of some class members would be in conflict with other members of the class. As discussed in the sections above, these are very disparate claims that the

Fluellen, et al. v. Wetherington, et al., 1:02-CV-479-JEC. Plaintiff Fluellen shall filed an amended complaint, within thirty (30) days [*54] from the date of this Order. The Court further severs the claims of the remaining twenty plaintiffs and directs these plaintiffs to file individual complaints,

plaintiffs have tried to package together as one class action within thirty (30) days of the date of this Order. The Clerk

lawsuit. For example, plaintiffs complain that some inmates are medicated against their will or for an excessive period of time. [*52] With regard to other inmates, however, plaintiffs complain that the staff does not protect the inmates against their own suicidal tendencies and that staff often administer beatings to gain control of mentally ill prisoners, when lesser measures would suffice. One lesser measure to control behavior or to prevent suicide attempts would seem to be the administration of anti-psychotic medication, yet the first group of plaintiffs would complain about such a response by defendants.

shall be directed to docket each such complaint under its own docket number. Each plaintiff will then be free to go forward and to litigate his case separately, as he sees fit. The Court emphasizes that the denial of class certification is without prejudice. Should the plaintiffs, at some point in the future, develop a more cohesive class that could meet the requirements of Rule 23, the Court will entertain again a motion for class certification. That decision can likely best be made after discovery is concluded and motions for summary judgment have been resolved. Of course, the Court's denial of Plaintiffs' Motion for Class Certification is not as harsh a

Moreover, the manner in which the Complaint is drafted again makes it hard to judge the adequacy of the named plaintiffs to represent the class. All the Court really knows about them is that their names are listed in the caption. It does not know

blow as it might seem, given that plaintiffs are seeking only injunctive relief anyway, which injunctive relief can presumably be granted, upon a proper showing, even without the certification of a class.

what is purported to have happened to each individual among III. Motions to Dismiss them. In other words, it is impossible to tell who is who. It

might be that the named plaintiffs overwhelmingly represent A. Motion to Dismiss Standard

prisoners who were beaten, and might not adequately represent prisoners with other sorts of claims. The Court does not have enough information to make an affirmative judgment that these plaintiffs would be adequate representatives. Again, the burden is on the class representatives to show [*53] that the requirements of Rule 23(a) are met, and it is the duty of the Court to conduct a rigorous inquiry to make sure that the

In deciding a motion to dismiss [*55] brought pursuant to Federal Rule of Civil Procedure 12(b)(6), 10 the Court shall not dismiss the complaint for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80,

requirements of the Rule are all fulfilled.

78 S. Ct. 99 (1957). Motions to dismiss for failure to state a

claim will rarely be granted because of the liberal pleading

Having found that the proposed class does not meet the requirements of the federal rules. Quality Foods de Centro

requirements of Rule 23(a), it is unnecessary for the Court

Am., S.A. v. Latin Am. Agribusiness Dev.

10 As plaintiffs correctly point out, defendants do not specify under which subsection of Rule 12(b) they bring this motion to dismiss. Defendants do, however, state that plaintiffs have failed to state a claim upon which relief may be granted, so the Court will, for the most part, treat this as a 12(b)(6) motion. The Court will also deal with the possibility of dismissal under 12(b)(1) below.

2003 U.S. Dist. LEXIS 21712, *55

Page 13 of 17

Corp., S.A., 711 F.2d 989, 995 (11th Cir. 1983). Furthermore, 12(b)(1), which provides for dismissal [*58] of a

courts must "accept the well pleaded facts as true and resolve complaint on the basis of "lack of jurisdiction over the

them in the light most favorable to the plaintiff." Beck v. subject matter." Fed. R. Civ. P. 12(b)(1).

Deloitte & Touche, 144 F.3d 732, 735 (11th Cir. 1988)

(citation omitted). The purpose of a

The exhaustion requirement of 42 U.S.C. § 1997e(a) does not

limit this Court's subject matter jurisdiction. Though the

Rule 12(b)(6) motion is to test the facial sufficiency of the statement of a claim for relief. It is read alongside Fed. R. Civ. P. 8(a), which requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." The rule is not designed to strike [*56] inartistic pleadings or to provide a more definite statement to answer an apparent ambiguity, and the analysis of a 12(b)(6)

Eleventh Circuit has not yet decided whether a dismissal under 1997e(a) amounts to a dismissal for failure to state a claim upon which relief may be granted, under Rule 12(b)(6), or for lack of subject matter jurisdiction over the unexhausted claims, under Rule 12(b)(1), it has recognized that "most courts addressing this issue have decided that § 1997e(a) is not a jurisdictional mandate." Brown v. Sikes, 212 F.3d 1205, 1207 n.2 (11th Cir. 2000) (citing Nyhuis v. Reno, 204 F.3d 65,

motion is limited primarily to the face of the complaint and the attachments thereto.Brooks v. Blue Cross & Blue Shield of Florida, Inc., 116 F.3d 1364, 1368 (11th Cir. 1997) (citing 5 Charles A. Wright & Arthur Miller, Federal Practice and Procedure § 1356 at 590-92 (1969)). Thus, in general, "the threshold of sufficiency that a complaint must meet to survive a motion to dismiss for failure to state a claim is exceedingly low." Quality Foods, 711 F.2d at 995. Defendants bear the "very high burden" of showing that a plaintiff cannot conceivably prove any set of facts that would entitle him to relief. Beck, 144 F.3d at 735-36.

69 n.4 (3d Cir. 2000)). The clear majority of circuit courts that have ruled on the issue have held that section 1997e(a) is not a jurisdictional requirement, such that failure to comply with the section would deprive federal courts of subject matter jurisdiction. See Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001); Nyhuis v. Reno, 204 F.3d 65, 69 n.4 (3d Cir. 2000); [*59] Massey v. Helman, 196 F.3d 727, 732 (7th Cir. 1999); Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999); Rumbles v. Hill, 182 F.3d 1064, 1068 (9th Cir. 1999); Underwood v. Wilson, 151 F.3d 292, 294-95 (5th Cir. 1998); Basham v. Uphoff, 1998 U.S. App. LEXIS 30999, No. 988013, 1998 WL 847689, at *3 (10th Cir. Dec. 8, 1998) (unpublished decision). This Court will therefore not dismiss plaintiffs' claims under Rule 12(b)(1), but will consider

[*57] B. Exhaustion of Administrative Remedies

defendants' motion to dismiss under Rule 12(b)(6).

Defendants argue that the plaintiffs' Complaint must be dismissed because they have not exhausted their administrative remedies under 42 U.S.C. § 1997e(a). (Br. in Supp. of Defs.' Mot. to Dismiss [13] (hereinafter, "Br. in Supp") at 2.) The Prison Litigation Reform Act of 1996 (PLRA) provides, in relevant part,
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.42 U.S.C. § 1997e(a). Defendants state that "When Congress makes exhaustion of administrative remedies a mandatory prerequisite to a federal action, the courts lack jurisdiction over such an action unless and until those remedies are exhausted." (Br. in Supp. [13] at 2-3.) The Court will therefore briefly deal with the possibility that defendants intended their motion to dismiss to be based upon Federal Rule of Civil Procedure

The Supreme Court has held that § 1997e(a)'s exhaustion requirement applies to all prisoners seeking redress for prison conditions or occurrences. Porter v. Nussle, 534 U.S. 516, 520, 152 L. Ed. 2d 12, 122 S. Ct. 983 (2002). All available remedies must be exhausted; even if those remedies would not meet federal standards, even if the available remedies are not quick or effective, and even when the prisoner seeks relief that may not be available in grievance proceedings. Id. at 524. Further as noted, the exhaustion requirement of the PLRA applies to all inmate suits about prison life, no matter the nature [*60] of the complaint. Id. at 532.
The exhaustion requirement cannot be waived merely because the prisoner believes that pursuing administrative procedures would be futile. Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000) (citation omitted). As Congress has mandated exhaustion in section 1997e(a), courts have no discretion to waive the exhaustion requirement. Alexander v. Hawk, 159 F.3d 1321, 1325 (11th Cir. 1998). Further, section 1997e(a)'s requirement that a prisoner exhaust such administrative "remedies" as are available simply acknowledges that not all prisons actually have administrative remedy programs. Id. at 1326.

2003 U.S. Dist. LEXIS 21712, *60

Page 14 of 17

If a state penal institution does not have an administrative matter whether they have exhausted available administrative

remedy program to address prison conditions, there would be remedies. Of course, plaintiffs argue now, and will

no 'available' administrative remedies to exhaust. Thus, presumably argue in the future, that, even if they have not

Section 1997e(a) would permit these prisoners to pursue their exhausted all of their administrative remedies, the grievance

claims directly in federal court. Id. at 1326-27. Nevertheless, system at Phillips should be construed as being "unavailable"

if a prison has an internal administrative grievance system to them, because the prison staff routinely interferes with their

through which a prisoner can seek to correct a problem, then efforts to exhaust grievances and because the grievance

the prisoner must utilize that administrative procedure fails to recognize that mentally ill or retarded

system [*61] before filing a claim. Massey v. Helman, 196 prisoners simply lack the wherewithal to follow a grievance

F.3d 727, 733 (7th Cir. 1999).

procedure. (Pls.' Resp. [*63] [18] at 11-19.) Such an

Defendants argue that out of all the plaintiffs in this case, only one (the unnamed prisoner known to the Court only as "Prisoner Two") "has properly filed a grievance and properly appealed this grievance and exhausted his administrative remedies." (Br. in Supp. [13] at 12.) Defendants therefore

argument carries some facial appeal to this Court. It is unnecessary for the Court to decide the ultimate merits of plaintiffs' position at this time, however. More importantly, at the moment, plaintiffs allege in their First Amended Complaint that they have exhausted all of their administrative remedies to the extent that they are available. (First Amended

contend that all of the complaints of the rest of the plaintiffs Compl. [10] at P66.) Thus, taking the well pleaded facts as

must be dismissed.

true and resolving them in the light most favorable to the

Plaintiffs argue that they have adequately exhausted their remedies for purposes of a class action lawsuit, as it is undisputed that at least one class representative has fully exhausted the administrative grievance procedure. (Pls.' Resp. to Defs.' Mot. to Dismiss [18] (hereinafter, "Pls.' Resp.") at 6.) As the Court is denying Plaintiffs' Motion for Class Certification, the doctrine of vicarious exhaustion obviously does not apply here. See Hartman v. Duffey, 319 U.S. App. D.C. 169, 88 F.3d 1232, 1235 (D.C. Cir. 1996), cert. denied,520 U.S. 1240, 137 L. Ed. 2d 1048, 117 S. Ct. 1844 (1997) (discussing the doctrine of vicarious exhaustion, whereby exhaustion of administrative [*62] remedies by one member of the class satisfies the requirement for all others

plaintiffs, as the Court must do on this motion to dismiss, this paragraph is sufficient to allege exhaustion of administrative remedies and to avoid dismissal. Given the confusing jumble of the First Amended Complaint, in which no plaintiff is ever referred to by name and prisoners are only referred to by number, the Court cannot not make any judgment about whether any individual plaintiff had actually exhausted his administrative remedies before filing suit, even if it were necessary or appropriate for the Court to do so. 11 Based on the face of the Complaint, it does not appear beyond doubt that the plaintiffs can prove no set of facts in support of their claim which would entitle [*64] them to relief. See Conley, 355 U.S. at 45-46.

with sufficiently similar grievances (citation omitted); see [*65] C. Vicarious Liability Under 42 U.S.C. § 1983 also Griffin v. Carlin, 755 F.2d 1516, 1532 (11th Cir. 1985)

("The only issues that may be raised in a class action claim Defendants also allege in this same motion to dismiss that

are those issues that were raised by representative parties in "Prisoner Two's" claims against them are based on a theory of

their administrative complaints, together with those issues that vicarious liability and must be dismissed. (Br. in Supp. [13] at

may reasonably be expected to grow out of the administrative 12.) It is true that a claim under 42 U.S.C. § 1983 cannot be

investigation of their claims.") (citation omitted).

based upon vicarious liability. Brown v. Smith, 813 F.2d 1187

(11th Cir. 1987) (citation omitted). Instead, to state a § 1983 As the plaintiffs will be proceeding on individual claims, at cause of action against prison least initially, they will have to address, initially, the

11 Of course, it is not appropriate. The defendants have attached the affidavit of Deryl Canady, the Assistant Director of Inmate Affairs for the Department of Corrections, as an exhibit to their motion to dismiss. The affidavit purports to examine all of the individual plaintiffs and present evidence to the effect that only one of the plaintiffs exhausted his administrative remedies. An affidavit attached to a motion to dismiss is "clearly the sort of evidentiary material that is not appropriate at the 12(b)(6) stage." Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1280 (11th Cir. 1999). The Court did not consider this affidavit, as considering this matter outside the pleading would have converted this Rule 12(b)(6) motion to a motion for summary judgment. Ware v. Associated Milk Producers, Inc., 614 F.2d 413, 414-415 (5th Cir. 1980). The Court has discretion as to whether to accept material beyond the pleading that is offered in association with a 12(b)(6) motion. Prop. Mgmt. & Invs., Inc. v. Lewis, 752 F.2d 599, 604 (11th Cir. 1985) (citing Ware, 614 F.2d at 415)). If the district court chooses to ignore any supplementary materials outside the pleadings that are filed and determines the motion under the Rule 12(b)(6) standard, the motion to dismiss is not transformed into a motion for summary judgment. Garita Hotel Ltd. P'ship v. Ponce Fed. Bank, 958 F.2d 15, 18 (1st Cir. 1992) (citations omitted). This is exactly what the Court has done in this case.

2003 U.S. Dist. LEXIS 21712, *65

Page 15 of 17

officials based on a constitutional deprivation resulting from facts in support of their claim which would entitle them to

cruel and unusual punishment, the complaint must allege a relief. See Conley, 355 U.S. at 45-46.

conscious or callous indifference to a prisoner's rights by the particular defendant. Zatler v. Wainwright, 802 F.2d 397, 400 D. Moot Claims Due to Parole and Transfer

(11th Cir. 1986). Further, to prove a causal connection between the official's acts or omissions and the alleged constitutional deprivation, the plaintiff must allege and show that the official was somehow personally involved in the acts that resulted in the constitutional deprivation. Id. at 401. Such involvement could, however, be shown by proving that the defendant established or utilized [*66] a policy or custom that creates deliberate indifference to an inmate's constitutional rights. Id. (citation omitted).

Defendants argue that many of the plaintiff inmates have been either transferred or paroled from Phillips State Prison, 12 making their claims for injunctive and declaratory relief moot. (Br. in Supp. [13] at 15.) As noted above, on a Rule 12(b)(6) motion to dismiss, the Court may consider only the face of plaintiffs' Complaint and any attachments thereto. Accepting the well pleaded facts as true and resolving them in the light most favorable to the plaintiffs leads the Court to conclude that none of the plaintiffs' complaints may be dismissed as

In the First Amended Complaint, the plaintiffs allege that the beating incident regarding Prisoner Two resulted from the policies and practices implemented by the defendants and from the failure of the defendants to provide adequately trained and disciplined staff to manage and supervise the

moot at this juncture. [*68] It may well be true that some of the plaintiffs have been released, paroled, or transferred, as defendants state. If that is true, it may be that the particular plaintiff's injunctive claims may have become moot and defendants will therefore urge dismissal. 13 Yet, as the Court

mentally ill and/or retarded inmates at Phillips. (First is denying class certification at this time and allowing the

Amended Compl. [10] at PP28, 29, 32, 35, 37, 41, 44, 45, 47, plaintiffs to file individual suits, the Court assumes that some 49, 56, 59.) As plaintiffs have alleged that a policy established of these plaintiffs may seek monetary relief, in which event a by the defendants led to the deprivation of Prisoner Two's transfer or release would not moot such a claim. Accordingly,

constitutional rights, this is sufficient to articulate a causal the Court DENIES defendants' motion to dismiss based upon

connection for purposes of liability under Section 1983. mootness [13] WITHOUT PREJUDICE.

Moreover, the plaintiffs have made sufficient allegations that, if believed, could establish a history of widespread abuse. Looking at the First Amended Complaint as a whole, plaintiffs do not allege only one isolated incident, as the defendants seem to argue. See Wilson v. Attaway, 757 F.2d 1227, 1242 (11th Cir. 1985). The incidents regarding Prisoner Two are only some of the many constitutional [*67] deprivations that the plaintiffs allege to have occurred because of the alleged deliberate indifference of the defendants. Accepting the well pleaded facts as true, the Court concludes that plaintiffs have articulated a causal link between the defendants' alleged acts and omissions and the constitutional deprivations they allegedly suffered, necessary to charge liability under Section 1983. Thus, the Court cannot say that the plaintiffs can prove no set of

[*69] The defendants also filed a Motion to Dismiss Plaintiffs Lane Cherry, Robert Hampton, and Norman Maddox Based Upon Mootness [21] under Federal Rule of Civil Procedure 12(h)14. Defendants argue that these plaintiffs have been released from incarceration, mooting their claims, as they sought only declaratory and injunctive relief. As noted above, on a Rule 12(b)(6) motion to dismiss, the Court may consider only the face of plaintiffs' Complaint and any attachments thereto. Accepting the well pleaded facts as true and resolving them in the light most favorable to the plaintiffs leads the Court to conclude that none of the plaintiffs' complaints may be dismissed as moot at this juncture. Moreover, if the plaintiffs that move forward with individual cases were to seek money

12 Defendants do not identify these inmates in this particular motion.
13 "Absent class certification, an inmate's claim for injunctive and declaratory relief in a section 1983 action fails to present a case or controversy once the inmate has been transferred." Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985). The Court is not certain whether the Wahl holding applies with the same force where a prisoner could likely be transferred back to the same prison. That is, as Phillips is one of two state prisons that houses severely mentally ill or retarded prisoners, there may be some likelihood that a given plaintiff might be transferred back to Phillips in the future.
Of course, the reality that prisoners do get transferred or released and that, when such occurs, the defendant prison officials can successfully move for dismissal of injunctive claims is probably a fact that motivated plaintiffs to file this unwieldy class action. The Court is sympathetic to plaintiffs' plight. If plaintiffs do, in fact, prove systemic problems of a Constitutional magnitude, in its individual cases, the Court feels confident that some mechanism will be available to insure that injunctive relief is available.
14 "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed. R. Civ. P. 12(h).

2003 U.S. Dist. LEXIS 21712, *69

Page 16 of 17

damages, these claims would not be mooted simply by their Norman Maddox Based Upon Mootness [21] is DENIED

release from prison. They would remain valid during the WITHOUT PREJUDICE.

applicable limitations periods, and this Court would retain jurisdiction over them. The Court therefore DENIES WITHOUT PREJUDICE defendants' Motion to Dismiss Plaintiffs Lane Cherry, Robert Hampton, and Norman Maddox Based Upon Mootness [21].

At this juncture, [*72] the Court would typically break the case down into twenty-one (21) separate cases, representing the twenty-one individual plaintiffs. Given the way the case was pled, however, the Court is unable to determine which plaintiff would pursue which grievance. Further, as it is not

[*70] IV. Motion for More Definite Statement

clear that all individual plaintiffs will wish to proceed with

their individual claims, the Court will not attempt to break Defendants also filed a Motion for More Definite Statement down the existing Complaint into different cases. Instead, the [3]. Defendants argue that the plaintiffs have failed to file a Court will maintain, as a single case, the action styled:

Complaint containing "a short and plain statement of the Fluellen, et al. v. Wetherington, et al., 1:02-CV-479-JEC.

claim" as required by Federal Rule of Civil Procedure Plaintiff Fluellen shall file an amended complaint, within

8(a)(2). Defendants express some of the same sentiments expressed by the Court above: that the Complaint is so lacking in specifics and detail as to be unintelligible, due to the manner in which it was drafted, with prisoners referred to only by numbers and not by name. (Br. in Supp. of Defs.'

thirty (30) days from the date of this Order, setting out specifically the claims he is filing and the factual allegations that support such a claim. The Court further severs the claims of the remaining twenty plaintiffs and directs these plaintiffs to file individual complaints, within thirty (30) days of the

Mot. for More Definite Statement [3] at 4-5.) Because the Court is denying class certification and directing the plaintiffs to refile their claims as individuals, this concern has become moot. If and when individual plaintiffs file their individual complaints, they will of course have to allege specific wrongs,

date of this Order. 15The Clerk shall be directed to docket each such complaint under its own individual case number. Each plaintiff will then be free to go forward and to litigate his case separately, as he sees [*73] fit.

supported by specific facts, that occurred to them.

The Court emphasizes that the denial of class certification is

without prejudice. Should the plaintiffs, at some point in the

Defendants also argue that the Complaint does not allege facts specific enough for potential liability for prison administrators under 42. U.S.C. § 1983. (Id. at 6-7.) Defendants further argue that [*71] the Complaint does not make proper allegations that plaintiffs properly exhausted the prison grievance procedure. (Id. at 8.) The Court disagrees. For the reasons discussed above in regard to the defendants' Motions to Dismiss, the Court concludes that the Complaint does

future, develop a more cohesive class that could meet the requirements of Rule 23, the Court will entertain again a motion for class certification. That decision can likely best be made after discovery is concluded and motions for summary judgment have been resolved. Of course, the Court's denial of Plaintiffs' Motion for Class Certification is not as harsh a blow as it might seem, given that plaintiffs are seeking only injunctive relief anyway, which injunctive relief can

sufficiently allege facts upon which 42 U.S.C. § 1983 liability presumably be granted, upon a proper showing, even without could be based. The Complaint also sufficiently alleges, for the certification of a class. this stage in the litigation, that the plaintiffs exhausted their

administrative remedies. Accordingly, Defendants' Motion for The Court also hereby schedules a status conference for

More Definite Statement [3] is DENIED, WITHOUT Thursday, April 10, 2003, 10:00 a.m., Room 2321, at which

PREJUDICE.

conference the Court will discuss with counsel the best means

CONCLUSION

to get this litigation on [*74] a more organized track, to prioritize the more serious claims in plaintiffs' Complaint, and

For the foregoing reasons, Defendants' Motion for More Definite Statement [3] is DENIED WITHOUT PREJUDICE; Plaintiffs' Motion for Class Certification [8] is DENIED WITHOUT PREJUDICE; Defendants' PreAnswer Motion to Dismiss [13] is DENIED WITHOUT PREJUDICE; Plaintiffs' Motion for Leave to Supplement Response to Defendants' Pre-Answer Motion to Dismiss [20] is GRANTED; and Motion to Dismiss Plaintiffs Lane Cherry, Robert Hampton, and

to discuss the status of plaintiff's Motion For Preliminary Injunction [30], filed on February 20, 2003. The Court would like for counsel for both parties to be present, as well as an appropriate representative from Phillips State Prison. The Court is aware that defendants are under no legal obligation to negotiate with persons who have not presented a valid legal claim for adjudication. Nevertheless, the Court intends to discuss with both parties their positions as to whether a more informal, collaborative process between the parties, prior

15 Should the plaintiffs need more time to file their new complaints, the Court would be receptive to such a request.

2003 U.S. Dist. LEXIS 21712, *74

to litigation of the new complaints to be filed in the near

future, would be feasible or wise.

JULIE E. CARNES

Page 17 of 17

SO ORDERED, this 21 day of March, 2003.

UNITED STATES DISTRICT JUDGE

 
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0months, CLOSED
U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:02-cv-00479-JEC

Fluellen, et al v. Wetherington, et al Assigned to: Judge Julie E. Carnes Demand: $0 Cause: 42:1983 Prisoner Civil Rights Plaintiff LaCoya Fluellen
Plaintiff

Date Filed: 02/20/2002 Date Terminated: 04/09/2003 Jury Demand: None Nature of Suit: 555 Habeas Corpus (Prison Condition) Jurisdiction: Federal Question
represented by Lisa L. Kung Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, GA 30303-2122 404-688-1202 Email: lkung@schr.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Dawn Chartoff Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, GA 30303-2122 404-688-1202 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Brooks Bright Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, GA 30303-2122 404-688-1202 Email: sbright@schr.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamara H. Serwer Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, GA 30303-2122 404-688-1202 LEAD ATTORNEY ATTORNEY TO BE NOTICED

1 of 18

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CM/ECF LIVE v3 - U.S. District Court - Docket Report
Franklin Allen TERMINATED: 03/21/2003
Plaintiff Antares Banks TERMINATED: 03/21/2003
Plaintiff
2 of 18

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represented by Lisa L. Kung (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Brooks Bright (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamara H. Serwer (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lisa L. Kung (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Brooks Bright (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamara H. Serwer (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
6/19/2007 3:22 PM

CM/ECF LIVE v3 - U.S. District Court - Docket Report
McKloyd Brooks TERMINATED: 03/21/2003
Plaintiff Rome Burnett TERMINATED: 03/21/2003
Plaintiff
3 of 18

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represented by Lisa L. Kung (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Brooks Bright (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamara H. Serwer (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lisa L. Kung (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Brooks Bright (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamara H. Serwer (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
6/19/2007 3:22 PM

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Lane Cherry TERMINATED: 03/21/2003
Plaintiff Chadwick Cochran TERMINATED: 03/21/2003
Plaintiff
4 of 18

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represented by Lisa L. Kung (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Brooks Bright (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamara H. Serwer (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lisa L. Kung (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Brooks Bright (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamara H. Serwer (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
6/19/2007 3:22 PM

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Albert Lee Ellison TERMINATED: 03/21/2003
Plaintiff Robert Hampton TERMINATED: 03/21/2003
Plaintiff
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represented by Lisa L. Kung (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Brooks Bright (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamara H. Serwer (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lisa L. Kung (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Brooks Bright (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamara H. Serwer (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
6/19/2007 3:22 PM

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Curtis Herring TERMINATED: 03/21/2003
Plaintiff Jonas Hopkins TERMINATED: 03/21/2003
Plaintiff
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represented by Lisa L. Kung (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Brooks Bright (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamara H. Serwer (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lisa L. Kung (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Brooks Bright (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamara H. Serwer (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
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CM/ECF LIVE v3 - U.S. District Court - Docket Report
Jeffrey Hughes TERMINATED: 03/21/2003
Plaintiff Albert Jones TERMINATED: 03/21/2003
Plaintiff
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represented by Lisa L. Kung (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Brooks Bright (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamara H. Serwer (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lisa L. Kung (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Brooks Bright (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamara H. Serwer (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Norman Maddox TERMINATED: 03/21/2003
Plaintiff Jeffrey McDonald TERMINATED: 03/21/2003
Plaintiff
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represented by Lisa L. Kung (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Brooks Bright (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamara H. Serwer (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lisa L. Kung (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Brooks Bright (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamara H. Serwer (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
6/19/2007 3:22 PM

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Richard Ralph TERMINATED: 03/21/2003
Plaintiff Franklin Rivers TERMINATED: 03/21/2003
Plaintiff
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represented by Lisa L. Kung (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Brooks Bright (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamara H. Serwer (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lisa L. Kung (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Brooks Bright (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamara H. Serwer (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
6/19/2007 3:22 PM

CM/ECF LIVE v3 - U.S. District Court - Docket Report
Larry Smith TERMINATED: 03/21/2003
Plaintiff Grady Vaughn TERMINATED: 03/21/2003
Plaintiff
10 of 18

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represented by Lisa L. Kung (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Brooks Bright (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamara H. Serwer (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lisa L. Kung (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Brooks Bright (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamara H. Serwer (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
6/19/2007 3:22 PM

CM/ECF LIVE v3 - U.S. District Court - Docket Report
Tony Wise on behalf of themselves and all persons similarly situated TERMINATED: 03/21/2003
V. Defendant Jim Wetherington Commissioner of the Georgia Department of Corrections
11 of 18

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represented by Lisa L. Kung (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Brooks Bright (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamara H. Serwer (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John C. Jones Freeman Mathis & Gary 100 Galleria Parkway Suite 1600 Atlanta, GA 30339-5948 770-818-1409 Email: jjones@fmglaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen Mary Pacious Office of State Attorney General 40 Capitol Square, S.W. Atlanta, GA 30334-1300 404-656-9622 Email: kathleen.pacious@law.state.ga.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thurbert E. Baker Office of State Attorney General 40 Capitol Square, S.W. Atlanta, GA 30334-1300
6/19/2007 3:22 PM

CM/ECF LIVE v3 - U.S. District Court - Docket Report
Defendant James DeGroot Statewide Mental Health and Mental Retardation Program Supervisor for the Georgia Department of Corrections
Defendant Michelle Martin Warden of Phillips State Prison
Defendant Cynthia Nelson Deputy Warden for Security at Phillips State Prison
12 of 18

https://ecf.gand.uscourts.gov/cgi-bin/DktRpt.pl?938869699601376-L_3...
404-656-3385 Email: thurbert.baker@law.state.ga.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John C. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen Mary Pacious (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thurbert E. Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John C. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen Mary Pacious (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thurbert E. Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John C. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen Mary Pacious (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thurbert E. Baker (See above for address)
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Defendant James Brown Deputy Warden for Care and Treatment at Phillips State Prison
Defendant Bill Walton Director of Mental Health at Phillips State Prison, in their official capacities
Plaintiff Eddie Evans TERMINATED: 03/21/2003
13 of 18

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LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John C. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen Mary Pacious (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thurbert E. Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John C. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen Mary Pacious (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thurbert E. Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lisa L. Kung (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marion Dawn Chartoff (See above for address) TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Brooks Bright (See above for address)
6/19/2007 3:22 PM

CM/ECF LIVE v3 - U.S. District Court - Docket Report

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V.
Defendant
Eleanor Brown Director of Mental Health at Phillips State Prison, in their official capacities

TERMINATED: 03/21/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John C. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen Mary Pacious (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thurbert E. Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/20/2002
02/20/2002 03/12/2002 03/13/2002 03/15/2002 03/15/2002 03/18/2002 03/19/2002

#

Docket Text

1 CLASS ACTION COMPLAINT filed and summons(es) issued. Consent form to proceed before U.S. magistrate and pretrial instructions given to attorney FILING FEE $ 150.00 RECEIPT # 484517 (syh) (Entered: 02/22/2002)
2 MOTION by plaintiffs for class certification with brief in support. (syh) Modified on 02/28/2002 (Entered: 02/22/2002)
SUBMITTED to Judge Julie E. Carnes on [2-1] motion for class certification (jph) (Entered: 03/12/2002)
3 MOTION by defendants for a more definite statement with brief in support. (jph) (Entered: 03/14/2002)
4 Response by plaintiff to [3-1] motion for a more definite statement (jph) (Entered: 03/18/2002)
5 AMENDED COMPLAINT by plaintiff adding Eddie Evans, Eleanor Brown (jph) (Entered: 03/18/2002)
SUBMITTED to Judge Julie E. Carnes on [3-1] motion for a more definite statement (FILE IN CHAMBERS) (jph) (Entered: 03/18/2002)
6 ORDER by Judge Julie E. Carnes striking [1-1] complaint, [2-1] motion for class certification, [4-1] response, and [5-1] amended complaint. Pla is directed to refile them w/i 5 days. Parties are reminded to comply w/LR 5.1B regarding font (cc by CRD) (jph) Modified on 03/20/2002 (Entered: 03/20/2002)

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03/20/2002 03/20/2002 03/20/2002 03/20/2002 03/21/2002 04/01/2002 04/08/2002 04/08/2002 04/09/2002
04/09/2002 04/10/2002 04/15/2002 04/16/2002 04/16/2002
04/16/2002 04/26/2002 04/26/2002 05/24/2002 05/29/2002

7 COMPLAINT refiled (jph) (Entered: 03/21/2002)
8 REFILED MOTION by plaintiff for class certification with brief in support. (jph) Modified on 03/21/2002 (Entered: 03/21/2002)
9 REFILED Response by plaintiffs to [3-1] motion for a more definite statement (jph) Modified on 03/21/2002 (Entered: 03/21/2002)
10 REFILED AMENDED COMPLAINT by plaintiff adding Eddie Evans and Eleanor Brown (jph) (Entered: 03/21/2002)
SUBMITTED to Judge Julie E. Carnes on [8-1] motion for class certification and [3-1] motion for a more definite statement (jph) (Entered: 03/21/2002)
11 Objections by defendants to [8-1] motion for class certification (jph) (Entered: 04/02/2002)
12 Reply brief to [3-1] motion for a more definite statement by defendants. (jph) (Entered: 04/09/2002)
13 MOTION by defendants to dismiss with brief in support. (jph) (Entered: 04/09/2002)
14 ORDER by Judge Julie E. Carnes directing dft to file a reply brief w/i 10 days to pla's response to [3-1] motion for a more definite statement setting out the specific info they seek (cc by CRD) (jph) (Entered: 04/10/2002)
Terminated submissions. (jph) (Entered: 04/10/2002)
15 Joint MOTION to extend time thru 4/26/02 for filing LR 16.2 Preliminary report and discovery schedule (to JEC) (jph) (Entered: 04/11/2002)
16 REPLY by plaintiff to response to [8-1] motion for class certification (jph) (Entered: 04/16/2002)
SUBMITTED to Judge Julie E. Carnes on [8-1] motion for class certification, [3-1] motion for a more definite statement (jph) (Entered: 04/16/2002)
17 CONSENT ORDER by Judge Julie E. Carnes GRANTING [15-1] joint motion to extend time thru 4/26/02 for filing LR 16.2 Preliminary report and discovery schedule (cc) (jph) (Entered: 04/17/2002)
18 Response by plaintiff to [13-1] motion to dismiss (jph) (Entered: 04/17/2002)
SUBMITTED to Judge Julie E. Carnes on [13-1] motion to dismiss (FILE IN CHAMBERS) (jph) (Entered: 04/26/2002)
19 Preliminary Report and Discovery Schedule. (to judge) (jph) (Entered: 04/29/2002)
20 MOTION by plaintiff for leave to supplement the response to pre-answer motion to dismiss with supplement to response. (jph) (Entered: 05/30/2002)
21 MOTION by defendants to dismiss plas Lane Cherry, Robert Hampton, and Norman Maddox based upon mootness with brief in support. (jph) (Entered: 05/31/2002)

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06/13/2002
06/14/2002
06/18/2002
08/23/2002 08/27/2002
10/18/2002 10/28/2002
11/08/2002 11/12/2002 11/14/2002 12/18/2002 02/20/2003 03/10/2003 03/12/2003 03/13/2003 03/21/2003

22 Response by plaintiffs to [21-1] motion to dismiss plas Lane Cherry, Robert Hampton, and Norman Maddox based upon mootness (jph) (Entered: 06/17/2002)
SUBMITTED to Judge Julie E. Carnes on [20-1] motion for leave to supplement the response to pre-answer motion to dismiss (FILE IN CHAMBERS) (jph) (Entered: 06/14/2002)
SUBMITTED to Judge Julie E. Carnes on [21-1] motion to dismiss plas Lane Cherry, Robert Hampton, and Norman Maddox based upon mootness (FILE IN CHAMBERS) (jph) (Entered: 06/18/2002)
23 ENDORSED ORDER by Judge Julie E. Carnes APPROVING [19-1] preliminary statement (cc) (jph) (Entered: 08/27/2002)
24 SCHEDULING ORDER by Judge Julie E. Carnes regarding request of discovery. The Court will determine when the discovery period begins when it issues an Order on the motions to dismiss. The Court directs the parties to present a joint status memorandum by 10/18/02. [24-1] order to be submitted on 10/21/02 (cc) (jph) (Entered: 08/28/2002)
25 Joint MOTION to extend time for filing joint status memorandum (to JEC) (jph) (Entered: 10/21/2002)
26 CONSENT ORDER by Judge Julie E. Carnes GRANTING [25-1] joint motion to extend time for filing joint status memorandum until 11/8/02 (cc) (jph) (Entered: 10/29/2002)
27 STATUS REPORT by plaintiffs on Joint Status Memorandum. (jph) (Entered: 11/12/2002)
28 UNILATERAL STATUS REPORT by defendants per order of 8/27/02 (jph) (Entered: 11/14/2002)
29 Addendum to [27-1] status report by plaintiffs (jph) (Entered: 11/14/2002)
SUBMITTED to Judge Julie E. Carnes on [24-1] order, [28-1] status report, and [27-1] status report (FILE IN CHAMBERS) (jph) (Entered: 12/18/2002)
30 MOTION by plaintiffs for preliminary injunction with brief in support. (jph) (Entered: 02/24/2003)
31 Response by defendants to [30-1] motion for preliminary injunction. (jph) (Entered: 03/12/2003)
SUBMITTED to Judge Julie E. Carnes on [30-1] motion for preliminary injunction (FILE IN CHAMBERS) (jph) (Entered: 03/12/2003)
SUBMITTED to Judge Julie E. Carnes on (jph) (Entered: 03/13/2003)
32 ORDER by Judge Julie E. Carnes DENYING without prejudice [3-1] motion for a more definite statement by defendants, DENYING without prejudice [8-1] motion for class certification by plaintiffs, DENYING without prejudice [13-1] motion to dismiss by defendants; Answer to complaint due 3/31/03 for all defendants, GRANTING [20-1] motion for leave to supplement the response to pre-answer motion to dismiss, DENYING without prejudice [21-1] motion to

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03/28/2003 04/07/2003
04/07/2003 04/09/2003 04/09/2003 04/10/2003
04/10/2003
04/18/2003
07/08/2003 07/22/2003 07/30/2003 08/01/2003 08/04/2003 08/12/2003 01/29/2004

dismiss plas Lane Cherry, Robert Hampton, and Norman Maddox based upon mootness by defendants. Pla Fluellen shall file an amended complaint within 30 days from this order. The Court further severs the claims of the remining twenty plas and directs these plas to file individual complaints, within 30 days of this order. The Clerk shall be directed to docket each such complaint under its own individual case number. A status conference is scheduled for 4/10/03 at 10:00am (cc by CRD) (jph) (Entered: 03/24/2003)
Terminated submissions. (aar) (Entered: 03/28/2003)
33 MOTION by plaintiffs for reconsideration of [32-1] order denying class certification , and for leave to amend complaint with brief in support. (jph) (Entered: 04/09/2003)
34 VOLUNTARY DISMISSAL by plaintiff LaCoya Fluellen pursuant to Rule 41(a)(1)(i), FRCP. (to JEC) (jph) (Entered: 04/09/2003)
35 ORDER by Judge Julie E. Carnes GRANTING [34-1] voluntary dismissal without prejudice pursuant to FRCP 41(a)(1)(i). (cc) (jph) (Entered: 04/09/2003)
Case terminated. (jph) (Entered: 04/09/2003)
36 Motion HEARING held before Judge Julie E. Carnes regarding [30-1] motion for preliminary injunction. Court directed pla to pick new pla and file an amended complaint and parties conduct discovery for 90 days. (jph) (Entered: 04/10/2003)
VERBAL ORDER by Judge Julie E. Carnes DENYING W/O PREJUDICE [30-1] motion for preliminary injunction by plaintiffs. Motion for reconsideration will remain pending. (jph) (Entered: 04/10/2003)
37 Response by defendants to [33-1] motion for reconsideration of [32-1] order denying class certification, [33-2] motion for leave to amend complaint (jph) (Entered: 04/21/2003)
Proposed Amended Complaint by plaintiff Richard Ralph. (to JEC) (jph) (Entered: 07/10/2003)
38 MOTION by defendants to dismissi as to Richard Ralph with brief in support. (jph) (Entered: 07/24/2003)
39 Response by plaintiff Richard Ralph to [38-1] motion to dismiss as to Richard Ralph. (jph) (Entered: 08/01/2003)
SUBMITTED to Judge Julie E. Carnes on [32-1] order and [0-0] amended complaint(In chambers) (jph) (Entered: 08/01/2003)
40 REPLY by defendant to response to [38-1] motion to dismissi as to Richard Ralph (jph) (Entered: 08/05/2003)
SUBMITTED to Judge Julie E. Carnes on [38-1] motion to dismiss as to Richard Ralph (FILE IN CHAMBERS) (jph) (Entered: 08/12/2003)
41 ORDER by Judge Julie E. Carnes DENYING the [38-1] motion to dismiss by defendants. The Court DIRECTS the clerk to assign the Amended Complaint a new civil action number to establish Richard Ralph v. Alan Adams and Michelle Martin as a new case. (See civil action number: 1:04-cv-257-JEC.) (cc by CRD)

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01/30/2004 02/03/2004 02/06/2004 02/17/2004 05/14/2004

(aaq) Modified on 01/30/2004 (Entered: 01/30/2004)
Terminated submissions. (aaq) (Entered: 01/30/2004)
42 MOTION by defendant for reconsideration of [41-1] order with brief in support. (jph) (Entered: 02/03/2004)
43 Dft's Withdrawal of [42-1] motion for reconsideration of [41-1] order due to mootness. (jlm) (Entered: 02/09/2004)
Pla Richard Ralph's Response to [43-1] withdrawal filed in 1:04-257-JEC on 2/13/04) (jlm) (Entered: 02/19/2004)
44 Certificate of service as to defendants re: Dft's response to pla's first interrogatories. (jlm) (Entered: 05/18/2004)

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