Case 1:15-cv-00280-TWT Document 1 Filed 01/29/15 Page 1 of 42

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

KEVIN THOMPSON,

Plaintiff,

Civil Action No. ________

v.

COMPLAINT

DEKALB COUNTY, GEORGIA; NELLY WITHERS, in her official capacity as Chief Judge of the DeKalb County Recorders Court; JUDICIAL CORRECTION SERVICES, INCORPORATED,

(Violation of Fourteenth Amendment Rights)
JURY TRIAL REQUESTED

Defendants.

INTRODUCTION 1. Plaintiff Kevin Thompson, a teenager at the time of the events described in this Complaint, was incarcerated for five days in the DeKalb County Jail in Decatur, Georgia because of his inability to pay $838 in fines and fees related to a traffic ticket within thirty days of sentencing. 2. Mr. Thompson’s jailing was the direct result of DeKalb County’s policy, practice, and custom of seeking revenue from indigent people sentenced to the payment of fines and fees for traffic offenses and County ordinance violations.
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DeKalb County, through senior policymaker Chief Judge Nelly Withers of the DeKalb County Recorders Court (“Recorders Court”), enlisted Judicial Correction Services, Incorporated (“JCS”), a for-profit company, to secure payments of DeKalb County fines and fees through the practice of “pay-only probation”— probation imposed for the sole purpose of collecting fines and fees from those who cannot afford to pay in full on sentencing day. The terms of their contractual agreement incentivized collection from people too poor to pay at sentencing, while creating disincentives for the identification of indigent probationers whose failure to pay was the result of poverty.
3. DeKalb County, Chief Judge Withers, and JCS established policies, practices, and customs that directly led to the conditioning of indigent people’s freedom on paying money they did not have. They pursued fine and fee payments from indigent pay-only probationers, while failing to adequately train, direct, and supervise the judges and probation company employees involved in their collection scheme on probationers’ constitutional rights to request court-appointed counsel and to an indigency hearing prior to being jailed for failure to pay. DeKalb County, Chief Judge Withers, and JCS also persisted in these policies, practices, and customs despite their awareness of the widespread and pervasive deprivation of probationers’ rights to request counsel and to indigency hearings in Recorders
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Court probation revocation proceedings, including those heard by the judge who sentenced Mr. Thompson to jail. As a direct result of these policies, practices, and customs, Mr. Thompson was improperly and illegally jailed for probation violation simply because he was poor.
4. Mr. Thompson was initially sentenced to pay-only probation with JCS because he could not afford to pay $810 in fines related to a ticket for driving on a suspended license. A Recorders Court judge ordered Mr. Thompson to pay the entire $810 and additional costs within thirty days, and placed him on probation with JCS.
5. Mr. Thompson reported weekly to JCS and explained to his probation officer that he was unemployed. He made painstaking efforts to pay his fines and fees by borrowing money from relatives and earning what he could by completing odd jobs. He was able to pay a total of about $85—$30 of which was retained by JCS for its fee. Nevertheless, a JCS probation officer charged Mr. Thompson with probation violation for failure to pay, misinformed him that he would have to pay an additional $150 for a public defender to represent him in his probation revocation proceedings, and failed to notify him that he had a right to request representation by counsel at no cost. After providing Mr. Thompson incorrect and incomplete information, the JCS probation officer checked off a box on a form
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signed by Mr. Thompson to indicate that he had purportedly waived his right to a public defender.
6. Recorders Court Judge Angela Brown revoked Mr. Thompson’s probation in a hearing that lasted only minutes and sentenced him to nine days in jail. Judge Brown failed to conduct any inquiry or make any findings concerning Mr. Thompson’s ability to pay or efforts to secure resources, or the adequacy of alternatives to incarceration. Judge Brown also failed to advise Mr. Thompson of his right to request court-appointed counsel at no cost, failed to inquire into the circumstances of Mr. Thompson’s purported waiver of that right, and did not afford him counsel, despite evidence of his indigency.
7. Mr. Thompson was handcuffed in front of his mother, taken to jail, and ultimately incarcerated for five days. He suffered humiliation, anxiety, stress, emotional distress, and other irreparable injury from being separated from his family and incarcerated in unsanitary and cold jail conditions without enough food to eat.
8. The actions, policies, practices, and customs of DeKalb County, Chief Judge Withers, and JCS directly and proximately caused the deprivation of Mr. Thompson’s liberty and violated his rights under the Due Process and Equal
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Protection Clauses of the Fourteenth Amendment to the U.S. Constitution. Mr. Thompson brings this lawsuit to vindicate those rights.
PARTIES 9. Plaintiff Kevin Thompson is a nineteen-year-old resident of Decatur, Georgia, where he lives with his mother, sister, and four-month-old niece. 10. Defendant DeKalb County, Georgia (“DeKalb County”) is a local subdivision of the State of Georgia and a body corporate organized and existing under the Constitution of the State of Georgia. Ga. Const. Art. 9 § 1 ¶ 1 (2014); Ga. Code Ann. § 36-1-3 (2014). DeKalb County relies heavily on the Recorders Court, which is a division of the County’s executive branch, to generate County revenue through the collection of fines and fees imposed in cases involving violations of DeKalb County ordinances and regulations, State traffic offenses, and any other offense specified by the Georgia General Assembly. See DeKalb County, Ga. Code app. B, art. XII, §§ 653, 655, 684 (2014). 11. Defendant Chief Judge Nelly Withers is the chief judge of the Recorders Court and the final DeKalb County policymaker concerning the collection of County revenue through Recorders Court probation. Her administrative and executive responsibilities include directing Recorders Court
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probation, establishing probation policies and practices, and training, directing, and supervising Recorders Court judges on, among other things, the collection of fines and fees and the protection of probationers’ rights. Chief Judge Withers is a DeKalb County employee and was appointed by the DeKalb County Board of Commissioners. She is sued in her official capacity for actions taken in her executive and administrative role.
12. Defendant Judicial Correction Services, Incorporated, is a Delaware corporation that is registered as a foreign corporation doing business in the State of Georgia, this District, and this Division. JCS is a person acting under the color of state law and liable under 42 U.S.C. § 1983.
13. Defendants undertook all of the acts set forth herein under color of state law and all acts can fairly be attributed to DeKalb County. Each Defendant is a “policymaker” with respect to the policies, practices, and customs challenged in this lawsuit.
JURISDICTION AND VENUE 14. This is a complaint for damages based upon civil rights violations committed by DeKalb County, Chief Judge Withers, in her official capacity, and JCS, in violation of the Fourteenth Amendment to the U.S. Constitution.
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15. This Court has subject matter jurisdiction over Mr. Thompson’s claims pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).
16. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b), (c) and (d) because this judicial district is where a substantial part of the events or omissions giving rise to the claim occurred and where DeKalb County, Chief Judge Withers, and JCS reside.
FACTUAL ALLEGATIONS A) Mr. Thompson’s Traffic Tickets 17. Prior to July 18, 2014, Mr. Thompson had been earning about $200 per week through paid training in auto repair, mechanics, and tow truck driving. 18. On July 18, 2014, a DeKalb County police officer stopped Mr. Thompson’s car shortly after Mr. Thompson had pulled it out of the driveway of his home. 19. The officer told Mr. Thompson that his driver’s license was suspended. Mr. Thompson was surprised and unaware that his driver’s license was suspended at that time. 20. Mr. Thompson was jailed for one night in the DeKalb County Jail and notified that he was charged with driving on a suspended license.
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21. Mr. Thompson subsequently learned that his driver’s license was suspended because he forgot to submit a Notice of Withdrawal of Suspension to the Georgia Department of Driver Services (“DDS”) in April 2014 following his resolution of a charge for Failure to Appear (“FTA”) in the Municipal Court of Atlanta for a ticket concerning a minor traffic violation. The Municipal Court of Atlanta had charged Mr. Thompson with FTA and suspended his driver’s license because he had arrived for his hearing after the 8:00 a.m. start time. Mr. Thompson did not receive written notice that his driver’s license remained suspended between his resolution of the FTA charge and his July 18, 2014 arrest.
22. On October 9, 2014, Mr. Thompson appeared before a Recorders Court judge and pled guilty to the charge of driving on a suspended license. The judge sentenced Mr. Thompson to an $810 fine, and asked if he would be able to pay that day. Mr. Thompson answered that he could not. The judge then ordered Mr. Thompson to pay the $810 fine within thirty days, to serve twelve months of probation, and to pay court costs, probation fees, and a Georgia Crime Victim Emergency Fund fee.
23. After his hearing, Mr. Thompson was required to sign up with JCS for pay-only probation. He was assigned to JCS probation officer Shanekia Thomas.
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24. DDS notified Mr. Thompson that his driver’s license was suspended for six months due to his October 9, 2014 conviction for driving on a suspended license.
B) JCS Pay-Only Probation 25. Mr. Thompson first reported to JCS on or around October 30, 2014. He explained to Ms. Thomas that he could not afford to pay any money toward his fine and JCS fees at that time. Ms. Thomas instructed Mr. Thompson to report weekly to the JCS office in Tucker, Georgia. 26. Mr. Thompson reported weekly to JCS and paid what money he could during each visit. 27. While he was on probation, however, Mr. Thompson earned only an average of $80 dollars each week from doing odd jobs for an auto shop while looking for work. He was unable to earn enough money to pay for basic necessities, including food, public transportation, and his portion of the rent for his family’s home. The suspension of his driver’s license through April 2015 made it difficult for him to look for, and secure, paid employment.
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28. Despite being unemployed and lacking any source of steady income, Mr. Thompson diligently tried to acquire money to make payments toward his fines and fees, including by borrowing money from relatives.
29. On or around November 6, 2014, Mr. Thompson reported to JCS and paid about $5, which he had borrowed from his sister.
30. On or around November 13, 2014, Mr. Thompson reported to JCS and paid about $60, which he had borrowed from his mother.
31. On or around November 20, 2014, Mr. Thompson reported to JCS and paid about $20, which he had borrowed from his grandmother.
32. At some point between October 9, 2014 and December 4, 2014, Mr. Thompson submitted to a Recorders Court clerk an application for a Limited Driving Permit, which he believed would permit him to drive for work purposes if signed by a Recorders Court judge. The clerk made a copy and told Mr. Thompson that she would give the form to her supervisor.
33. On December 4, 2014, Mr. Thompson reported to JCS, but did not have any money to pay. Ms. Thomas served Mr. Thompson with a document entitled, “DeKalb County Recorder’s Court, State of Georgia, Petition of Revocation of Probation.”
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34. Upon information and belief, the Petition of Revocation of Probation is a standard form promulgated and approved by the chief judge of the Recorders Court. It has been routinely and customarily used by JCS when charging indigent Recorders Court probationers with probation violation for failure to pay fines and fees.
35. The Petition of Revocation of Probation ordered Mr. Thompson to appear in Recorders Court on December 8, 2014. It charged him with violating the terms of his probation by failing to pay $28 in fees to JCS, $792 in fines and fees to the Recorders Court, and $18 to the Georgia Crime Victim Emergency Fund.
36. The Petition of Revocation of Probation did not report that Mr. Thompson could not afford to pay these fines and fees, was unemployed, and was facing difficulty seeking and finding work due to the suspension of his driver’s license.
37. The Petition of Revocation of Probation includes an “Acknowledgment” section containing the following language: “I am aware that I may employ legal counsel as [sic] said hearing or be represented otherwise as the Court may direct.” The Georgia Court of Appeals held more than twenty years ago that this language fails to adequately inform an indigent person that he may request court-appointed counsel for representation in probation revocation proceedings.
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See Adams v. State, 207 Ga. App. 508, 510, 428 S.E.2d 613, 615-16 (Ga. Ct. App. 1993).
38. The Petition of Revocation of Probation did not inform Mr. Thompson of his right to request court-appointed counsel to represent him in his probation revocation proceedings. Nor did it inform Mr. Thompson of the right of indigent probationers to court-appointed counsel at no cost in revocation proceedings concerning failure-to-pay charges.
39. When Ms. Thomas provided Mr. Thompson the Petition of Revocation of Probation, she asked whether he wanted a public defender. Mr. Thompson did not understand the role of a public defender, and asked Ms. Thomas to explain. Ms. Thomas told Mr. Thompson that he could pay $150 for someone to speak for him in court, or that he could speak for himself if he waived his rights.
40. Ms. Thomas stated an incorrect amount for the fee that may be charged to a probationer represented by a DeKalb County public defender. The fee is $50—not $150. She also withheld the fact that the DeKalb County Public Defender’s Office may waive the $50 fee for those who cannot afford to pay it.
41. Mr. Thompson could not afford to pay $150 for an attorney. He also did not understand from Ms. Thomas’s explanation the risks associated with appearing unrepresented in his probation revocation proceedings, including the risk
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of jail time if found to have violated the terms of his probation, or the benefits of being represented by a public defender. Nor did Mr. Thompson understand that he could apply for a waiver of the public defender fee if the court appointed him counsel.
42. Mr. Thompson told Ms. Thomas that he would waive his right to a public defender because he could not afford to pay $150. He signed the bottom of the Petition of Revocation of Probation.
43. Ms. Thomas checked off a box at the bottom of the revocation petition next to the phrase “Right to Public Defender Waived.”
C) Probation Revocation and Imprisonment in the DeKalb County Jail 44. On December 8, 2014, Mr. Thompson and his mother went to the Recorders Court for his probation revocation hearing. 45. Judge Angela Brown called Mr. Thompson’s case, held up a copy of the Petition of Revocation of Probation charging him with probation violation, and asked him to verify his signature underneath the “Acknowledgment” section of the form. Mr. Thompson verified that the signature on the petition was his. 46. Judge Brown did not inform Mr. Thompson of his right to request court-appointed counsel to represent him in his probation revocation hearing, or
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ask him any questions about the circumstances in which he had signed the Petition of Revocation of Probation. Nor did she engage in any colloquy with Mr. Thompson concerning any purported waiver of his right to request court-appointed counsel.
47. Judge Brown asked to hear from the JCS probation officer in attendance. The JCS probation officer (not Ms. Thomas) recommended that the judge order Mr. Thompson to pay the balance of his fines and fees in full that day or serve ten days in jail. The officer did not inform Judge Brown that Mr. Thompson had made several payments toward his fine.
48. Judge Brown indicated that Mr. Thompson could speak. 49. Mr. Thompson explained that he had told his probation officer that his driver’s license was suspended and that he needed a driver’s license in order to work. He also explained that he had spoken to JCS about a document that he believed would permit him to drive for work, but that JCS had instructed him to see a judge about it. 50. Judge Brown interrupted Mr. Thompson to say that the suspension of Mr. Thompson’s license and his request for a permit were DDS matters, and that she was dealing with his failure to pay $810 in fines and fees within thirty days of sentencing.
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51. Mr. Thompson explained that he was not able to pay the fine because he was a tow truck driver and could not get to work or drive a truck without a driver’s license or a permit. He also explained that he had paid what he could toward his fines and fees, but could not pay a lot of money because he was not working. Mr. Thompson further explained that he had brought a permit form to the Recorders Court prior to his hearing to see if the court could grant the permit, which would enable him to work, help support his family, and pay his fines and fees. Mr. Thompson asked the judge to understand that he was doing the best he could.
52. Judge Brown took a short recess. After she returned, Judge Brown asked Mr. Thompson if he had served any time in jail when he was arrested.
53. Mr. Thompson confirmed that he had spent time in jail. 54. Judge Brown then sentenced Mr. Thompson to nine days in jail. 55. At no point during the hearing did Judge Brown ask Mr. Thompson questions about his ability to pay, efforts to borrow money, cash resources, assets, job prospects, or whether staying out of jail would assist Mr. Thompson in finding work and paying his fines and fees. Nor did Judge Brown make any indigency determination on the record prior to sentencing Mr. Thompson to jail. She did not state any finding that Mr. Thompson had willfully failed to pay or had made
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insufficient efforts to acquire the resources to pay, or that no adequate alternatives to incarceration existed.
56. Although Mr. Thompson asked Judge Brown for assistance in securing a driving permit that would allow him to drive for work and help him earn money, Judge Brown ordered Mr. Thompson to be jailed without pursuing this option or discussing any other alternatives to incarceration, such as a waiver or reduction of the amount Mr. Thompson had to pay, an extension of time to pay, or community service.
57. Mr. Thompson asked Judge Brown if he could hug his mother. The judge denied the request.
58. Mr. Thompson felt ashamed and humiliated that he was being jailed and separated from his mother and family. When he realized that his mother was seeing him handcuffed and taken to jail, he began to cry.
59. Mr. Thompson was incarcerated in the DeKalb County Jail for five days. He does not know why he was released before serving the full sentence of nine days.
60. Mr. Thompson suffered humiliation, anxiety, stress, emotional distress, and other irreparable injury from being handcuffed and taken to jail in
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front of his mother, forcibly separated from his mother and family, and detained for five days in unsanitary and cold jail conditions without enough food to eat.
61. Because of his experience being jailed due to his inability to pay fines and fees, Mr. Thompson is now scared of the police. For days after his release from the DeKalb County Jail, Mr. Thompson was afraid that he could be jailed again and constantly carried a document confirming his release so that he would not be improperly arrested and jailed.
D) DeKalb County and JCS’s Revenue Collection Scheme 62. Since 2008, DeKalb County and JCS have pursued a policy, practice,
and custom of seeking revenue through the use of probation to collect fines and fees imposed by the Recorders Court for traffic offenses and other misdemeanor crimes. Those targeted include indigent people who are placed on pay-only probation solely because they cannot afford to pay their monetary sentences in full on sentencing day.
63. The Recorders Court is located within the executive branch of DeKalb County, and was created pursuant to a local amendment to Article VI, Section I of the Constitution of Georgia 1945, ratified November 4, 1958 (Ga. L. 1958, p. 582).
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The chief judge and associate judges of the Recorders Court are DeKalb County employees, and are appointed by the DeKalb County Board of Commissioners.
64. DeKalb County relies heavily on the Recorders Court to raise money for general County expenditures. In 2010, DeKalb County faced a $100 million revenue shortfall and relied on the Recorders Court’s collection of fines and fees to help bridge the gap. In 2014, the Recorders Court was the largest contributor of revenue to DeKalb County’s total collection of fines and forfeitures. According to the 2014 DeKalb County Budget, the Recorders Court generated over $30 million for DeKalb County in 2013 and was projected to generate an estimated $26,949,286 in revenue for the County in 2014. These collections far exceed the projected 2014 cost of operating the Recorders Court, which amounted to only $3,704,635.
65. In March 2008, DeKalb County issued Request for Proposals No. 08500079 (“RFP No. 08-500079”), which solicited proposals for probation services to the Recorders Court. RFP No. 08-500079 made clear that a central goal of these probation services was to collect fines and fees for DeKalb County. RFP No. 08500079 further provided that “[c]omprehensive probation service plans shall be performed . . . under the direction of the Chief Judge of the Recorder’s Court or her designee.”
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66. JCS submitted a Service Provider Response to RFP 08-500079 (“JCS Response”), which emphasized the company’s focus on fine and fee collection. JCS boasted of the company’s record of “high collection” rates, and asserted that “in every instance where JCS has transitioned a caseload from a previous private provider, we have increased the fine collection rate for the court!” JCS promised that the company would “assume the responsibility of collecting all funds” on behalf of DeKalb County, including from “Fine Pay Only” probationers. Although JCS acknowledged that “[o]ften a probationer will not be able to pay the total amount due in a given month,” it failed to address how employees would handle such cases, when or how they would inquire into financial hardship or inform probationers charged with failure to pay of their right to request court-appointed counsel, or what guidelines employees would follow to help judges identify indigent probationers and guard against the improper jailing of indigent probationers who lacked the resources to pay their fines and fees.
67. In 2008, DeKalb County awarded JCS the Recorders Court contract (“2008 DeKalb County-JCS Contract”), despite the company’s demonstrated lack of attention to the need to protect the rights of indigent probationers targeted for fine collection through pay-only probation.
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68. The 2008 DeKalb County-JCS Contract authorized JCS to provide misdemeanor probation services to the Recorders Court through November 30, 2011, and specified that services would be provided in accordance with the terms of RFP No. 08-500079 and the JCS Response, which were both incorporated by reference into the contract.
69. Upon information and belief, the DeKalb County Board of Commissioners appointed Nelly Withers to serve as chief judge of the Recorders Court in order to increase County fine and fee collection. Her predecessor, Chief Judge R. Joy Walker, had been accused of “losing millions of dollars [of County revenue] in uncollected fines.” A 2009 press release announcing Withers’ nomination explained that Chief Judge Withers would “manag[e] the adjudication of traffic cases, ordinance violations, and similar offenses against the county.”
70. Since she assumed office in 2010, Chief Judge Withers has served as the chief executive and administrator of the Recorders Court and the final DeKalb County policymaker on the collection of County revenue through the Recorders Court, including through the administration of pay-only probation. Chief Judge Withers has carried out executive and administrative responsibility over Recorders Court probation, including by developing Requests for Proposals for probation services providers, evaluating and selecting providers, executing probation services
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contracts, and directing probation services plans. Chief Judge Withers is also the final DeKalb County policymaker responsible for promulgating and implementing training, direction, and supervision of Recorders Court judges on, among other things, fine and fee collection, procedures to be followed in probation revocation proceedings, and the protection of probationers’ rights. Chief Judge Withers’ execution of these executive and administrative functions does not involve adjudicating disputes between litigants.
71. Since her appointment, Chief Judge Withers has made concerted efforts to increase the amount of DeKalb County revenue collected by the Recorders Court. In 2009, the Recorders Court generated approximately $21 million in County revenue. In 2013, that figure rose to more than $30 million.
72. With the approval of the DeKalb County Governing Authority and through her exercise of executive and administrative powers, Chief Judge Withers elected to continue JCS as the probation services provider for the Recorders Court after expiration of the 2008 DeKalb County-JCS Contract. On December 8, 2011, she entered into a second contract with JCS (“2011 Recorders Court-JCS Contract”), which authorized the company to provide probation services to the Recorders Court through the end of 2013.
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73. By letter dated February 27, 2014, Chief Judge Withers notified JCS that the 2011 Recorders Court-JCS Contract would be extended on a month-bymonth basis as she sought to “identify[] a partner for probation services as provided for by Georgia law.” Through the exercise of her executive and administrative powers, Chief Judge Withers extended the 2011 Recorders CourtJCS Contract on a month-by-month basis throughout 2014.
74. Both the 2008 DeKalb County-JCS Contract and the 2011 Recorders Court-JCS Contract set forth DeKalb County and JCS’s policy of fine collection from indigent pay-only probationers. The contracts explicitly authorized JCS to collect a monthly fee of $30 from people sentenced by the Recorders Court to probation for “Fine Collection Only.” The 2011 Recorders Court-JCS Contract further set forth that JCS would provide services “[a]t no charge to the Court or the County,” and that all costs would be borne by probationers themselves, with the exception of indigent probationers. The 2011 Recorders Court-JCS Contract did not explain how JCS employees would identify or handle the cases of indigent probationers, but made clear that JCS could not collect fees from those “determined by the Court to be indigent.”
75. By virtue of the 2011 Recorders Court-JCS Contract, DeKalb County and JCS established a policy of simultaneously incentivizing the use of pay-only
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probation to generate revenue for the County and JCS, while creating a disincentive for JCS to help the Recorders Court identify indigent probationers who could not be charged JCS “supervision” fees.
76. Pursuant to the 2008 and 2011 contracts, JCS did, in fact, collect fines and fees for itself and DeKalb County from indigent pay-only probationers. With DeKalb County and Chief Judge Withers’ endorsement, JCS engaged in the following collection policies, practices, and customs: (1) increasing probationer reporting requirements from monthly to weekly reports when probationers could not afford to make the full amount of payments demanded by JCS; (2) accepting only cash or money order payments made in person at the JCS office in Tucker, Georgia; (3) failing to conduct financial assessments when probationers failed to pay or to make complete payments; (4) charging probationers with violation when a probationer could not make the full payment required by JCS; (5) failing to inform probationers charged with violation for failure to pay that they have a right to request court-appointed counsel to represent them in probation revocation proceedings; (6) failing to inform probationers charged with violation for failure to pay that they could seek waiver of any public defender fees charged if granted court-appointed counsel; and (7) misinforming probationers who failed to make
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payments deemed satisfactory by JCS that they were only entitled to counsel at revocation hearings if they could immediately pay a fee.
77. In carrying out these and other measures to collect fines and fees from indigent pay-only probationers, JCS acted under color of Georgia law. JCS’s provision of probation services is authorized by Georgia law, which governs the administration of misdemeanor probation and permits the chief judge of any court within a county, with the approval of the governing authority of that county, to contract with for-profit companies for misdemeanor probation services. See Ga. Code Ann. § 42-8-100 (2014), et seq.; Ga. Code Ann. § 42-8-100(g) (2014). The actions of JCS and its employees are also fairly attributable to DeKalb County because misdemeanor probation services in DeKalb County were performed by government employees prior to 1991.
E) Failure to Train Recorders Court Judges and JCS Employees on Indigent Probationers’ Rights 78. DeKalb County, Chief Judge Withers, and JCS established a policy,
practice, and custom of failing to train, direct, guide, and supervise Recorders Court judges and JCS employees on how to operate DeKalb County and JCS’s program of seeking fines and fees from indigent pay-only probationers in a manner
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consistent with federal and state law. This failure exhibited deliberate indifference to indigent probationers’ Fourteenth Amendment rights to court-appointed counsel in probation revocation proceedings concerning failure-to-pay charges, and to an indigency hearing that satisfies the requirements of Bearden v. Georgia, 461 U.S. 660 (1983), prior to jailing for failure to pay.
79. DeKalb County, Chief Judge Withers, and JCS have failed to provide any training, direction, guidance, or supervision to probation officers on the procedures for handling indigent Recorders Court probationers, including those who cannot afford to make fine and fee payments. Although Recorders Court probation services are performed under her direction, Chief Judge Withers has not provided any training, direction, guidance, or supervision to JCS employees on probationers’ right to an indigency hearing prior to being jailed for failure to pay, probationers’ right to request court-appointed counsel in revocation proceedings, indigent probationers’ right to court-appointed counsel in revocation hearings concerning failure-to-pay charges, or the requirement that waiver of these rights be knowing, intelligent, and voluntary.
80. DeKalb County, Chief Judge Withers, and JCS have failed to ensure that the contracts establishing their use of probation to collect fines and fees from indigent pay-only probationers provide, at a minimum, “[p]rocedures for handling
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indigent” probationers and “[r]evocation procedures and circumstances,” as required by Georgia law and regulation. See Ga. Code Ann. § 42-8-102(b)(8) (2014); Ga. Comp. R. & Regs. § 503-1-.22(f) (2014). Neither the 2008 DeKalb County-JCS Contract nor the 2011 Recorders Court-JCS Contract fulfills these basic requirements.
81. The response by DeKalb County and the Recorders Court to a December 2, 2014 request under the Georgia Open Records Act, Ga. Code Ann. § 50-18-71(b) (2014), confirms that the County and Chief Judge Withers have not provided even the minimal direction or guidance required by the 2011 Recorders Court-JCS Contract itself. The 2011 Recorders Court-JCS Contract requires Chief Judge Withers to “provide [JCS] with direction concerning what constitutes a substantial failure to comply with probation terms and conditions,” and to “provide [JCS] direction as to what curative measures should be taken in the case of minor violations,” which do not rise to the level of probation violation. The December 2, 2014 Open Records Act Request sought these specific directives required by the 2011 Recorders Court-JCS Contract, as well as: (1) “[a]ll records setting forth directions, policies, procedures, regulations, forms, or guidelines from [the Recorders Court] and/or DeKalb County to JCS concerning the placement of individuals on misdemeanor probation and the revocation of probation”; and (2)
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“[a]ll materials used to train probation officers, including any curriculum approved by the County and Municipal Probation Advisory Council, DeKalb County, and/or [the Recorders Court].” Neither DeKalb County nor the Recorders Court has produced any documents in response, although they have released records responsive to other portions of the December 2, 2014 Open Records Act Request.
82. Upon information and belief, DeKalb County and Chief Judge Withers have also failed to provide any training, direction, guidance, or supervision to Recorders Court judges on probationers’ right to an indigency hearing prior to being jailed for failure to pay, probationers’ right to request courtappointed counsel in revocation proceedings, indigent probationers’ right to courtappointed counsel in revocation hearings concerning failure-to-pay charges, or the requirement that a judge determine whether any waiver of these rights is knowing, intelligent, and voluntary prior to finding the right waived.
83. DeKalb County responded that it had no documents responsive to a January 20, 2015 Open Records Act request that sought, among other records, “[a]ll final materials used by DeKalb County and the Recorders Court between September 9, 2008 and [January 20, 2015] to train, guide, and or/ [sic] direct Recorders Court judges on the rights of probationers, including any orders, guidance, protocols, manuals, procedures, regulations, and guidelines issued by the
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Case 1:15-cv-00280-TWT Document 1 Filed 01/29/15 Page 28 of 42
Chief Judge of the Recorders Court.” The Recorders Court received the January 20, 2015 Request, but has failed to produce any responsive records.
F) Defendants’ Knowledge of Widespread Due Process Violations in Probation Revocation Proceedings and Failure to Correct 84. At the time that Mr. Thompson was charged with probation violation,
DeKalb County, Chief Judge Withers, and JCS were on notice that Recorders Court judges routinely and customarily revoked probation and jailed indigent probationers for failure to pay without conducting a pre-deprivation inquiry into their ability to pay, their efforts to secure money to pay, and the adequacy of alternative punishments to incarceration.
85. At the time that Mr. Thompson was charged with probation violation, DeKalb County, Chief Judge Withers, and JCS were on notice that JCS employees routinely and customarily sought to obtain, and did obtain, written waivers of the right to counsel from indigent probationers charged with failure to pay without adequately informing probationers of their rights and by using a standard “DeKalb County Recorder’s Court, State of Georgia, Petition of Revocation of Probation” promulgated and approved by Chief Judge Withers. DeKalb County, Chief Judge Withers, and JCS were also on notice that the Georgia Court of Appeals held in
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1993 that the same language set forth in the “Acknowledgment” section of this standard Petition of Revocation of Probation failed to inform indigent probationers of their right to request court-appointed counsel to represent them in probation revocation proceedings.
86. At the time that Mr. Thompson was charged with probation violation, DeKalb County, Chief Judge Withers, and JCS were on notice that Recorders Court judges routinely and customarily failed to engage in any colloquy with probationers charged with probation violation for failure to pay to determine whether any purported waiver of the probationer’s right to counsel was knowing, intelligent, and voluntary.
87. In February 2014, ten months before Mr. Thompson was improperly and illegally jailed for failure to pay, Human Rights Watch issued a report, Profiting from Probation: America’s “Offender-Funded” Probation Industry (“HRW Report”), which described Judge Brown’s failure to afford meaningful indigency hearings prior to revoking probation and jailing unrepresented Recorders Court probationers who could not afford to pay court-imposed fines and JCS supervision fees.
88. The HRW Report described a series of probation revocation hearings held by Judge Brown on March 21, 2013. According to Human Rights Watch:
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“The first few cases proceeded quickly. According to lawyers and one probationer who were in the room, Judge Angela Brown called probationers forward and then turned to a JCS employee seated next to her to ask whether there was a warrant out for the person’s arrest. In each case, the JCS employee responded in the affirmative—though she did not actually produce evidence of that warrant for the court. Judge Brown then told the probationer the total amount they allegedly owed in fines and JCS fees and asked whether they could pay that amount immediately and in full. Whenever a probationer said that they could not, Judge Brown ordered their arrest. The witnesses interviewed by Human Rights Watch emphasized that no offender had an opportunity to explain why they had not paid and the judge made no inquiries aimed at determining whether that failure was willful. Most cases were disposed of in under a minute. As the hundreds of people assembled in the courtroom realized why they were there, and that they faced jail time if they couldn’t pay what the judge said they owed that very morning, many stood up and scrambled towards the exits. . . . But Judge Brown ordered her deputies to man the doors to the courtroom and prevent anyone from leaving. The session continued. All told, some 60 probationers on the ‘Animal Control’ docket reportedly went to jail that day for want of money.” Human Rights Watch’s description made clear that Judge Brown revoked probation and jailed people for failure to pay fines
30

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without assessing their ability to pay or efforts to secure resources to pay, the willfulness of nonpayment, or the adequacy of alternatives to incarceration.
89. Local and national media extensively reported on the HRW Report, including the following news outlets: The Atlanta Journal-Constitution, The Augusta Chronicle, The Atlantic, The Guardian, The Nation, National Public Radio, NBC News, and Salon.com.
90. On November 22, 2014, Carrie Teegardin of The Atlanta JournalConstitution reported on “whether Georgia is living up to requirements” of the U.S. Supreme Court’s decision in Bearden v. Georgia, 461 U.S. 660 (1983). Teegardin reported that Recorders Court Judge Trichelle Simmons “made good on her threat to send failing probationers ‘across the street’”—to the DeKalb County Jail—“when they hadn’t paid their fines, had missed appointments with their probation officer and their probation term was close to over.” Teegardin reported that Judge Simmons ordered the jailing of “a woman whose original charge was an improper left turn (she still owed $330), a man whose original charge was speeding (he still owed $131), a woman with an expired tag and suspended registration (she still owed $502), and a woman busted for no insurance and a suspended registration (she owed $437). Two men whose fines stemmed from public intoxication cases were also sent to jail.” Teegardin’s account of the proceedings
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did not describe any inquiry by Judge Simmons into the jailed individuals’ ability to pay or efforts to secure money, the adequacy of alternative punishments to incarceration, or whether any waiver of the right to request court-appointed counsel had been knowing, intelligent, and voluntary.
91. In the same article, Chief Judge Withers made public statements acknowledging that DeKalb County’s system of seeking revenue from pay-only probationers was deliberately indifferent to the rights of the indigent. She admitted that 60 to 70 percent of Recorders Court probation cases are “simply payment plans” and that the County did not have, but needed, “a system that would offer a completely different approach, and that would make a concerted effort to determine whether someone is indigent.” Chief Judge Withers also admitted, “I believe the whole face of probation has to change to curb the perception of and potential for abuse.”
92. Upon information and belief, following the extensive local news coverage of the February 2014 HRW Report and the November 22, 2014 Atlanta Journal-Constitution article, and before the jailing of Mr. Thompson on December 8, 2014, Chief Judge Withers did not institute any training, directions, guidelines, supervision, policies, or procedures to guide Recorders Court judges on: (1) the requirement to conduct an indigency hearing prior to jailing a probationer for
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failure to pay; (2) how to conduct an indigency hearing that properly considers a probationer’s ability to pay and efforts to secure resources, as well as the adequacy of alternative punishments to incarceration; (3) the right of all probationers to request court-appointed counsel in probation revocation proceedings; (4) indigent probationers’ right to counsel in probation revocation proceedings concerning failure-to-pay charges; or (5) the requirement that any waiver of the right to request counsel, or the affirmative right to court-appointed counsel, must be knowing, intelligent, and voluntary. Nor did Chief Judge Withers revise the deficient “Acknowledgment” language in the DeKalb County Recorder’s Court, State of Georgia, Petition of Revocation of Probation. If Chief Judge Withers had taken any of these actions, she would have been engaging in administrative and executive functions through her role as a final DeKalb County policymaker.

DEMAND FOR JURY TRIAL

93.

Mr. Thompson requests a trial by jury.

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FIRST CLAIM FOR RELIEF FAILURE TO PROVIDE
PRE-DEPRIVATION INDIGENCY HEARING in violation of the Due Process and Equal Protection Clauses
of the Fourteenth Amendment and 42 U.S.C. § 1983 (Jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3)) 94. The Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution have long prohibited the imprisonment of people for the failure to pay court-imposed fines without a pre-deprivation inquiry by a judge into the person’s ability to pay, efforts to secure resources to pay, and, if the person is found to lack ability to pay despite having made reasonable efforts to acquire resources, the adequacy of alternatives to incarceration. Courts are prohibited from jailing people for failure to pay without conducting such an inquiry and making at least one of the following findings: (1) the individual’s failure to pay was willful; (2) the individual failed to make sufficient efforts to acquire the resources to pay; and/or (3) the individual was unable to pay, despite having made sufficient efforts to acquire resources, but alternative methods of achieving punishment or deterrence are not adequate. 95. As described in and incorporating paragraphs 1 through 92, Mr. Thompson suffered a violation of his clearly established right to an indigency
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hearing when the Recorders Court revoked his probation and jailed him for his inability to pay court-imposed fines, State surcharges, and JCS fees. The sentencing judge made no inquiry or findings concerning the willfulness of Mr. Thompson’s failure to pay, the adequacy of his efforts to acquire the resources to pay, or the adequacy of alternatives to incarceration, such as a reduction or waiver of the amount to be paid, an extension of time to pay, or community service. To the extent that the judge made any such findings, the record fails to support them.
96. DeKalb County, Chief Judge Withers, and JCS directly and proximately caused the violation of Mr. Thompson’s right to a pre-deprivation indigency hearing by developing and maintaining policies, practices, and customs that demonstrated deliberate indifference to this right and the liberty interests of indigent probationers. These policies, practices, and customs include: (1) the use and endorsement of collection methods to secure payments toward Recorders Court fines and costs and JCS fees from indigent pay-only probationers; (2) the failure to train, direct, guide, and supervise Recorders Court judges and JCS employees on indigent probationers’ right to an indigency hearing satisfying the requirements of Bearden v. Georgia, 461 U.S. 660 (1983), prior to being jailed for failure to pay; (3) the improper delegation of judicial responsibilities to JCS employees; and (4) the failure to investigate and address reports that Recorders
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Court judges did not afford indigency hearings to probationers charged with probation violation for failure to pay.
97. Through policy, practice, and custom, DeKalb County, Chief Judge Withers, and JCS persisted in seeking revenue from indigent pay-only probationers despite their awareness that the deprivation of probationers’ right to an indigency hearing in Recorders Court probation revocation proceedings concerning failureto-pay charges, including those heard by Judge Brown, had become longstanding and pervasive.
98. Through policy, practice, and custom, DeKalb County, Chief Judge Withers, and JCS acted with actual malice and reckless indifference to Mr. Thompson’s clearly established right to a meaningful indigency hearing prior to being jailed for failure to pay court-imposed fines, State surcharges, and JCS fees.
99. Defendants’ actions in violating Mr. Thompson’s rights also constituted a violation of 42 U.S.C. § 1983. Defendants were acting under color of law when their actions, policies, practices, and customs caused Mr. Thompson’s incarceration, and their acts and omissions can be fairly attributed to the County.
100. Mr. Thompson seeks damages, in an amount to be determined by the enlightened conscience of a jury, from DeKalb County, Chief Judge Withers, in her official capacity, and JCS for the humiliation, anxiety, stress, emotional
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Case 1:15-cv-00280-TWT Document 1 Filed 01/29/15 Page 37 of 42
distress, and other irreparable injury he suffered as a result of being handcuffed and taken to jail in front of his mother, forcibly separated from his mother and family, and detained for five days in unsanitary and cold jail conditions without enough food to eat.
SECOND CLAIM FOR RELIEF FAILURE TO AFFORD COUNSEL in violation of the Due Process Clause of the Fourteenth Amendment and 42 U.S.C. § 1983 (Jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3)) 101. The Fourteenth Amendment to the U.S. Constitution affords all probationers a due process right to request court-appointed counsel in probation revocation proceedings, and affords indigent probationers a right to courtappointed counsel at no cost in probation revocation proceedings concerning failure-to-pay charges. 102. As described in and incorporating paragraphs 1 through 92, Mr. Thompson suffered a violation of this right when the Recorders Court did not inform him of his right to request court-appointed counsel, did not afford him court-appointed counsel despite prima facie evidence of his indigency, and instead accepted a written waiver through Mr. Thompson’s signature on a DeKalb County
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Recorder’s Court, State of Georgia, Petition of Revocation of Probation without engaging in a colloquy to determine whether the waiver was knowing, intelligent, and voluntary, and despite the inclusion of petition language that failed to inform Mr. Thompson of his rights. The Recorders Court’s failure to conduct such a colloquy directly and proximately caused Mr. Thompson to appear before the Recorders Court in probation revocation hearings without the benefit of counsel.
103. DeKalb County, Chief Judge Withers, and JCS directly and proximately caused the violation of Mr. Thompson’s due process right to counsel by developing and maintaining policies, practices, and customs that demonstrated deliberate indifference to this right. These policies, practices, and customs include: (1) endorsement of JCS employees’ routine use of a standard DeKalb County Recorder’s Court, State of Georgia, Petition of Revocation of Probation to secure waivers of indigent probationers’ right to counsel, despite clearly established law holding that language used in the petition failed to inform indigent probationers of even their most basic right to request the appointment of counsel in probation revocation proceedings; (2) failure to train, direct, guide, and supervise JCS employees and Recorders Court judges on probationers’ right to request courtappointed counsel and indigent probationers’ right to court-appointed counsel in probation revocation proceedings concerning failure-to-pay charges; (3) failure to
38

Case 1:15-cv-00280-TWT Document 1 Filed 01/29/15 Page 39 of 42
train, direct, and supervise Recorders Court judges on the standard for determining a knowing, intelligent, and voluntary waiver of rights concerning counsel; and (4) failure to investigate and address reports that Recorders Court judges did not afford counsel to indigent probationers charged with probation violation for failure to pay.
104. Through policy, practice, and custom, DeKalb County, Chief Judge Withers, and JCS directly and proximately caused the violation of Mr. Thompson’s right to counsel through their acquiescence to the routine and customary use of a standard Petition of Revocation of Probation containing language that failed to inform indigent probationers of their right to court-appointed counsel, and to the routine and customary failure of Recorders Court judges, including Judge Brown, to ensure that any written or oral waiver of the right to counsel was knowing, voluntary, and intelligent. Defendants were aware that these practices, actions, customs, and failures had become so longstanding and pervasive as to constitute the standard operating procedure of the Recorders Court.
105. Through policy, practice, and custom, DeKalb County, Chief Judge Withers, and JCS acted with actual malice and reckless indifference to Mr. Thompson’s clearly established right to counsel as an indigent probationer charged with probation violation for failure to pay.
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106. Defendants’ actions in violating Mr. Thompson’s due process right to counsel also constitute a violation of 42 U.S.C. § 1983. Defendants were acting under color of law when their policies, practices, and customs caused Mr. Thompson to unknowingly, unintelligently, and involuntarily waive his right to counsel, and their acts and omissions can fairly be attributed to the County.
107. Mr. Thompson seeks damages, in an amount to be determined by the enlightened conscience of a jury, from DeKalb County, Chief Judge Withers, in her official capacity, and JCS for the humiliation, anxiety, stress, emotional distress, and other irreparable injury he suffered as a result of being handcuffed and taken to jail in front of his mother, forcibly separated from his mother and family, and detained for five days in unsanitary and cold jail conditions without enough food to eat following probation revocation proceedings in which he lacked representation by counsel.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that the Court enter a judgment including: 1. Compensatory damages in an amount to be determined at trial; 2. Punitive damages in an amount to be determined at trial;
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Case 1:15-cv-00280-TWT Document 1 Filed 01/29/15 Page 41 of 42
3. An award of attorneys’ fees, costs, and expenses of all litigation,
pursuant to 42 U.S.C. § 1988; and
4. Such other and further relief as the Court may deem just and proper.
DATED this January 29, 2015
Respectfully submitted by,
NUSRAT JAHAN CHOUDHURY DENNIS D. PARKER LAURA HUIZAR (subject to pro hac admission) American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, New York 10004 Tel. (212) 519-7876 Fax (212) 549-2651
/s/ Robert B. Remar ROBERT B. REMAR Ga. Bar No. 600575 JENNIFER R. VIROSTKO Ga. Bar No. 959286 Rogers & Hardin LLP 2700 International Tower 229 Peachtree Street N.E. Atlanta, Georgia 30303 Tel. (404) 522-4700 Fax (404) 525-2224 Cooperating Attorneys for the American Civil Liberties Union Foundation of Georgia
SARAH GERAGHTY Southern Center for Human Rights
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Case 1:15-cv-00280-TWT Document 1 Filed 01/29/15 Page 42 of 42
83 Poplar Street N.W. Atlanta, Georgia 30303 Tel. (404) 688-1202 Fax (404) 688-9440
42

JS44 (Rev. 1/13 NDGA)Case 1:15-cv-00280-TWCTIVDILocCuOmVeEntR1S-1HEFEilTed 01/29/15 Page 1 of 2
The JS44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form is required for the use of the Clerk of Court for the purpose of initiating the civil docket record. (SEE INSTRUCTIONS ATTACHED)

I. (a) PLAINTIFF(S) Kevin Thompson

DEFENDANT(S)
DeKalb County, Georgia; Nelly Withers, in her official capacity as Chief Judge of the DeKalb County Recorders Court; Judicial Correction Services, Incorporated

(b) COUNTY OF RESIDENCE OF FIRST LISTED
PLAINTIFF DeKalb County
(EXCEPT IN U.S. PLAINTIFF CASES)
(c) ATTORNEYS (FIRM NAME, ADDRESS, TELEPHONE NUMBER, AND
E-MAIL ADDRESS)
Robert B. Remar, Jennifer R. Virostko; 2700 International Tower, 229 Peachtree Street, N.E., Atlanta, Georgia 30303; (404) 522-4700; rremar@rh-law.com, jvirostko@rh-law.com

COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT DeKalb County
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED
ATTORNEYS (IF KNOWN)

II. BASIS OF JURISDICTION
(PLACE AN “X” IN ONE BOX ONLY)

■ 1 U.S. GOVERNMENT

3 FEDERAL QUESTION

PLAINTIFF

(U.S. GOVERNMENT NOT A PARTY)

2 U.S. GOVERNMENT DEFENDANT

4 DIVERSITY (INDICATE CITIZENSHIP OF PARTIES IN ITEM III)

III. CITIZENSHIP OF PRINCIPAL PARTIES
(PLACE AN “X” IN ONE BOX FOR PLAINTIFF AND ONE BOX FOR DEFENDANT)
(FOR DIVERSITY CASES ONLY)

PLF DEF

PLF

DEF

1

1 CITIZEN OF THIS STATE

4

4 INCORPORATED OR PRINCIPAL

PLACE OF BUSINESS IN THIS STATE

2

2 CITIZEN OF ANOTHER STATE

5

5 INCORPORATED AND PRINCIPAL

PLACE OF BUSINESS IN ANOTHER

STATE

3

3 CITIZEN OR SUBJECT OF A

FOREIGN COUNTRY

6

6 FOREIGN NATION

IV. ORIGIN (PLACE AN “X “IN ONE BOX ONLY)

■1 ORIGINAL PROCEEDING

2 REMOVED FROM STATE COURT

3 REMANDED FROM 4 REINSTATED OR APPELLATE COURT REOPENED

TRANSFERRED FROM 5 ANOTHER DISTRICT
(Specify District)

6 MULTIDISTRICT LITIGATION

APPEAL TO DISTRICT JUDGE 7 FROM MAGISTRATE JUDGE
JUDGMENT

V. CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE - DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)
Violation of Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983

(IF COMPLEX, CHECK REASON BELOW) 1. Unusually large number of parties. 2. Unusually large number of claims or defenses. 3. Factual issues are exceptionally complex 4. Greater than normal volume of evidence. 5. Extended discovery period is needed.

6. Problems locating or preserving evidence 7. Pending parallel investigations or actions by government. 8. Multiple use of experts. 9. Need for discovery outside United States boundaries. 10. Existence of highly technical issues and proof.

FOR OFFICE USE ONLY RECEIPT # JUDGE

AMOUNT $ MAG. JUDGE

CONTINUED ON REVERSE

(Referral)

APPLYING IFP NATURE OF SUIT

MAG. JUDGE (IFP)

CAUSE OF ACTION

_

VI. NATURE OCFaSsUeI1T:1(P5LA-CcEvA-N0“X0”2IN8O0NE-TBOWX OTNLY) Document 1-1 Filed 01/29/15 Page 2 of 2

CONTRACT - "0" MONTHS DISCOVERY TRACK 150 RECOVERY OF OVERPAYMENT & ENFORCEMENT OF JUDGMENT 152 RECOVERY OF DEFAULTED STUDENT LOANS (Excl. Veterans) 153 RECOVERY OF OVERPAYMENT OF VETERAN'S BENEFITS
CONTRACT - "4" MONTHS DISCOVERY TRACK 110 INSURANCE 120 MARINE 130 MILLER ACT 140 NEGOTIABLE INSTRUMENT 151 MEDICARE ACT 160 STOCKHOLDERS' SUITS 190 OTHER CONTRACT 195 CONTRACT PRODUCT LIABILITY 196 FRANCHISE
REAL PROPERTY - "4" MONTHS DISCOVERY TRACK
210 LAND CONDEMNATION 220 FORECLOSURE 230 RENT LEASE & EJECTMENT 240 TORTS TO LAND 245 TORT PRODUCT LIABILITY 290 ALL OTHER REAL PROPERTY
TORTS - PERSONAL INJURY - "4" MONTHS DISCOVERY TRACK
310 AIRPLANE 315 AIRPLANE PRODUCT LIABILITY 320 ASSAULT, LIBEL & SLANDER 330 FEDERAL EMPLOYERS' LIABILITY 340 MARINE 345 MARINE PRODUCT LIABILITY 350 MOTOR VEHICLE 355 MOTOR VEHICLE PRODUCT LIABILITY 360 OTHER PERSONAL INJURY 362 PERSONAL INJURY - MEDICAL
MALPRACTICE 365 PERSONAL INJURY - PRODUCT LIABILITY 367 PERSONAL INJURY - HEALTH CARE/
PHARMACEUTICAL PRODUCT LIABILITY 368 ASBESTOS PERSONAL INJURY PRODUCT
LIABILITY
TORTS - PERSONAL PROPERTY - "4" MONTHS DISCOVERY TRACK
370 OTHER FRAUD 371 TRUTH IN LENDING 380 OTHER PERSONAL PROPERTY DAMAGE 385 PROPERTY DAMAGE PRODUCT LIABILITY
BANKRUPTCY - "0" MONTHS DISCOVERY TRACK 422 APPEAL 28 USC 158 423 WITHDRAWAL 28 USC 157

CIVIL RIGHTS - "4" MONTHS DISCOVERY TRACK 441 VOTING 442 EMPLOYMENT 443 HOUSING/ ACCOMMODATIONS 444 WELFARE
■ 440 OTHER CIVIL RIGHTS
445 AMERICANS with DISABILITIES - Employment 446 AMERICANS with DISABILITIES - Other 448 EDUCATION
IMMIGRATION - "0" MONTHS DISCOVERY TRACK 462 NATURALIZATION APPLICATION 465 OTHER IMMIGRATION ACTIONS
PRISONER PETITIONS - "0" MONTHS DISCOVERY TRACK
463 HABEAS CORPUS- Alien Detainee 510 MOTIONS TO VACATE SENTENCE 530 HABEAS CORPUS 535 HABEAS CORPUS DEATH PENALTY 540 MANDAMUS & OTHER 550 CIVIL RIGHTS - Filed Pro se 555 PRISON CONDITION(S) - Filed Pro se 560 CIVIL DETAINEE: CONDITIONS OF
CONFINEMENT
PRISONER PETITIONS - "4" MONTHS DISCOVERY TRACK
550 CIVIL RIGHTS - Filed by Counsel 555 PRISON CONDITION(S) - Filed by Counsel
FORFEITURE/PENALTY - "4" MONTHS DISCOVERY TRACK
625 DRUG RELATED SEIZURE OF PROPERTY 21 USC 881
690 OTHER
LABOR - "4" MONTHS DISCOVERY TRACK 710 FAIR LABOR STANDARDS ACT 720 LABOR/MGMT. RELATIONS 740 RAILWAY LABOR ACT 751 FAMILY and MEDICAL LEAVE ACT 790 OTHER LABOR LITIGATION 791 EMPL. RET. INC. SECURITY ACT
PROPERTY RIGHTS - "4" MONTHS DISCOVERY TRACK 820 COPYRIGHTS 840 TRADEMARK
PROPERTY RIGHTS - "8" MONTHS DISCOVERY TRACK 830 PATENT

SOCIAL SECURITY - "0" MONTHS DISCOVERY TRACK
861 HIA (1395ff) 862 BLACK LUNG (923) 863 DIWC (405(g)) 863 DIWW (405(g)) 864 SSID TITLE XVI 865 RSI (405(g))
FEDERAL TAX SUITS - "4" MONTHS DISCOVERY TRACK
870 TAXES (U.S. Plaintiff or Defendant) 871 IRS - THIRD PARTY 26 USC 7609
OTHER STATUTES - "4" MONTHS DISCOVERY TRACK
375 FALSE CLAIMS ACT 400 STATE REAPPORTIONMENT 430 BANKS AND BANKING 450 COMMERCE/ICC RATES/ETC. 460 DEPORTATION 470 RACKETEER INFLUENCED AND CORRUPT
ORGANIZATIONS 480 CONSUMER CREDIT 490 CABLE/SATELLITE TV 891 AGRICULTURAL ACTS 893 ENVIRONMENTAL MATTERS 895 FREEDOM OF INFORMATION ACT 950 CONSTITUTIONALITY OF STATE STATUTES 890 OTHER STATUTORY ACTIONS 899 ADMINISTRATIVE PROCEDURES ACT /
REVIEW OR APPEAL OF AGENCY DECISION
OTHER STATUTES - "8" MONTHS DISCOVERY TRACK
410 ANTITRUST 850 SECURITIES / COMMODITIES / EXCHANGE
OTHER STATUTES - “0" MONTHS DISCOVERY TRACK
896 ARBITRATION (Confirm / Vacate / Order / Modify)
* PLEASE NOTE DISCOVERY
TRACK FOR EACH CASE TYPE. SEE LOCAL RULE 26.3

VII. REQUESTED IN COMPLAINT:

CHECK IF CLASS ACTION UNDER F.R.Civ.P. 23 DEMAND $_____________________________

■ JURY DEMAND YES

NO (CHECK YES ONLY IF DEMANDED IN COMPLAINT)

VIII. RELATED/REFILED CASE(S) IF ANY

JUDGE_______________________________

DOCKET NO._______________________

CIVIL CASES ARE DEEMED RELATED IF THE PENDING CASE INVOLVES: (CHECK APPROPRIATE BOX)
1. PROPERTY INCLUDED IN AN EARLIER NUMBERED PENDING SUIT. 2. SAME ISSUE OF FACT OR ARISES OUT OF THE SAME EVENT OR TRANSACTION INCLUDED IN AN EARLIER NUMBERED PENDING SUIT. 3. VALIDITY OR INFRINGEMENT OF THE SAME PATENT, COPYRIGHT OR TRADEMARK INCLUDED IN AN EARLIER NUMBERED PENDING SUIT. 4. APPEALS ARISING OUT OF THE SAME BANKRUPTCY CASE AND ANY CASE RELATED THERETO WHICH HAVE BEEN DECIDED BY THE SAME
BANKRUPTCY JUDGE.
5. REPETITIVE CASES FILED BY PRO SE LITIGANTS. 6. COMPANION OR RELATED CASE TO CASE(S) BEING SIMULTANEOUSLY FILED (INCLUDE ABBREVIATED STYLE OF OTHER CASE(S)):

7. EITHER SAME OR ALL OF THE PARTIES AND ISSUES IN THIS CASE WERE PREVIOUSLY INVOLVED IN CASE NO.

DISMISSED. This case IS

IS NOT (check one box) SUBSTANTIALLY THE SAME CASE.

, WHICH WAS

/s/ Robert B. Remar
SIGNATURE OF ATTORNEY OF RECORD

January 29, 2015
DATE

 
 Case: 1:15-cv-280 As of: 11/05/2017 04:47 PM EST 1 of 4
4months,CLOSED
U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:15−cv−00280−TWT

Thompson v. DeKalb County, Georgia et al Assigned to: Judge Thomas W. Thrash, Jr Cause: 42:1983 Civil Rights Act
Plaintiff Kevin Thompson

Date Filed: 01/29/2015 Date Terminated: 04/06/2015 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Dennis Parker American Civil Liberties Union Foundation−NY 125 Broad Street 18th Floor New York, NY 10004 212−519−7832 Email: dparker@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis D. Parker NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street 16th Floor New York, NY 10013 212−219−1900 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Rebecca Virostko Rogers & Hardin, LLP 2700 International Tower, Peachtree Center 229 Peachtree Street, N.E. Atlanta, GA 30303−1601 404−420−4639 Email: jvirostko@kslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura Huizar American Civil Liberties Union Foundation−NY 125 Broad Street 18th Floor New York, NY 10004 212−519−7882 Email: lhuizar@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nusrat Jahan Choudhury American Civil Liberties Union Foundation−NY 125 Broad Street 18th Floor New York, NY 10004 212−519−7876

Case: 1:15-cv-280 As of: 11/05/2017 04:47 PM EST 2 of 4
Email: nchoudhury@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert B. Remar Rogers & Hardin, LLP 229 Peachtree Street, N.E. 2700 International Tower, Peachtree Center Atlanta, GA 30303−1601 404−522−4700 Email: rbr@rh−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah E. Geraghty Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, GA 30303−2122 404−688−1202 Email: sgeraghty@schr.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant DeKalb County, Georgia
Defendant Nelly Withers in her official capacity as Chief Judge of the Dekalb County Recorders Court Defendant Judicial Correction Services, Incorporated

represented by Kendric E. Smith Dekalb County Law Department 5th Floor 1300 Commerce Drive Decatur, GA 30030 404−371−6374 Email: kesmith@dekalbcountyga.gov ATTORNEY TO BE NOTICED
represented by Kendric E. Smith (See above for address) ATTORNEY TO BE NOTICED
represented by Craig K. Pendergrast Taylor English Duma LLP Suite 200 1600 Parkwood Circle Atlanta, GA 30339 678−336−7245 Fax: 770−434−7376 Email: cpendergrast@taylorenglish.com ATTORNEY TO BE NOTICED

Date Filed 01/29/2015
01/29/2015

# Docket Text
1 COMPLAINT with Jury Demand filed by Kevin Thompson; and Summon(s) issued. ( Filing fee $ 400.00 receipt number 113E−5629110.) (Attachments: # 1 Civil Cover Sheet)(eop) Please visit our website at http://www.gand.uscourts.gov/forms to obtain Pretrial Instructions which includes the Consent To Proceed Before U.S. Magistrate form. (Entered: 01/30/2015)
2 Electronic Summons Issued as to DeKalb County, Georgia, Judicial Correction Services, Incorporated and Nelly Withers. (Attachments: # 1 N. Withers, # 2 Judicial

Case: 1:15-cv-280 As of: 11/05/2017 04:47 PM EST 3 of 4

01/29/2015 02/02/2015 02/03/2015 02/03/2015 02/03/2015 02/09/2015
02/09/2015
02/09/2015 02/09/2015 02/09/2015 02/09/2015 02/12/2015 02/12/2015 02/12/2015 02/13/2015 02/13/2015 02/18/2015 02/23/2015
02/23/2015

Correction Services)(eop) (Entered: 01/30/2015)
3 Certificate of Interested Persons by Kevin Thompson. (eop) (Entered: 01/30/2015)
Clerks Notation re 3 Certificate of Interested Persons, OK, per TWT. (ss) (Entered: 02/02/2015)
4 APPLICATION for Admission of Dennis Parker Pro Hac Vice (Application fee $ 150, receipt number 113E−5639505)by Kevin Thompson. (Remar, Robert) (Entered: 02/03/2015)
5 APPLICATION for Admission of Nusrat J. Choudhury Pro Hac Vice (Application fee $ 150, receipt number 113E−5639571)by Kevin Thompson. (Remar, Robert) (Entered: 02/03/2015)
6 APPLICATION for Admission of Laura Huizar Pro Hac Vice (Application fee $ 150, receipt number 113E−5639591)by Kevin Thompson. (Remar, Robert) (Entered: 02/03/2015)
APPROVAL by Clerks Office re: 4 APPLICATION for Admission of Dennis Parker Pro Hac Vice (Application fee $ 150, receipt number 113E−5639505). Attorney Dennis Parker added appearing on behalf of Kevin Thompson (pb) (Entered: 02/09/2015)
APPROVAL by Clerks Office re: 5 APPLICATION for Admission of Nusrat J. Choudhury Pro Hac Vice (Application fee $ 150, receipt number 113E−5639571). Attorney Nusrat Jahan Choudhury added appearing on behalf of Kevin Thompson (pb) (Entered: 02/09/2015)
APPROVAL by Clerks Office re: 6 APPLICATION for Admission of Laura Huizar Pro Hac Vice (Application fee $ 150, receipt number 113E−5639591). Attorney Laura Huizar added appearing on behalf of Kevin Thompson (pb) (Entered: 02/09/2015)
7 Return of Service Executed by Kevin Thompson. Nelly Withers served on 2/4/2015, answer due 2/25/2015. (Remar, Robert) (Entered: 02/09/2015)
8 Return of Service Executed by Kevin Thompson. DeKalb County, Georgia served on 2/2/2015, answer due 2/23/2015. (Remar, Robert) (Entered: 02/09/2015)
9 Return of Service Executed by Kevin Thompson. Judicial Correction Services, Incorporated served on 2/2/2015, answer due 2/23/2015. (Remar, Robert) (Entered: 02/09/2015)
10 ORDER granting 5 Application for Admission Pro Hac Vice for Nusrat Choudhury. Signed by Judge Thomas W. Thrash, Jr on 2/10/15. (dr) (Entered: 02/12/2015)
11 ORDER granting 6 Application for Admission Pro Hac Vice for Laura Huizar. Signed by Judge Thomas W. Thrash, Jr on 2/10/15. (dr) (Entered: 02/12/2015)
12 ORDER granting 4 Application for Admission Pro Hac Vice for Dennis Parker. Signed by Judge Thomas W. Thrash, Jr on 2/10/15. (dr) (Entered: 02/12/2015)
13 NOTICE of Appearance by Kendric E. Smith on behalf of DeKalb County, Georgia, Nelly Withers (Smith, Kendric) (Entered: 02/13/2015)
14 MOTION for Extension of Time to File Answer or Other Responsive Pleadings by DeKalb County, Georgia, Nelly Withers. (Smith, Kendric) (Entered: 02/13/2015)
15 ORDER granting 14 Motion for Extension of Time to Answer, DeKalb County, Georgia Answer due 3/25/2015; Nelly Withers Answer due 3/25/2015. Signed by Judge Thomas W. Thrash, Jr on 2/17/2015. (ss) (Entered: 02/18/2015)
16 INCORRECT PDF ATTACHED MOTION for Extension of Time to File Answer re 1 Complaint, by Judicial Correction Services, Incorporated. (Attachments: # 1 Exhibit EXHIBIT A)(Pendergrast, Craig) Modified on 2/23/2015. Atty to refile. (jtj) (Entered: 02/23/2015)
17 MOTION for Extension of Time File Responsive Pleadings re: 1 Complaint, by Judicial Correction Services, Incorporated. (Attachments: # 1 Text of Proposed Order proposed Order)(Pendergrast, Craig) (Entered: 02/23/2015)

Case: 1:15-cv-280 As of: 11/05/2017 04:47 PM EST 4 of 4

02/24/2015 03/09/2015 03/09/2015 03/23/2015 03/24/2015 04/03/2015 04/06/2015 04/06/2015

18 ORDER TO EXTEND TIME TO ANSWER 1 Complaint, for Judicial Correction Services, Incorporated, through 3/9/2015. Signed by Judge Thomas W. Thrash, Jr on 2/24/2015. (ss) (Entered: 02/24/2015)
19 MOTION for Extension of Time to File Responsive Pleadings re: 1 Complaint, by Judicial Correction Services, Incorporated. (Attachments: # 1 Text of Proposed Order EXHIBIT A)(Pendergrast, Craig) (Entered: 03/09/2015)
20 ORDER TO EXTEND TIME TO ANSWER through 3/25/2015 as to defendant Judicial Correction Services, Inc. Signed by Judge Thomas W. Thrash, Jr on 3/9/2015. (ss) (Entered: 03/09/2015)
21 MOTION for Extension of Time to File Answer Or Other Responsive Pleadings by DeKalb County, Georgia, Nelly Withers. (Attachments: # 1 Text of Proposed Order)(Smith, Kendric) (Entered: 03/23/2015)
22 ORDER granting 21 Motion for Extension of Time to Answer, DeKalb County, Georgia Answer due 4/8/2015; Nelly Withers Answer due 4/8/2015. Signed by Judge Thomas W. Thrash, Jr on 3/24/2015. (ss) (Entered: 03/24/2015)
23 STIPULATION of Dismissal with Prejudice by Rogers & Hardin LLP. (Remar, Robert) (Entered: 04/03/2015)
Clerk's Entry of Dismissal APPROVING 23 Stipulation of Dismissal pursuant to Fed.R.Civ.P.41(a)(1)(ii) (dr) (Entered: 04/06/2015)
Civil Case Terminated. (dr) (Entered: 04/06/2015)

 
 SETTLEMENT AGRJmMENT AND RELEASE OF CLAIMS This Settlement Agreement and Release of Claims (hereinafter "Agreement") is made by and among DEKALB COUNTY, GEORGIA ("DeKalb County"); CHIEF JUDGE NELLY WITHERS, In Her Official Capacity as Chief Judge of the DeKalb County Recorder's Court ("Judge Withers"); JUDICIAL CORRECTION SERVICES ("JCS"); KEVIN THOMPSON ("Thompson" or "Plaintiff'), on behalf of himself and each of his respective heirs, successors, and assigns; the AMERICAN CIVIL LIBERTIES UNION FOUNDATION ("ACLU Foundation"); the AMERICAN CIVIL LIBERTIES FOUNDATION OF GEORGIA ("ACLU Foundation of Georgia"); the SOUTHERN CENTER FOR HUMAN RIGHTS ("Southern Center"); and ROGERS & HARDIN LLP ("Rogers & Hardin"). DeKalb County, Judge Withers and JCS are from time to time referred to collectively as "Defendants" herein. DeKalb County, Judge Withers, JCS and Thompson are fi·om time to time referred to hereinafter individually as a "Party" and collectively as the "Parties." WHEREAS, commencing on December 8, 2014, Thompson alleges that he was incarcerated for five days in the DeKalb County Jail because of his inability to pay $838 in fines and fees related to a traffic ticket following DeKalb County Recorder's Court probation revocation proceedings in which he was not properly informed of his right to request court-appointed counsel, was not provided counsel

as an indigent probationer charged with failure to pay, and was not afforded a predeprivation indigency hearing prior to being jailed for failure to pay fines and fees (the "Incident");
WHEREAS, Thompson filed an action against Defendants on January 29, 2015 in the United States District Court for the Nmthern District of Georgia, entitled Thompson v. DeKalb County, Georgia et al., Civil Action No. 1:15-cv00280-TWT (the "Lawsuit"), alleging violations of his rights to due process and equal protection of the law under the Fourteenth Amendment to the U.S. Constitution as a result of Defendants' alleged policies, practices, and customs;
WHEREAS, DeKalb County, Judge Withers and JCS deny that they engaged in any unlawful conduct toward Thompson and further deny that Thompson's claims would result in any liability on their part;
WHEREAS, it is the desire of the Parties to resolve all disputes as and between and among them and to settle the Lawsuit;
NOW, THEREFORE, in consideration of the promises and mutual covenants herein contained, and other good and valuable consideration passing between the Parties, the receipt and sufficiency of which consideration is hereby acknowledged, and intending to be legally bound hereby, it is agreed as follows:
1. RELEASE OF CLAIMS BY PLAINTIFF AND COUNSEL. (a) In consideration ofthe agreements set forth herein, including the
2

payment provided for below, Thompson, on behalf of himself and his agents, representatives, assignees, attomeys, heirs, executors, and administrators (collectively referred to as "Releasors"), hereby releases DeKalb County, Judge Withers, JCS, and their present and former agents, employees, attomeys, officers, elected officials, departments, contractors and assigns (individually and collectively "Releasees") from any and all controversies, claims, demands, promises, actions, suits, grievances, proceedings, complaints, charges, liabilities, and claims for damages, debts, allowances, bonuses, costs, expenses, and attomeys' fees (individually and collectively "Claims") that Releasors or any of them have or may have against Releasees or any of them by reason of any matter, cause, act, or omission, from the beginning of time until the date of execution of this Agreement, including those alleged in the Lawsuit and those arising out of or in connection with the Incident. This release applies to Claims that Releasors know about, and those Releasors may not know about, occurring or arising at any time on or before the date of execution of this Agreement.
(b) In exchange for the payment to the ACLU Foundation provided for in Paragraph 2 herein, the ACLU Foundation, the ACLU Foundation of Georgia, the Southern Center and Rogers & Hardin, LLP (collectively, "Counsel") hereby release the Releasees from any and all claims for attomeys' fees, costs and expenses, or other compensation that they, or any of their cmTent or former
3

partners or employees may claim in connection with the Lawsuit or any proceedings related to the Lawsuit. The Plaintiff and Cotmsel agree that the payments provided for herein satisfY all claims for attorneys' fees, costs and expenses from Defendants related to the Lawsuit, and that they will not seek any additional award of attorneys' fees, costs or expenses from the Defendants or any o f them.
2. PAYMENT. In full and complete satisfaction of all claims against DeKalb County, Judge Withers, and JCS, and in consideration for the Plaintiff and Counsel executing this Agreement and complying with its tenns, Defendants will pay to Plaintiff and Counsel the total amount of SEVENTY THOUSAND DOLLARS ($70,000.00). This amount includes an amount allocable to all attorneys' fees, costs and expenses incurred by the Plaintiff and Counsel. The parties agree that no part of this amount is for wages. The $70,000 total amount will be paid by means of checks made payable to "Kevin Thompson" and "The American Civil Liberties Union Foundation." Said checks will be delivered to Plaintiffs Attorney Robert Remar at Rogers & Hardin LLP within ten (10) business days after the County Attorney ofDeKalb County receives an original of this Agreement that has been fully executed by Thompson, the ACLU Foundation, the ACLU Foundation of Georgia, the Southern Center , and Rogers & Hardin LLP.
4

The payment of the above-stated total amount is the entire and only monetary consideration for this Agreement, and Thompson shall be responsible for any additional payment of attomey's fees and legal expenses of Thompson and Thompson's attomeys, including Counsel, and other fees and expenses, including taxes, if any, flowing from, arising out of, or in any way related to the Incident or the Lawsuit. Each Defendant shall likewise be responsible for her or its own attomeys' fees and legal expenses in connection with the Incident and the Lawsuit.
3, AFFIRMATIVE POLICY CHANGES. (a) In further consideration for the execution ofthis Agreement, including the dismissal of this Action, Judge Withers will disseminate to all DeKalb County Recorder's Court personnel involved in the administration of misdemeanor probation conceming traffic offenses and violations ofDeKalb County ordinances, including DeKalb County Recorder's Court judges adjudicating misdemeanor probation revocation proceedings in any capacity, an Order in the form attached hereto as Exhibit A, and made a pati hereof, within ten days after the County Attomey of DeKalb County receives an original of this Agreement that has been fully executed by Thompson, the ACLU Foundation, the ACLU Foundation of Georgia, the Southem Center and Rogers & Hardin LLP. (b) After Judge Withers disseminates the Order m accordance with Paragraph 3(a) above, Judge Withers will provide a copy of the Order to Plaintiff's
5

counsel Robert Remar, together with written confirmation from Judge Withers that the Order has been disseminated.
4. DISMISSAL OF LAWSUIT. Simultaneously with the execution of this Agreement, the Parties will execute a Stipulation of Dismissal with Prejudice of this lawsuit in the form annexed hereto as Exhibit B, which will be filed with the Court by Plaintiffs counsel within two business days after receipt by Rogers & Hardin LLP of checks covering the amount set forth in Paragraph 2 above and receipt of the written confirmation set fmth in Paragraph 3(b) above. 5. This Agreement will be binding upon and will inure to the benefit of the signatories hereto and their respective successors and assigns. 6. No amendments of this Agreement will be valid unless made m writing and signed by all of the signatories hereto. 7. This Agreement may be executed in duplicate counterparts, each of which will be deemed an original, with the same effect as if the signatures thereto were on the same instrument. Each signatory to the Agreement may execute this agreement by telefax or by e-mail, which shall have the same force and effect as if executed on an original copy. 8. This Agreement, and the parties' performance herein, shall be governed by and consttued under the laws of the State of Georgia, without giving
6

effect to its conflicts of law provisions that would result in the application of the law of any other jurisdiction.
9. The Parties represent and warrant that they are not relying on the advice of any other Party, or anyone associated with them, as to legal, tax (income, estate, gift, or otherwise), or other consequences of any kind arising out of this Agreement; that they have not relied on any representations or statements, written or oral, of any other Party, including, but not limited to, any factual representation regarding the Incident, except insofar as those representations or statements are set forth in this Agreement; and that they are knowingly and voluntarily signing this Agreement and are not subject to duress, coercion, or undue influence by any other Party or by anyone else.
10. Thompson represents and warrants that, aside from the Lawsuit, he has not filed, will not file, and will not authorize or cause to be filed any Claims, complaints, or demands, of any nature whatsoever, arising from or relating to the Incident in any court or tribunal, or with any adjudicatory body or agency anywhere in the U.S. or abroad.
11. The ACLU Foundation, the ACLU Foundation of Georgia, the Southern Center and Rogers & Hardin, LLP represent and warrant that they do not currently represent any individuals other than Thompson who seek to file claims related to the DeKalb County Recorder's Court.
7

12. The Parties understand that they have the right to obtain legal counsel to review and evaluate this Agreement, and attest that they have done so or else have agreed to waive this right.
13. If, after the date hereof, any provision of this Agreement is held to be illegal, invalid, or unenforceable, the remaining provisions shall continue in full force and effect. This Agreement is not made to pay claims that are baned by sovereign immunity.
14. It is the intent of the Parties that no part of this Agreement is to be presumptively construed either against or in favor of any Patty because of the identity of the drafter; it being agreed that all Parties by their respective attorneys have participated in the drafting of this Agreement.
15. Paragraph headings contained herein are for purposes of organization only and do not constitute a part of this Agreement.
16. Any communications or notices to be provided pursuant to this Agreement will be sent in writing, and addressed, via commercial overnight delivery service, to the attention of the persons identified below (or as the signatories may subsequently direct in writing):
Thompson: Kevin Thompson, care of Robert Remar, Esq. Rogers & Hardin LLP 229 Peachtree Street, NE 2700 International Tower
8

Atlanta, GA 30303
DeKalb County:
O.V. Brantley, Esq. County Attorney DeKalb County Law Department 1300 Commerce Drive, 5th Floor Decatur, GA 30030 Tel.: (404) 371-3011 Fax: (404) 371-3024 ovbrantley@dekalbcountyga.gov
Judge Withers:
O.V. Brantley, Esq. County Attorney DeKalb County Law Department 1300 Commerce Drive, 5th Floor Decatur, GA 30030 Tel.: (404) 371-3011 Fax: (404) 371-3024 ovbrantley@dekalbcountyga.gov
JCS:
John McCauley, Esq. Director oflnsurance and Litigation Correct Care Solutions, LLC 1283 Murfreesboro Rd. Suite 500 Nashville, Tennessee 37217 Tel: 615-324-5724 jcmccauley@correctcaresolutions.com
17. This Agreement constitutes the entire agreement and understanding
between and among the Patties and other signatories with respect to the subject
matter hereof and supersedes all other prior or contemporaneous oral agreements,
9

understandings, undertakings and negotiations. 18. Upon the execution of this Agreement, the ACLU Foundation and
DeKalb County will issue the Joint Press Release attached hereto as Exhibit C. The parties agree, subject to the requirements of the Georgia Open Records Act, that they will not publicly disclose the amounts contributed by DeKalb County and JCS to the settlement payment set forth in Paragraph 2 above.
IN WITNESS WHEREOF, the Parties and other signatories have caused this Agreement to be executed by their duly authorized representatives below.
10

I f
DEKALB COUNTY By_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _
Name---------------------Title- - - - - - - - - -- - - -- - - - - -- Date:----------------------
JUDGE NELLY WITHERS B y_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _
N a m e- - - - - - - - - - - - - -- - - - - - - Title- - - - - -- - - -- -- - - - - - - - - -
Date:- - - - - - - - - - - - - ----- -- - - -
JUDICIAL CORRECTION SERVICES, INC. By________________________
Name- -- - - -- - - - - - - - - - - - - - - - -
Title---------------------- -
Date:- - - - - - - - - - - - - -- -- - - - - -- -
11

KEVIN THOMPSON

Date:._ _~-------

DEKALB COUNTY

t·;ur;n... By 2..~ L. wiiUC:"'-S

/)

.·

(

Name Title

~

4 4a:..tr
Jc.Cl\')

Y\ Date: 3) I "2.1ZZI~

JUDGE NELLY WITHERS
By_ _ _ _ _ _ _ _~--~
Name,_ _ _ _ _ _ _ _ _ _ _ _ _ __ _ Title,_ _ _ _ _ _ _ _ _ __ Date:._ _ _ _ _ _ _ _ _ ___

JUDICIAL CORRECTION SERVICES, INC.
By~.~-------------
Name,_ _ _ _ _ _ _ _ _ __ Title,_ _ _ _ _ _ _ _ _ _ __ Date:._ _ _ _ _ _ _ _ _ _ __

11

KEVIN THOMPSON
DEKALB COUNTY
By--·--·----------··-·-·····-·--·-···-·····-··············---------
Natne________________...,....................--·--· Title-------------------------------·-------------· Date:
JUDGE NELLY WITlffiRS
By____~----~=---------·
Name__!:!_Q I~-£.:. .. i1iiDidd'}....... .....
Title__ _0b.u6--'..J-~<£(~k.. ________________________
Date:__:;;,fLJ--/--ZJ:JL~ ------------ ______
JUDICIAL CORRECTION SERVICES, INC. By------···-------·· ---------------------------------------Name... ------·--------·--·---·----------·······--···--------···-··---
Title------·----~------·---------~------·--------·-·-·----------------- __ _ Date:____ ...... ·------·-----···-·-····-···-------------------- ........
11

KEVIN THOMPSON

Date:_ _ _ _ _ _ _ _ _ __

DEKALB COUNTY By_______________________ N m n e_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Title- - - - - - - - - - - - - - - - - - - - - - Date: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

JUDGE NELLY WITHERS B y_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ N a m e_ _ _ _ _ _ _ _ _ _ _ _ _ __ Title______________________ Date:____________________

JUDICIAL CORRECTION SERVICES, INC.
By~~~

Name Title Date:

~Y tvl""~~p
~ ...~')"' 7 S -/~ -15

11

AGREED AND APPROVED:
Nusrat Choudhury on behalf of the American Civil Liberties Union Foundati
Robert Remar on behalf of Rogers & Hardin LLP and the American Civil Liberties Union Foundation of Georgia
Sarah Geraghty on behalf of the Southern Center for Human Rights Attorneys for Plaintiff
O.V. Brantley DeKalb County Attorney Attorney for DeKalb County, Georgia And Judge Nelly Withers
John McCauley Attorney for Judicial Correction Services, Inc.
12

AGREED AND APPROVED:
Nusrat Choudhury on behalf of the American Civil Liberties Union Foundation
o ert Remar on behalf of Rogers & Hardin LLP and the American Civil Liberties Union Foundation of Georgia
Sarah Geraghty on behalf of the Southern Center for Human Rights Attorneys for Plaintiff
O.V. Brantley DeKalb County Attorney Attorney for DeKalb County, Georgia And Judge Nelly Withers
John McCauley Attorney for Judicial Correction Services, Inc.
12

AGREED AND APPROVED:
Nusrat Choudhury on behalf of the American Civil Liberties Union Foundation
Robert Remar on behalf of Rogers & Hardin LLP and the American Civil Libmties Union Foundation of Georgia
Sarah Geraghty on behalf ofthe Southern Center for Human Rights Attorneys for Plaintiff
O.V. Brantley DeKalb County Attorney Attorney for DeKalb County, Georgia And Judge Nelly Withers
- - - - - - - - - -·---,-,....--c:~c----
John McCauley Attorney for Judicial Correction Services, Inc.
12

AGREED AND APPROVED:
Nusrat Choudhury on behalf of the American Civil Liberties Union Foundation
Robert Remar on behalf of Rogers & Hardin LLP and the American Civil Liberties Union Foundation of Georgia
Sarah Geraghty on behalf of the Southern Center for Human Rights Attorneys for Plaintiff
. r ey DeKalb County Attorney Attorney for DeKalb County, Georgia And Judge Nelly Withers
John McCauley Attorney for Judicial Correction Services, Inc.
12

AGREED AND APPROVED:
Nusrat Choudhury on behalf ofthe American Civil Liberties Union Foundation
Robert Remar on behalf of Rogers & Hardin LLP and the American Civil Liberties Union Foundation of Georgia
Sarah Geraghty on behalf of the Southern Center for Human Rights Attorneys for Plaintiff
O.V. Brantley DeKalb County Attorney Attorney for DeKalb County, Georgia And Judge Nelly Withers
cCauley rney for Judicial Correction Services, Inc.
12

EXHIBIT A

ADMINISTRATIVE ORDER
It is hereby ordered that the "DeKalb County Recorder's Court, State of Georgia, Petition of Revocation of Probation" and any comparable petition utilized by a Judge of the DeKalb County Recorders Court shall be revised as follows:
The following text shall be removed from the "Acknowledgment" section of the petition:
I am aware that I may employ legal counsel as [sic] said hearing or be represented otherwise as the Court may direct.
The following text shall be included below the "Acknowledgment" section:
Notillcation of Rights
I am aware that I am being charged with a violation of my probation sentence.
I MAY BE SENTENCED TO JAIL if the court determines that I have violated probation.
Representation by an attorney in my probation revocation proceeding will help PROTECT MY RIGHTS.
If! cannot afford to retain an attorney, I have the right to a COURT-APPOINTED ATTORNEY OR PUBLIC DEFENDER to represent me.
The fee for such representation is nmmally $50, but MAY BE WAIVED, if I cannot afford to pay.
It is further ordered that ALL PERSONNEL of the DeKalb County Recorder's Court involved in the administration of misdemeanor probation concerning traffic offenses in DeKalb County and violations ofDeKalb County ordinances, including Judges of the DeKalb County Recorders Court sitting in any capacity, will be trained by March 20, 2015 on the attached bench card setting forth procedures to protect:
(1) probationers' right to request court-appointed counsel in probation revocation proceedings;
(2) indigent probationers' right to court-appointed counsel in probation revocation proceedings concerning failure-to-pay charges; and
(3) probationers' right to an indigency hearing prior to the revocation of probation and jailing for failure to pay fines.
1

Said "bench card" shall be maintained on the bench of each Recorder's Court Judge and used to inform probationers of the aforementioned rights. SO ORDERED this_ day of March, 2015.
Hon. Nelly Withers Chief Judge DeKalb County Recorders Court
2

DEKALB COUNTY COLLECTION OF FINES AND COURT COSTS All DeKalb County Recorder's Court judges adjudicating misdemeanor probation revocation proceedings shall abide by the described procedures:
----------------------------.---------------------------,

RIGHT TO COUNSEL

ENFORCING FINES BY IMPOSING JAIL

All probationers have a right to counsel (which A probationer charged with failure to pay may

may include a public defender or court-

be jailed only if (s)he has willfully failed to

appointed attorney) in probation revocation

pay or failed to make reasonable efforts to

proceedings.

·

acquire the resources to pay, AND no adequate

alternative to incarceration exists.

The court MAY NOT accept a written or oral

waiver of the right to counsel without FIRST informing the probationer of the dangers of

Prior to revoking probation and committing a probationer to jail for nonpayment of fines, the

proceeding without counsel and ensuring that court I]l\!St conduct an economic ability-to-JllJY

any waiver of the right to counsel is knowing, hearing.

intelligent, and voluntary.

To conduct such a hearing, the court shall

If a probationer seeks to waive his right to

counsel, the court must conduct a colloquy .QQ

• Inquire and make a determination of

the record to inform the probationer:

a probationer's ability to pay a fine,

which shall address the probationer's

• That the probationer has a right to a

ability to pay and the income, assets,

court-appointed attorney or public

debts, and financial responsibilities

defender nt no cost, if he cannot afford

presented by the probationer;

to retain an attorney;

• Inquire and make a determination of

• That the $50 fee normally charged

the reasonableness of a probationer's

for representation by the DeKalb

efforts to acquire resources to pay a

County Public Defender may be

fine, which shall take into account

waived for those who cannot afford to

efforts to secure employment and

pay;

borrow money, as well as limitations to

the probationer's ability to secure

• Of the risks and dangers of

employment and borrow money;

proceeding without counsel, including

the risk ofincarceration and the

• Consider and mal{e a determination

maximum jail time that may be

ofthe adequacy of alternatives to

imposed if the probationer is

incarceration, including a reduction or

determined to have violated probation;

waiver of fines and fees, an extension

and

of time to pay, and community service,

in the event that a probationer is

• Of the benefits of representation by counsel, including assistance with

determined to lack ability to pay despite having made reasonable efforts

asserting constitutional rights,

to !lequire resources.

3

preparing and presenting financial hardship documentation to the court, arguing in favor of alternatives to iticarceration, and vigorous advocacy against the imposition ofjail as punislnnent for probation violation.

Each of these determinations shall be supported by findings of fact on the record and set forth in a written order.

If, after being so informed, a probationer states a desire to waive his right to counsel, the court
must engage in a colloquy and make a determination, supported by findings of fact on the record and set forth in an order, that waiver is knowing. intelli@!11, and voluntmy.

Written waiver of the right to counsel on a probation 1·evocation petition or other document is NOT ACCEPTABLE without such a colloquy and findings of fact made on
the record.

4

EXHIBITB

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

KEVIN THOMPSON, Plaintiff,
v.
DEKALB COUNTY, GEORGIA, et al.,

Civil Action No. 1: 15-cv-00280-TWT

Defendants.

STIPULATION OF DISMISSAL WITH PREJUDICE Pursuant to Fed.R.Civ.P. Rule 41(a)(l)(A)(ii), PlaintiffKevin Thompson and all Defendants hereby stipulate to the dismissal of this action with prejudice. Each party will pay its own attorneys' fees, costs and expenses in connection with this action.
Stipulated this __ day of _ _ _ _ _, 2015.

Is/ Robert B. Remar Robert B. Remat· Ga. Bar No. 600575 ROGERS & HARDIN LLP 2700 International Tower

229 Peachtree Street N.E. Atlanta, Georgia 30303 Tel. (404) 522-4700 RRemar@rh-law.com Cooperating Attorney for the American Civil Liberties Union Foundation ofGeorgia
Is/ Nusrat Choudhwy Nusrat Choudhury (admitted pro hac vice) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, New York 10004 Tel. (212) 519-7876 nchoudhury@aclu.org
Is/ Sarah Geraghty Sarah Geraghty Georgia Bar No. 291393 SOUTHERN CENTER FOR HUMAN RIGHTS 83 Poplar StreetN.W. Atlanta, Georgia 30303 Tel. (404) 688-1202 sgeraghty@schr.org
Counsel for PlaintiffS
Is/ Kendric Smith Kendric Smith Georgia Bar No. 661200 Senior Assistant County Attorney DEKALB COUNTY LAW DEPARTMENT 1300 Commerce Drive, 5th Floor Decatur, GA 30030 ovbrantley@dekalbcountyga.gov
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Counsel for Defendants DeKalb County, Georgia and Nelly Withers Is/Craig K. Pendei·gra.<;t Craig K. Pendergrast Georgia Bar No. 571155 TAYLOR ENGLISH DUMA, LLP 1600 Parkwood Circle, S.E. Suite 400 Atlanta, GA 30318 678-336-7245 cpendergrast@taylorenglish.com Counsel for Judicial Correction Services, Inc.
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EXHIBITC

Settlement of ACLU Lawsuit Alleging Improper Jailing for Inability to Pay Traffic Fines
FOR IMMEDIATE RELEASE March 18, 2015
CONTACT: Inga Sarda-Sorensen, ACLU, 212-284-7347, isarda-sorensen@aclu.org
Burke Brennan, DeKalb County, 404 371-6305, bbrennan@dekalbcountyga.gov
ATLANTA – The American Civil Liberties Union and DeKalb County, Georgia, announced a settlement in a federal lawsuit that alleged that practices resulted in the jailing of people unable to pay court-ordered fines in traffic cases. The agreement includes policy changes that could serve as a model in Georgia and across the country.
The lawsuit was filed in January on behalf of Kevin Thompson, a teenager who claims he was jailed in DeKalb County because he could not afford to pay court fines and probation fees stemming from a traffic ticket. The ACLU charged that Thompson's constitutional rights to counsel and an indigency hearing were violated.
Under the settlement, DeKalb County and the other defendants denied liability to Thompson, but the Chief Judge of the DeKalb County Recorder’s Court agreed to take measures to protect the rights of people who cannot afford to make fine and fee payments required as a condition of probation for traffic and other misdemeanor offenses. The measures include:
 Adoption of a “bench card” that provides judges instructions to avoid sending people to jail because they owe court fines and are unable to pay. The card lists the legal alternatives to jail and outlines the procedure for determining someone’s ability to pay. It also instructs judges on how to protect people’s right to counsel in probation revocation proceedings.
 Training and guidance to Recorder’s Court personnel involved in misdemeanor probation on probationers’ right to counsel in revocation proceedings and right to an indigency hearing before jailing for failure to pay fines and fees.
 Revision of forms to let people charged with probation violation know of their right to court-appointed counsel in probation revocation proceedings, and their right to request a waiver of any public defender fees they cannot afford.
The settlement also provides for a monetary payment to Mr. Thompson and his legal counsel.
"Being poor is not a crime, and these measures will help ensure that people’s freedom will not rest on their ability to pay traffic fines and fees they cannot afford," said ACLU attorney Nusrat Choudhury. “These measures also serve as a model for courts across Georgia and in other states to help ensure that our poorest and richest citizens are treated equally and fairly.”
“Before the filing of this lawsuit, the DeKalb County Recorder’s Court began to develop a plan for a different private probation model. A new provider was selected under a contract which cut supervisory fees dramatically, allowed for little or no reporting, telephone reporting, and the conversion of fines to civil obligations at the request of the defendant. This civil payment model, which has been in place at the court for years on county ordinance violations, should not result in revocations with the possibility of incarceration. Both the Recorder’s Court and the DeKalb

County governing authority supported this change,” said Chief Judge Nelly Withers of the DeKalb County Recorder’s Court.
The U.S. Supreme Court ruled more than 30 years ago that locking people up merely because they cannot afford to pay court fines is contrary to American values of fairness and equality embedded in the 14th Amendment to the U.S. Constitution. The court made clear that judges cannot jail someone for failure to pay without first considering their ability to pay, efforts to acquire money, and alternatives to incarceration. Thompson alleges that he was jailed for five days because he could not afford to pay $838 in traffic fines and fees, despite the fact that he tried his best to make payments.
The case, Thompson v. DeKalb County, was filed in U.S. District Court in Atlanta. Rogers & Hardin LLP, the ACLU of Georgia, and Southern Center for Human Rights are co-counsel for the plaintiff.