WKW-VJ
U.S. District Court Alabama Middle District (Montgomery) CIVIL DOCKET FOR CASE #: 2:15-cv-00555-RCL-SMD

Carter v. The City of Montgomery et al Assigned to: Honorable Judge Royce C. Lamberth Referred to: Honorable Judge Stephen Michael Doyle Cause: 42:1983 Civil Rights Act

Date Filed: 08/03/2015 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Aldaress Carter individually, and for a class of similarly situated persons or entities

represented by Alexandria Parrish The Evans Law Firm PC 1736 Oxmoor Rd - Ste 101 Birmingham, AL 35209 205-870-1970 Fax: 205-870-7763 Email: ap@evanslawpc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian Hardingham Public Justice 475 14th St - Ste 610 Oakland, CA 94612 510-622-8216 Email: bhardingham@publicjustice.net LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

George Daniel Evans The Evans Law Firm, P.C. 1736 Oxmoor Road Suite 101 Birmingham, AL 35209 205-870-1970 Fax: 205-870-7763 Email: gdevans@evanslawpc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant

Leslie Bailey Public Justice 475 14th St - Ste 610 OAKLAND, CA 94612 510-622-8150 Email: lbailey@publicjustice.net LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maurine Cambria Evans The Evans Law Firm PC 1736 Oxmoor Rd - Ste 101 Birminghanm, AL 35209 205-870-1970 Fax: 205-870-7763 Email: mevans@evanslawpc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Toby J. Marshall Terrell Marshall Law Group PLLC 936 N. 34th St - Ste 300 Seattle, WA 98103 206-816-6603 Fax: 206-319-5450 Email: tmarshall@terrellmarshall.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William M Dawson , Jr. Attorney at Law 1736 Oxmoor Road Birmingham, AL 35209 205-795-3512 Fax: 205-870-7763 Email: bill@billdawsonlaw.com TERMINATED: 03/29/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

The City of Montgomery

represented by Joel Thomas Caldwell Cory Watson, P.C. 2131 Magnolia Avenue S. Birmingham, AL 35205 205-328-2200 Fax: 205-324-7896 Email: caldwell@copelandfranco.com TERMINATED: 07/20/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert David Segall Copeland Franco Screws & Gill PO Box 347 Montgomery, AL 36101-0347 334-834-1180 Fax: 334-834-3172 Email: segall@copelandfranco.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shannon Lynn Holliday Copeland Franco Screws & Gill, PA PO Box 347 Montgomery, AL 36101-0347 334-834-1180 Fax: 334-834-3172 Email: holliday@copelandfranco.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kimberly Owen Fehl City Attorney's Office PO Box 1111 Montgomery, AL 36101-0111 334-625-2050 Fax: 334-625-2310 Email: kfehl@montgomeryal.gov ATTORNEY TO BE NOTICED
Michael D. Brymer City of Montgomery Legal Dept 103 N Perry St Montgomery, AL 36101

Defendant Branch D. Kloess
Defendant Judicial Correctional Services, Inc.

334-625-2050 Fax: 334-625-2310 Email: mbrymer@montgomeryal.gov ATTORNEY TO BE NOTICED
Richard Hamilton Gill Copeland Franco Screws & Gill PA PO Box 347 Montgomery, AL 36101-0347 334-834-1180 Fax: 334-834-3172 Email: gill@copelandfranco.com ATTORNEY TO BE NOTICED
represented by Micheal Stewart Jackson Webster, Henry, Lyons, Bradwell, Cohan & Black, PC P. O. Box 239 105 Tallapoosa St., Ste. 101 [36104] Montgomery, AL 36101 334-264-9472 Fax: 334-264-9599 Email: mjackson@websterhenry.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan Griffith Wallace Jordan Ratliff & Brandt P O Box 530910 Birmingham, AL 35253 205-870-0555 Email: jgriffith@wallacejordan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Larry Stephen Logsdon Wallace Jordan Ratliff & Brandt, LLC PO BOX 530910 Birmingham, AL 35253 205-870-0555

Defendant
Correctional Healthcare Companies, Inc. TERMINATED: 07/07/2020

Fax: 205-874-3241 Email: llogsdon@wallacejordan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Leon Jackson Wallace Jordan Ratliff & Brandt LLC PO Box 530910 Birmingham, AL 35253-0910 205-874-0315 Fax: 205-874-3251 Email: mjackson@wallacejordan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wesley Kyle Winborn Wallace Jordan Ratliff & Brandt LLC P O Box 530910 Birmingham, AL 35253 205-874-0310 Fax: 205-874-3276 Email: wwinborn@wallacejordan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson F. Green Fleenor & Green LLP 1657 McFarland Blvd N Suite G2A Tuscaloosa, AL 35406 205-722-1018 Email: wgreen@fleenorgreen.com ATTORNEY TO BE NOTICED
represented by Larry Stephen Logsdon (See above for address) TERMINATED: 07/07/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
CHC Companies, Inc. TERMINATED: 07/07/2020

Michael Leon Jackson (See above for address) TERMINATED: 07/07/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wesley Kyle Winborn (See above for address) TERMINATED: 07/07/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wilson F. Green (See above for address) TERMINATED: 07/07/2020 ATTORNEY TO BE NOTICED
represented by Brian C. Richardson Swift Currie McGhee & Hiers LLP Two North 20th Street; Suite 1405 Birmingham, AL 35203 205-314-2404 Fax: 205-244-1373 Email: brian.richardson@swiftcurrie.com TERMINATED: 07/07/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frederick Lane Finch , Jr. Swift Currie McGhee & Hiers LLP Two North 20th Street; Suite 1405 Birmingham, AL 35203 205-314-2403 Fax: 205-244-1373 Email: lane.finch@swiftcurrie.com TERMINATED: 07/07/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

08/03/2015
08/03/2015 08/03/2015 08/03/2015 08/03/2015 08/03/2015 08/05/2015
08/05/2015 08/10/2015 08/24/2015 08/24/2015
08/24/2015

1 CLASS ACTION COMPLAINT against Branch D. Kloess, The City of Montgomery ( Filing fee $ 400.00 receipt number 4602037820.), filed by Aldaress Carter. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 fee receipt)(djy, ) (Entered: 08/05/2015)
DEMAND for Trial by Jury by Aldaress Carter. (NO PDF document attached to this notice-see Docket Entry 1 ). (djy, ) (Entered: 08/05/2015)
2 Corporate/Conflict Disclosure Statement by Aldaress Carter. (djy, ) (Entered: 08/05/2015)
3 Summons Issued as to Branch D. Kloess, The City of Montgomery and returned to counsel for personal service on defendant. (djy, ) (Entered: 08/05/2015)
4 SUMMONS Returned Executed by Aldaress Carter. The City of Montgomery served by process server on 8/3/2015 signed by Dennis Potter, answer due 8/24/2015. (djy, ) (Entered: 08/05/2015)
5 SUMMONS Returned Executed by Aldaress Carter. Branch D. Kloess served by process server on 8/3/2015 signed by Carol Kloess, answer due 8/24/2015. (djy, ) (Entered: 08/05/2015)
Case reassigned to Honorable Judge Wallace Capel, Jr. Honorable Judge Charles S. Coody no longer assigned to the case as referral judge. (NO PDF Document attached to this notice). (djy, ) (Entered: 08/05/2015)
6 Case reassigned to Chief Judge William Keith Watkins. Honorable Judge W. Harold Albritton, III no longer assigned to the case as presiding judge. (djy, ) (Entered: 08/05/2015)
7 NOTICE of Appearance by Maurine C. Evans on behalf of Aldaress Carter (Evans, Maurine) (Entered: 08/10/2015)
8 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by The City of Montgomery. (Holliday, Shannon) (Entered: 08/24/2015)
9 MOTION Motion for a Briefing Schedule on 8 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by The City of Montgomery. (Holliday, Shannon) Modified on 8/25/2015 to clarify text to reflect as Motion for briefing schedule (qc/djy, ). (Entered: 08/24/2015)
10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Branch D. Kloess. (Jackson, Micheal) (Entered: 08/24/2015)

08/24/2015 08/24/2015 08/24/2015 08/25/2015 08/25/2015 08/25/2015 09/02/2015 09/04/2015

11 MOTION to Sever by Branch D. Kloess. (Jackson, Micheal) (Entered: 08/24/2015)
12 MOTION for the court to enter a briefing schedule re 10 MOTION TO DISMISS, and 11 MOTION to Sever by Branch D. Kloess. (Jackson, Micheal) Modified on 8/25/2015 to clarify text to reflect as a motion to enter briefing schedule (qc/djy, ). (Entered: 08/24/2015)
***Attorney Robert David Segall,Joel Thomas Caldwell for The City of Montgomery added pursuant to 8 motion to dismiss (NO PDF document attached to this notice). (djy, ) (Entered: 08/25/2015)
13 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to The City of Montgomery; Corporate Disclosures due by 9/4/2015. (Attachments: # 1 standing order and format)(djy, ) (Entered: 08/25/2015)
14 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to Branch D. Kloess; Corporate Disclosures due by 9/4/2015. (Attachments: # 1 standing order and format)(djy, ) (Entered: 08/25/2015)
15 Corporate/Conflict Disclosure Statement by The City of Montgomery re 13 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement. (Holliday, Shannon) (Entered: 08/25/2015)
16 Corporate/Conflict Disclosure Statement by Branch D. Kloess re 14 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement. (Jackson, Micheal) (Entered: 09/02/2015)
17 ORDER GRANTING City of Montgomery's 9 MOTION for a Briefing Schedule as follows: (1) that, on or before 10/1/2015 def City of Montgomery shall file a brief in support of its 8 motion to dismiss, (2) that, no later than 21 days after def's intial brief is filed, plf shall file a brief in response the def City of Montgomery's motion to dismiss; and (3) def City of Montgomery shall file a brief in reply to plf's brief no later than 14 days after plf's response brief is filed; FURTHER ORDERING that def Kloess's 12 MOTION for briefing schedule is GRANTED as follows: (1) that, on or before 10/1/2015, def Kloess shall file a single brief in support of his 10 motion to dismiss and 11 motion to sever; (2) that, no later than 21 days after def Kloess's initial brief is filed, plf shall file a brief in response to Kloess's motion to dismiss and motion to sever; and (3) def Kloess hsall file a brief in reply to plf's brief no later than 14 days after plf's response brief is filed, as further set out in order; for all future motions to dismiss,

09/14/2015 09/14/2015 09/15/2015 09/16/2015
09/16/2015 09/17/2015 09/17/2015

motions for judgment on the pleadings, motions for summary judgment, and Daubert motions filed in this case, setting briefing schedule, as further set out in order. Signed by Chief Judge William Keith Watkins on 9/4/15. (djy, ) (Entered: 09/04/2015)
18 AMENDED COMPLAINT FIRST AMENDED COMPLAINT against Judicial Correction Services, Inc., Correctional Healthcare Companies, Inc., CHC Companies, Inc., filed by Aldaress Carter. (Attachments: # 1 Supplement Part 2 of Amended Complaint, # 2 Supplement Park 3 of Amended Complaint)(Evans, George) (Entered: 09/14/2015)
DEMAND for Trial by Jury by Aldaress Carter. (NO PDF Document attached to this notice-See Docket entry 18 ). (djy, ) (Entered: 09/16/2015)
23 Summons Issued as to CHC Companies, Inc., Judicial Correctional Services, Inc. and returned to counsel for personal service on the defendants. (djy, ) (Entered: 09/21/2015)
19 ORDER directing (1) the 8 MOTION TO DISMISS filed by The City of Montgomery is DENIED without prejudice to file a motion to dismiss in response to the amended complaint; (2) that def Kloess's 10 MOTION TO DISMISS is DENIED without prejudice to file a motion to dismiss in response to the amended complaint; (3) that def Kloess's 11 MOTION to Sever is DENIED without prejudice; and (4) that the briefing deadlines on def City of Montgomery's 8 motion to dismiss, def Kloess's 10 motion to dismiss, and def Kloess's 11 motion to sever, which were previously set by the Court's 17 order are CANCELLED; all other provisions of the 17 Order including all briefing requirements for future motions filed in this case, remain in effect. Signed by Chief Judge William Keith Watkins on 9/16/15. (djy, ) (Entered: 09/16/2015)
20 MOTION for Extension of Time to File Response/Reply as to 18 Amended Complaint, by The City of Montgomery. (Holliday, Shannon) (Entered: 09/16/2015)
21 Summons Issued as to Correctional Healthcare Companies, Inc. and mailed CMRRR with copy of amended complaint. (djy, ) (Entered: 09/17/2015)
22 TEXT ORDER GRANTING 20 MOTION for Extension of Time; EXTENDING time for The City of Montgomery to respond to the complaint to and including 10/15/2015. Signed by Chief Judge William Keith Watkins on 9/17/15. (NO PDF document attached to this notice).(djy, ) (Entered: 09/17/2015)

09/25/2015 09/28/2015
09/28/2015 09/30/2015 09/30/2015 10/13/2015 10/13/2015 10/13/2015 10/14/2015 10/14/2015 10/15/2015

24 MOTION for Extension of Time to File Response/Reply as to 18 Amended Complaint, by Branch D. Kloess. (Jackson, Micheal) (Entered: 09/25/2015)
25 TEXT ORDER GRANTING 24 MOTION for Extension of Time to File Response; and extending the time for def Branch D. Kloess to respond to the amended complaint to and including 10/15/2015. Signed by Chief Judge William Keith Watkins on 9/28/15. (NO PDF Document attached to this notice).(djy, ) (Entered: 09/28/2015)
26 Return Receipt Card showing service of summons & amended complaint signed by (illegible) for Correctional Healthcare Companies, Inc. served on 9/21/2015, answer due 10/13/2015. (djy, ) (Entered: 09/29/2015)
27 SUMMONS Returned Executed by Aldaress Carter. Judicial Correctional Services, Inc. served on 9/24/2015, answer due 10/15/2015. (Evans, George) (Entered: 09/30/2015)
28 SUMMONS Returned Executed by Aldaress Carter. CHC Companies, Inc. served on 9/24/2015, answer due 10/15/2015. (Evans, George) (Entered: 09/30/2015)
29 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Correctional Healthcare Companies, Inc., Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 10/13/2015)
30 MOTION for Briefing Schedule on Defendant Judicial Correction Services, Inc.'s and Correctional Healthcare Companies, Inc.'s Motion to Dismiss by Correctional Healthcare Companies, Inc., Judicial Correctional Services, Inc.. (Logsdon, Larry) (Entered: 10/13/2015)
***Attorney Wesley Kyle Winborn for Correctional Healthcare Companies, Inc.,Wesley Kyle Winborn for Judicial Correctional Services, Inc. added pursuant to 29 motion (NO PDF document attached to this notice). (djy, ) (Entered: 10/14/2015)
31 Corporate/Conflict Disclosure Statement by Correctional Healthcare Companies, Inc.. (Jackson, Michael) (Entered: 10/14/2015)
32 Corporate/Conflict Disclosure Statement by Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 10/14/2015)
33 ORDER GRANTING 30 MOTION for Briefing Schedule as follows: (1) on or before 11/12/2015 defs Judicial Correction Services, Inc., and Correctional Healthcare Companies, Inc., shall file a brief in support of the 29 motion to dismiss; (2) no later than 21 days after defs' initial

10/15/2015 10/15/2015 10/15/2015 10/27/2015 10/27/2015 10/27/2015 11/05/2015
11/05/2015 11/12/2015

brief is file, plf shall file a brief in response to the 29 motion to dismiss; and (3) defs Judicial Correction Services, Inc., and Correctional Healthcare Companies, Inc., shall file a brief in reply to plf's brief no later than 14 days after plf's response brief is filed, as further set out in order; BRIEFING ORDER for all future motions to dismiss, motions for judgment on the pleadings, motions for summary judgment, and Daubert motions filed in this case, setting briefing scheduled as further set out in order. Signed by Chief Judge William Keith Watkins on 10/15/15. (djy, ) (Entered: 10/15/2015)
34 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM [MOTION TO DISMISS FIRST AMENDED AND RESTATED COMPLAINT] by Branch D. Kloess. (Jackson, Micheal) (Entered: 10/15/2015)
35 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by The City of Montgomery. (Holliday, Shannon) (Entered: 10/15/2015)
36 BRIEF/MEMORANDUM in Support re 35 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by The City of Montgomery. (Holliday, Shannon) (Entered: 10/15/2015)
37 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by CHC Companies, Inc.. (Finch, Frederick) (Entered: 10/27/2015)
38 Corporate/Conflict Disclosure Statement by CHC Companies, Inc.. (Finch, Frederick) (Entered: 10/27/2015)
***Attorney Brian C. Richardson for CHC Companies, Inc. added pursuant to 37 motion to dismiss (NO PDF Document attached to this notice). (djy, ) (Entered: 10/29/2015)
39 RESPONSE in Opposition re 34 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM [MOTION TO DISMISS FIRST AMENDED AND RESTATED COMPLAINT] PLAINTIFFS RESPONSE IN OPPOSITION TO KLOESS MOTION TO DISMISS FIRST AMENDED & RESTATED COMPLAINT filed by Aldaress Carter. (Evans, George) (Entered: 11/05/2015)
40 RESPONSE in Opposition re 35 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Plaintiff's Responsive Brief in Opposition to the City of Montgomerys Motion to Dismiss filed by Aldaress Carter. (Evans, George) (Entered: 11/05/2015)
41 BRIEF/MEMORANDUM in Support re 29 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Correctional

11/12/2015 11/17/2015 11/17/2015 11/17/2015 11/17/2015 11/24/2015
11/25/2015 12/03/2015

Healthcare Companies, Inc., Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 11/12/2015)
42 REPLY BRIEF re 40 Response in Opposition to Motion City's Brief in Opposition to Carter's Response to the City's Brief in Support of Its Motion to Dismiss filed by The City of Montgomery. (Holliday, Shannon) (Entered: 11/12/2015)
43 (STRICKEN pursuant to 46 ORDER) BRIEF/MEMORANDUM in Support re 37 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by CHC Companies, Inc.. (Finch, Frederick) Modified on 11/24/2015 (qc/djy, ). (Entered: 11/17/2015)
44 MOTION to Strike 43 BRIEF/MEMORANDUM in Support MOTION TO STRIKE CHC COMPANIES, INC.S SUPPLEMENT TO MOTION TO DISMISS (DOC. 43) by Aldaress Carter. (Evans, George) (Entered: 11/17/2015)
45 RESPONSE in Opposition re 37 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PLAINTIFFS RESPONSE IN OPPOSITION TO CHC COMPANIES, INC.S MOTION TO DISMISS FIRST AMENDED COMPLAINT filed by Aldaress Carter. (Evans, George) (Entered: 11/17/2015)
(STRICKEN pursuant to 46 ORDER) SUPPLEMENT to 37 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by CHC Companies, Inc.. (No pdf attached to this entry - See doc 43 for pdf) (wcl, ) Modified on 11/24/2015 (djy, ). (Entered: 11/18/2015)
46 ORDER directing : (1) that the 44 MOTION to Strike is GRANTED; (2) that CHC's 43 supplemental brief is STRICKEN; (3) that, on or before 12/7/2015, def CHC shall file a motion for leave to file a supplement to its motion to dismiss and shall show cause why the motion for leave to file should be granted; and (4) pending the court's ruling on CHC's forthcoming motion for leave to file, the deadline for CHC to file a reply to plf's response brief is suspended, as further set out in order. Signed by Chief Judge William Keith Watkins on 11/24/15. (djy, ) (Entered: 11/24/2015)
47 MOTION for Leave to File a Supplement to Motion to Dismiss by CHC Companies, Inc.. (Finch, Frederick) (Entered: 11/25/2015)
48 RESPONSE in Opposition re 29 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Plaintiffs Response in Opposition to Judicial Correction Services & Correctional Healthcare Companies, Inc.S Motion to Dismiss filed by Aldaress Carter. (Evans, George) (Entered: 12/03/2015)

12/07/2015
12/17/2015 12/21/2015 12/29/2015 01/05/2016 01/06/2016 01/07/2016 01/07/2016 01/12/2016

49 ORDER granting 47 Motion for Leave to File a supplement to the motion to dismiss; further ORDERING: (1) that on or before 12/9/2015 def CHC shall file a supplemental motion to dismiss; (2) that, no later than 21 days after def CHC's supplemental motion is filed, plf shall file a brief in response to thesupplemental motion; and (3) that, within 7 days of the filing of plf's response to the supplemental motion, def CHC may file a single reply to both of plfs' briefs, as further set out in order. Signed by Chief Judge William Keith Watkins on 12/7/15. (djy, ) (Entered: 12/07/2015)
50 REPLY BRIEF re 29 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 41 BRIEF/MEMORANDUM in Support filed by Correctional Healthcare Companies, Inc., Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 12/17/2015)
51 ORDERED that, on or before 12/29/2015, Dft CHC may file a reply to Plf's 45 response to Dft CHC's 37 motion to dismiss. Signed by Chief Judge William Keith Watkins on 12/21/2015. (wcl, ) (Entered: 12/21/2015)
52 REPLY to plf's 45 Response to 37 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by CHC Companies, Inc. (Finch, Frederick) Modified on 12/30/2015 to clarify text to reflect as a REPLY to 45 response (qc/djy, ). (Entered: 12/29/2015)
53 MOTION to Stay Discovery and Incorporated Brief in Support by CHC Companies, Inc.. (Finch, Frederick) (Entered: 01/05/2016)
54 MOTION to Stay Discovery by Correctional Healthcare Companies, Inc., Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 01/06/2016)
55 ORDER directing that on or before 1/15/2016, plf and all other defs shall file responses to the 53 and 54 MOTIONS to Stay Discovery. Signed by Chief Judge William Keith Watkins on 1/7/16. (djy, ) (Entered: 01/07/2016)
56 MOTION to Stay re 53 MOTION to Stay Discovery and Incorporated Brief in Support by The City of Montgomery. (Holliday, Shannon) (Entered: 01/07/2016)
57 CONSOLIDATED RESPONSE in Opposition re 54 MOTION to Stay Discovery, 56 MOTION to Stay re 53 MOTION to Stay Discovery and Incorporated Brief in Support , 53 MOTION to Stay Discovery and Incorporated Brief in Support Plaintiffs Consolidated Response in Opposition to Defendants Motions to Stay Discovery filed by Aldaress

01/15/2016 01/15/2016 02/09/2016 05/02/2016
06/15/2016 07/20/2016
07/22/2016

Carter. (Evans, George) Modified on 1/13/2016 to clarify text to reflect as CONSOLIDATED RESPONSE (qc/djy, ). (Entered: 01/12/2016)
58 RESPONSE to Motion re 54 MOTION to Stay Discovery, 53 MOTION to Stay Discovery and Incorporated Brief in Support filed by The City of Montgomery. (Holliday, Shannon) (Entered: 01/15/2016)
59 RESPONSE to Motion re 54 MOTION to Stay Discovery, 56 MOTION to Stay re 53 MOTION to Stay Discovery and Incorporated Brief in Support , 53 MOTION to Stay Discovery and Incorporated Brief in Support [DEFENDANT BRANCH D. KLOESS'S RESPONSE TO MOTIONS TO STAY] filed by Branch D. Kloess. (Jackson, Micheal) (Entered: 01/15/2016)
60 NOTICE of Additional Authority in support of defendant's 56 MOTION to Stay re 53 MOTION to Stay Discovery and Incorporated Brief in Support by The City of Montgomery. (Attachments: # 1 Exhibit, # 2 Exhibit)(Holliday, Shannon) Modified on 2/10/2016 to clarify text to reflect as a NOTICE not a MOTION document (qc/djy, ). (Entered: 02/09/2016)
61 ORDER (1) STAYING CASE, including all discovery, until further order; (2) the 53] MOTION to Stay discovery filed by def CHC Companies, Inc. is GRANTED; (2) the 54 MOTION to Stay filed by defs Correctional Healthcare Companies, Inc., and Judicial Correctional Services, Inc. is GRANTED; (4) the 56 motion to stay discovery filed by Def City of Montgomery is GRANTED, as further set out in order. Signed by Chief Judge William Keith Watkins on 5/2/16. (djy, ) (Entered: 05/02/2016)
62 Case reassigned to Honorable Judge Royce C. Lamberth. Chief Judge William Keith Watkins no longer assigned to the case as presiding judge. (djy, ) (Main Document 62 replaced on 7/22/2016 to correct erroneous main PDF document ) (qc/djy, ). (Entered: 06/15/2016)
63 ORDER Setting Motion Hearing re: 29 , 34 , 35 , and 37 MOTIONS TO DISMISS for 8/18/2016 @ 10:00 AM before Honorable Judge Royce C. Lamberth, in Courtroom 2F ; advising counsel that the Court shall also be hearing similar motions in cases, as further set out in order; the cases shall be heard in the order in which they were filed; counsel should be present for all hearings. Signed by Honorable Judge Royce C. Lamberth on 7/20/16. Furnished to calendar group & AR.(djy, ) (Entered: 07/20/2016)
64 MOTION to Continue Hearing by The City of Montgomery. (Holliday, Shannon) (Entered: 07/22/2016)

07/22/2016 08/11/2016 08/17/2016 08/18/2016
09/21/2016 09/21/2016 09/21/2016

65 NOTICE of Correction re 62 Case Assigned to correct erroneous main PDF document previously attached (Attachments: # 1 corrected main document to Docket Entry 62 )(djy, ) (Entered: 07/22/2016)
66 ORDER GRANTING 64 MOTION to Continue; and the Hearing re: 29 , 34 , 35 , & 37 MOTIONS TO DISMISS is rescheduled for 8/18/2016 @ 01:00 PM in Courtroom 2F before Honorable Judge Royce C. Lamberth.. Signed by Honorable Judge Royce C. Lamberth on 8/11/16. Furnished to calendar group & AR (previously set for 8/18/2016 @ 10 am).(djy, ) (Entered: 08/11/2016)
67 NOTICE of Appearance by Wilson F. Green on behalf of Correctional Healthcare Companies, Inc., Judicial Correctional Services, Inc. (Green, Wilson) (Entered: 08/17/2016)
68 Minute Entry for proceedings held before Honorable Judge Royce C. Lamberth: Motion Hearing held on 8/18/2016 re 29 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Correctional Healthcare Companies, Inc., Judicial Correctional Services, Inc., 37 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by CHC Companies, Inc., 34 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM [MOTION TO DISMISS FIRST AMENDED AND RESTATED COMPLAINT] filed by Branch D. Kloess, 35 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by The City of Montgomery (PDF available for court use only). (Court Reporter Patricia G. Starkie.) (war, ) (Entered: 08/19/2016)
69 MOTION for Partial Summary Judgment PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT TO DECLARE THE CITY OF MONTGOMERYS PROBATION PRACTICE WITH JCS UNCONSTITUTIONAL AS A DENIAL OF EQUAL PROTECTION by Aldaress Carter. (Evans, George) (Entered: 09/21/2016)
70 BRIEF/MEMORANDUM in Support re 69 MOTION for Partial Summary Judgment PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT TO DECLARE THE CITY OF MONTGOMERYS PROBATION PRACTICE WITH JCS UNCONSTITUTIONAL AS A DENIAL OF EQUAL PROTECTION filed by Aldaress Carter. (Evans, George) (Entered: 09/21/2016)
71 MOTION for Partial Summary Judgment PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT DECLARING THE CONTRACT BETWEEN JCS & MONTGOMERY VOID AB INITIO by Aldaress Carter. (Evans, George) (Entered: 09/21/2016)

09/21/2016 09/22/2016
09/22/2016

72 BRIEF/MEMORANDUM in Support re 71 MOTION for Partial Summary Judgment PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT DECLARING THE CONTRACT BETWEEN JCS & MONTGOMERY VOID AB INITIO filed by Aldaress Carter. (Evans, George) (Entered: 09/21/2016)
73 Evidentiary Submission re 69 MOTION for Partial Summary Judgment PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT TO DECLARE THE CITY OF MONTGOMERYS PROBATION PRACTICE WITH JCS UNCONSTITUTIONAL AS A DENIAL OF EQUAL PROTECTION, 70 BRIEF/MEMORANDUM in Support, 71 MOTION for Partial Summary Judgment PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT DECLARING THE CONTRACT BETWEEN JCS & MONTGOMERY VOID AB INITIO, 72 BRIEF/MEMORANDUM in Support filed by Aldaress Carter. (Attachments: # 1 Exhibit 1 - 4/1/14 Deposition of Kenneth Nixon and exhibits, # 2 Exhibit 2 - 4/29/14 Deposition of Les Hayes, # 3 Exhibit 3 - 6/20/14 Deposition of Colleen Ray and exhibits Part 1, # 4 Exhibit 3 - 6/20/14 Deposition of Colleen Ray Part 2, # 5 Exhibit 3 - 6/20/14 Deposition of Colleen Rayand exhibits and exhibits Part 3, # 6 Exhibit 3 - 6/20/14 Deposition of Colleen Rayand exhibits Part 4, # 7 Exhibit 3 - 6/20/14 Deposition of Colleen Ray and exhibits Part 5, # 8 Exhibit 4 - 4/14/15 Deposition of Colleen Ray and exhibits, # 9 Exhibit 5 - 6/25/14 Deposition of Lisha Kidd and exhibits Part 1, # 10 Exhibit 5 - 6/25/14 Deposition of Lisha Kidd Part 2, # 11 Exhibit 5 - 6/25/14 Deposition of Lisha Kidd and exhibits Part 3, # 12 Exhibit 6 4/20/15 Deposition of Lisha Kidd and Exhibits Part 1, # 13 Exhibit 6 4/20/15 Deposition of Lisha Kidd and exhibits Part 2, # 14 Exhibit 7 9/1/15 Deposition of Lisha Kidd and exhibits Part 1, # 15 Exhibit 7 9/1/15 Deposition of Lisha Kidd Part 2, # 16 Exhibit 8 - 9/12/16 Deposition of Don Houston, # 17 Exhibit 9 - JCS' Probation Order for Mr. Carter, # 18 Exhibit 10 - Petition for Revocation, # 19 Exhibit 11 Email from Colleen Ray to Karen LLoyd, # 20 Exhibit 12 Montomgery Municipal Code, # 21 SEALED- Exhibit 13 - Agreement and Plan of Merger filed under seal, # 22 Exhibit 14 - JCS Marketing Materials)(Evans, George) (Attachment 21 replaced on 9/23/2016 to add SEALED EXHIBIT 13-RETURNED TO PLF COUNSEL AND NOT PUBLICLY AVAILABLE ON PACER PURSUANT TO 132 ORDER) (qc/djy, ). (Entered: 09/22/2016)
74 MOTION for leave to file exhibit under Seal by Aldaress Carter. (Attachments: # 1 Exhibit 13-RETURNED TO PLF COUNSEL AND NOT PUBLICLY AVAILABLE ON PACER PURSUANT TO 132 ORDER)(djy, ) Modified on 8/17/2017 (qc/djy, ). (Entered: 09/23/2016)

09/26/2016 09/26/2016 09/28/2016 10/06/2016

75 MOTION to Strike 69 MOTION for Partial Summary Judgment PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT TO DECLARE THE CITY OF MONTGOMERYS PROBATION PRACTICE WITH JCS UNCONSTITUTIONAL AS A DENIAL OF EQUAL PROTECTION, 71 MOTION for Partial Summary Judgment PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT DECLARING THE CONTRACT BETWEEN JCS & MONTGOMERY VOID AB INITIO by Correctional Healthcare Companies, Inc., Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 09/26/2016)
76 MOTION to Strike 73 Evidentiary Submission,,,,,,,, 69 MOTION for Partial Summary Judgment PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT TO DECLARE THE CITY OF MONTGOMERYS PROBATION PRACTICE WITH JCS UNCONSTITUTIONAL AS A DENIAL OF EQUAL PROTECTION, 70 BRIEF/MEMORANDUM in Support, 72 BRIEF/MEMORANDUM in Support, 71 MOTION for Partial Summary Judgment PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT DECLARING THE CONTRACT BETWEEN JCS & MONTGOMERY VOID AB INITIO by The City of Montgomery. (Holliday, Shannon) (Entered: 09/26/2016)
77 RESPONSE to Motion re 76 MOTION to Strike 73 Evidentiary Submission,,,,,,,, 69 MOTION for Partial Summary Judgment PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT TO DECLARE THE CITY OF MONTGOMERYS PROBATION PRACTICE WITH JCS UNCONSTITUTIONAL AS A DENIAL OF EQUAL, 75 MOTION to Strike 69 MOTION for Partial Summary Judgment PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT TO DECLARE THE CITY OF MONTGOMERYS PROBATION PRACTICE WITH JCS UNCONSTITUTIONAL AS A DENIAL OF EQUAL PROTECTION, 71 MOTION for Pa filed by Aldaress Carter. (Evans, George) (Entered: 09/28/2016)
78 MOTION for Extension of Time to File Response/Reply as to 69 MOTION for Partial Summary Judgment PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT TO DECLARE THE CITY OF MONTGOMERYS PROBATION PRACTICE WITH JCS UNCONSTITUTIONAL AS A DENIAL OF EQUAL PROTECTION, 71 MOTION for Partial Summary Judgment PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT DECLARING THE CONTRACT BETWEEN JCS & MONTGOMERY VOID AB INITIO (Unopposed) by Correctional

10/12/2016 10/12/2016 10/12/2016 10/12/2016 10/12/2016 10/12/2016

Healthcare Companies, Inc., Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 10/06/2016)
79 RESPONSE in Opposition re 71 MOTION for Partial Summary Judgment PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT DECLARING THE CONTRACT BETWEEN JCS & MONTGOMERY VOID AB INITIO filed by CHC Companies, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, Part I, # 3 Exhibit B, Part II, # 4 Exhibit C, # 5 Exhibit D)(Finch, Frederick) (Additional attachment(s) added on 10/27/2016: # 6 REDACTED Exhibit B, Part I) (djy, ). (Entered: 10/12/2016)
80 [SEE CORRECTED DOCKET ENTRY DOC. 81 .] RESPONSE in Opposition re 69 MOTION for Partial Summary Judgment TO DECLARE THE CITY OF MONTGOMERY'S PROBATION PRACTICE WITH JCS UNCONSTITUTIONAL AS A DENIAL OF EQUAL PROTECTION filed by Judicial Correctional Services, Inc. (Jackson, Michael) Modified on 10/14/2016 to reflect that Doc. 81 replaces Doc. 80 . (dmn, ) (Entered: 10/12/2016)
81 RESPONSE (Correcting Doc. 80 ) in Opposition re 69 MOTION for Partial Summary Judgment TO DECLARE THE CITY OF MONTGOMERY'S PROBATION PRACTICE WITH JCS UNCONSTITUTIONAL AS A DENIAL OF EQUAL PROTECTION filed by Judicial Correctional Services, Inc. (Jackson, Michael) Modified on 10/14/2016 to reflect that this document is correcting Doc. 80 . (dmn, ) (Entered: 10/12/2016)
82 Evidentiary Submission in Support of JCS's Responses in Opposition to Plaintiff's Motions for Partial Summary Judgment (Docs. 69 , 70 , 71 , & 72 ) filed by Judicial Correctional Services, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Jackson, Michael) Modified on 10/14/2016 to create links to additional documents. (dmn, ) (Entered: 10/12/2016)
83 RESPONSE in Opposition to Plaintiff's MOTION for Partial Summary Judgment DECLARING THE CONTRACT BETWEEN JCS & MONTGOMERY VOID AB INITIO (Docs. 71 & 72 ) filed by Judicial Correctional Services, Inc. (Jackson, Michael) Modified on 10/14/2016 to clean up text. (dmn, ) (Entered: 10/12/2016)
84 RESPONSE in Opposition to PLAINTIFFS 69 MOTION FOR PARTIAL SUMMARY JUDGMENT TO DECLARE THE CITY OF MONTGOMERYS PROBATION PRACTICE WITH JCS UNCONSTITUTIONAL AS A DENIAL OF EQUAL PROTECTION, 71 MOTION for Partial Summary

10/19/2016 10/19/2016 10/26/2016 10/26/2016 10/26/2016
10/26/2016 10/26/2016

Judgment PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT DECLARING THE CONTRACT BETWEEN JCS & MONTGOMERY VOID AB INITIO AND MEMORANDA IN SUPPORT (Docs. 70 and 72 ) filed by The City of Montgomery. (Holliday, Shannon) Modified on 10/20/2016 to create actual links to Docs. 70 & 72. (dmn, ) (Entered: 10/12/2016)
85 MOTION for Leave to File CORRECTED RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTIONS FOR SUMMARY JUDGMENT AND MEMORANDA IN SUPPORT THEREOF (Docs. 69 , 70 , 71 , 72 ) by The City of Montgomery. (Attachments: # 1 Exhibit 1)(Holliday, Shannon) Modified on 10/20/2016 to create links to Docs. 69-72. (dmn, ) (Entered: 10/19/2016)
86 NOTICE of Filing Supplemental Support (Affidavit) in further support of Opposition to Plaintiff's Motions for Partial Summary Judgment (Docs. 69 & 71 ) by The City of Montgomery re 84 Opposition (Attachments: # 1 Affidavit)(Holliday, Shannon) Modified on 10/20/2016 to create links to Docs. 69 & 71. (dmn, ) (Entered: 10/19/2016)
87 MOTION to Strike DEFENDANT CHC COMPANIES EXPERT REPORT OF BRAD BISHOP by Aldaress Carter. (Attachments: # 1 Exhibit A - Deposition of Brad Bishop and Exhibits)(Evans, George) (Entered: 10/26/2016)
88 REPLY BRIEF re 83 Response in Opposition to Motion, to Plaintiffs Motion for Summary Judgment Declaring the Contract Between JCS & Montgomery Void Ab Initio filed by Aldaress Carter. (Evans, George) (Entered: 10/26/2016)
89 BRIEF/MEMORANDUM in Support re 81 Response in Opposition to Motion, to Plaintiffs Motion for Summary Judgment To Declare the City of Montgomerys Probation Practice with JCS Unconstitutional as a Denial of Equal Protection filed by Aldaress Carter. (Attachments: # 1 Exhibit A - Transcript of 10/20/16 hearing in Ray & Woods cases)(Evans, George) Modified on 10/27/2016 to correct link to docket entry 81 which replaced docket entry 80 (qc/djy, ). (Entered: 10/26/2016)
90 BRIEF/MEMORANDUM in Support re 79 Response in Opposition to Motion, Plaintiffs Motion for Summary Judgment Declaring the Contract Between JCS & Montgomery Void Ab Initio filed by Aldaress Carter. (Evans, George) (Entered: 10/26/2016)
91 BRIEF/MEMORANDUM in Support re 84 Response in Opposition to Motion,, PLAINTIFFS REPLY TO MONTGOMERY IN SUPPORT OF

10/26/2016
01/11/2017 01/16/2017 02/20/2017 02/23/2017 03/10/2017 03/10/2017

HIS MOTIONS FOR SUMMARY JUDGMENT filed by Aldaress Carter. (Evans, George) (Entered: 10/26/2016)
92 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing Proceedings (PDF ACCESS RESTRICTED FOR 90 DAYS) held on August 18, 2016, before Judge Lamberth. Court Reporter/Transcriber Starkie, Telephone number 334-262-1221. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE OF INTENT TO REQUEST REDACTION DUE WITHIN 7 BUSINESS DAYS. Redaction Request due 11/16/2016. Redacted Transcript Deadline set for 11/28/2016. Release of Transcript Restriction set for 1/24/2017. (djy, ) (Main Document 92 replaced on 10/27/2016 to correct typographic error in date in reporter certificate from 2015 to 2016) (qc/djy, ). (Entered: 10/27/2016)
93 NOTICE by Aldaress Carter OF SUPPLEMENTAL AUTHORITY (Attachments: # 1 Exhibit A - JIC Complaint, # 2 Exhibit B - Agreement, # 3 Exhibit C - Final Judgment)(Evans, George) (Entered: 01/11/2017)
94 BRIEF/MEMORANDUM in Opposition re 85 MOTION for Leave to File CORRECTED RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTIONS FOR SUMMARY JUDGMENT AND MEMORANDA IN SUPPORT THEREOF SUPPLEMENTAL SUBMISSION filed by The City of Montgomery. (Holliday, Shannon) (Entered: 01/16/2017)
95 NOTICE by The City of Montgomery re 35 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM OF FILING SUPPLEMENTAL AUTHORITY (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Holliday, Shannon) (Entered: 02/20/2017)
96 Supplemental Conflict Disclosure Statement by Judicial Correctional Services, Inc. (Jackson, Michael) Modified on 2/24/2017 to reflect actual title. (dmn, ) (Entered: 02/23/2017)
97 MEMORANDUM OPINION, as further set out. Signed by Honorable Judge Royce C. Lamberth on 3/10/17. (djy, ) (Entered: 03/10/2017)
98 ORDER granting in part and denying in part 29 , 34 , 35 , and 37 Motions to Dismiss; as stated in the memorandum opinion issued on this date, defs' motions are GRANTED with respect to claims eleven through fourteen; defs' motions are DENIED with respect to the remaining claims. Signed by Honorable Judge Royce C. Lamberth on 3/10/17. (Attachments: # 1 civil appeals checklist) (djy, ) (Entered: 03/10/2017)

03/10/2017

99 ORDER TO SHOW CAUSE by the parties as to why this case should not be consolidated with McCullough vs. City of Montgomery, 2:15cv462-RCL, as further set out in order; the parties are ORDERED to file within 14 days a memorandum stating any reasons the Court should not order the cases consolidated; notice of this order will also be posted on the docket in McCullough vs. City of Montgomery, 2:15cv463. Signed by Honorable Judge Royce C. Lamberth on 3/10/17. (djy, ) (Entered: 03/10/2017)

03/24/2017 100 ANSWER to 18 Amended Complaint, by Correctional Healthcare Companies, Inc., Judicial Correctional Services, Inc..(Jackson, Michael) (Entered: 03/24/2017)

03/24/2017

101 ANSWER to Complaint Dft Branch D. Kloess's Answer to Plaintiff's 18 First Amended and Restated Complaint by Branch D. Kloess.(Jackson, Micheal) Modified on 3/27/2017 to clarify text to reflect as re: 18 amended complaint (qc/djy, ). (Entered: 03/24/2017)

03/24/2017

102 RESPONSE to 99 order to show cause filed by Aldaress Carter. (Attachments: # 1 Exhibit 1 - A McCullough Case file Report, # 2 Exhibit 2 - C Mooney Case File Report, # 3 Exhibit 3 - L Agee Case File Report, # 4 Exhibit 4 - A Edwards & K Jones Case File Repor, # 5 Exhibit 5 - M Johnson Case File Report, # 6 Exhibit 6 - H Caldwell Case File Report)(Evans, George) Modified on 3/27/2017 to clarify text to reflect as RESPONSE to 99 order not reply to response (qc/djy, ). (Entered: 03/24/2017)

03/24/2017 103 RESPONSE TO ORDER TO SHOW CAUSE by Branch D. Kloess re 99 Order to Show Cause,. (Jackson, Micheal) (Entered: 03/24/2017)

03/24/2017 104 MOTION to Sever [DEFENDANT BRANCH D. KLOESS'S MOTION TO SEVER] by Branch D. Kloess. (Jackson, Micheal) (Entered: 03/24/2017)

03/24/2017 105 ANSWER to 18 Amended Complaint, by CHC Companies, Inc..(Finch, Frederick) (Entered: 03/24/2017)

03/24/2017 106 RESPONSE TO ORDER TO SHOW CAUSE by Judicial Correctional Services, Inc. re 99 Order to Show Cause,. (Jackson, Michael) (Entered: 03/24/2017)

03/24/2017

107 ANSWER to 18 AMENDED Complaint by The City of Montgomery.(Holliday, Shannon) Modified on 3/27/2017 to clarify text to reflect as regarding 18 amended complaint (qc/djy, ). (Entered: 03/24/2017)

03/24/2017 108 RESPONSE TO ORDER TO SHOW CAUSE by The City of Montgomery re 99 Order to Show Cause,. (Holliday, Shannon) (Entered: 03/24/2017)

03/24/2017 109 RESPONSE TO ORDER TO SHOW CAUSE by CHC Companies, Inc. re 99 Order to Show Cause,. (Richardson, Brian) (Entered: 03/24/2017)

04/07/2017 110 RESPONSE in Opposition re 104 MOTION to Sever [DEFENDANT BRANCH D. KLOESS'S MOTION TO SEVER] filed by Aldaress Carter. (Evans, George) (Entered: 04/07/2017)

04/25/2017

111 ORDER: In light of the notices of appeal filed in 2:15-cv-463 (RCL) McCullough (143,144), the Court finds that consolidation of the captioned cases would not be beneficial at this time. The Court will readdress consolidation as necessary at a later time. Signed by Honorable Judge Royce C. Lamberth on 4/25/2017. (dmn, ) (Entered: 04/25/2017)

04/25/2017

112 ORDER: The Court hereby ORDERS that the parties shall meet and confer within ten (10) days of this case; and it is further ORDERED that, within ten (10) days thereafter, a report shall be filed with the Court, along with a proposed scheduling order. Signed by Honorable Judge Royce C. Lamberth on 4/25/2017. (dmn, ) (Entered: 04/25/2017)

04/26/2017 113 NOTICE of Appearance by Kimberly Owen Fehl on behalf of The City of Montgomery (Fehl, Kimberly) (Entered: 04/26/2017)

04/26/2017 114 NOTICE of Appearance by Michael D. Brymer on behalf of The City of Montgomery (Brymer, Michael) (Entered: 04/26/2017)

05/01/2017

115 MOTION for Leave to File SECOND AMENDED AND RESTATED COMPLAINT AND MEMORANDUM OF LAW IN SUPPORT by Aldaress Carter. (Attachments: # 1 Exhibit A - Second Amended & Restated Complaint)(Evans, George) (Entered: 05/01/2017)

05/02/2017 116 MOTION to Certify Class by Aldaress Carter. (Evans, George) (Entered: 05/02/2017)

05/02/2017 117 BRIEF/MEMORANDUM in Support re 116 MOTION to Certify Class filed by Aldaress Carter. (Evans, George) (Entered: 05/02/2017)

05/02/2017

118 Evidentiary Submission re 117 BRIEF/MEMORANDUM in Support, 116 MOTION to Certify Class filed by Aldaress Carter. (Attachments: # 1 Exhibit 1 - Composite Summary, # 2 Exhibit 2APT_Payment Types printed from JCS Table PaymentTypes, # 3 Exhibit 3 - APT_StatusCodes and StatusActions printed from JCS Tables, # 4 Exhibit 4 - Part 1 - JCS Modification of Termination Forms

signed by Montgomery judges showing termination of probation due to credit for timeserved., # 5 Exhibit 4 - Part 2 - JCS Modification of Termination Forms signed by Montgomery judges showing termination of probation due to credit for time served., # 6 Exhibit 4 - Part 3 - JCS Modification of Termination Forms signed by Montgomery judges showing termination of probation due to credit for time served., # 7 Exhibit 4 - Part 4 - JCS Modification of Termination Forms signed by Montgomery judges showing termination of probation due to credit for time served., # 8 Exhibit 4 - Part 5 - JCS Modification of Termination Forms signed by Montgomery judges showing termination of probation due to credit for time served., # 9 Exhibit 4 - Part 6 - JCS Modification of Termination Forms signed by Montgomery judges showing termination of probation due to credit for time served., # 10 Exhibit 5 - APT Status Details Table - Status = T time served since August 28, 2010, # 11 Exhibit 6 - Part 1 - JCS Termed Case report showing all probationers terminated on or after August 28, 2010, # 12 Exhibit 6 - Part 2 - JCS Termed Case report showing all probationers terminated on or after August 28, 2010, # 13 Exhibit 7 APT_Employer table information, # 14 Exhibit 8 - Aldaress Carters JCS cases, # 15 Exhibit 9 - JCS Fees Collected in Montgomery since August 28, 2010, # 16 Exhibit 10 - Affidavit of Aldaress Carter, # 17 Exhibit 11 - Affidavit of G. Daniel Evans, # 18 Exhibit 12 Affidavit of Alexandria Parrish, # 19 Exhibit 13 - Deposition of Wes Ennis taken in Ray v. JCS case, # 20 Exhibit 14 - Exhibits 109-114 to Deposition of Wes Ennis, # 21 Exhibit 15 - Exhibits 32-34 to Deposition of Presiding Judge Les Hayes, # 22 Exhibit 16 - Deposition Judge Milton Westry and Exhibits, # 23 Exhibit 17 APT_StatusCodes)(Evans, George) (Entered: 05/02/2017)

05/08/2017

119 RESPONSE to Motion re 116 MOTION to Certify Class filed by Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 05/08/2017)

05/11/2017 120 RESPONSE to Motion re 116 MOTION to Certify Class filed by The City of Montgomery. (Holliday, Shannon) (Entered: 05/11/2017)

05/11/2017 121 RESPONSE in Opposition re 116 MOTION to Certify Class filed by CHC Companies, Inc.. (Richardson, Brian) (Entered: 05/11/2017)

05/15/2017

122 REPLY BRIEF re 121 Response in Opposition to Motion, 120 Response to Motion, 119 Response to Motion FOR CLASS CERTIFICATION filed by Aldaress Carter. (Evans, George) (Entered: 05/15/2017)

05/16/2017 123 REPORT of Rule 26(f) Planning Meeting. (Evans, George) (Entered: 05/16/2017)

05/16/2017 124 MOTION to Stay by The City of Montgomery. (Attachments: # 1 Exhibit 1)(Holliday, Shannon) (Entered: 05/16/2017)

05/18/2017 125 RESPONSE in Opposition re 124 MOTION to Stay filed by Aldaress Carter. (Evans, George) (Entered: 05/18/2017)

05/30/2017 126 REPLY BRIEF re 124 MOTION to Stay IN SUPPORT OF filed by The City of Montgomery. (Holliday, Shannon) (Entered: 05/30/2017)

06/20/2017

127 MOTION to Compel by Aldaress Carter. (Attachments: # 1 Exhibit A 4/27/17 ltr to counsel and discovery requests to Montgomery, # 2 Exhibit B - 5/10/17 to the City's counsel, # 3 Exhibit C Montgomery's responses to discovery, # 4 Exhibit D - 6/9/17 ltr to Holliday, # 5 Exhibit E - 6/13/17 ltr from Holliday)(Evans, George) (Entered: 06/20/2017)

06/23/2017

128 MOTION for Protective Order AND RESPONSE TO 127 MOTION TO COMPEL DOCUMENTS (DOC. 127) by The City of Montgomery. (Holliday, Shannon) Modified on 6/26/2017 to clarify text to reflect as also a response to 127 motion (qc/djy, ). (Entered: 06/23/2017)

06/28/2017

129 RESPONSE in Opposition re 128 MOTION for Protective Order AND RESPONSE TO MOTION TO COMPEL DOCUMENTS (DOC. 127) filed by Aldaress Carter. (Evans, George) (Entered: 06/28/2017)

07/05/2017 130 REPLY BRIEF re 129 Response in Opposition to Motion IN SUPPORT OF MOTION FOR PROTECTIVE ORDER filed by The City of Montgomery. (Holliday, Shannon) (Entered: 07/05/2017)

08/09/2017

131 ORDER GRANTING defs' 124 MOTION to Stay further proceedings in this case is GRANTED, pending action by the Eleventh Circuit to resolve the issues before it in The City of Montgomery, Alabama, et al. v. Angela McCullough, et al., Case No. 17-11554 (11th Cir.), and Les Hayes, III v. Angela McCullough, et al., Case No. 17-11555 (11th Cir.). Signed by Honorable Judge Royce C. Lamberth on 8/9/17. (djy, ) (Entered: 08/09/2017)

08/17/2017

132 ORDER denying without prejudice plfs' 69 Motion for Partial Summary Judgment; denying without prejudice plfs' 71 Motion for Partial Summary Judgment; denying as moot plfs' 74 Motion to Seal, and that the proposed sealed material is to be returned to the plf and not be made available for public display on the Court's CM/ECF system; denying as moot defs' 75 Motion to Strike, 76 Motion to Strike, 78 Motion for Extension of Time, and 85 Motion for Leave; and denying without prejudice plfs' 87 Motion to Strike. Signed by Honorable Judge Royce C. Lamberth on 8/16/17. (djy, ) (Entered: 08/17/2017)

01/05/2018 133 MOTION TO LIFT STAY by Aldaress Carter. (Evans, George) (Entered: 01/05/2018)

01/10/2018

134 BRIEF/MEMORANDUM in Opposition re 133 MOTION TO LIFT STAY filed by The City of Montgomery. (Holliday, Shannon) (Entered: 01/10/2018)

01/12/2018 135 MOTION to Withdraw as Attorney by The City of Montgomery. (Caldwell, Joel) (Entered: 01/12/2018)

01/23/2018

136 REPLY BRIEF re 134 BRIEF/MEMORANDUM in Opposition REPLY IN SUPPORT OF PLAINTIFFS 133 MOTION TO LIFT STAY filed by Aldaress Carter. (Evans, George) Modified on 1/24/2018 to clarify text to reflect as in support of 133 motion (qc/djy, ). (Entered: 01/23/2018)

01/30/2018

137 REPLY BRIEF re 136 Reply Brief, SUR-REPLY TO PLAINTIFF'S REPLY IN SUPPORT OF PLAINTIFF'S MOTION TO LIFT STAY filed by The City of Montgomery. (Holliday, Shannon) (Entered: 01/30/2018)

03/13/2018

138 ORDER denying as moot 127 Motion to Compel and 128 Motion for Protective Order, as further set out in order. Signed by Honorable Judge Wallace Capel, Jr on 3/13/18. (djy, ) (Entered: 03/13/2018)

03/30/2018 139 ORDER denying def Branch D. Kloess's 104 Motion to Sever, as further set out in order. Signed by Honorable Judge Royce C. Lamberth on 3/29/18. (djy, ) (Entered: 03/30/2018)

07/20/2018

140 MEMORANDUM OPINION, for the reasons stated herein, the Court DENIES Defendant Branch D. Kloess's 104 Motion to Sever; A separate Order 139 was issued on 3/29/2018. Signed by Honorable Judge Royce C. Lamberth on 7/20/18. (djy, ) (Entered: 07/20/2018)

07/20/2018

141 ORDER granting 135 Motion for Joel T. Caldwell to Withdraw as Attorney. Signed by Honorable Judge Royce C. Lamberth on 7/20/18. (djy, ) (Entered: 07/20/2018)

07/20/2018

*** Attorney Joel Thomas Caldwell terminated pursuant to 141 order (NO PDF Document attached to this notice). (djy, ) (Entered: 07/20/2018)

07/20/2018

142 ORDER GRANTING plf's 133 MOTION to lift stay and discovery should proceed in this case, as further set out in order; the Stay is hereby lifted. Signed by Honorable Judge Royce C. Lamberth on 7/20/18. (djy, ) (Entered: 07/20/2018)

08/28/2018

143 ORDER GRANTING 115 MOTION for Leave to File SECOND AMENDED AND RESTATED COMPLAINT attached to the motion shall be filed with the clerk on this date. Signed by Honorable Judge Royce C. Lamberth on 8/28/18. (djy, ) (Entered: 08/28/2018)

08/28/2018

144 ORDER directing the defs to responsd to the 116 MOTION to Certify Class in full within 30 days; plfs will have 15 days from the date the responses are filed to file a reply. Signed by Honorable Judge Royce C. Lamberth on 8/28/18. (djy, ) Modified on 8/29/2018 to correct a typo in the docket text (qc/wcl, ). (Entered: 08/28/2018)

08/28/2018

145 SECOND AMENDED AND RESTATED COMPLAINT with JURY DEMAND against All Defendants, filed by Aldaress Carter. (Attachments: # 1 Exhibit 1 - JCS Contract, # 2 Exhibit 2 - Contract with Kloess, # 3 Exhibit 3 - DOJ Ferguson Report, # 4 Exhibit 4 - Mail in Form, # 5 Exhibit 5 - Reporting for Probation form, # 6 Exhibit 6 Violation of Terms Letter, # 7 Exhibit 7 - Violation of Terms Letter, # 8 Exhibit 8 - Warrants Instructions)(Evans, George) Modified on 8/29/2018 to clarify the docket text (wcl, ). (Entered: 08/28/2018)

09/11/2018 146 ANSWER to 145 Amended Complaint,, by Correctional Healthcare Companies, Inc., Judicial Correctional Services, Inc..(Jackson, Michael) (Entered: 09/11/2018)

09/11/2018 147 ANSWER to 145 Amended Complaint,, by CHC Companies, Inc..(Finch, Frederick) (Entered: 09/11/2018)

09/11/2018

148 MOTION to Dismiss Counts 11 and 13 of the Plaintiff's Second Amended and Restated Complaint (Doc. 145) by The City of Montgomery. (Holliday, Shannon) (Entered: 09/11/2018)

09/12/2018 149 MOTION to Withdraw as Attorney by Aldaress Carter. (Dawson, William) (Entered: 09/12/2018)

09/12/2018 150 NOTICE of Appearance by Richard Hamilton Gill on behalf of The City of Montgomery (Gill, Richard) (Entered: 09/12/2018)

09/19/2018 151 NOTICE of Appearance by Alexandria Parrish on behalf of Aldaress Carter (Attachments: # 1 Exhibit 1 - Certificate of Good Standing)(Parrish, Alexandria) (Entered: 09/19/2018)

09/19/2018

152 Motion to Appear Pro Hac Vice by Aldaress Carter. (Attachments: # 1 Exhibit 1 - Certificate of Good Standing)(Parrish, Alexandria) (Entered: 09/19/2018)

09/19/2018

Motion for Leslie Bailey to Appear Pro Hac Vice by Aldaress Carter. (NO PDF document attached to this notice-See Docket entry 151 ). (djy, ) (Entered: 09/20/2018)

09/19/2018

***Attorney Brian Hardingham for Aldaress Carter added pursuant to 152 motion (NO PDF Document attached to this notice). (djy, ) (Entered: 09/20/2018)

09/20/2018

153 Received pro hac vice Filing fees for Hardingham and Bailey re: 151 & 152 motions paid $ 100.00, receipt number 4602050765 (djy, ) (Entered: 09/20/2018)

09/24/2018 154 ANSWER to 145 Amended Complaint,, by Branch D. Kloess.(Jackson, Micheal) (Entered: 09/24/2018)

09/27/2018

155 OPPOSITION to 116 MOTION to Certify Class filed by Branch D. Kloess. (Attachments: # 1 Exhibit A )(Jackson, Micheal) Modified on 9/28/2018 to include exhibit description. (dmn, ) (Entered: 09/27/2018)

09/27/2018

156 MOTION to Strike Plaintiff's Composite Exhibit (Doc. 118 -1 Evidentiary Submission) offered in support of Plaintiff's 116 Motion for Class Certification, by Judicial Correctional Services, Inc.. (Attachments: # 1 Exhibit A - Ray Doc 381 (RESTRICTED PRIVACY ISSUE), # 2 Exhibit B Part 1 of 2-Bishop Expert Report (RESTRICTED PRIVACY ISSUE), # 3 Exhibit B Part 2 of 2- Bishop Expert Report (RESTRICTED PRIVACY ISSUE))(Logsdon, Larry) (Additional attachment(s) added on 9/27/2018: # 4 Corrected Certificate of Service) (wcl, ). Modified on 9/28/2018 to create link to Doc. 116 , and clean up text. (dmn, ) (Additional attachment(s) added on 9/28/2018 to redact personal information in original filings pursuant to the E-Government Act: # 5 Redacted Exhibit A - Ray Doc 381, # 6 Redacted Exhibit B Part 1 of 2-Bishop Expert Report, # 7 Redacted Exhibit B Part 2 of 2- Bishop Expert Report) (dmn, ) (Entered: 09/27/2018)

09/27/2018

157 OBJECTIONS and MOTION to Strike Exhibits in Support of Plaintiff's 116 Motion for Class Certification, by CHC Companies, Inc. (Richardson, Brian) Modified on 9/28/2018 to reflect actual title and clean up text. (dmn, ) (Entered: 09/27/2018)

09/27/2018

158 OPPOSITION to Plaintiff's 116 Motion for Class Certification and MEMORANDUM BRIEF in Support Thereof, filed by CHC Companies, Inc. (Richardson, Brian) Modified on 9/28/2018 to reflect actual title. (dmn, ) (Entered: 09/27/2018)

09/27/2018 159 Evidentiary Submission in Support of CHC Companies, LLC's 158 Opposition to Plaintiff's 116 Motion for Class Certification

filed by CHC Companies, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X-1, # 25 Exhibit X-2, # 26 Exhibit Y, # 27 Exhibit Z, # 28 Exhibit AA, # 29 Exhibit BB, # 30 Exhibit CC)(Richardson, Brian) Modified on 9/28/2018 to create link to Doc. 116 . (dmn, ) (Entered: 09/27/2018)

09/27/2018

160 BRIEF/MEMORANDUM in Opposition to 116 Motion for Class Certification, 117 Brief/Memorandum in Support, filed by The City of Montgomery. (Attachments: # 1 Appendix Exhibit 1)(Holliday, Shannon) Modified on 9/28/2018 to clean up text. (dmn, ) (Entered: 09/27/2018)

09/27/2018

161 Evidentiary Submissions re 160 BRIEF/MEMORANDUM in Opposition filed by The City of Montgomery. (Attachments: # 1 Exhibit 1, Affidavit of Kenneth H. Nixon, Jr., # 2 Exhibit 2, Affidavit of Steven A. Smith)(Holliday, Shannon) Modified on 9/28/2018 to include exhibit descriptions. (dmn, ) (Entered: 09/27/2018)

09/27/2018 162 RESPONSE in Opposition re 116 MOTION to Certify Class filed by Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 09/27/2018)

09/27/2018

163 Evidentiary Submission in support of 162 Opposition to Plaintiff's 116 Motion for Class Certification, filed by Judicial Correctional Services, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N (Part 1 of 4), # 15 Exhibit N (Part 2 of 4), # 16 Exhibit N (Part 3 of 4), # 17 Exhibit N (Part 4 of 4), # 18 Exhibit O, # 19 Exhibit P, # 20 Exhibit Q, # 21 Exhibit R, # 22 Exhibit S, # 23 Exhibit T, # 24 Exhibit U, # 25 Exhibit V, # 26 Exhibit W)(Jackson, Michael) Modified on 9/28/2018 to clean up text. (dmn, ) (Entered: 09/27/2018)

09/27/2018

Objections to Plaintiff's 116 Motion for Class Certification filed by CHC Companies, Inc. (dmn, ) (NO PDF, see Doc. 157 for pdf.) (Entered: 09/28/2018)

09/27/2018

BRIEF/MEMORANDUM in Support of 158 OPPOSITION to Plaintiff's 116 Motion for Class Certification, filed by CHC Companies, Inc. (dmn, ) (NO PDF, see Doc. 158 for pdf.) (Entered: 09/28/2018)

09/28/2018 164 MOTION for Partial Summary Judgment DECLARING THE CONTRACT BETWEEN JCS AND MONTGOMERY VOID AB INITIO by Aldaress Carter. (Evans, George) (Entered: 09/28/2018)

09/28/2018

165 BRIEF/MEMORANDUM in Support re 164 MOTION for Partial Summary Judgment DECLARING THE CONTRACT BETWEEN JCS AND MONTGOMERY VOID AB INITIO filed by Aldaress Carter. (Evans, George) (Entered: 09/28/2018)

09/28/2018

166 Evidentiary Submission re 164 MOTION for Partial Summary Judgment DECLARING THE CONTRACT BETWEEN JCS AND MONTGOMERY VOID AB INITIO, 165 BRIEF/MEMORANDUM in Support filed by Aldaress Carter. (Attachments: # 1 Exhibit 1 - City of Montgomery's Responses to Plaintiff's First Interrogatories)(Evans, George) (Entered: 09/28/2018)

10/02/2018

167 SUBMISSION joining in the 157 OBJECTION and MOTION to Strike 118 Evidentiary Submission In Support of Plaintiffs' Motion for Class Certification Submission of the City of Montgomery to Plaintiff's Evidentiary Submission on Motion for Class Certification filed by The City of Montgomery. (Gill, Richard) Modified on 10/3/2018 to clarify text to reflect as SUBMISSION joining 157 (qc/djy, ). (Entered: 10/02/2018)

10/02/2018 168 RESPONSE in Opposition re 148 MOTION to Dismiss Counts 11 and 13 of the Plaintiff's Second Amended and Restated Complaint (Doc. 145) filed by Aldaress Carter. (Evans, George) (Entered: 10/02/2018)

10/08/2018

169 SUPPLEMENTAL Corporate/Conflict Disclosure Statement by CHC Companies, Inc.. (Richardson, Brian) Modified on 10/9/2018 to clarify the docket text (wcl, ). (Entered: 10/08/2018)

10/09/2018

170 REPLY BRIEF re 148 MOTION to Dismiss Counts 11 and 13 of the Plaintiff's Second Amended and Restated Complaint (Doc. 145) IN SUPPORT OF filed by The City of Montgomery. (Holliday, Shannon) (Entered: 10/09/2018)

10/10/2018

171 Second MOTION to Compel by Aldaress Carter. (Attachments: # 1 Exhibit A - 4/27/17 ltr to counsel with initial discovery requests, # 2 Exhibit B - 5/10/17 ltr to Holliday, # 3 Exhibit C - Montomgery's responses to First Interrogatories & RFP, # 4 Exhibit D - 6/9/17 ltr to Holliday, # 5 Exhibit E -6/3/17 ltr from Holliday to Evans, # 6 Exhibit F - 7/23/18 ltr to Holliday, # 7 Exhibit G - 7/25/18 ltr from Holliday to Evans, # 8 Exhibit H - 8/17/18 ltr from Holliday, # 9 Exhibit I - 8/17/18 ltr to Holliday, # 10 Exhibit J - 9/3/18 response from Holliday re discovery, # 11 Exhibit K - 5/20/16 ltr to Holliday, # 12 Exhibit L Plainning Report in Rudolph case filed 5/18/17, # 13 Exhibit M -

9/10/18 ltr to Holliday & Segall, # 14 Exhibit N - Carter Case Action Summary, # 15 Exhibit O - 1/27/14 Defense Attorney Kloess assigned)(Evans, George) (Entered: 10/10/2018)

10/12/2018

172 RESPONSE in Opposition re 156 MOTION to Strike 118 Evidentiary Submission,,,,,,,,, Composite Exhibit (Doc. 118-1), 157 MOTION to Strike 118 Evidentiary Submission,,,,,,,,, In Support of Plaintiffs' Motion for Class Certification PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS MOTIONS TO STRIKE (DOCS. 156, 157, & 167 ) filed by Aldaress Carter. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Evans, George) Modified on 10/15/2018 to clarify text as also re: 167 (qc/djy, ). (Entered: 10/12/2018)

10/12/2018

173 REPLY to 160 BRIEF IN OPPOSITION TO 116 MOTION to Certify Class PLAINTIFFS REPLY TO THE CITY OF MONTGOMERYS OPPOSITION TO PLAINTIFFS MOTION FOR CLASS CERTIFICATION filed by Aldaress Carter. (Attachments: # 1 Exhibit 1 - Montgomery Class of JCS Probationers, # 2 Exhibit 2 - Jailed subclass status action T, # 3 Exhibit 3 - Jailed after sentence to JCS, # 4 Exhibit 4 - Subclass - probation exceeds two years, # 5 Exhibit 5 Probation orders with no jail sentence)(Evans, George) Modified on 10/15/2018 to clarify text to reflect as re: 160 BRIEF (qc/djy, ). (Entered: 10/12/2018)

10/12/2018

174 REPLY BRIEF re 158 BRIEF/MEMORANDUM in Opposition PLAINTIFFS REPLY TO CHC COMPANIES OPPOSITION TO PLAINTIFFS MOTION FOR CLASS CERTIFICATION filed by Aldaress Carter. (Attachments: # 1 Exhibit 1 - Agreement and Plan of Merger, # 2 Exhibit 2 - Certificate of Merger, # 3 Exhibit 3 - Carter's JCS Case File Reports)(Evans, George) (Entered: 10/12/2018)

10/12/2018

175 REPLY BRIEF re 162 Response in Opposition to Motion PLAINTIFFS REPLY TO JCS OPPOSITION TO PLAINTIFFS MOTION FOR CLASS CERTIFICATION filed by Aldaress Carter. (Evans, George) (Entered: 10/12/2018)

10/12/2018

176 REPLY BRIEF re 155 Response in Opposition to Motion PLAINTIFFS REPLY TO DEFENDANT KLOESS OPPOSITION TO CLASS CERTIFICATION filed by Aldaress Carter. (Evans, George) (Entered: 10/12/2018)

10/19/2018

177 RESPONSE in Opposition re 164 MOTION for Partial Summary Judgment DECLARING THE CONTRACT BETWEEN JCS AND MONTGOMERY VOID AB INITIO filed by Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 10/19/2018)

10/19/2018

178 RESPONSE in Opposition re 164 MOTION for Partial Summary Judgment DECLARING THE CONTRACT BETWEEN JCS AND MONTGOMERY VOID AB INITIO filed by The City of Montgomery. (Attachments: # 1 Exhibit Evidentiary Submissions, # 2 Exhibit Affidavit of Kenneth H. Nixon Jr.)(Holliday, Shannon) (Entered: 10/19/2018)

10/19/2018

179 RESPONSE in Opposition re 164 MOTION for Partial Summary Judgment DECLARING THE CONTRACT BETWEEN JCS AND MONTGOMERY VOID AB INITIO filed by CHC Companies, Inc.. (Finch, Frederick) (Entered: 10/19/2018)

10/19/2018 180 REPLY BRIEF re 172 Response in Opposition to Motion,, JCSs Motion to Strike Composite Exhibit, Doc. 118-1 156 filed by Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 10/19/2018)

10/19/2018

181 REPLY BRIEF re 157 MOTION to Strike 118 Evidentiary Submission,,,,,,,,, In Support of Plaintiffs' Motion for Class Certification filed by CHC Companies, Inc.. (Richardson, Brian) (Entered: 10/19/2018)

10/24/2018 182 RESPONSE to Motion re 171 Second MOTION to Compel filed by The City of Montgomery. (Gill, Richard) (Entered: 10/24/2018)

10/30/2018 183 MOTION for Summary Judgment by Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 10/30/2018)

10/30/2018 184 BRIEF/MEMORANDUM in Support re 183 MOTION for Summary Judgment filed by Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 10/30/2018)

10/30/2018

185 Evidentiary Submission re 184 BRIEF/MEMORANDUM in Support, 183 MOTION for Summary Judgment filed by Judicial Correctional Services, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Jackson, Michael) (Entered: 10/30/2018)

11/01/2018

186 REPLY in Support re 171 Second MOTION to Compel filed by Aldaress Carter. (Evans, George) Modified on 12/26/2018 to add the link to doc 171 & to remove the link from doc 182 (alm, ). (Entered: 11/01/2018)

11/02/2018

187 MOTION for Extension of Time to File Response/Reply by Aldaress Carter. (Attachments: # 1 Exhibit A - Proposed Order)(Evans, George) (Entered: 11/02/2018)

11/02/2018 188 REPLY BRIEF re 172 Response in Opposition to Motion,, JCS's Response to Plaintiffs Request to Strike Expert Report of T. Brad

Bishop filed by Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 11/02/2018)

11/05/2018

189 REPLY BRIEF re 177 Response in Opposition to Motion for partial summary judgment finding the JCS Contract void contract ab initio filed by Aldaress Carter. (Evans, George) Modified on 11/6/2018 to remove excessive text (qc/djy, ). (Entered: 11/05/2018)

11/05/2018

190 REPLY BRIEF re 178 Response in Opposition to Motion for partial summary judgment finding the JCS contract void contract ab initio filed by Aldaress Carter. (Evans, George) Modified on 11/6/2018 to remove excessive text (qc/djy, ). (Entered: 11/05/2018)

11/05/2018

191 REPLY BRIEF re 179 Response in Opposition to Motion for partial summary judgment - JCS Contract void ab initio filed by Aldaress Carter. (Evans, George) Modified on 11/6/2018 to remove excessive text (qc/djy, ). (Entered: 11/05/2018)

11/09/2018 192 REPLY BRIEF re 188 Reply Brief In Support of Plaintiffs Motion to Strike Brad Bishops Expert Report filed by Aldaress Carter. (Evans, George) (Entered: 11/09/2018)

11/14/2018

193 ORDER granting 151 Motion for Leslie Bailey Leave to Appear Pro Hac Vice, as further set out in order. Signed by Honorable Judge Royce C. Lamberth on 11/14/18. (djy, ) (Entered: 11/14/2018)

11/14/2018

194 ORDER granting 152 Motion for Brian Hardingham Leave to Appear Pro Hac Vice, as further set out in order. Signed by Honorable Judge Royce C. Lamberth on 11/14/18. (djy, ) (Entered: 11/14/2018)

11/20/2018 195 BRIEF/MEMORANDUM in Opposition re 183 MOTION for Summary Judgment filed by Aldaress Carter. (Evans, George) (Entered: 11/20/2018)

11/20/2018

196 Evidentiary Submission re 195 BRIEF/MEMORANDUM in Opposition filed by Aldaress Carter. (Attachments: # 1 Exhibit 1 Preprinted General Conditions of Probation, # 2 Exhibit 2 - Rule 56(d) Affidavit of G. Daniel Evans)(Evans, George) (Entered: 11/20/2018)

11/21/2018 197 MOTION for Extension of Time to File Response/Reply in Support of Its Motion for Summary Judgment by Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 11/21/2018)

11/29/2018 198 ORDER GRANTING DEFENDANT JCS'S UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE REPLY BRIEF: it is hereby ORDERED: 1) The 197 Motion is GRANTED;

2) Judicial Correctional Services, Inc. shall file its Reply in Support of its 183 Motion for Summary Judgment on or by 12/18/2018. Signed by Honorable Judge Royce C. Lamberth on 11/28/2018. (alm, ) (Entered: 11/29/2018)

12/18/2018

199 REPLY BRIEF re 184 BRIEF/MEMORANDUM in Support, 183 MOTION for Summary Judgment , 195 BRIEF/MEMORANDUM in Opposition filed by Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 12/18/2018)

01/09/2019

Motions No Longer Referred to Mag Judge Capel: 171 Second MOTION to Compel (djy, ) (Entered: 01/09/2019)

01/09/2019

Case reassigned to Honorable Judge Stephen Michael Doyle. Honorable Judge Wallace Capel, Jr no longer assigned to the case as referral judge (NO PDF Document attached to this notice). (djy, ) (Entered: 01/09/2019)

01/30/2019 200 MOTION for Judgment on the Pleadings by The City of Montgomery. (Holliday, Shannon) (Entered: 01/30/2019)

02/20/2019

201 RESPONSE to Motion re 200 MOTION for Judgment on the Pleadings filed by Aldaress Carter. (Attachments: # 1 Exhibit 1 Organizational Chart, # 2 Exhibit 2 - City Code)(Evans, George) (Entered: 02/20/2019)

02/27/2019

202 REPLY BRIEF in support of 200 MOTION for Judgment on the Pleadings IN SUPPORT OF filed by The City of Montgomery. (Holliday, Shannon) Modified on 2/28/2019 to clarify text to reflect as also re: 201 RESPONSE (qc/djy, ). (Entered: 02/27/2019)

03/29/2019

203 ORDER DENYING Carter's 164 MOTION for Partial Summary Judgment; Mr. Carter has no standing to bring claims for injunctive or declaratory relief. And his claim for restitution is barred by the Rooker-Feldman doctrine. As such, this Court lacks subject matter jurisdiction over the entirety of Count 15, which is hereby DISMISSED, as further set out in order. Signed by Honorable Judge Royce C. Lamberth on 3/29/19. (Attachments: # 1 civil appeals checklist)(djy, ) (Entered: 03/29/2019)

03/29/2019

204 ORDER DENYING without prejudice Mr. Carter's 116 MOTION to Certify Class; Def Judicial Correction Services Inc.'s 156 MOTION to Strike plf's Composite Exhibit and def CHC Companies, LLC's 157 Objections to and MOTION to Strike exhibits are hereby DENIED AS MOOT, as further set out in order; further ORDERING ORDERS that the parties shall meet

and confer within (10) days of this date and file a report updating the Court on the status of discovery and any pending discovery disputes, as well as proposing a schedule through the end of discovery and for the filing of post-discovery dispositive motions. Signed by Honorable Judge Royce C. Lamberth on 3/29/19. (djy, ) (Entered: 03/29/2019)

03/29/2019

205 ORDER granting 149 Motion for William Dawson to Withdraw as Attorney and granting 187 Motion for Extension of Time to File Response, nunc pro tunc. Signed by Honorable Judge Royce C. Lamberth on 3/29/19. (djy, ) (Entered: 03/29/2019)

03/29/2019

*** Attorney William M Dawson, Jr terminated pursuant to 205 order (NO PDF document attached to this notice). (djy, ) (Entered: 03/29/2019)

03/29/2019 206 MEMORANDUM OPINION. Signed by Honorable Judge Royce C. Lamberth on 3/29/19. (djy, ) (Entered: 03/29/2019)

03/29/2019

207 ORDER, for the reasons set forth in the accompanying 206 memorandum opinion, DENYING the City of Montgomery's 200 MOTION for Judgment on the Pleadings ; GRANTING the City of Montgomery's 148 MOTION to Dismiss Counts 11 and 13 of the Plf's Second Amended and Restated Complaint ; Counts 11 and 13 are hereby DISMISSED. Signed by Honorable Judge Royce C. Lamberth on 3/29/19. (Attachments: # 1 civil appeals checklist)(djy, ) (Entered: 03/29/2019)

04/08/2019

208 STATUS REPORT AND PROPOSED SCHEDULE (JOINT) by Judicial Correctional Services, Inc.. (Jackson, Michael) (Additional attachment(s) added on 4/9/2019: # 1 Certificate of Service) (am, ). (Entered: 04/08/2019)

04/12/2019 209 ANSWER to 145 Amended Complaint,, by The City of Montgomery.(Holliday, Shannon) (Entered: 04/12/2019)

04/15/2019

210 AMENDED DOCUMENT by Aldaress Carter. Amendment to 171 Second MOTION to Compel Plaintiffs Notice of Corrected Docket Entry. (Attachments: # 1 Exhibit J - 9 3 18 email from Holliday re initial disclosures, interogs and RFP)(Evans, George) (Entered: 04/15/2019)

04/18/2019

211 RESPONSE to Motion re 171 Second MOTION to Compel SUPPLEMENTAL RESPONSE IN OPPOSITION TO PLAINTIFF'S SECOND MOTION TO COMPEL filed by The City of Montgomery. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Holliday, Shannon) (Entered: 04/18/2019)

04/23/2019

212 REPLY BRIEF Plaintiffs Reply to the City of Montgomerys 211 Supplemental Response to Plaintiffs Second Motion to Compel filed by Aldaress Carter. (Evans, George) Modified on 4/24/2019 to clarify text to reflect as reply to 211 Response (am, ). (Entered: 04/23/2019)

05/14/2019

213 MEMORANDUM OPINION AND ORDER GRANTING IN PART and DENYING IN PART 171 Second MOTION to Compel, as further set out in order. Signed by Honorable Judge Royce C. Lamberth on 5/14/19. (djy, ) (Entered: 05/14/2019)

06/20/2019

214 ORDER DENYING JCS's 183 MOTION for Summary Judgment without prejudice, as further set out in order; ORDERING the parties to complete discovery by 12/19/2019; To facilitate prompt resolution of disputes in the interim, ORDERING any opposition to be filed within five business days of a motion for judicial intervention, with replies due three business days after the opposition's filing; The Court will not refer these motions to a magistrate judge; the undersigned will rule on them as expeditiously as possible; ORDERING the parties to submit dispositive motions no later than 1/20/2020, with responses due 2/20/2020, and replies due 3/9/2020; Given this case's history and duration, these deadlines will not be further extended; ORDERING the parties to meet and confer within fourteen days on a discovery plan incorporating additional deadlines within these constraints; further ORDERING the parties to submitjointly if possible, separately if necessarya report and proposed order within ten days thereafter. Signed by Honorable Judge Royce C. Lamberth on 6/19/19. (Attachments: # 1 civil appeals checklist)(djy, ) (Entered: 06/20/2019)

07/08/2019

215 JOINT STATUS REPORT and Proposed Schedule in Response to Courts Order of June 20, 2019 (Doc. 214) by Aldaress Carter, The City of Montgomery, Branch D. Kloess, Judicial Correctional Services, Inc., Correctional Healthcare Companies, Inc.. (Attachments: # 1 Text of Proposed Order Proposed Order)(Evans, George) Modified on 7/9/2019 to add additional filers (alm, ). (Entered: 07/08/2019)

07/09/2019

216 Response to Order re 214 Order,,,,, Terminate Motions,,,,, Set Deadlines,,,, (CORRECTED) Status Report and Proposed Schedule by The City of Montgomery. (Holliday, Shannon) (Main Document 216 replaced on 7/9/2019 to replace erroneous main PDF document previously attached by E-Filer ) (qc/djy, ). (Entered: 07/09/2019)

07/09/2019 217 NOTICE of Correction re 216 (CORRECTED) Status Report and Proposed Schedule to correct the erroneous main PDF document

previously attached by E-Filer. (Attachments: # 1 Corrected main document to docket entry 216 )(djy, ) (Entered: 07/09/2019)

07/10/2019

218 STATUS REPORT Plaintiffs Supplemental Status Report in Response to Courts Order of June 20, 2019 (Doc. 214) and the City of Montgomerys Recent Filing (Doc. 216) by Aldaress Carter. (Attachments: # 1 Exhibit 1 - Supplemental Discovery Response from City, # 2 Exhibit 2 -Emails from City)(Evans, George) (Entered: 07/10/2019)

07/11/2019 219 Joint MOTION for Protective Order by The City of Montgomery. (Attachments: # 1 Exhibit A)(Holliday, Shannon) (Entered: 07/11/2019)

07/23/2019

220 MOTION for Sanctions by Aldaress Carter. (Attachments: # 1 Exhibit 1 - 5/24/19 ltr to City Counsel, # 2 Exhibit 2 - 5/30/19 ltr from City PLs' counsel, # 3 Exhibit 3 - 5/31/19 ltr to City Counsel, # 4 Exhibit 4 6/6/19 ltr from City Counsel, # 5 Exhibit 5 - 6/7/19 ltr to City Counsel, # 6 Exhibit 6 - 6/25/19 ltr to City Counsel, # 7 Exhibit 7 - 6/26/19 ltr to City Counsel, # 8 Exhibit 8 - 7/1/19 ltr to City Counsel, # 9 Exhibit 9 7/11/19 email from Holliday, # 10 Exhibit 10 - 7/16/19 ltr to City Counsel, # 11 Exhibit 11 - 7/16/19 ltr to City Counsel, # 12 Exhibit 12 7/18/19 ltr from City Counsel)(Evans, George) (Entered: 07/23/2019)

07/30/2019

221 RESPONSE in Opposition re 220 MOTION for Sanctions and Motion for Appointment of Special Master on Discovery filed by The City of Montgomery. (Attachments: # 1 Exhibit 1A, # 2 Exhibit 1B, # 3 Exhibit 1C, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Exhibit 22, # 25 Exhibit 23, # 26 Exhibit 24, # 27 Exhibit 25, # 28 Exhibit 26, # 29 Exhibit 27, # 30 Exhibit 28, # 31 Exhibit 29, # 32 Exhibit 30, # 33 Exhibit 31, # 34 Exhibit 32, # 35 Exhibit 33)(Holliday, Shannon) (Entered: 07/30/2019)

07/30/2019

MOTION for appointment of special master on discovery by The City of Montgomery. (NO PDF Document attached to this notice-See Docket entry 221 ). (djy, ) (Entered: 07/31/2019)

08/02/2019 222 TEXT ORDER granting 219 Motion for Protective Order. Signed by Honorable Judge Royce C. Lamberth on 8/2/19. (NO PDF document attached to this notice). (djy, ) (Entered: 08/02/2019)

08/02/2019 223 PROTECTIVE ORDER to protect the confidentiality of certain information and to facilitate discovery, as further set out in order.

Signed by Honorable Judge Royce C. Lamberth on 8/1/19. (djy, ) (Entered: 08/02/2019)

08/02/2019

224 REPLY BRIEF in support of 220 motion for sanctions; re 221 Response in Opposition to Motion filed by Aldaress Carter. (Attachments: # 1 Exhibit A - Index of Docs produced by City, # 2 Exhibit B - City docs, # 3 Exhibit C - Ala Uniform Arrest Report Instructions)(Evans, George) Modified on 8/6/2019 to clarify text to reflect as in support of 220 motion (qc/djy, ). (Entered: 08/02/2019)

08/05/2019 225 NOTICE by Aldaress Carter Notice of Filing Proposed Order (Attachments: # 1 Exhibit A - Proposed Order)(Evans, George) (Entered: 08/05/2019)

08/06/2019

226 NOTICE by Aldaress Carter Notice of Filing Proposed Order (Attachments: # 1 Exhibit A - Proposed Order)(Evans, George) (Entered: 08/06/2019)

08/06/2019

227 TEXT ORDER: Because Carter raises new arguments in his reply brief 224 supporting his motion 220 for sanctions, and since he has now filed a proposed order 226 requesting specific relief, the Court will grant defendants leave to file a surreply. Any surreply shall be filed no later than 8/12/2019. Signed by Honorable Judge Royce C. Lamberth on 8/6/19. (NO PDF document attached to this notice).(djy, ) (Entered: 08/06/2019)

08/12/2019

228 SUR-REPLY BRIEF re 227 Order, in Opposition to Plaintiff's 220 Motion for Sanctions and 224 Reply Brief in Support of Motion for Special Master filed by The City of Montgomery. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Holliday, Shannon) Modified on 8/13/2019 to clarify text to reflect as SUR-REPLY (qc/djy, ). (Entered: 08/12/2019)

08/20/2019

229 ORDER denying 220 Motion for Sanctions; denying 221 Motion for appointment of special master on discovery, as further set out in order. Signed by Honorable Judge Royce C. Lamberth on 8/20/19. (djy, ) (Entered: 08/20/2019)

09/17/2019 230 NOTICE of Appearance by Jonathan Griffith on behalf of Judicial Correctional Services, Inc. (djy, ) (Entered: 09/17/2019)

12/03/2019

231 MOTION for Leave to File Third Amended Complaint by Aldaress Carter. (Attachments: # 1 Exhibit 1 - Third Amended Complaint, # 2 Exhibit 2 - Third Amended Complaint redline)(Hardingham, Brian) (Entered: 12/03/2019)

12/05/2019 232 MOTION for Extension of Time to File Response/Reply as to 231 MOTION for Leave to File Third Amended Complaint by The City of Montgomery. (Gill, Richard) (Entered: 12/05/2019)

12/06/2019

233 TEXT ORDER GRANTING City of Montgomery's 232 MOTION for Extension of Time; the City of Montgomery's response to plf's motion for leave to file amended complaint is due by 12/17/2019. Signed by Honorable Judge Royce C. Lamberth on 12/6/19. (NO PDF document attached to this notice).(djy, ) (Entered: 12/06/2019)

12/06/2019 234 MOTION for Extension of Time to File Response/Reply as to 231 MOTION for Leave to File Third Amended Complaint by CHC Companies, Inc.. (Finch, Frederick) (Entered: 12/06/2019)

12/10/2019

235 RESPONSE to Motion re 231 MOTION for Leave to File Third Amended Complaint filed by Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 12/10/2019)

12/10/2019

236 RESPONSE in Opposition re 231 MOTION for Leave to File Third Amended Complaint Joinder to Judicial Correction Services, LLC's Response filed by CHC Companies, Inc.. (Finch, Frederick) (Entered: 12/10/2019)

12/10/2019

JOINDER re Judicial Correction Services, LLC's 235 Response to 231 Motion by CHC Companies, Inc. (NO PDF document attached to this notice-See Docket entry 236 , which was erroneously entered on the docket as a RESPONSE). (djy, ) (Entered: 12/12/2019)

12/11/2019

237 MOTION for Leave to File Omnibus Reply to defs' responses to plf's MOTION to file third amended complaint by Aldaress Carter. (Hardingham, Brian) Modified on 12/12/2019 to clarify text to correct as a MOTION for leave to file omnibus reply to defs' responses (qc/djy, ). (Entered: 12/11/2019)

12/11/2019

238 RESPONSE in Opposition re 231 MOTION for Leave to File Third Amended Complaint filed by Branch D. Kloess. (Jackson, Micheal) (Entered: 12/11/2019)

12/11/2019

239 MOTION to accept 238 opposition to plf's 231 motion for leave to amend out of time by Branch D. Kloess. (Jackson, Micheal) Modified on 12/12/2019 to clarify text to reflect motion to accept opposition out of time as reflected in main PDF document (qc/djy, ). (Entered: 12/11/2019)

12/13/2019 240 REPLY to Response to Motion re 231 MOTION for Leave to File Third Amended Complaint (Reply to JCS/CHS, CHCC, and Branch Kloess's Oppositions) filed by Aldaress Carter. (Hardingham, Brian)

Modified on 12/16/2019 to clarify text to reflect as reply to 235 , 236 , & 238 responses (qc/djy, ). (Entered: 12/13/2019)

12/17/2019

241 RESPONSE in Opposition re 231 MOTION for Leave to File Third Amended Complaint filed by The City of Montgomery. (Attachments: # 1 Exhibit A)(Holliday, Shannon) (Entered: 12/17/2019)

12/20/2019

242 REPLY to Response to Motion re 231 MOTION for Leave to File Third Amended Complaint (in response to Montgomery) filed by Aldaress Carter. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Hardingham, Brian) (Entered: 12/20/2019)

12/20/2019

243 TEXT ORDER: CHC Companies, LLC's unopposed Motion for Extension of time to Respond to Plaintiff's Motion for Leave to File Amended Complaint 234 is granted nunc pro tunc. Signed by Honorable Judge Royce C. Lamberth on 12/20/2019. (no pdf document attached to this entry)(kh, ) (Entered: 12/23/2019)

12/20/2019

244 TEXT ORDER: Defendant Branch D. Kloess's Motion to Accept His Opposition to Plaintiff's Motion for Leave to Amend Out of Time 239 is granted nunc pro tunc. Signed by Honorable Judge Royce C. Lamberth on 12/20/2019. (no pdf document attached to this entry)(kh, ) (Entered: 12/23/2019)

12/20/2019

245 TEXT ORDER: Plaintiff's Request for Leave to File Reply on 12/20/2019 237 is denied. Signed by Honorable Judge Royce C. Lamberth on 12/20/2019. (no pdf document attached to this entry)(kh, ) (Entered: 12/23/2019)

12/20/2019

246 MEMORANDUM OPINION: Based on the foregoing, the Court will DENY plaintiff's Motion for Leave to File Third Amended Complaint (ECF No. 231 ). A separate Order accompanies this Memorandum Opinion. Signed by Honorable Judge Royce C. Lamberth on 12/20/2019. (kh, ) (Entered: 12/23/2019)

12/20/2019

247 ORDER: Based on the foregoing, the Court DENIES plaintiffs' Motion for Leave to File Third Amended Complaint (ECF No. 231 ). It is so Ordered. Signed by Honorable Judge Royce C. Lamberth on 12/20/2019. (kh, ) (Entered: 12/23/2019)

01/02/2020

248 Joint MOTION to Strike Plaintiff's Supplemental Initial Disclosures or to Exclude Evidence Regarding Supplemental Initial Disclosures by The City of Montgomery. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Gill, Richard) Modified on 1/3/2020 to clarify text to reflect as also filed on behalf of Judicial Correctional Services, Inc.,

Correctional Healthcare Companies, Inc., CHC Companies, Inc. & Branch D. Kloess (qc/djy, ). (Entered: 01/02/2020)

01/09/2020

249 RESPONSE in Opposition re 248 Joint MOTION to Strike Plaintiff's Supplemental Initial Disclosures or to Exclude Evidence Regarding Supplemental Initial Disclosures filed by Aldaress Carter. (Attachments: # 1 Exhibit A - City of Montgomery's Supplemental Initial Disclosures, # 2 Exhibit B - City's First Request for Production and Interrogatories, # 3 Exhibit C - City of Montgomery.s Initial Disclosures, # 4 Exhibit D - CHCC Initial Disclosures, # 5 Exhibit E Carter's Responses to JCS 1st Interrogatories & RFPs, # 6 Exhibit F Carter's Supplemental response to JCS Interrogatories & RFP, # 7 Exhibit G - Deposition of Kenneth Nixon 9/16/19)(Evans, George) (Entered: 01/09/2020)

01/13/2020

250 REPLY to 249 Response to Motion re 248 Joint MOTION to Strike Plaintiff's Supplemental Initial Disclosures or to Exclude Evidence Regarding Supplemental Initial Disclosures filed by Judicial Correctional Services, Inc.. (Attachments: # 1 Exhibit June 5, 2017 JCS Responses to Plaintiff's First Discovery)(Green, Wilson) Modified on 1/14/2020 to clarify text to reflect as REPLY to 249 RESPONSE (qc/djy, ). (Entered: 01/13/2020)

01/16/2020

251 MOTION to Compel Discovery from JCS by Aldaress Carter. (Attachments: # 1 Exhibit 1 - Plaintiff's 10/24/19 Discovery to JCS, # 2 Exhibit 2 - Exhibit 29 to Ken Nixons deposition, # 3 Exhibit 3 Kenneth Nixon's deposition, # 4 Exhibit 4 - JCS Manual for Operating Procedures at Montgomery Municipal Court, # 5 Exhibit 5 - Tanya Hambys deposition taken April 30, 2013, # 6 Exhibit 6 - JCS' 11/25/19 Responses to Discovery, # 7 Exhibit 7 - Pl's 12/2/19 ltr to JCS Counsel, # 8 Exhibit 8 - Pl's 12/19/19 ltr to JCS Counsel, # 9 Exhibit 9 - Pl's 1/5/2020 ltr to JCS Counsel)(Evans, George) (Entered: 01/16/2020)

01/21/2020 252 MOTION for Summary Judgment by The City of Montgomery. (Gill, Richard) (Entered: 01/21/2020)

01/21/2020

253 Evidentiary Submission re 252 MOTION for Summary Judgment filed by The City of Montgomery. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35,

# 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38)(Gill, Richard) (Entered: 01/21/2020)

01/21/2020

254 ORDER granting defendants' 248 Motion to Strike Plaintiff's Supplemental Initial Disclosures or to Exclude Evidence Regarding Supplemental Initial Disclosures as set forth in their reply; plfs' supplemental disclosures are Stricken, and any statements from these 18 witnesses are EXCLUDED. Signed by Honorable Judge Royce C. Lamberth on 1/21/2020. (djy, ) (Entered: 01/21/2020)

01/21/2020 255 MOTION for Summary Judgment by CHC Companies, Inc.. (Finch, Frederick) (Entered: 01/21/2020)

01/21/2020 256 BRIEF/MEMORANDUM in Support re 255 MOTION for Summary Judgment filed by CHC Companies, Inc.. (Finch, Frederick) (Entered: 01/21/2020)

01/21/2020

257 Evidentiary Submission re 255 MOTION for Summary Judgment , 256 BRIEF/MEMORANDUM in Support filed by CHC Companies, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, part 1, # 10 Exhibit I, part 2, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O)(Finch, Frederick) (Entered: 01/21/2020)

01/21/2020 258 MOTION for Summary Judgment (Renewed) by Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 01/21/2020)

01/21/2020

259 BRIEF/MEMORANDUM in Support re 252 MOTION for Summary Judgment Statement of Undisputed Facts filed by The City of Montgomery. (Gill, Richard) (Entered: 01/21/2020)

01/21/2020 260 BRIEF/MEMORANDUM in Support re 258 MOTION for Summary Judgment (Renewed) filed by Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 01/21/2020)

01/21/2020

261 BRIEF/MEMORANDUM in Support re 253 Evidentiary Submission,,, 252 MOTION for Summary Judgment , 259 BRIEF/MEMORANDUM in Support (Statement of undisputed facts) filed by The City of Montgomery. (Gill, Richard) Modified on 1/22/2020 to clarify text re 259 to reflect as Statement of undisputed facts (qc/djy, ). (Main Document 261 replaced on 1/23/2020 to correct erroneous main pdf document previously attached by E-Filer) (qc/djy, ). (Entered: 01/21/2020)

01/21/2020

262 Evidentiary Submission re 258 MOTION for Summary Judgment (Renewed), 260 BRIEF/MEMORANDUM in Support filed by Judicial Correctional Services, Inc.. (Attachments: # 1 Exhibit A Wesley Ennis Deposition, # 2 Exhibit B - Branch Kloess Deposition, # 3 Exhibit C -Aldaress Carter Deposition)(Jackson, Michael) (Entered: 01/21/2020)

01/21/2020 263 MOTION for Summary Judgment by Branch D. Kloess. (Jackson, Micheal) (Entered: 01/21/2020)

01/21/2020 264 BRIEF/MEMORANDUM in Support re 263 MOTION for Summary Judgment filed by Branch D. Kloess. (Jackson, Micheal) (Entered: 01/21/2020)

01/21/2020

265 Evidentiary Submission filed by Branch D. Kloess. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Jackson, Micheal) (Entered: 01/21/2020)

01/23/2020

266 NOTICE of Correction re 261 BRIEF/MEMORANDUM in Support 252 motion to correct erroneous main PDF document previously attached by E-Filer (Attachments: # 1 corrected main document to Docket entry 261 )(djy, ) (Entered: 01/23/2020)

01/24/2020 267 RESPONSE in Opposition re 251 MOTION to Compel Discovery from JCS filed by Judicial Correctional Services, Inc.. (Attachments: # 1 Exhibit A - Letter)(Jackson, Michael) (Entered: 01/24/2020)

01/24/2020

268 MOTION to Reconsider re 254 Order by Aldaress Carter. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Hardingham, Brian) (Additional attachment(s) added on 1/27/2020 to redact personal information contained in original filing pursuant to the E-government rules: # 7 Exhibit D (Redacted), # 8 Exhibit F (Redacted)) (amf, ). Modified on 1/27/2020 (amf, ). (Entered: 01/24/2020)

01/28/2020

269 RESPONSE in Opposition re 268 MOTION to Reconsider re 254 Order filed by Judicial Correctional Services, Inc., The City of Montgomery, CHC Companies, Inc., Branch D. Kloess. (Attachments: # 1 Exhibit July 18, 2019 letter from Shannon Holliday to G. Daniel Evans)(Green, Wilson) Modified on 1/29/2020 to add as also filed on behalf of The City of Montgomery, CHC Companies, Inc., & Branch D. Kloess (amf, ). (Entered: 01/28/2020)

01/29/2020

270 REPLY BRIEF re 267 Response in Opposition to Motion Plaintiffs Reply in Support of 251 Motion to Compel Judicial Correction Services, Inc. (Doc. 251) filed by Aldaress Carter. (Attachments: # 1 Exhibit A - City's Verified Responses to Interrogs 8 12 19,

# 2 Exhibit B - Exh 26 to Kenneth Nixon Deposition, # 3 Exhibit C Exh 5 to Kenneth Nixon Deposition, # 4 Exhibit D - Exh 30 to Kenneth Nixon deposition)(Evans, George) Modified on 2/3/2020 to clarify text to reflect as also re: 251 motion (qc/djy, ). (Entered: 01/29/2020)

01/31/2020

271 REPLY BRIEF re 269 Response in Opposition to Motion, Plaintiffs Reply in Support of 268 Motion for Reconsideration filed by Aldaress Carter. (Evans, George) Modified on 2/3/2020 to clarify text to reflect as also in suppot of 268 motion (qc/djy, ). (Entered: 01/31/2020)

02/20/2020

272 Evidentiary Submission In Opposition to CHCs 255 Motion for Summary Judgment filed by Aldaress Carter. (Attachments: # 1 Exhibit A - CHC - New Hire HR records, # 2 Exhibit B - CHC Complete New Hire Letters, # 3 Exhibit C - CHC Handbook, # 4 Exhibit D - CHC termination letters, # 5 Exhibit E - CHC - HR termination records, # 6 Exhibit F - CHC personnel forms and pay records, # 7 Exhibit G CHC posting for JCS probation officer, # 8 Exhibit H - Houston Depo Ex-335, # 9 Exhibit I - Houston Depo Ex-292, # 10 Exhibit J - CHC Cos. v. Sanders - Delaware Complaint, # 11 Exhibit K - Houston Depo Ex-310, # 12 Exhibit L - Depo JamesTolbert, # 13 Exhibit M - Various Houston Depo Exhibits, # 14 Exhibit N - Sec of State Filing Oct 2011, # 15 Exhibit O - March 2012 CHC email, # 16 Exhibit P - CHC Travel Policy, # 17 Exhibit Q - 3 4 14 Houston Email)(Evans, George) Modified on 2/21/2020 to clarify text to reflect as re: 255 motion (qc/djy, ). (Entered: 02/20/2020)

02/20/2020

273 RESPONSE in Opposition re 255 MOTION for Summary Judgment filed by Aldaress Carter. (Evans, George) (Entered: 02/20/2020)

02/21/2020

274 OMNIBUS COUNTER-STATEMENT OF FACTS in response to 258 MOTION for Summary Judgment (Renewed), 263 MOTION for Summary Judgment , 252 motion for summary judgment Omnibus Counter-Statement of Facts filed by Aldaress Carter. (Hardingham, Brian) Modified on 2/21/2020 to clarify text to reflect this is NOT an evidentiary submission, PDF document is an OMNIBUS COUNTERSTATEMENT OF FACTS and is also in response to 252 motion not 266 notice (qc/djy, ). (Entered: 02/21/2020)

02/21/2020 275 RESPONSE to Motion re 263 MOTION for Summary Judgment filed by Aldaress Carter. (Hardingham, Brian) (Entered: 02/21/2020)

02/21/2020 276 RESPONSE to Motion re 252 MOTION for Summary Judgment filed by Aldaress Carter. (Hardingham, Brian) (Entered: 02/21/2020)

02/21/2020 277 RESPONSE to Motion re 258 MOTION for Summary Judgment (Renewed) filed by Aldaress Carter. (Hardingham, Brian) (Entered: 02/21/2020)

02/21/2020

278 Evidentiary Submission re 274 OMNIBUS COUNTER-STATEMENT OF FACTS In Support of Plaintiffs Oppositions to The City of Montgomery, Judicial Correction Services, and Branch Kloesss Motions for Summary Judgment filed by Aldaress Carter. (Attachments: # 1 Exhibit 1 - Declaration of Alexandria Parrish, # 2 Exhibit 2 - Exh A to Declaration of Alexandria Parrish, # 3 Exhibit 3 - Exh B to Declaration of Alexandria Parrish, # 4 Exhibit 4 - Exh C to Declaration of Alexandria Parrish, # 5 Exhibit 5 - Exh D to Declaration of Alexandria Parrish, # 6 Exhibit 6- Exh E to Declaration of Alexandria Parrish, # 7 Exhibit 7 - Exh F to Declaration of Alexandria Parrish, # 8 Exhibit 8 - Exh G to Declaration of Alexandria Parrish, # 9 Exhibit 9 -Exh H to Declaration of Alexandria Parrish, # 10 Exhibit 10 Exh I to Declaration of Alexandria Parrish, # 11 Exhibit 11 - Declaration of Stephanie Shannon, # 12 Exhibit 12 - Exh A to Shannon Declaration, # 13 Exhibit 13 - Letter Terminating JCS, # 14 Exhibit 14 - JCS SOP Montgomery, # 15 Exhibit 15 - Nixon - Strange May 12 13 2009 emails re JCS, # 16 Exhibit 16 - Window Procedure memo Debbie Murphy 6 25 09, # 17 Exhibit 17 - Email from Nixon to Katie Cord 8/16/11, # 18 Exhibit 18 - 2016 Annual Report, # 19 Exhibit 19 - Depo of James Tolbert 9/18/19, # 20 Exhibit 20 - Depo of Kenneth Nixon 9/16/19, # 21 Exhibit 21 - Montgomery Municipal Court General Order 2013-1, # 22 Exhibit 22 - Email from JCS to Nixon 12/26/12, # 23 Exhibit 23 JCS Reporting for Probation form, # 24 Exhibit 24 - Excerpts of Kristy Fugatt 5/8/15 depo, # 25 Exhibit 25 - Gina Ray 11/24/14 depo, # 26 Exhibit 26 - Alabama Appleseed Report, # 27 Exhibit 27 - Depo of Christopher Mooney 10/1/19 in McCullough, # 28 Exhibit 28 - Email from Nixon to JCS 3/15/13, # 29 Exhibit 29 - Depo of Barry Crabb 9/17/19, # 30 Exhibit 30 - JCS Responses to Pl's 1st Discovery Requests, # 31 Exhibit 31 - Ltr from Winborn to Evans 6/19/17, # 32 Exhibit 32 - JCS Mont Spreadsheet 10-14, # 33 Exhibit 33 - Email from Walker to Swerdlin 2/14/14, # 34 Exhibit 34 - Montgomery Organizational Chart, # 35 Exhibit 35 - Todd Strange depo 10/21/19 McCullough, # 36 Exhibit 36 - Kenneth Nixon 10/15/19 depo McCullough, # 37 Exhibit 37 - Email from Colleen Ray to Nixon 7/16/12, # 38 Exhibit 38 - Email from Nixon to Ennis 1/16/`3, # 39 Exhibit 39 - Aldaress Carter's Errata Sheet to 11 7 19 depo)(Evans, George) Modified on 2/21/2020 (djy, ). (Entered: 02/21/2020)

02/21/2020 279 RESPONSE to Motion re 258 MOTION for Summary Judgment (Renewed), 252 MOTION for Summary Judgment Responses to Defendants JCS and City of Montgomery's Statements of Undisputed

Fact filed by Aldaress Carter. (Hardingham, Brian) (Entered: 02/21/2020)

02/21/2020

280 MOTION Accept as Timely Filed (Unopposed) re 278 OMNIBUS COUNTER-STATEMENT OF FACTS, 277 Response to Motion, 276 Response to Motion, 275 Response to Motion, 274 Evidentiary Submission, 279 Response to Motion, by Aldaress Carter. (Hardingham, Brian) Modified on 2/24/2020 to correct text as to 278 omnibus counter statement of facts text (qc/djy, ). (Entered: 02/21/2020)

03/03/2020

281 MEMORANDUM OPINION AND ORDER DENYING plf's 251 MOTION to Compel Discovery from JCS filed by Aldaress Carter, as further set out in order. Signed by Honorable Judge Royce C. Lamberth on 3/3/2020. (djy, ) (Entered: 03/03/2020)

03/05/2020

282 Joint MOTION for Extension of Time to File Response/Reply as to 214 Order IN SUPPORT OF MOTIONS FOR SUMMARY JUDGMENT by The City of Montgomery. (Holliday, Shannon) Modified on 3/6/2020 to clarify text to reflect as also filed on behalf of Branch D. Kloess, Judicial Correctional Services, Inc., CHC Companies, Inc. (qc/djy, ). (Entered: 03/05/2020)

03/09/2020 283 REPLY BRIEF re 252 MOTION for Summary Judgment filed by The City of Montgomery. (Holliday, Shannon) (Entered: 03/09/2020)

03/09/2020

284 RESPONSE to 274 PLAINTIFF'S OMNIBUS COUNTERSTATEMENT OF FACTS IN RESPONSE TO MOTION FOR SUMMARY JUDGMENT filed by The City of Montgomery. (Holliday, Shannon) Modified on 3/12/2020 to clarify text to reflect as RESPONSE not Evidentiary submission (qc/djy, ). (Entered: 03/09/2020)

03/09/2020

285 REPLY to 279 PLAINTIFF'S RESPONSE TO DEFENDANTS' STATEMENTS OF UNDISPUTED FACTS IN SUPPORT OF SUMMARY JUDGMENT filed by The City of Montgomery. (Holliday, Shannon) Modified on 3/12/2020 to clarify text to reflect as REPLY not Evidentiary submission (qc/djy, ). (Entered: 03/09/2020)

03/09/2020

286 Evidentiary Submission re 252 MOTION for Summary Judgment CITY OF MONTGOMERY'S SUPPLEMENTAL EVIDENTIARY SUBMISSIONS filed by The City of Montgomery. (Attachments: # 1 Exhibit 1 (Supplemental), # 2 Exhibit 2 (Supplemental), # 3 Exhibit 3 (Supplemental), # 4 Exhibit 4 (Supplemental))(Holliday, Shannon) (Entered: 03/09/2020)

03/09/2020 287 REPLY BRIEF re 256 BRIEF/MEMORANDUM in Support of Motion for Summary Judgment filed by CHC Companies, Inc.. (Attachments: # 1 Exhibit A)(Finch, Frederick) (Entered: 03/09/2020)

03/10/2020

288 TEXT ORDER granting 280 Motion Accept as Timely Filed ; Plf's briefs in opposition to defs' motions for summary judgment and the Evidentiary Submission related thereto are accepted as timely. Signed by Honorable Judge Royce C. Lamberth on 3/10/2020. (NO PDF document attached to this notice).(djy, ) (Entered: 03/10/2020)

03/10/2020

289 TEXT ORDER granting 282 Motion for Extension of Time; defendants shall file their replies no later than 3/16/2020. Signed by Honorable Judge Royce C. Lamberth on 3/10/2020. (NO PDF Document attached to this notice). (djy, ) (Entered: 03/10/2020)

03/10/2020

290 ORDER denying 268 Motion to reconsider 268 order granting motion to strike, as further set out in order. Signed by Honorable Judge Royce C. Lamberth on 3/10/2020. (djy, ) (Entered: 03/10/2020)

03/16/2020

291 REPLY to Response to Motion re 263 MOTION for Summary Judgment filed by Branch D. Kloess. (Jackson, Micheal) (Entered: 03/16/2020)

03/16/2020 292 REPLY Brief in Support re 258 MOTION for Summary Judgment filed by Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 03/16/2020)

07/07/2020 293 MEMORANDUM OPINION. Signed by Honorable Judge Royce C. Lamberth on 7/7/2020. (djy, ) (Entered: 07/07/2020)

07/07/2020

294 ORDER, Before the court are four motions for summary judgment, filed by the City of Montgomery 252 , CHC Companies, LLC and Correctional Healthcare Companies, Inc. (together "CHC") 255 , Judicial Correction Services, Inc. ("JCS") 258 , and Branch D. Kloess 263 and for the reasons stated in the accompanying memorandum opinion, the Court hereby: GRANTS the City's motion as to Counts Three and Seven and DISMISSES Counts Three and Seven with prejudice; GRANTS the City's motion as to Counts One, Five, and Nine for all events before 7/16/2012, GRANTS the City's motion as to Counts One and Nine for all claims alleging a conspiracy between the City and JCS and for claims basing liability solely on the JCS-City contract, GRANTS the City's motion as to Count One for all claims related to operation of the magistrates' windows in the Municipal Court, and ORDERS the plaintiffs not to assert such claims at trial; DENIES the City's motion as to Counts One, Five, and Nine in all other

respects; GRANTS CHC's motion and DISMISSES the complaint in this action against CHC with prejudice; GRANTS JCS's motion as to Counts Four, Six, Eight, and Twelve and DISMISSES Counts Four, Six, Eight, and Twelve with prejudice; GRANTS JCS's motion as to Counts Two and Ten for all claims alleging a conspiracy between the City and JCS, GRANTS JCS's motion as to Count Two for all claims alleging that JCS failed to inform Mr. Carter of his rights, GRANTS JCS's motion as to Count Two for all claims alleging that JCS unlawfully charged probation fees, GRANTS JCS' s motion as to Count Fourteen for any claims arising from arrest or detention before commutation, and ORDERS the plaintiffs not to assert such claims at trial; DENIES JCS's motion as to Counts Two, Six, Ten, and Fourteen in all other respects; and, DENIES Mr. Kloess's motion.. Signed by Honorable Judge Royce C. Lamberth on 7/7/2020. (Attachments: # 1 civil appeals checklist)(djy, ) (Entered: 07/07/2020)

07/07/2020

295 ORDER directing that: By 8/10/2020, the parties in both cases shall meet and confer about (1) the appropriateness of consolidation, (2) a timeline for resolving motions for class certification, and (3) if mediation would help the parties resolve these cases short of trial; By 8/10/2020, the parties shall file a single joint status report on the docket for each case, as further set out in order. Signed by Honorable Judge Royce C. Lamberth on 7/7/2020. (djy, ) (Entered: 07/07/2020)

07/17/2020

296 ORDER, pursuant to Federal Rule of Civil Procedure 60(a), the Court sua sponte corrects its 293 Memorandum Opinion of 7/7/2020, nunc pro tunc, by substituting the attached opinion. This correction replaces the docket number of an order cited on page 17 of the original slip opinion, which erroneously cited ECF No. 207 instead of ECF No. 203. Signed by Honorable Judge Royce C. Lamberth on 7/17/2020. (djy, ) (Entered: 07/17/2020)

07/30/2020

297 Motion for Toby J. Marshall to Appear Pro Hac Vice by Aldaress Carter. (Evans, George) Modified on 7/31/2020 to clarify text to include attorney's name (qc/djy, ). (Additional attachment(s) added on 8/10/2020: # 1 certificate of good standing) (djy, ). (Entered: 07/30/2020)

07/30/2020

***Attorney Toby J. Marshall for Aldaress Carter added (NO PDF document attached to this notice-See Docket entry 297 ). (djy, ) (Entered: 07/31/2020)

07/31/2020 298 TEXT ORDER granting 297 Motion for Toby Marshall Leave to Appear Pro Hac Vice. Signed by Honorable Judge Royce C.

Lamberth on 7/31/2020. (NO PDF document attached to this nottce). (djy, ) (Entered: 07/31/2020)

08/03/2020 300 Received Pro Hac Vice Filing fee re: 297 motion for Toby Marshall $ 75.00, receipt number 4602058832 (djy, ) (Entered: 08/05/2020)

08/04/2020

299 MOTION to Alter or Amend 294 Order Ruling on Motions for summary judgment by Judicial Correctional Services, Inc.. (Jackson, Michael) Modified on 8/10/2020 to clarify text to reflect as motion to alter or amend (qc/djy, ). (Entered: 08/04/2020)

08/05/2020

301 ORDER, pursuant to Federal Rule of Civil Procedure 60(a), the Court its amends 294 Order of 7/7/2020, nunc pro tune, by substituting the attached order. This correction resolves an inconsistency and clarifies that Count Six has been dismissed. Signed by Honorable Judge Royce C. Lamberth on 8/5/2020. (djy, ) (Entered: 08/05/2020)

08/10/2020

302 NOTICE of Correction re 297 Motion to Appear Pro Hac Vice to attach the required certificate of good standing previously omitted from the entry (Attachments: # 1 attachment to docket entry 297 certificate of good standing)(djy, ) (Entered: 08/10/2020)

08/10/2020

303 STATUS REPORT Joint Report of Counsel by Aldaress Carter. (Evans, George) Modified on 8/14/2020 to clarify thext to reflect as also filed on behalf of The City of Montgomery, Branch Kloess, & Judicial Correctional Services, Inc. (qc/djy, ). (Entered: 08/10/2020)

08/14/2020

304 ORDER regarding proposed class certification motions in these actions, as further set out in order; the court will set any hearing on class certification motions and will consider consolidation of this action with McCullough v. City of Montgomery (2: 15-cv-463), by separate order before 12/31/2020; Jury Trial in McCullough has been set 4/1/2021 @ 10:00 AM before Honorable Judge Royce C. Lamberth, to be immediately followed by trial this action, unless the cases are consolidated. Signed by Honorable Judge Royce C. Lamberth on 8/13/2020. Furnished to calendar group and WR.(djy, ) (Entered: 08/14/2020)

08/18/2020

305 TEXT ORDER DENYING as moot 299 Motion to alter or amend 294 order. Signed by Honorable Judge Royce C. Lamberth on 8/18/2020. (NO PDF document attached to this notice). (djy, ) (Entered: 08/18/2020)

09/14/2020 306 MOTION for Class Certification by Aldaress Carter. (Bailey, Leslie) (Entered: 09/14/2020)

09/14/2020 307 MEMORANDUM of Points and Authorities in Support re 306 MOTION for Class Certification filed by Aldaress Carter. (Bailey, Leslie) (Entered: 09/14/2020)

09/14/2020

308 Evidentiary Submission re 306 MOTION for Class Certification filed by Aldaress Carter. (Attachments: # 1 Exhibit 1 - Decl. of John Rubens, # 2 Exhibit 2 - Ex. A to Rubens Decl., # 3 Exhibit 3 - Ex. B to Rubens Decl., # 4 Exhibit 4 - Ex. C to Rubens Decl., # 5 Exhibit 5 - Ex. D to Rubens Decl., # 6 Exhibit 6 - Ex. E to Rubens Decl., # 7 Exhibit 7 - Ex. F to Rubens Decl., # 8 Exhibit 8 - Ex. G to Rubens Decl., # 9 Exhibit 9 - Ex. H to Rubens Decl., # 10 Exhibit 10 -Decl. of G. Daniel Evans, # 11 Exhibit 11 - Decl. of Alexandria Parrish, # 12 Exhibit 12 - Decl. of Leslie A. Bailey, # 13 Exhibit 13 - Decl. of Toby Marshall, # 14 Exhibit 14 - 7-31-2012 Hayes-Nixon email, # 15 Exhibit 15 - 8-12012 Barnes email, # 16 Exhibit 16 - 9-20-2012 Nixon-Ennis email, # 17 Exhibit 17 - 12-25-2013 Strange-Nixon-Ennis email, # 18 Exhibit 18 - 2019 Norris Carter Dep., # 19 Exhibit 19 - Edwards Notice to Show Cause)(Bailey, Leslie) (Entered: 09/14/2020)

10/07/2020

309 Joint MOTION to Strike 308 Evidentiary Submission,,, ECF No. 308-1 Expert Declaration of John Rubens by Judicial Correctional Services, Inc.. (Winborn, Wesley) (Entered: 10/07/2020)

10/07/2020

310 Evidentiary Submission re 309 Joint MOTION to Strike 308 Evidentiary Submission,,, ECF No. 308-1 Expert Declaration of John Rubens filed by Judicial Correctional Services, Inc.. (Attachments: # 1 Exhibit A JCS First Disc. to Plaintiff 8/1/17, # 2 Exhibit B Montgomery's First Disc. to Plaintiff 11/19/19, # 3 Exhibit C Plaintiff's Resp. to JCS First Disc 8/20/18, # 4 Exhibit D Composite Exhibit Regarding "Coons" Class List, # 5 Exhibit E Order of Release from Jail, # 6 Exhibit F Order of Probation, # 7 Exhibit G Court Warrant List)(Winborn, Wesley) (Entered: 10/07/2020)

10/08/2020

311 ORDER directing the parties to adher to the following schedule for briefing the 309 309 Joint MOTION to Strike : the plf's Response is due by 5:00 p.m. CDT on 10/21/2020; the defs' Reply is due by 5:00 p.m. DCT on 10/28/2020the defs' response to the plf's motion for class certification remains due by 11/6/2020. Signed by Honorable Judge Royce C. Lamberth on 10/8/2020. (djy, ) (Entered: 10/08/2020)

10/21/2020

312 RESPONSE in Opposition re 309 Joint MOTION to Strike 308 Evidentiary Submission,,, ECF No. 308-1 Expert Declaration of John Rubens filed by Aldaress Carter. (Bailey, Leslie) (Entered: 10/21/2020)

10/21/2020

313 Evidentiary Submission re 312 Response in Opposition to Motion to Strike Expert Declaration filed by Aldaress Carter. (Attachments: # 1 Exhibit 1 - Mooney Petition for Revocation, # 2 Exhibit 2 - Mooney Jail Transcript, # 3 Exhibit 3 - Edwards Clerk Request for Relief, # 4 Exhibit 4 - Edwards Jail Transcript, # 5 Exhibit 5 - Edwards Order of Release)(Bailey, Leslie) (Entered: 10/21/2020)

10/28/2020

314 (STRICKEN as erroneous docket entry filed in incorrect case). REPLY BRIEF re 309 Joint MOTION to Strike 308 Evidentiary Submission,,, ECF No. 308-1 Expert Declaration of John Rubens, 312 Response in Opposition to Motion filed by Judicial Correctional Services, Inc.. (Jackson, Michael) Modified on 10/29/2020 (qc/djy, ). (Main Document 314 replaced on 10/29/2020) (djy, ). (Entered: 10/28/2020)

10/28/2020

315 REPLY BRIEF re 309 Joint MOTION to Strike 308 Evidentiary Submission,,, ECF No. 308-1 Expert Declaration of John Rubens, 312 Response in Opposition to Motion filed by Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 10/28/2020)

10/28/2020

316 Evidentiary Submission re 309 Joint MOTION to Strike 308 Evidentiary Submission,,, ECF No. 308-1 Expert Declaration of John Rubens, 315 Reply Brief, filed by Judicial Correctional Services, Inc.. (Attachments: # 1 Exhibit H (PRC Consulting Group), # 2 Exhibit I (Decl. of Brandon Dixon), # 3 Exhibit J (CV of Brandon Dixon), # 4 Exhibit K (Court Calendar for Jan 2014), # 5 Exhibit L (Means records), # 6 Exhibit M (Sneed Jail Transcript), # 7 Exhibit N (Sneed payments), # 8 Exhibit O (Sneed payments), # 9 Exhibit P (Sneed receipt))(Jackson, Michael) (Entered: 10/28/2020)

10/29/2020

317 NOTICE of Error re 314 Reply Brief which is hereby STRICKEN as an erroneous docket entry. Counsel attached incorrect PDF brief and subsequently filed the Correct Brief as Docket entry 315 . (djy, ) (Entered: 10/29/2020)

10/30/2020 318 ORDER denying 309 Motion to Strike, as further set out in order. Signed by Honorable Judge Royce C. Lamberth on 10/30/2020. (djy, ) (Entered: 10/30/2020)

11/05/2020

319 ORDER: The Court ORDERS that a hearing is set for 12/16/2020 at 10:00 AM, CST, by videoconference on the 306 pending motion for class certification and other case management issues, as further set out in order; The Court further ORDERS the Clerk to furnish a courtroom deputy and a court reporter for the hearing; The courtroom deputy will provide the appropriate login information to the parties, as further set out in order; The Court further ORDERS the parties to meet and confer prior to the hearing with

(a) opposing counsel and (b) counsel for their counterparts in McCullough to discuss the most effective and efficient way to structure the hearing; The Court further ORDERS the parties to file a joint report no later than 11/20/2020, as further set out in order; The Court further ORDERS the parties to file an update to their joint report by 12/10/2020, as further set out in order; The Court further ORDERS the parties to take all necessary steps to ensure that persons who submitted declarations in support of or opposition to the motion for class certification are available to testify if called by either party, as further set out in order; The Court further ORDERS the parties to be prepared to present evidence and arguments at the hearing in support of their positions on the motions; to be prepared to discuss whether the case should be consolidated for trial with McCullough if (a) the Court grants the motion for class certification or (b) the Court denies the motion; and, to be prepared to give a general update on the status of this litigation, including their current thinking about a trial plan. Signed by Honorable Judge Royce C. Lamberth on 11/5/2020. (Furnished: Calendar, AG, CB, CS, DH, KF, KR, WR, & WS) (amf, ) (Entered: 11/05/2020)

11/06/2020

320 BRIEF in Opposition re 306 MOTION for Class Certification, 307 MEMORANDUM of Points and Authorities, 308 Evidentiary Submission filed by The City of Montgomery. (Holliday, Shannon) (Entered: 11/06/2020)

11/06/2020

321 Evidentiary Submissions in Support re 320 BRIEF in Opposition, 306 MOTION for Class Certification filed by The City of Montgomery. (Attachments: # 1 Exhibit 1 - Ben Schoettker Decl., # 2 Exhibit 2 - Charles Barfoot Decl., # 3 Exhibit 3 - Kloess Depo Excerpts, # 4 Exhibit 4 - James Tolbert Decl., # 5 Exhibit 5 McCullough Doc. 246-83, # 6 Exhibit 6 - McCullough Doc. 246-82, # 7 Exhibit 7 - McCullough Doc. 241-29)(Holliday, Shannon) Modified on 11/9/2020 to add the link to the 306 motion (amf, ). (Entered: 11/06/2020)

11/06/2020

322 BRIEF in Opposition re 306 MOTION for Class Certification filed by Judicial Correctional Services, Inc.. (Jackson, Michael) (Entered: 11/06/2020)

11/06/2020

323 Joint MOTION to Compel Production of Plaintiffs Class Member Lists Generated by John Rubens by Judicial Correctional Services, Inc., The City of Montgomery. (Attachments: # 1 Exhibit 20.11.04 email requesting Rubens material, # 2 Exhibit 20.11.04 email denying request)(Green, Wilson) Modified on 11/9/2020 to add as also filed on

behalf of Defendant The City of Montgomery (amf, ). (Entered: 11/06/2020)

11/06/2020

324 Evidentiary Submission re 322 BRIEF in Opposition, 306 MOTION for Class Certification filed by Judicial Correctional Services, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58, # 59 Exhibit 59, # 60 Exhibit 60, # 61 Exhibit 61, # 62 Exhibit 62, # 63 Exhibit 63, # 64 Exhibit 64, # 65 Exhibit 65, # 66 Exhibit 66, # 67 Exhibit 67, # 68 Exhibit 68, # 69 Exhibit 69, # 70 Exhibit 70, # 71 Exhibit 71, # 72 Exhibit 72, # 73 Exhibit 73, # 74 Exhibit 74, # 75 Exhibit 75, # 76 Exhibit 76, # 77 Exhibit 77, # 78 Exhibit 78, # 79 Exhibit 79, # 80 Exhibit 80, # 81 Exhibit 81, # 82 Exhibit 82, # 83 Exhibit 83, # 84 Exhibit 84, # 85 Exhibit 85, # 86 Exhibit 86, # 87 Exhibit 87, # 88 Exhibit 88, # 89 Exhibit 89, # 90 Exhibit 90, # 91 Exhibit 91, # 92 Exhibit 92, # 93 Exhibit 93, # 94 Exhibit 94, # 95 Exhibit 95, # 96 Exhibit 96, # 97 Exhibit 97, # 98 Exhibit 98, # 99 Exhibit 99, # 100 Exhibit 100, # 101 Exhibit 101, # 102 Exhibit 102, # 103 Exhibit 103, # 104 Exhibit 104, # 105 Exhibit 105, # 106 Exhibit 106, # 107 Exhibit 107, # 108 Exhibit 108, # 109 Exhibit 109, # 110 Exhibit 110)(Winborn, Wesley) Modified on 11/9/2020 to add the link docs 306 & 322 (amf, ). (Entered: 11/06/2020)

11/07/2020 325 RESPONSE and Opposition re 306 MOTION for Class Certification filed by Branch D. Kloess. (Jackson, Micheal) (Entered: 11/07/2020)

11/07/2020

326 Evidentiary Submission in Opposition re 306 MOTION for Class Certification filed by Branch D. Kloess. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Jackson, Micheal) Modified on 11/9/2020 to add the link to the 306 motion (amf, ). (Entered: 11/07/2020)

11/09/2020 327 Unopposed MOTION to Accept Filing Out of Time re 325 Response and Opposition by Branch D. Kloess. (Jackson, Micheal) Modified on 11/9/2020 to clarify the docket text (amf, ). (Entered: 11/09/2020)

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2:15-cv00555-RCLSMD
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 Case 2:15-cv-00555-RCL-SMD Document 1 Filed 08/03/15 Page 1 of 53

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVII
E V ED

ALDARESS CARTER, INDIVIDUALLY, AND FOR )

A CLASS OF SIMILARLY SITUATED PERS099 5 AU 3 P J: 35 OR ENTITIES,

°FACETT,CLK

Plaintiffs
V.

JLL.j

ACTION N. 0.: II ..A

THE CITY OF MONTGOMERY and BRANCH D. KLOESS.
Defendants.
COMPLAINT

)

)

CLASS ACTION

) DEMAND FOR JURY TRIAL

)

COMES NOW, Aldaress Carter (hereinafter "Plaintiff'), individually and on behalf

of those similarly situated, upon personal knowledge as to himself and his own acts, and

upon information and belief as to all other matters, by and through his undersigned

counsel, files this complaint as follows:

JURISDICTION

1. The Court has jurisdiction over this matter because it concerns a controversy

arising under the Constitution of the United States. 28 U.S.C. §1331. This is a civil rights

action brought under 42 U.S.C. § 1983 and 1988. This Court also has jurisdiction of this

action by virtue of 28 U.S.C. § 1343(a)(3) and 1343(a)(4), authorizing jurisdiction of claims

brought under 42 U.S.C. § 1983 to enforce civil rights guaranteed by the United States

Constitution The Court also has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.

2. This action also seeks a declaratory judgment pursuant to 28 U.S.C. § 2201

and 2022.

Case 2:15-cv-00555-RCL-SMD Document 1 Filed 08/03/15 Page 2 of 53
3. Venue in this judicial district is proper pursuant to 28 U.S.C. § 1391(b) and (c).
PARTIES TO THE COMPLAINT 4. The Plaintiff Aldaress Carter is an individual resident of Montgomery, Montgomery County, Alabama. 5. The classes which the individual Plaintiff seeks to represent consist of:
All individuals who have been in the past assigned by the Montgomery Municipal Court to "probation" with Judicial Correction Services (JCS) for the collection of fines. AND All individuals Who, despite their indigency, were incarcerated, without consideration of their indigency for failure to pay fines, charges and fees to Montgomery. 6. The City of Montgomery, Alabama, ("Montgomery") is a municipal corporation located within Montgomery County, Alabama. The City Council and Mayor control the policy making for Montgomery. The Mayor also hires the municipal court judges, the public defenders to provide legal representation for indigent offenders, and contracted for the services of JCS, a private probation company, to collect its municipal court fines'. (Exhibit 1) 7. Branch D. Kloess, ("Kloess") is an individual and a licensed attorney located within Montgomery County, Alabama. Kloess entered into an agreement with the City of Montgomery to provide "competent legal representation and services for indigent defendants charged with the violation of the municipal ordinances and laws before the
1 JCS's contract-with Montgomery was not renewed in 2014 when the contract renewal date
expired.
2

Case 2:15-cv-00555-RCL-SMD Document 1 Filed 08/03/15 Page 3 of 53
Municipal Court of the City of Montgomery." He has not provided competent legal representation. Rather, he has a policy and practice of not requesting indigency hearings for the indigents he represents. As such, he has participated in the City's scheme to extort money from poor citizens he purportedly represents while gaining financially from not seeking indigency Status for them. (Exhibit 2)
FACTS 8. The Plaintiff brings this action because the policy and practices of Montgomery have violated and continue to violate-the Plaintiffs statutory and constitutional rights and those of persons similarly situated. 9. The treatment of the Plaintiff was caused by and is representative of the City's policies and practices employed to collect debts from the fines, fees, costs, and surcharges that the City assesses, usually for traffic tickets. These facts are similar to those alleged in the Amended Complaints in cases 2013-cv-732-MEF (Doc. 10), 201 3-cv733-MEF (Doc. 9) and 201 4-cv-1 86-MEF (Doc.26) which describe additional people whose rights were violated by the same policies and practices. 10. The policies and practices of the City of Montgomery are strikingly similar to the unconstitutional practices by which the City of Ferguson, Missouri, operated its courts and police department. These unconstitutional policies placed priority on generating cash for the City without regard to constitutional precepts. The Department of Justic&s Civil Rights Division outlined the unconstitutional practices it discovered at the City of Ferguson
3

Case 2:15-cv-00555-RCL-SMD Document 1 Filed 08/03/15 Page 4 of 53
in its March 4, 2015 report. (Exhibit 3)2 11. Montgomery has contracted with JCS which operates a "for profit" enterprise
that markets its services to various municipal governments and has contracted with over 100 cities and towns throughout Alabama. JCS's marketing approach to these cities emphasizes that its fees will be paid by the "offender' and that its efforts will improve collection of court fines and costs at no cost to the city.
12. The JCS approach is highly systemized and uniformthroughout the Alabama municipal courts in which it operates, including Montgomery - until July 1, 2014.
13. Under the system implemented by Montgomery, it does not require JCS employees to have criminal justice or legal training, nor are they required to have any social work education or meet any minimum law enforcement. standards as is required of state probation officers. Instead, the only requirements of a JCS employee who is referred to as a "Probation Officer" is that the employee be 21 years old, a non felon, with two years of college who complete 40 hours of JCS training on its processes. On satisfying those requirements, JCS employees are then labeled 'Probation Officers"' and previously permitted to carry the JCS issued badge in collecting its fees, court fines and costs.
14. Montgomery by contract and practice unlawfully delegated to JCS many administrative and judicial functions of its municipal court, clothing it with the color of state law for the collection of court fines, costs and the JCS private fees.
2 Due to the many similarities between Montgomery's policies and practices that are coordinated through the city police and the city courts sections of the DOJ report are referenced by footnotes for the court's review.
3I contrast, even a judicial volunteer is required to meet greater and more specific qualifications, careful screening specific training and continual oversight established by the Administrative Office of Courts (AOC'). See Ala. Rule of Judicial Administration Rule 42.
4

Case 2:15-cv-00555-RCL-SMD Document 1 Filed 08/03/15 Page 5 of 53
15. The agreement between Montgomery and JCS and signed by the city mayor attests that the Montgomery municipal "court agrees that each court ordershall pro vide for the following:
a probation fee of $40.00 per month flat fee one time probationer set up fee of $10.00... . "(emphasis added). 16. Montgomery, through its mayor Charles Jinright and council, approved the agreement with JCS, the City and its court beginning in March 19, 2009 and continued the relationship, by and through its City Council and Mayor, Todd Strange, until the summer of 2014. Throughoutthis period, the City police, City courts, and City hired public defenders who fully participated in the practices and system with JCS. 17. Montgomery also approved the employment of it municipal court judges including its Presiding Judge, Armstead Lester Hayes, Ill. 18. Montgomery also hired attorneys to represent indigent defendants in its City courts under a contract which provides that "A defendant's status as "indigent" shall be determined by the Judge in the said Court, in accordance with the criteria set forth in Code of Alabama (1975), Sections 15-12-5 and 15-12-20." Yet, despite the fact that offenders are designated as indigent for purposes of getting an appointed attorney, routinely the attorneys never introduce themselves to the client they purportedly represent and do not advocate on the client's behalf before the judge, which results in indigent people being fined, assessed court costs, put on the JCS 'payment plan' which costs them an additional $40/month and are threatened with jail if payments are missed. 19. These 'public defenders' do not request Bearden hearings or inquire into the offender's ability to pay, or fill out hardship forms requesting community service or other
5

Case 2:15-cv-00555-RCL-SMD Document 1 Filed 08/03/15 Page 6 of 53
alternatives due to their client's poverty.4 Nor, do they even maintain files on their "clients." 20. Rather, the 'public defender' upholds the City's practice of prioritizing profits
over public welfare and safety by requiring their clients to 'pay or stay' and demanding court costs and fulj payment of fines for those they 'represent."
21. The contract between the City and the 'public defender' mandates that the attorneys will be paid out of the 'Fair Tax Trial Fund' which is funded through the collection of court costs levied and collected on convictions. This payment policy creates a conflict of interest as the City is not required to pay the attorneys more than it has collected in any one month.
In fact, Section Five of its public defender contract says: SECTION FIVE. Under the terms of this agreement, on or after the last day of each month during the period of this agreement, Kloess shall submit to the Clerk of Court for approval, a request for payment from the Fair Trial Tax fund not to exceed the sum of Ten Thousand and 00/100 Dollars ($10,000.00) per month, for services to be performed hereunder for the period of the agreement. Provided, in no event shall the City be required to pay more than the amount deposited in the Fair Trial Tax Fund for a particular month. (Exhibit 2 pg. 2)(emphasis added) 22. For a number of years, Montgomery has participated in implementing the JCS system. That system and JCS's "Probation Tracker" software used at Montgomery was highly systemized and focused on collections of fines and its fees not traditional probation services. For instance, the !probation officer" does not visit the probationei-'s home, job or family, and has contactwith them only at the JCS office in collecting fees and fines.
See bOJ Report pg. 53. n.

Case 2:15-cv-00555-RCL-SMD Document 1 Filed 08/03/15 Page 7 of 53
That collection focus allows the "offenders" to mail in payments if they live 30 miles from the JCS office. See Exhibit 4. The training manual used by JCS instructs its employees on the use of its computer systems in tracking the payments made by the "offenders" and provides court forms to order probation and payments to JCS. The JCS training system also provides sample letters for use after probation is ordered, threatening the "offender" thatfailure to report to JCS "as directed may result in a warrant being issued for your arrest" and that their "court date cannot and will not be reset." See Exhibits 5 and 6. Similar JCS forms instruct the "offender" that they can avoid the court date if they pay an amount determined by JCS. See Exhibit 7. Notice to the Offender of these JCS set "court dates" was handled by JCS by regular mail with no proof of service and no consideration of returned mail showing no receipt. Similarly, the setting for any hearing on petitions instituted by JCS was done by JCS and listed on a separate "JCS Docket" which JCS established and which Montgomery then adopts. Finally, the JCS manual instructs its employees on the issuance of warrants of arrest and provides forms for that purpose. See Exhibit 8.
23. Once on probation to collect the fines, "offenders" who cannot keep up their payments at Montgomery are arrested typically based upon PTA or FTOCO rather than probation violation. These codes stand for "Failure to Appear" and 'Failure to Obey Court Order." Warrants are issued by the City based upon a report that the offender failed to appear as directed at the JCS established date after notice from JCS. Similarly, FTOCO arrests result from JCS reporting that the "offender" failed to comply with their probation order - that is, they failed to pay or appear at the JCS offices as JCS directed. There is no ordinance or statute establishing Failure to Obey Court Order as an offense. The arrests and incarceration on these charges occur without any determination of contempt
7

Case 2:15-cv-00555-RCL-SMD Document 1 Filed 08/03/15 Page 8 of 53
or willfulness in these arrests and the additional costs are added without any finding whatsoever. Underthis system, the "offender" arrested is jailed for an undetermined period of time with bond set by the city magistrate to approximate the money claims to be owed on the balance at JCS. Unlike legitimate probation systems where a probationer would be entitled to a finding of the reasons for revocation, appointed counsel and, at worse, suffer jail time equating to the original sentence, the system at Montgomery ignores all those safeguards.
24. The City Council and Mayor control the policy making for Montgomery and also hire the municipal court judges, hire the public defenders and contract for services of JCS at the municipal court. The contract was a no bid contract and provided JCS with an exclusive franchise at the City. The decision to use this JCS system was an administrative decision of Montgomery, by and through its mayor, and not a decision of the municipal court judge or the Chief Justice, or any other employee of the Administrative Office of Courts ('AOC').
25. Montgomery, through its contract, pattern and practice, clothed JCS with the appearance of state authority and has previously even allowed JCS employees to carry badges. The JCS employees attend each municipal court session and are referred to as "probation officers" in the operation of the municipal court and city clerk's office, though none have such authority under Alabama statutes. Under this system, JCS "offenders" were not permitted to pay fines at the City payment window, but were required to make all payments, including those for fines, restitution, probation fees and court costs, to JCS.
26. This public ruse was maintained by Montgomery for purposes of imposing and collecting fines, fees and costs from citizens such as the Plaintiff, and was
8

Case 2:15-cv-00555-RCL-SMD Document 1 Filed 08/03/15 Page 9 of 53
accomplished by allowing JCS to control the money, determine how much each municipal court "offender" must pay each month, how much JCS would keep for its own fees for collection "services" each month, and how much of the payment JCS would rebate to Montgomery toward the fines adjudged.
27. This system, as a matter of routine, violates the rights of persons such as the Plaintiff and the class he seeks to represent by imposing fines, fees and surcharges to indigent persons with no hearing or consideration of their indigency and by converting fines to jail time.
28. Despite the lack of authority to do so, Montgomery allowed JCS to use threats of revoking probation, arrest, increased fines and costs and jail time for purposes Of collection. Under the system operated by Montgomery, JCS's determination to incarcerate an individual and/or impose unreasonable bond requirements was routinely accepted by City personnel as a matter of policy without conducting delinquency or probation hearings and without making any findings, much less any determination of md igency.
29. The lack of indigency or Bearden hearing is especially disturbing as the court records show many indigent people were supposedly represented by attorneys paid by the City (through the "Fair Trial Tax Fund" funded by court fees). All of the court personnel hired by Montgomery have a significant financial stake in the proceedings.
30. The collective actions of Montgomery and its agents, including JCS and Kloess, are inextricably interwoven with each other and routinely result in court costs and fines which exceed the statutory maximum of $500 for municipal courts. Similarly, the periods of "probation" imposed for purposes of collecting fines and fees routinely exceed
9

Case 2:15-cv-00555-RCL-SMD Document 1 Filed 08/03/15 Page 10 of 53
the two-year statutory maximum, all of which results in Montgomery taking action to detain and otherwise incarcerate individuals without any jurisdiction to do so. Additionally, Montgomery approves routinely adding to the "offender" probation balance any unpaid fines it can resurrect from old traffic tickets or fines, even though those predate the "probation."
31. After improperly imposing probation even when no jail sentence is involved, incarceration then follows if the fine, together with the fees added by JCS, are not paid as dictated. The collection purpose of this system is emphasized by the fact that probation is terminated once full payment is made.
32. Under the Montgomery system, JCS had a monetary interest to conduct its role as "probation officer" in a way that maximized its personal profit and not as a neutral court officer.
33. Under the scheme implemented by Montgomery, its agent JCS decided whether to initiate probation revocation proceedings, and made recommendations to the city judge about that revocation, and charges of failure to appear or failure to obey court order— all while financially interested in the outcome of these strong-arm collection efforts.
34. Under the scheme implemented by Montgomery, JCS did not undertake determination of the reasons for nonpayment, and did not consider such things as the Plaintiff disability, unemployment or assets, in regard to the nonpayment of the fines and routinely sought collection from exempt income such as Social Security Disability payments.
35. Under the scheme implemented by Montgomery, JCS denied any responsibility to determine indigency, and provided no instruction to its employees for the
10

Case 2:15-cv-00555-RCL-SMD Document 1 Filed 08/03/15 Page 11 of 53
consideration of indigency. 36. Under the scheme Implemented by Montgomery, after simple fines are
converted to "probation" for payment, jail often resulted for the "offender' who did not meet the payment schedule. This system used JCS's conclusion of a "probation violation" or "failure to obey court order" to incarcerate individuals who, had they been financially able to pay, would have paid only a fine with no probation whatsoever.
37. If a person is uhable to make a full payment, JCS, often took out the amount owed to JCS first so that JCS was paid even if a person's debt to the City was not reduced.
38. Many people have made payments to the City and to JCS, only to learn later that there was no record of those payments and to be ordered to make them again.
39. If a person missed payments or paid less than required, JCS had, the purported contractual authority and discretion to decide whether to petition the City for 'revocation" of probation. JCS also has a policy of placing people who cannot make full payments - from whom the company has difficulty making a profit - on "warrant status," which could result in warrants issued for their arrest by the City and which constituted a JCS determination that JCS would not accept the person for future probation super ision. JCS communicated this decision to the City, and the City's policy and practice was to agree not to place such people back on probation, requiring instead that those people pay in full or go to jail.
40. In other cases in which a person was making substantial payments, JCS, had a personal financial interest in extending a person's probation and in keeping the person on a payment plan for as long as possible so that it could profit from the collection of more monthly fees.
11

Case 2:15-cv-00555-RCL-SMD Document 1 Filed 08/03/15 Page 12 of 53
41. Thus, under the City's scheme, JCS, was allowed not only to decide whether to initiate judicial revocation proceedings, but could also decide whether a person was put on probation and what judicially ordered conditions were imposed. JCS would also make other recommendations to the City judge concerning how JCS believed the person had faired on probation, whether the person should be placed on probation, whether JCS considered the person "eligible" for probation, what the amount of monthly court-ordered payments should be, and a variety of other case-related decisions.
42. JCS had a personal financial interest to conduct its role as a probation officer in a way that maximized its personal profit and not necessarily as a neutral public court officer.
43. JCS used a "probation" room inside the City building that also houses the Municipal Court, directly across from the Municipal courtroom. A JCS employee often sat in the courtroom near the judge and advised the judge about how to handle the cases of "probationers" and potential "probationers."
44. The City enforced a policy and practice of initiating and issuing warrants when a person missed a payment or failed to make sufficient payments without considering the person's ability to pay5—even when the City or its agent, JCS, had knowledge that the person was indigent - and without providing notice and validly summoning the person to court for a hearing.
45. Instead, City policy allows the City to issue and execute warrants, 6 and City
See DOJ Report pp.54-55 6 See DOJ Report pg. 55
12

Case 2:15-cv-00555-RCL-SMD Document 1 Filed 08/03/15 Page 13 of 53
officers go to the homes of traffic debtors to arrest them. The City policy and practice is also therefore to deprive people of their liberty without any prior notice and opportunity to be heard and without any basic inquiry into whether the debt is owed, actually unpaid, or still valid.
46. The City often chooses to execute these warrants prior to or over the weekend, which results in a person serving needless extra time in jail prior to the next available court date.
47. People placed on "probation" because they cannot afford to pay their fines, fees, costs, and surcharges immediately were also forced to abide by additional restrictions on their liberty, which the City called "conditions" of probation, which were imposed solely because of their wealth status. These restrictions include: 1) not changing residence or employment without notifying JCS, 2) avoiding "injurious or vicious habits," 3) not using alcohol or visiting places where drugs, or dangerous substances are sold, dispensed or used, 4) working diligently at a lawful occupation, 5) "truthfully answer all inquiries" by the JCS employees and "comply with all instructions" the JCS employee gives. In addition to these unlawful constraints, the order states in bold type. "You are subject to arrest for violation of any condition imposed by this order, and your probation may be revoked accordingly."
48. When warrants are issued and executed, the City adds fees, costs, and surcharges to the amounts of debt already owed. In addition to court fees and JCS fees and costs, the City routinely adds surcharges for warrants, a "solicitor" fee, and even a 30% debt-collection fee.
13

Case 2:15-cv-00555-RCL-SMD Document 1 Filed 08/03/15 Page 14 of 53
49. The City's policy and practice was to conduct no inquiry into the person's ability to pay, and the City's policy and practice also refused to use even the state-issued Affidavit of Substantial Hardship that isavailable for courts to use to determine indigence. As such, the offenders had no opportunity to present evidence concerning their ability to pay or concerning any other relevant question!
50. If family members were present, the City's practice was to call them up to the bench and to ask them to pay as much of their family member's debts as they could on the threat that the person who allegedly owes the money would be jailed if the family members did not pay.
51. The City did not conduct any meaningful inquiry into the person's ability to pay and did not even explain to people how they might claim indigency through standard forms issued by the State of Alabama.
52. The amount of debt announced to debtors by the judge in open court often differed from the amount listed on the paperwork that they received on their return to the jail. The paperwork amount is usually less than the open court amount, meaning that debtors would often have a balance remaining after they "served out" their fines, leading to their placement back on a payment plan and their continued supervision.' The City appears to refer to this as "reopening" their cases, although this "reopening" and the corresponding modifications that it entails are not performed at any formal hearing or even in the person's presence. Once people returned to the jail from City court, they were told
See DOJ Report pg.58 8 See DOJ Report pp. 59-61
14

Case 2:15-cv-00555-RCL-SMD Document 1 Filed 08/03/15 Page 15 of 53
of the City's policy of "working off' an extra $25 per day of their debts if the person agreed to labor in the City jail while being imprisoned.
53. Inmates desperate to return to their families by "working off' their debts more quickly competed on a daily basis to be selected by City jail employees for a limited number of difficult, unsanitary, and demeaning daily labor tasks. These tasks included cleaning the offices of City employees in the Municipal Court building, the bathrooms in the City police department and Municipal Court, and cells and bathrooms in the City's overcrowded jail.
54. The City's debt collection practices are enormously profitable, especially in getting family members with no legal obligation to pay any money to the City to come up with money to get their loved ones released from jail and in getting lowincome people to forgo basic necessities of life in order to pay JCS and the City in an attempt to avoid jail.
55. For example, the 2013 City of Birmingham budget-reflects approximately $2.8 million from court and traffic citations, the City of Mobile approximately $2 million, and the City of Huntsville approximately $2.5 million. In contrast, the City of Montgomery budget reflects revenue of $15.9 million from municipal court fines and forfeitures."
56. The City uses the money collected through these procedures to fund the City jail, to pay Municipal Court judicial salaries, to pay City Attorney's Office salaries, and to fund other portions of the City budget.
57., The City's recent "Amnesty Day" program starkly demonstrates its practice of jailing persons who are unable to pay debts to the City. In May 2013, Montgomery Mayor Todd Strange and City Municipal Court Administrator Kenneth Nixon (who is also a member of the Mayor's cabinet), announced that the City would offer an "Amnesty"
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program On the first two Saturdays in June. Under this program, the City announced that it would remove certain fees, eliminate arrest warrants, and institute a payment plan if individuals were unable to pay the full amount to which the City claimed it was entitled.
58. However, at least 15 people were arrested on the first day of the "Amnesty" program because they had too much debt allegedly outstanding (greater than $2,500) or because they did not bring at least $10 (or 10% of what was owed, if greater) to pay the City. These people were arrested pursuant to a City policy that required the arrest and jailing of people whose debts met these criteria regardless Of a person's ability to pay or financial circumstances.
59. The City's publicly available budget does not itemize "fines and forfeitures" in as much detail as do the budgets of some other cities, which makes it difficult for the public to know the exact source of these funds. But, the "fines and forfeitures" collected by the City of Montgomery appear substantially higher than those collected by any other major Alabama City, even those cities are larger than Montgomery. These policies and practices have created a culture of fear among the City's poorest residents 9 who are afraid even to appear in City court to explain their indigence because they know they will be jailed by the City without any meaningful process. Indeed, Mr. Nixon, the court administrator, reported to the Montgomery Advertiser that many residents were jailed during the amnesty program because they owed too much and could not pay even 10% of what they owed. Mr. Nixon
See DOJ Report pg. 48 "There are also historical reasons, of Which the City is well aware, that many Ferguson residents may not appear in court. Some individuals fear that if they cannot immediately pay the fines they owe, they will be arrested and sent to jail Ferguson court staff members told us that they believe the high number of missed court appearances in their court is attnbutable, in part, to this popular belief. These fears are well founded." (Emphasis added)
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publicly acknowledged that the arrests probably scared others from participating in the Amnesty" program.
60. The same fear motivates many very poor City residents to sacrifice expenditures on food, clothing, utilities, sanitary home repairs, and other basic necessities of life in order to scrape together money to pay traffic debt to the City.
61. Mr. Nixon warned that, following the 2013 Amnesty Program, the City would be 'stricter" about arresting people for unpaid debt. The City also has a policy of referring unpaid debt to the Montgomery County District Attorney's Office, which will send letters to debtors on the City's behalf threatening imminent arrest if they do not pay their debts. A surcharge of 30% of the value of the debt is added to the debt to compensate the District Attorney's Office for its participation in the City's debt collection. The City purports to have the authority to arrest and jail indigent people when they cannot pay even these additional surcharges.
62. The City has stated that it seeks to use these collection programs and tactics to go after old traffic debt, including debt dating back to the 1980s.
63. As in the Plaintiffs case, the City's policy is to modify orders of incarceration outside of any formal judicial process. These modifications include: decreasing a person's jail time from what was announced in open court so that a person is released with a remaining balance owed; allowing a person's release without any hearing if the person or family members present some money to the City clerk; and allowing City employees to reduce the time a person is ordered to be in jail based on labor performed in the jail without any judicial involvement.
64. Plaintiff and witnesses have observed numerous other similar violations of 17

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basic constitutional rights in the Montgomery Municipal Court within the past year. 65. Under its scheme, Montgomery, which is also financially interested, takes
advantage of its control over its police force and jail facilities to deny these "offender"/debtors the statutory and constitutional protections that every other Alabama debtor may invoke against a private creditor by allowing JCS to use or threaten debtors of the City with arrest and jail as coercion for payment.
66. Under this scheme, it was the policy and practice of Montgomery to jail people when they could not afford to pay debts owed to the City resulting from prior traffic tickets or fines and to do so without any inquiry into the person's ability to pay and without considering alternatives to imprisonment. THE PLAINTIFF
67. Plaintiff and others similarly situated are individuals who were unable to fully pay fines, fees, costs and surcharges levied by the Montgomery Municipal Court, and who, as a result, were assigned to JCS for "probation" under JCS for purposes of collecting the fine. Plaintiff and many like him are currently or were formerly indigent and, despite that indigency, were incarcerated for failure to pay charges and fees for services allegedly rendered by JCS to Montgomery with which it contracted.
ALDARESS CARTER 68. Aldaress Carter ('Mr. Carter') is over the age of nineteen (19) and is a resident of Montgomery, Alabama. 69. On January 24, 2014, Mr. Carter was riding home from work, and the driver of the car in which he was a passenger was pulled over for a broken tail light.
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70. The officer asked Mr. Carter, a passenger, his name and proceeded to run
his name through the police records' database. 1 ° The officer then informed Mr. Carter that
he was under arrest, informing him that there were ten capias warrants outstanding on him.
71. This was the first Mr. Carter had heard of the warrants, and at that time he
did not know what the warrants could be related to.
72. Mr. Carter was surprised that he did not know of these Warrants because he
was on supervised probation with the state and he regularly reported to his probation
officer. Despite regularly communicating with his state probation officer and finding work,
he was now being told that Montgomery had ten active arrest warrants that no one else
knew abOut.11
73. The private company Judicial Correction Services, ('JCS') - Montgomery--
hired to collect outstanding fines, had requested that these warrants be issued for unpaid
fines, fees and costs relating to traffic tickets Mr. Carter had incurred several years earlier.
When Mr. Carter first received those tickets, he had been fined by the Montgomery
Municipal Court for the charges but did not receive a jail sentence.12
10 See DOJ Report pg. 56,57 "We have found that FPD officers frequently check individuals for warrants even when the person is not reasonably suspected of engaging in any criminal activity, and if a municipal warrant exists will often make an arrest City officials have told us that the decision to arrest a person for an outstanding warrant is highly discretionary and that officers will frequently not arrest unless the person is "ignorant." Records show, however, that officers do arrest individuals for outstanding municipal warrants with considerable frequency... Similarly, data collected during vehicle stops shows that, during a larger period of time between October 2012 and October 2014, FPD arrested roughly 460 individualS following a vehicle stop solely because they had outstanding warrants."
See DOJ Report pg. 61 "As with "warrant warning letters" described above, our investigation has been unable to verify that the court consistently sends bond forfeiture warning letters. And, as with warrant warning letters, bond forfeiture warning letters are sometimes returned to the court, but court staff members do not appear to make any further attempt to contact the intended recipient."
12 See DOJ Report pg. 55 "The large number of warrants issued by the court, by any count, is due
exclusively to the fact that the court uses arrest warrants and the threat of arrest as its primary tool for
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74. Mr. Carter was unable to pay the fines and costs in full when levied and, on or around 2011, was ordered to be on "probation" with JCS and to pay JCS an additional $40 per month.
75. However, Mr. Carter was and has been indigent at all relevant times. At times, Mr. Carter paid what little money he could toward his fines and JCS fees, but eventually stopped paying when his money ran out.
76. Mr. Carter was not able to pay all the fines and fees, but, in accordance with the policy and practice of Montgomery which was established in its contract with JCS, neither the Montgomery Municipal Court nor JCS ever made any inquiry into his inability to pay at the time of levying the fine or thereafter.
77. Montgomery's agent, JCS, sent Mr. Carter a "failure to report" letter dated March 29, 2012, but Mr. Carter did not receive this letter and it was returned to JCS and scanned into its files.
78. Montgomery's agent, JCS, sent Mr. Carter another "failure to report" letter to the same bad address. Mr. Carter did not receive this letter and it was returned to JCS and scanned into its files. The date 4/23/12 is handwritten on the returned letter.
79. Because Mr. Carter failed to pay his City fines and JCS fees, on December 6, 2012 JCS requested that his "probation" be revoked. The City itself sent no notice to Mr. Carter and delegated that to its agent JCS.
collecting outstanding fines for municipal code violations. With extremely limited exceptions, every warrant
issued by the Ferguson munici pal court was issued because: 1) a person missed consecutive court
appearances, or 2) a person missed a single required fine payment as part of a payment plan. Under current court policy, the court issues a warrant in every case where either of those circumstances arises—regardless of the severity of the code violation that the case involves. Indeed, the court rarely issues a warrant for any other purpose."
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80. In its revocation petition, JCS does not mention that letters notifying Mr. Carter of JCS requests have been returned nor does it mention the fact that Mr. Carter is indigent and unable pay, nor does it mention the meager payments Mr. Carter has made.
81. Mr. Carter did not receive a copy of JCS's petition for revocation and did not attend the court hearing because he had no notice of the hearing.
82. Despite the fact that Mr. Carter did not receive notice of the hearing, a warrant for his arrest was issued by the City and a new charge of "Failure to Appear' ('ETA') was assessed to Mr. Carter on January 30, 2013.
83. This common scheme of revoking probation and assessing new charges of FTA benefitted both JCS and the City as it resulted in higher fees and fines owed to the City and it enabled JCS to keep probationers intheirsystem longerwhich resulted in higher profits to the private company.
84. Mr. Carter had no notice of the original court hearing or the warrant that was issued for his purported "Failure to Appear" and the City made no effort to give him notice.
85. After he was arrested on January 24, 2014, Mr. Carter was then taken to the Montgomery City jail where he learned for the first time that he had been arrested for old, unpaid traffic tickets.
86. Mr. Carter sat in jail for three days and then appeared in the Montgomery Municipal Court on Monday, January 27, 2014 -- along with sixty-seven (67) other jailed inmates.
87. Before appearing in court, the jailed inmates were told by a man who did not introduce himself that they needed to "Pay or they would Stay." It was later determined that this man was Branch Kloess, a "Public Defender" hired by the City.
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88. Despite being in jail and being indigent as shown by his inability to bond out of jail, Mr. Carter appeared before the judge and was ordered to pay $915 for the fines and fees on his unpaid traffic tickets, after which he could be released. Otherwise, the court informed Mr. Carter that he must stay in jail and receive $50 in credit per day toward the payment of his fines and fees.
89. Mr. Carter had recently obtained new employment, a job that had taken him a long time to acquire, and he knew he would be fired if he was forced to stay in jail. However, Mr. Carter had no money with which to pay his fines and was left with no option but to stay in jail. Mr. Carter's girlfriend Offered to pay all the money she had, which totaled $120, to secure his release from jail so that he could go to work. This offer was refused and Mr. Carter was sent back to jail. Throughout the day, the amount demanded to secure Mr. Carters release from jail changed several times without any court intervention or consideration. Mr. Carter's mother continued to call the jail to find out how she could get him out and finally learned that if a family member or friend could pay $452, then Mr. Carter would be released and the unpaid fines and JCS fees he owed would be cleared.
90. Mrs. Carter was able to borrow the money to get her son out of jail so that he could go to work. She paid the $452 to one of the clerks at the court window and they called the jail to get Mr. Carter released.
91. On January 30, Mr. Carter was released from jail when his mother paid $452. 92. Throughout this period of time, JCS provided no services to Mr. Carter and has acted merely as a collection agency charging additional fees, and despite knowledge that Mr. Carter was unable to pay these fines and was indigent, JCS sought to collect and has taken actions to incarcerate Mr. Carter without any due process.
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93. Mr. Carter was incarcerated without any formal probation revocation hearing or any hearing on the issue of his indigency, but simply incarcerated and later released based upon the determination of the City of Montgomery pursuant to its policy and contractwith JCS.
94. Mr. Carter later learned that the public defender had entered a notice of appearance on Mr. Carter's behalf despite the fact that Mr. Carter did not know who he/she was nor had the public defender introduced himself to Mr. Carter or advocated on Mr. Carter's behalf.
95. Mr. Carter's mother discovered that the public defender that supposedly represented her son was Mr. Branch Kloess and called Kloess who rudely questioned her about how she found out he was her son's attorney and then stated he was no longer his attorney. When she told her son that he had counsel appointed to him, her son was surprised because no one stood up and spoke on his behalf to the judge.
96. Later when Mr. Carter's girlfriend sawa picture of Mr. Kloess, she recognized him as the man that was seated in the courtroom but had no contact with either her or Mr. Carter. Mr. Kloess did not appear before the judge to plead Mr. Carter's indigency or request that the judge reduce his sentence based on his inability to pay, nor did he meet with Mr. Carter and file any pleading raising the issue of his indigency.
97. In fact, despite the fact that Mr. Kloess was being paid to represent indigent people, Mr. Carter was sent back to jail until his family could somehow get enough money to get him released so he could go back to work and, hopefully, not lose his job.
98. Montgomery's agents and employees all participate in this revenue revitalization program that preys on the poor despite the fact that their actions violate state
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and federal constitutional freedoms. Plaintiffs CLASS ALLEGATIONS
99. The Classes which the named Plaintiff seeks to represent consist of: All individuals who have been assigned by the Montgomery Municipal Court to "probation" with JCS for the collection of fines. AND All individuals who, despite their indigency, were incarcerated, without consideration of their indigency for failure to pay fines, fees, costs and charges and levied by the Montgomery Municipal Court.
100. The members of the Classes and subclasses are so numerous that joinder of all members is impracticable.
101. As of this time, the exact number in the Classes is unknown but would be more than one thousand and is ascertainable.
102. Plaintiffs treatment by the Defendants is typical of the members of the Classes and subclasses and is ongoing.
103. Plaintiff will fairly and adequately protect the interests of the Classes and has retained counsel who are competent and experienced in class litigation. Plaintiff has no interests that are adverse or antagonistic to the Classes.
104. A class action is superior to all Other available methods for the fair and efficient adjudication of this controversy. Since the damages suffered by many Class members may be small, the expense and burden of individual litigation make it virtually impossible for the Class members individually to seek redress for the wrongful conduct alleged.
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105. Common questions of law and fact exist as to all members of the Class, and

predominate over any questions affecting solely members of the Class. Among the

questions of law and fact common to the Class are-

a. Whether policy and practice of automatically placing on "probation" at

additional cost all municipal offenders who cannot immediately pay fines and

costs is legal;

b. Whether the policy and practice of converting unpaid fines and costs

to days of incarceration, without any determination concerning an individual's

ability to pay, is legal;

C. Whether the policy and practice of requiring every order of the

municipal court to require probation fees for JCS is legal;

d. Whether the policy and practice of incarcerating individuals for failure

to pay fines and costs with no finding of willfulness is legal;

e. Whether the policy and practice of incarcerating individuals for failure

to appear when no notice of the hearing was provided by the court is legal;

f. Whether the policy and practice of incarcerating individuals for Failure

to Obey Court Order when no such ordinance exist and with no finding of

Willful contempt is legal;

g. Whether the policy and practice of failing to appoint counsel for

indigent defendants when a jail sentence is involved is legal;

h. Whether the policy and practice of failing to make any inquiry into

indigency before imposing fines and costs is legal

L

Whether the policy and practice of failing to give adequate notice of

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the charge and nature of a probation revocation hearing, failing to provide a

probation revocation hearing, failing to make written findings concerning the

reasons for revoking probation and the evidence relied upon, failing to hold

a hearing to determine indigency before revoking probation and otherwise

imposing incarceration, failing to make written findings concerning an

individual's willful nonpayment of fines and costs before imposing

incarceration for nonpayment, is legal;

j.

Whether the policy and practice of charging incarcerated municipal

defendants a daily fee for each day the person is incarcerated is legal;

k. Whether the policy and practice of imposing fines and court costs that

exceed that statutory maximum for municipal is legal;

I.

Whetherthe policy and practice of extending "probation" for municipal

offenses beyond 24 months is legal;

M. Whether the policy and practice which fails to give any credit for time

spent incarcerated is legal;

n. Whether the policy and practice of adding unpaid fines that predate

probation to the balance to be paid durin g probation is legal;

o. Whether a municipality can legally enter a contract binding upon its

municipal court;

P_ Whether a municipality can enter into a no bid contract to grant an

exclusive franchise to a private probation company to operate in its municipal

court;

q. Whether setting bond based upon a fine balance owed the city is legal;

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r. Whether the policy of demanding a cash bond for release from jail without inquiry into ones' financial situation or offense is legal. 106. Montgomery has acted on grounds generally applicable to the Class, thereby Making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class as a whole. 107. Plaintiff knows of no difficulty which will be encountered in the management of this litigation which would preclude its maintenance as a Class Action. The data concerning the Class members and the transaction details and amounts on each charge are largely computerized by Montgomery and by JCS. 108. The names and addresses of the Class members are a matter of public record and are also kept by JCS and notice can be provided to the Class members via First Class U.S. Mail or other appropriate means as may be directed by the Court.
COUNT ONE DENIAL OF DUE PROCESS AGAINST THE CITY OF MONTGOMERY AND KLOESS Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 109. The Plaintiff avers that Montgomery, acting under color of state law in violation of 42 U.S.C. § 1983, has denied him his right to due process and the rights of the Class members. 110. By contract, Montgomery delegated many administrative and judicial functions of its municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees.
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111. That no bid agreement was signed by the City mayor and bound Montgomery and its municipal court requiring that its municipal "court agrees that each court order shall provide for the following:
a probation fee of $40.00 per month flat fee One time probationer set up fee of $10.00. . . "(emphasis added). 112. Montgomery, through its mayor and/or council, approved the agreements with JCS. 113. Montgomery, through its mayor and council, also approved the employment of the judges of its municipal court and its public defenders. 114. Municipalities are prohibited from laws, Ordinances and policies which are in conflict with state law. See Ala Code Section 11-45-1. Also see, Ala. Const. Article 4 Section 89. 115. State law also dictates a separation of the branches of government. Ala Const. Article 3, Section 4313 Under that doctrine, legislative powers granted to cities and towns are exercised by the city council, Ala. Code, Section 11-43-43, while the mayor of the city is responsible for executive duties. Ala. Code, Section 11-43-83. if the town establishes a municipal court, its administration is supervised by the Chief Justice of Alabama. Ala. Code, Section 12-2-7 et. seq.; Ala Const., Article 6, Section 139. 116. Municipal mayors have the executive power to execute and enforce
13 Ala. Const. Art. III, Section 43 states: In the government of this state except in the instances in this Constitution hereinafter expressly directed or permitted the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers or either of them the judicial shall never exercise the legislative and executive powers or either of them to the end that it may be a government of laws and not of men.
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contracts14 and the city councils have the legislative power to enact regulations and ordinances, 15 but neither the mayor nor the council has the power to invade the administration of its judiciary.
117. Montgomery has exceeded its statutory authority and acted in conflict with state statute and constitutional limitations when, acting through its mayor, it agreed with JCS to bind its municipal court to include probation and fees for JCS in everycourt order entered by its hired judge. That action essentially sold the court process for purposes of increasing income to the City.
118. The illegal agreement and policy of Montgomery invaded and overrode the judicial authority and court administration reserved to the municipal judges and the Chief Justice.
119. Probation is only appropriate when an individual has been sentenced to jail time and not when only a fine has been assessed as is the case with the Plaintiff and Class members. As a result, the Montgomery policy and contract to include probation in every court order mandated a judicial practice that continually deprived indigent misdemeanants of their constitutional rights.
120. The policy and practice of Montgomery also violated the Alabama
"Ala. Code Section 11-43-83 - The mayor shall see that all contracts with the town or city are faithfully kept or performed .. He shall execute all deeds and contracts and bonds required in judicial proceedings for and on behalf or performed. He shall execute all deeds and contracts and bonds required in judicial proceedings for and on behalf of the city or town and no sureties shall be required on such bond He shall perform such other executive duties in addition to those prescribed in this article, as may be required of him by the council. ' 5Ala. Code Section 11-43-43 - All legislative powers and other powers granted to cities and towns shall be exercised by the council, except those powers conferred on some officers by law or ordinance. The council shall perform the duties required by this title and other applicable provisions of law.
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Constitution. Article I, Section 20 Ala. Const specifically prohibits imprisonment for the payment of debts, yet the policy enforced at Montgomery regularly jailed misdemeanants upon the recommendation of its agent JCS for failure to pay fines, fees and costs. Article I, Section 16 Ala. Const requires that all persons shall before conviction be bailable by sufficient surety, but despite this prohibition, misdemeanants were regularly jailed without lawful conviction under any contempt proceedings or probation violation.
121. The Plaintiff and some Class members were imprisoned, and some repeatedly, under these policies of Montgomery for their failure to pay fines, costs and the added fees mandated by the illegal contract between Montgomery and JCS. The Plaintiff was not accorded any hearing or consideration of his indigency before being jailed, nor was he provided any notice of charges, a hearing on charges levied that might result in imprisonment, or provided meaningful assistance of counsel before being imprisoned.
122. At the Montgomery Municipal Court, a person unable to fully pay fines and costs when levied was automatically placed on probation. The Montgomery system used JCS orders and forms even when no jail sentence was adjudicated. This was routinely done with no investigation into the indgency of the individual or the reasons for their inability to pay the fine and costs. The orders supplied by JCS under the agreement with Montgomery then required the individual to make payments to JCS, rather than the City clerk, of the fines, costs and additional monthly fees.
123. Montgomery, through its city clerks, actively enforced these requirements as part of the policy and procedures established under this contract and refused to accept payments of fines and costs referring those payers such as the Plaintiff instead to the JCS office.
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124. Montgomery, through its contract, practice and policy, clothed its agent JCS with the appearance of state authority and has previously allowed JCS employees to carry badge& 16 Underthese practices and policies, JCS employees were allowed to attend each municipal court session and were referred to "probation officers" in the operation of the municipal cbuit and in the City clerk's office, though none ever had such authority under Alabama statutes.
125. Under this system at Montgomery, "Offenders" are not permitted to pay fines at the City cIerks office, but are instead directed to make all payments, including those for fines, restitution, probation fees and court costs, to JCS at the JCS office at hOurs and locations set by JCS.
126. Montgomery's policy and practice also allowed JCS to control the money collected from persons such as Plaintiff and to determine how much each such municipal court "offender" must pay each month.
127. Montgomery's policy and practice also allowed JCS to determine how much of the collected sums will be credited to the collection "services" of JCS each month and how much it will rebate to Montgomery toward the municipal court fines adjudged.
128. This system, as a matter of routine, violated the rights of persons such asthe Plaintiff and the class he seeks to represent by imposing fines and charging fees to
16
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indigent persons with no hearing or consideration of their indigency. 129. Despite the lack of authority to do so, Montgomery, by its practice and policy,
permitted, approved and conspired with JCS, a private actor with a financial stake in the outcome, to play the role of a neutral probation office and, at its discretion, to use threats of revoking probation, increased fines and costs, arrest and jail time for purposes of collection.
130. Under this system, should an individual fail to pay to the satisfaction of JCS, Montgomery permitted and approved JCS setting payment and reporting schedules and determining when the individual's 'probation" should be revoked, or when to impose additional fines and costs.
131. Under, the system operated at Montgomery, JCS's determination to incarcerate an individual and/or impose unreasonable release requirements was routinely accepted by city personnel without conducting delinquency or probation hearings and without making any findings, much less any determination of indigency despite the fact that city-paid 'public defenders' were assigned to many of these indigent folks, yet they were still subject to punitive action.
132. Montgomery permitted and conspired with JCS allowing it to control and dictate these functions and, as a consequence, this routinely resulted in court costs and fines which exceed the statutory maximum of $500 for municipal courts and imposed additional "jail fees" determined by the city clerk for the costs of any incarceration. Similarly, the periods of "probation" imposed for purposes of collecting fines and fees at Montgomery routinely exceeded the two-year statutory maximum, all of which result in action to detain and otherwise incarcerate individuals without any jurisdiction to do so.
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133. The municipal court judges employed by Montgomery did no investigation of indigency as a matter of policy.
134. Despite the fact that many people are assigned a 'public defender,' these indigent people are not adequately represented and many times do not even know that an attorney has been assigned to their case. In fact, many times the 'public defender' never introduced himself/herself to their 'client' and did not speak to the court on the "clients" behalf and kept no files on their "clients."
135. Under the system at Montgomery, after simple fines are illegally converted to "probation" for payment, jail often resulted for the "offender" who did not meet the payment schedule set by JCS and enforced by Montgomery. This system used and accepted JOS's conclusion of a "probation violation" or "failure to obey court order" and employed JCS recommendations for the issuance of a warrant of arrest to incarcerate individuals whose original obligation was only the payment of a fine.
136. Under this system at Montgomery, the Plaintiff was first fined, but then automatically placed on "probation" though no jail sentence was adjudicated. Though the Plaintiff was indigent, Montgomery made no investigation of that matter -- despite the fact that, unknown to him, Montgomery paid a 'public defender' to represent him. When the Plaintiff was unable to pay the fines, costs and additional JCS fees that Montgomery agreed to levy, recommendations from JCS were made and followed by Montgomery to incarcerate him for undetermined time unless a cash bond was made in amounts closely approximating the sums sought by JCS's collection efforts.
137. Many individuals who cannot pay their fines and added fees, such as the Plaintiff and Class members, were jaded for charges against them for "failure to obey court
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order," though there is no such state statute or city ordinance which defines this as a criminal act.
138. Though a determination of willful refusal to obey a court order as required by Ala. Code §15-18-62 can lawfully lead to incarceration, no such determinations were made Under the system at Montgomery.
139. Montgomery adopted and implemented JCS's conclusion of a "probation violation" or "failure to obey court order" and issued arrest warrants to incarcerate individuals whose original case had only been a fine.
140. In this process of converting fines to jail time, Montgomery did not give adequate notice to the 'offender" of the nature of any lawful charge, it failed to conduct hearings, failed to make written findings concerning the reasons for any probation revocation or the evidence relied upon, and failed to make written findings concerning any willful nonpayment of fines and costs before imposing incarceration for failure to pay fines and costs.
141. Under this policy and practice at Montgomery, when a Simple fine was transformed into a jail sentence of an undetermined time, the City failed to provide adequate counsel for the "offenders." In fact, like the Plaintiff, many people are jailed for nonpayment despite the fact that 'public defenders' are retained by the City to represent the indigent, 17 are listed as attorneys on their case, and are paid to supposedly represent them. Those public defenders like Kloess are paid from fines collected on convictions, do not routinely oppose the charges made, and do hot raise issues of indigency nor request
17 See Exhibit 2 - contract for Kloess.
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hearings for that purpose. 142. The public defenders have a policy and practice of not requesting indigency
hearings despite the fact that the only clients they represent under the contract with the City are indigents. This policy and practice of not requesting indigency hearings benefits both the City and the 'public defender,' as all are enriched by avoiding the constitutional due process requirements and demanding money from the poor.
143. After jailing an "offender," Montgomery acted to further violate the Plaintiffs constitutional rights by arbitrarily granting early release to some individuals while denying it to others under similar circumstances without any rational basis other than payments it has secured. AS a result, there was no consistent standard of review or logical system under which those incarcerated were granted release.
144. Under the practice and policies used at Montgomery, after an adjudication under which a fine is levied, additional fees, costs, and other charges are added to the "offender bill for each new arrest, alleged probation violation, or contempt proceeding including, in some cases, those relating to charges years earlier.
145. As a proximate consequence of this deprivation of due process, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent.
COUNT TWO VIOLATION OF THE FOURTH AMENDMENT
CITY OF MONTGOMERY 35

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Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof.
146. The Plaintiff avers that Montgomery, acting under color of state law in violation of 42 U.S.C. § 1983, has violated their Fourth Amendment rights and the rights of the Class members to be free from unreasonable seizure.
147. By no bid contract as discussed in detail above, Montgomery illegally delegated many administrative and judicial functions of its municipal court to its agent JCS, clothing it with the color of state law for the collection Of court fines, costs and private fees.
148. In addition to a denial of due process guaranteed the Plaintiff under the Fourteenth Amendment, the arrest and detainment of these "offenders" who could not pay the fine imposed under this system constitutes a "seizure" in violation of the Fourth Amendment as well.
149. Under Alabama law, a simple fine can only be converted into jail time if the court makes findings under Ala. Code, Section 15-18-62 (1975) that a defendant has willfully failed to pay the fines.
150. Montgomery's policy and practice of including probation with JCS in every municipal court order created the process by which misdemeanants were incarcerated without a willfulness hearing as required by Ala. Code, Section 15-18-62, and in violation of Alabama case law, the Alabama Constitution and the U.S. Constitution.
151. Under Alabama case law, the Alabama Constitution and the U.S. Constitution, an indigent defendant cannot be required to serve jail time for nonpayment
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of fines or costs."' 152. Despite longstanding legal precedent prohibiting incarceration for one's
inability to pay a fine/debt, Montgomery's personnel, working in conjunction with JCS,
unlawfully arrested and jailed the Plaintiff fOr his inability to pay a simple fine with added
fees and costs dictated by the Montgomery contract with JCS. 153. Montgomery's police, municipal court processes and jail access all became
tools of collection under forms and processes issued by its agent JCS and which were
routinely followed by Montgomery. Montgomery's policy and practice, after clothing its
agent JCS with the appearance of state actor acting on their behalf, allowed JCS to
threaten arrest or revocation of probation and/or incarceration in order to coerce these indigents to pay the city fines and fees for misdemeanor offenses not otherwise subject to
jail time under the original adjudication.
154. When these threats failed to produce sufficiently, Montgomery police, clerks
and other personnel, cooperated with JCS to arrest and jail the Plaintiff class members
181t is clear as a matter of constitutional law that an indigent defendant cannot be required to serve
jail time for nonpayment of fine and costs. Tate v. Short, 401 U.S. 395 (1971); Lingle v. State, 51 Ala.App. 210, 283 So.2d 660 (1973); Smith v. State 51 Ala.App. 212, 283 So.2d 662 (1973). "To imprison an indigent when in the same circumstances an individual of financial means would remain free constitutes a denial of equal protection of the laws." Barnett v. Hopper, 548 F..2d 550, 554 (5th Cir.1977). This is not a case of a defendant who, though capable of paying a fine, refuses or neglects to do so.
Although Section 15-22-52, Alabama Code 1975, states that payment of fine and costs may be
made a condition of suspension of sentence or probation, in State v. Esdale, 253 Ala. 550, 45 So.2d 865 (1950), our Supreme Court indicated that such a condition was contrary to our constitution.
"These benefits (probation and suspension of sentence) are not the subject of bargain and sale to be conditioned on the payment of costs and fees assessed as an incident to the prosecution and trial arid to condition these benefits on the payment of such costs and fees violate the letter and spirit of Section 13 of the Constitution of 1901 which provides that justice shall be administered without sale denial or delay" Esdale 253 Ala at 553 rutcher v. State, 439 So. 2d 725; 726 (Ala. Grim. App. 1983)
37

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such as Aldaress Carter. 155. The jailing of class members by Montgomery, as described under the
specific facts stated above, constitutes unlawful seizures in violation of the Fourth Amendment.19
156. As a proximate consequence of this unlawful seizure, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, all while being indigent.
COUNT THREE VIOLATION OF THE SIXTH AMENDMENT
CITY OF MONTGOMERY Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 157. The Plaintiff avers that Montgomery, acting under color of state law in violation of 42 U.S.C. § 1983, has violated his Sixth Amendment rights and the rights of the Class members. 158. By a no bid contract as discussed in detail above, Montgomery illegally delegated many administrative and judicial functions of their municipal court to its agent JCS, clothing it With the color of state law for the collection of court fines, costs and private fees. 159. Under the policy and practice at Montgomery, when a simple fine was
19 "Fourth Amendment seizure [occurs] ... when there is a governmental termination of freedom
of movement through means intentionally applied." (internal quotation marks and emphasis omitted)) Oliver 510 U S at 274 (plurality opinion) ( Ihe Framers considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it.").
38

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transformed into a jail sentence of an undetermined time, adequate counsel was not provided for the indigent "offenders"
160. The Plaintiff was initially ordered to pay only a fine at the Montgomery Municipal Court, but due to his inability to pay, he was placed on "probation" under JCS pursuant to JCS form orders and the contract approved by Montgomery.
161. The no bid contract signed by Montgomery approved a "probation" process as essentially a collection vehicle for the City to collect its fines. That agreement, as discussed above, conflicts with state statutes, violates state constitutional requirements for separation of power in the branches of government, and exceeds the authority of the mayor and council.
162. Under that agreement, Montgomery allowed JCS to add monthly fees to the "offender" who had already disclosed an inability to pay the fine when adjudicated and despite the fact that JCS provided no services to them.
163. Under the agreement and with the knowledge and approval of Montgomery, JCS represented itself as acting on behalf of the City which clothed it with that appearance.
164. Under this agreement, Montgomery unlawfully invaded the province of the municipal court and mandated that each order there contain provisions for fees to JCS.
165. By this agreement, simple fines without jail sentences were automatically and illegally converted to 'probation' through JCS if the offender could not promptly pay the entire fine and costs.
166. After this conversion from a fine to 'probation,' threats of jail were used by JCS with the approval of Montgomery and actual incarceration then takes place by police and other City personnel if the fines, fees and costs were not paid as scheduled.
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167. The jeopardy of jail time was not present when the simple fines were adjudicated against the Plaintiff and the Class members and would not have been present but for Montgomery's policy and practice adopting and using the JCS collection system in the administration of its court system illegally requiring "probation" for simple fines.
168. With the Plaintiffs inability to pay and the JCS focus on collections, charges are routinely initiated claiming "probation violation" or "failure to appear" or "failure to obey court order." These are initiated by JCS under its system and then approved by Montgomery personnel.
169. At that point, jail sentences become potential jeopardy for the "offenders" such as the Plaintiff on charges that have never before been subjected to meaningful adversarial testing. Nevertheless, neither JCS nor Montgomery routinely provided adequate counsel for those "offenders."
170. At the point when jail sentences become potential, Montgomery does hot provide notice of charges, nor are findings made as required for conviction. Similarly, though JCS also regularly proposes a charge of "failure to obey court order" which Montgomery then pursues, that is not a valid offense. If willful failure to pay under state statutes such as Ala. Code Section 15-18-62 is used as the basis, under the City's system with JCS, there is no finding or hearing on the issue of willfulness.
171. The named Plaintiff, Aldaress Carter, while indigent, was unlawfully jailed by Montgomery under this JCS system and was not provided meaningful assistance of counsel. In fact, Mr. Carter was surprised to learn that Mr. Kloess was appointed to his case that resulted in his incarceration. Mr. Kloess never identified himself to Mr. Carter, never met with him and, despite being paid to represent indigents, Mr. Kloess never
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advocated to the court on Mr. Carter's behalf to raise any issue of his indigency as a bar to incarceration for failure to pay.
172. These actions constitute a denial of the Plaintiffs rights secured by the Sixth Amendment.
173. Asa proximate consequence of this violation of their Sixth Amendment rights, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent.
COUNT FOUR VIOLATION OF THE EIGHTH AMENDMENT
CITY OF MONTGOMERY Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 14. The Plaintiff avers that Montgomery, acting under color of state law in violation of 42 U.S.C. § 1983, has violated the Eighth Amendment prohibition against excessive fines, excessive bail and cruel and unusual punishment in its actions with the Plaintiff and Class members. 175. As discussed in detail above, Montgomery has illegally delegated many administrative and judicial functions of their municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees. 176. The Eighth Amendment prohibits cruel and unusual punishment and, as
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such, limits the kinds of punishment that can be imposed on those convicted of crimes, proscribes punishment grossly disproportionate to the severity of the crime and imposes substantive limits on What can be made criminal and punished as such and prohibits excessive bail.
177. Under Alabama law, a municipal court has no authority to award a fine on any particular charge over $500, Ala. Code I3A-5-12(a)(3), and even lawful probation for misdemeanors cannot, by statute, extend beyond a two-year period. See Ala. Code 1522-54(a).
178. As mentioned above, Ala. Code § 15-18-62 is the only statutory method under which a fine levied by a court on adjudication can be converted to imprisonment, but that can legally occur only where the court finds willful nonpayment of the fine and cost.
179. Even upon proper notice and a finding of willful nonpayment under § 15-1862, the conversion of fine to imprisonment has a specific ratio such that a fine not to exceed $500 shall result in no more than 20 days. See Ala. Code § 15-18-62(2).
180. Rule 26.11 of the Alabama Rules of Criminal Procedure provides the method for dealing with fines, restitution and the failure to pay under a variety of circumstances, none of which were followed by Montgomery.
181. Under these facts, Montgomery illegally contracted and conspired with JCS to add monthly fees and costs to each municipal court order. This agreement increased the substantial fines levied against indigent persons such as the Plaintiff.
182. Neither Montgomery, nor its agent JCS, made inquiries into the indigency of the "offenders" in the system. As a result, the Plaintiffs failure to make payments as
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dictated resulted in threats of arrests. If threats failed to produce the demanded payments, arrest and incarceration followed under the process based upon JCS's representation that the offender had "failed to obey a court order" or had "failed to appear" or had violated "probation."
183. These fines exceeded the statutory limits of the municipal court and the incarceration periods imposed for the failure to pay exceeded those in Ala. Code §15-1862.
184. The practice and policy of imposing jail time for an inability to pay its fees, fines and costs violates the Eighth Amendment prohibition against excessive fines and cruel and unusual punishment.
185. The named Plaintiff was at all pertinent times indigent and yet was incarcerated by City personnel for his inability to pay fines, fees and costs.
186. After being arrested, JCS, with the City, calculates the amount claimed to be owed for fines, fees and costs which is then used as the bail required for release without consideration of factors justifying release on recognizance or other factors provided for under Ala Rule Cnm Pro. 7.2. This practice results in excessive bail requirements in violation of the Eighth Amendment:.
187. As a result of the violation of the Eighth Amendment, the Plaintiff was subjected to excessive fines, fees, and costs beyond the jurisdictional limits of the municipality and violation of the prohibition against excessive fines and cruel and unusual punishment and excessive bail.
188. Asa proximate consequence of this violation of his Eighth Amendment rights, the Plaintiff and Class members suffered injuries, including having fines converted to jail
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sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JOS fees, costs and restitution levied, all while being indigent.
COUNT FIVE DENIAL OF EQUAL PROTECTION
CITY OF MONTGOMERY Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 189. Montgomery has acted under color of state law in violation of 42 U.S.C. § 1983 to deny the Plaintiff and Class members' rights to equal protection secured by the Fourteenth Amendment. 190. This was accomplished by the illegal contractual agreement Montgomery had with JCS. Under that agreement, the actions of its agent JCS were inextricably intertwined in a practice and policy at Montgomery. That practice and policy automatically required "probation" for any person who, despite having no jail sentence, was financially Unable to fully pay the fine and costs when levied by the municipal court. That probation requirement was part of the agreement between Montgomery and JCS and was part of every printed order at the municipal court and required payment of monthly fees to JCS. 191. Persons who are financially able to fully pay the levied fine and costs at Montgomery are not placed on "probation." As a result, those persons are not charged any fees for JCS and are not subjected to threats of arrest and incarceration in the collection process.
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192. For those such as the Plaintiff who were unable to fully pay the fine and costs when levied by the municipal court, not only were they required to come to court for traffic tickets, were charged court costs, they were also put on "probation" with JCS.
193. This requirement was part of the Montgomery contractwith JCS. That no bid contract, as mentioned above, exceeded the statutory and constitutional authority Of municipalities and imposed on the municipal court an agreement in violation of the separation of powers doctrine between the branches of government.
194. Once on "probation" for purposes of paying a fines and costs, this policy and practice at Montgomery routinely imposed incarceration and additional costs on individuals who are unable to pay fines and costs, without any determination of willfulness as would lawfully be required under Alabama statutes. See Ala Code Section 15-18-62.
195. This disparate treatment based upon the wealth of the "offender" before the municipal court is aviolation of equal protection and cannot be justified on any legitimate rational state interest basis.
196. This inequality of treatment is also beyond the authority of the municipal court which is required by Alabama Statute to uniformly process traffic infractions and penalties for misdemeanors in accordance with specified maximum fines. See Ala. Code Section 12-14-8. The policy at Montgomery was not uniform with the procedures established by the Alabama Administrative Office of Courts because it added fees only to "offenders" who could not pay immediately and created its own "rules" for penalizing individuals who could not pay as directed.
197. These additional JCS fines resulted in disparate treatment between those who could immediately pay the fine from those who were unable to immediately pay the
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fine. Furthermore, those 'offenders" at Montgomery with its JCS arrangement were processed and fined differently than !offenders in jurisdictions that have not allowed JCS to charge additional fees to those who cannot pay. There is no state authority for such disparate treatment.
198. By its policies, agreement and conspiratorial actions with JCS, the City has also deprived Carter and the Class members of all the civil debt protections available to others.
199. The Plaintiff Aldaress Carter and the Class members were required to pay the additional costs and fees under this disparate system and many like Aldaress Carter were unlawfully jailed for their inability to pay as demanded.
200. As a proximate consequence of this denial of the right to equal protection under the Fourteenth Amendment, the Plaintiff and Class members 'suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent.
COUNT SIX DECLARATORY AND INJUNCTIVE RELIEF
CITY OF MONTGOMERY Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 201. A real controversy exists between these parties concerning several issues, including the validity of Montgomery's attempt to bind its municipal court and the legality of the actions taken under the contract with JCS, such that declaratory relief is appropriate.
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Contract between the City and JCS is void 202. Plaintiff requests the Court to declare that Montgomery had no authority to contractually bind their municipal court. City does not have the power to bind the Court 203. Montgomery entered into an agreement with JCS that exceeded both its statutory and constitutional limitations on municipalities. Furthermore, that agreement violated theseparation of powers doctrine embodied in the Alabama Constitution. See A/a. Const., Article 3, Section 43. As a result, that agreement is void and due to be declared a nullity. 204. Alabama state law also dictates a separation of the branches of government. Ala. Const., Article 3, Section 43. Under that doctrine, legislative powers granted to cities and towns are exercised by the city council, Ala. Code Section 11-43-43, while the mayor of the city is responsible for executive duties. Ala. Code, Section 11-43-83. If the town establishes a municipal court, its administration is supervised by the Chief Justice of Alabama. Ala. Code Section 12-2-7 et. seq..; Ala. Const , Art. 6, Section 139. 205. A city's mayor, such as Montgomery's mayor, has the executive power to execute and enforce contracts and the city council has the legislative power to enact regulations and ordinances, but neitherthe mayor nor the council has the power to invade the administration of its judiciary. 206. Montgomery has exceeded its statutory authority and acted in conflict with state statute and constitutional limitations when, acting through its mayor, they agreed to require its municipal court to include probation and fees for JCS in every court order
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entered by its hired judge. That action essentially sold the court process for purposes of increasing income to the City.
Contract violates statutory limitation regarding traffic citations and municipal fines 207. That agreement also violates the uniformity required by statute for processing traffic infractions and penalties for misdemeanors in accordance with specified maximum fines. See Ala. Code Section 12-14-8. 208. The process at Montgomery is not uniform with the procedures established by the Alabama Administrative Office of Courts because it adds fees only to "offenders" who cannot pay immediately and creates other "rules" for further penalizing individuals who cannot pay as directed. "Offenders" who are able to immediately pay the fine are charged one rate, but those that are unable to immediately pay for the same offense are charged the fine and required to pay JCS monthly fees that accumulate each month that passes. 209. The "offenders'. at Montgomery are processed and fined differently than "offenders" in municipal jurisdictions which have not contracted for JCS to charge its fees to those who cannot pay and, as a result, violates uniformity requirements of Ala. Code Section 12-14-8. Contract overrides judicial authority and administration of municipal courts reserved to the Chief Justice 210. The illegal agreement and policy of Montgomery invades and overrides the judicial authority and court administration reserved to the municipal judge and the Chief Justice.
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Contract is an exclusive franchise 211. The contract between JCS and the City of Montgomery grants an exclusive franchise for provision of probation services. 212. The contract was not competitively bid as required by Ala. Const. Art. l, 22 and Ala. Code 1975, 41-1650. 213. Because the contract was not bid, it is void and unenforceable. 214. Plaintiff requests the Court to declare the actions of Montgomery under this contract to be unconstitutional under the premises discussed above. Under this void agreement, Montgomery has implemented policies and practices to prosecute persons such as the Plaintiff where there is no jurisdiction or authority to do so under Alabama law, doing so intentionally in an effort to extort the payment of fines and costs from indigent people. These efforts have resulted in the illegal prosecution and incarceration Of the Plaintiff and the Class beyond the limited jurisdiction of the municipal courts. 215. Further, Montgomery has added increased punishment, fines and costs after adjudication and even where there has been no adjudication of guilt, all without jurisdiction or authority for such under Alabama law. 216. Montgomery has systematically applied Ala. Code § 15-18-62 in an unconstitutional fashion, denying the Plaintiff and the Class he seeks to represent constitutionally protected rights. 217. Section 15-18-62 provides for the imprisonment for the failure to pay fines
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and costs in limited circumstances and only upon the finding of a willful nonpayment.2° 218. Under the policies and practices at Montgomery, "offenders" before the
municipal court, such as the Plaintiff and the Class he seeks to represent, are systematically imprisoned for nonpayment with no determination of willfulness and with no consideration of their indigency or ability to pay.
219. Furthermore, once imprisoned, the requirements of time to be Served under § 15-18-62 are ignored by the practice and policy of Montgomery.
220. The result of this consistent systematic policy and practice of Montgomery is essentially a debtor's prison for fines and charges levied.
221. Plaintiff requests the Court to enjoin the actions of Montgomery identified herein to prevent the continuation of these violations of statutory and constitutional prohibitions.
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that the Court will take jurisdiction of this cause and upon the final hearing:
a. Certify this matter as a proper class action maintainable under Rule
20Section 15-18-62 Imprisonment for failure to pay fines and costs.
In cases of willful nonpayment of the fine and costs, the defendant shall either be imprisoned in the county jail or, at the discretion of the court, sentenced to hard labor for the county as follows:
(I) If the fine and costs do not exceed two hundred fifty dollars ($250), no more than 10 days;
(2) If the fine and costs exceed two hundred fifty dollars ($250) but do not exceed five hundred dollars ($500), no more than 20 days; (3) If the fine and costs exceed five hundred dollars ($500), but do not exceed one thousand dollars ($1,000), no more than 30 days; and (4) For every additional one hundred dollars ($100) or fractional part thereof, 4 days.
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23 of the Federal Rules of Civil Procedure for a plaintiff class and for the defendant class; b. Award the Plaintiff such damages as this Court shall find the Plaintiff have sustained, together with punitive, or exemplary damages as the law shall permit, C. Enter an injunction and other declaratory relief which declares the Montgomery contract requiring fees to JCS to be void and in violation of the statutory and constitutional limitations on municipalities; d. Enter an injunction and other declaratory relief which enjoins Montgomery from engaging in the violations of law set forth hereinabove; e. Enter an injunction and other declaratory relief which prohibits Montgomery in the future from placing persons on probation for collection of fines and declares that any current probation and fees for simple fines is void; f. Enter an injunction and other declaratory relief which prohibits Montgomery in the future from assessing fines in excess of $500 and/or extending probation periods beyond 24 months and declare that any previously assessed fines and probationary periods in excess of these limits to be void; g. Enter an injunction and other declaratory relief which prohibits Montgomery in the future from imprisoning indigent persons for failure to pay fines and fees;
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h. Enter an injunction and other declaratory relief which prohibits Montgomery in the future from charging excessive hail established to collect claimed fines and fees; Award to the Plaintiff and Class members damages under 42 U.S.C. § 1983 equal to any amounts paid on fines and all fees to JCS and Montgomery that are found unconstitutional and/or unlawful (along with interest), and the annulment of any remaining unpaid fines and fees that are found unconstitutional and/or unlawful; Award to the Plaintiff and Class the cost of this matter, including a reasonable attorneys' fee;
k. Award to the Plaintiff and the Class members such other, further and more general relief as the Court may deem appropriate under these circumstances including cost of these proceedings. RESPECTFULLY SUBMITTED,
G;'baniel Evans ASB-1 661 -N76G Attorney for the Plaintiffs The Evans Law Firm, P.C. 1736 Oxmoor Road, Suite 101 Birmingham, Alabama 35209 Telephone: (205) 870-1970 Fax: (205) 870-7763 E-Mail: devansevanslawpc.com
Alexandria Parrish ASB-2477-D66P Attorney for the Plaintiffs The Evans Law Firm, P.C.
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1736 Oxmoor Road, Suite 101 Birmingham, Alabama 35209 Telephone: (205) 870-1970 Fax: (205) 870-7763 E-Mail: apevanslawpç.com
ft.
William M. Dawson AS B-3976-580W Attorney for the Plaintiffs Dawson Law Office 1736 Oxmoor Road Birmingham, Alabama 35209 Telephone: 205-307-7021 E-Mail: bill@billdawsonlaw.com JURY DEMAND Plaintiffs demand trial by struck jury.
Plaintiff's address:
do The Evans Law Firm, P.C.
Defendants' addresses: CITY OF MONTGOMERY, ALABAMA
do City Attorney's Office
Legal Department 103 North Perry Street Montgomery, AL 36104 BRANQHD KLOESS 8073 Lakeridge:Drive Montgomery, AL 36117-5141
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 Case 2:15-cv-00555-RCL-SMD Document 18 Filed 09/14/15 Page 1 of 173

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

ALDARESS CARTER, INDIVIDUALLY, AND FOR )

A CLASS OF SIMILARLY SITUATED PERSONS )

OR ENTITIES,

)

)

Plaintiffs

)

v.

)

)

THE CITY OF MONTGOMERY and

)

BRANCH D. KLOESS; JUDICIAL CORRECTIONAL )

SERVICES, INC., a corporation; CORRECTIONAL )

HEALTHCARE COMPANIES, INC., a corporation; )

CHC COMPANIES, INC., a corporation.

)

)

Defendants.

)

CIVIL ACTION NO.: 2:15-cv-00555-WKW CLASS ACTION
DEMAND FOR JURY TRIAL

FIRST AMENDED AND RESTATED COMPLAINT

COMES NOW, Aldaress Carter (hereinafter “Plaintiff”), individually and on behalf

of those similarly situated, upon personal knowledge as to himself and his own acts, and

upon information and belief as to all other matters, by and through his undersigned

counsel, files this First Amended and Restated Complaint as follows:

JURISDICTION

1. The Court has jurisdiction over this matter because it concerns a controversy

arising under the Constitution of the United States. 28 U.S.C. '1331. This is a civil rights

action brought under 42 U.S.C. '' 1983 and 1988 and pursuant to 18 U.S.C. 1962. T his

Court also has jurisdiction of this action by virtue of 28 U.S.C. '' 1343(a)(3) and

1343(a)(4), authorizing jurisdiction of claims brought under 42 U.S.C. ' 1983 to enforce

civil rights guaranteed by the United States Constitution. The Court also has supplemental

jurisdiction over the state law claims pursuant to 28 U.S.C. ' 1367.

Case 2:15-cv-00555-RCL-SMD Document 18 Filed 09/14/15 Page 2 of 173
2. This action also seeks a declaratory judgment pursuant to 28 U.S.C. '' 2201 and 2022.
3. Venue in this judicial district is proper pursuant to 28 U.S.C. ' 1391 (b) and (c).
PARTIES TO THE COMPLAINT 4. The Plaintiff Aldaress Carter is an individual resident of Montgomery, Montgomery County, Alabama. 5. The classes which the individual Plaintiff seeks to represent consist of:
All individuals who have been in the past assigned by the Montgomery Municipal Court to “probation” with Judicial Correction Services (JCS) for the collection of fines. AND All individuals who, despite their indigency, were incarcerated, without consideration of their indigency for failure to pay fines, charges and fees to Montgomery. 6. The City of Montgomery, Alabama, (“Montgomery”) is a municipal corporation located within Montgomery County, Alabama. The City Council and Mayor control the policy making for Montgomery. The Mayor also hires the municipal court judges, the public defenders to provide legal representation for indigent offenders, and contracted for the services of JCS, a private probation company, to collect its municipal court fines1. (Doc. 11) 7. Branch D. Kloess (“Kloess”) is an individual and a licensed attorney located within Montgomery County, Alabama. Kloess entered into an agreement with the City of
1JCS’s contract with Montgomery was not renewed in 2014 when the contract renewal date expired.
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Montgomery to provide “competent legal representation and services for indigent defendants charged with the violation of the municipal ordinances and laws before the Municipal Court of the City of Montgomery.” He has not provided competent legal representation. Rather, he has a policy and practice of not requesting indigency hearings for the indigents he represents. As such, he has participated in the City’s scheme to extort money from poor citizens he purportedly represents while gaining financially from not seeking indigency status for them. (Doc 1-2)
8. The defendant Judicial Corrections Services, Inc. (hereinafter “JCS”) is a Delaware corporation, registered as a foreign corporation and doing business in the State of Alabama and in this District which markets itself as “not a social service agency,” but a “for profit”company which offers services to governmental entities “free of charge” to the cities as “an offender paid system.” At all times, JCS has operated under the color of state law.
9. The defendant Correctional Healthcare Companies, Inc. (‘CHC’) (also hereinafter “JCS”) is a Delaware corporation, registered as a foreign corporation and doing business in the State of Alabama. It appears to be the successor of JCS, having purchased or otherwise acquired it, continuing to do business as JCS and operating the same.
10. The Defendant CHC Companies, Inc. (‘CHCC’) (also hereinafter “JCS”) is a Delaware corporation, registered as a foreign corporation and doing business in the State of Alabama. JCS and Correctional Healthcare Companies, Inc. are, upon information and belief, wholly-owned and fully integrated corporations of CHC Companies, Inc. CHC Companies, Inc. also does business under the name of Correctional Healthcare Companies and employs and/or directs and controls employees in the JCS operations.
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FACTS 11. The Plaintiff brings this action because the policy and practices of Montgomery and its agents JCS, CHC and CHCC (hereinafter ‘JCS’) and Kloess have violated the Plaintiff’s statutory and constitutional rights and those of persons similarly situated. 12. The treatment of the Plaintiff was caused by and is representative of the City’s policies and practices employed to collect debts from the fines, fees, costs, and surcharges that the City assesses, usually for traffic tickets. These facts are similar to those alleged in the Amended Complaints in cases 2013-cv-732-MEF (Doc. 10), 2013-cv733-MEF (Doc. 9) and 2014-cv-186-MEF (Doc.26) which describe additional people whose rights were violated by the same policies and practices. 13. The policies and practices of the City of Montgomery are strikingly similar to the unconstitutional practices by which the City of Ferguson, Missouri, operated its courts and police department. These unconstitutional policies placed priority on generating cash for the City without regard to constitutional precepts. The Department of Justice’s Civil Rights Division outlined the unconstitutional practices it discovered at the City of Ferguson in its March 4, 2015 report. (Doc1-3)2 14. Montgomery has contracted with JCS which operates a “for profit” enterprise that markets its services to various municipal governments and has contracted with over 100 cities and towns throughout Alabama. JCS’s marketing approach to these cities
2 Due to the many similarities between Montgomery’s policies and practices that are coordinated through the city police and the city courts, sections of the DOJ report are referenced by footnotes for the court’s review.
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emphasizes that its fees will be paid by the “offender” and that its efforts will improve collection of court fines and costs at no cost to the City.
15. The JCS approach is highly systemized and uniform throughout the Alabama municipal courts in which it operates, including Montgomery - until July 1, 2014.
16. Under the system implemented by Montgomery, it does not require JCS employees to have criminal justice or legal training, nor are they required to have any social work education or meet any minimum law enforcement standards as is required of state probation officers. Instead, the only requirements of a JCS employee who is referred to as a “Probation Officer” is that the employee be 21 years old, a non felon, with two years of college who complete 40 hours of JCS training on its processes. On satisfying those requirements, JCS employees are then labeled “Probation Officers”3 and previously permitted to carry the JCS issued badge in collecting its fees, court fines and costs.
17. Montgomery by contract and practice, unlawfully delegated to JCS many administrative and judicial functions of its municipal court, clothing it with the color of state law for the collection of court fines, costs and the JCS private fees.
18. The agreement between Montgomery and JCS and signed by the city mayor attests that the Montgomery municipal “court agrees that each court order shall provide for the following:
a probation fee of $40.00 per month flat fee one time probationer set up fee of $10.00. . . . " (emphasis added).
3In contrast, even a judicial volunteer is required to meet greater and more specific qualifications, careful screening, specific training and continual oversight established by the Administrative Office of Courts (‘AOC’). See Ala. Rule of Judicial Administration Rule 42.
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19. Montgomery, through its Mayor, Charles Jinright, and Council, approved the agreement with JCS, the City and its court beginning in March 19, 2009 and continued the relationship, by and through its City Council and Mayor, Todd Strange, until the summer of 2014. Throughout this period, the City police, City courts, and City hired public defenders fully participated in the practices and system with JCS.
20. Montgomery also approved the employment of it municipal court judges including its Presiding Judge, Armstead Lester Hayes, III.
21. Montgomery also hired attorneys to represent indigent defendants in its City courts under a contract which provides that “A defendant's status as ‘indigent’ shall be determined by the Judge in the said Court, in accordance with the criteria set forth in Code of Alabama (1975), Sections 15-12-5 and 15-12-20.” Yet, despite the fact that offenders are designated as indigent for purposes of getting an appointed attorney, routinely the attorneys never introduce themselves to the client they purportedly represent and do not advocate on the client’s behalf before the judge, which results in indigent people being fined, assessed court costs, put on the JCS ‘payment plan’ which costs them an additional $40/month and are threatened with jail if payments are missed.
22. These ‘public defenders’ do not request Bearden hearings or inquire into the offender’s ability to pay, or fill out hardship forms requesting community service or other alternatives due to their client’s poverty.4 Nor, do they even maintain files on their “clients.”
23. Rather, the ‘public defender’ upholds the City’s practice of prioritizing profits over public welfare and safety by requiring their clients to ‘pay or stay’ and demanding
4 See DOJ Report pg. 53.
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court costs and full payment of fines for those they “represent.” 24. The contract between the City and the ‘public defender’ mandates that the
attorneys will be paid out of the ‘Fair Tax Trial Fund’ which is funded through the collection of court costs levied and collected on convictions. This payment policy creates a conflict of interest as the City is not required to pay the attorneys more than it has collected in any one month.
In fact, Section Five of its public defender contract says: SECTION FIVE. Under the terms of this agreement, on or after the last day of each month during the period of this agreement, Kloess shall submit to the Clerk of Court for approval, a request for payment from the Fair Trial Tax fund not to exceed the sum of Ten Thousand and 00/100 Dollars ($10,000.00) per month, for services to be performed hereunder for the period of the agreement. Provided, in no event shall the City be required to pay more than the amount deposited in the Fair Trial Tax Fund for a particular month. (Doc1-2 pg. 2)(emphasis added) 25. For a number of years, Montgomery has participated in implementing the JCS system. That system and JCS’s “Probation Tracker” software used at Montgomery was highly systemized and focused on collections of fines and its fees -- not traditional probation services. For instance, the “probation officer” does not visit the probationer’s home, job or family, and has contact with them only at the JCS office in collecting fees and fines. That collection focus allows the “offenders” to mail in payments if they live 30 miles from the JCS office. (Doc 1-4). The training manual used by JCS instructs its employees on the use of its computer systems in tracking the payments made by the “offenders” and provides court forms to order probation and payments to JCS. The JCS training system also provides sample letters for use after probation is ordered, threatening the “offender”
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that failure to report to JCS “as directed may result in a warrant being issued for your arrest” and that their “court date cannot and will not be reset.” See (Docs. 1-5,1-6). Similar JCS forms instruct the “offender” that they can avoid the court date if they pay an amount determined by JCS. (Doc1-7). Notice to the offender of these JCS set “court dates” was handled by JCS by regular mail with no proof of service and no consideration of returned mail showing no receipt. Similarly, the setting for any hearing on petitions instituted by JCS was done by JCS and listed on a separate “JCS Docket” which JCS established and which Montgomery then adopts. Finally, the JCS manual instructs its employees on the issuance of warrants of arrest and provides forms for that purpose. (Doc.1-8).
26. Once on probation to collect the fines, “offenders” who cannot keep up their payments at Montgomery are arrested typically based upon FTA or FTOCO rather than probation violation. These codes stand for “Failure to Appear” and “Failure to Obey Court Order.” Warrants are issued by the City based upon a report that the offender failed to appear as directed at the JCS established date after notice from JCS. Similarly, FTOCO arrests result from JCS reporting that the “offender” failed to comply with their probation order – that is, they failed to pay or appear at the JCS offices as JCS directed. There is no ordinance or statute establishing Failure to Obey Court Order as an offense. The arrests and incarceration on these charges occur without any determination of contempt or willfulness in these arrests and the additional costs are added without any finding whatsoever. Under this system, the “offender” arrested is jailed for an undetermined period of time with bond set by the city magistrate to approximate the money claims to be owed on the balance at JCS. Unlike legitimate probation systems where a probationer would be entitled to a finding of the reasons for revocation, appointed counsel and, at worse, suffer
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jail time equating to the original sentence, the system at Montgomery ignores all those safeguards.
27. The City Council and Mayor control the policy making for Montgomery and also hire the municipal court judges, hire the public defenders and contract for services of JCS at the municipal court. The contract was a no bid contract and provided JCS with an exclusive franchise at the City. The decision to use this JCS system was an administrative decision of Montgomery, by and through its mayor, and not a decision of the municipal court judge or the Chief Justice, or any other employee of the Administrative Office of Courts (‘AOC’).
28. Montgomery, through its contract, pattern and practice, clothed JCS with the appearance of state authority and has previously even allowed JCS employees to carry badges. The JCS employees attend each municipal court session and are referred to as “probation officers” in the operation of the municipal court and city clerk’s office, though none have such authority under Alabama statutes. Under this system, JCS “offenders” were not permitted to pay fines at the City payment window, but were required to make all payments, including those for fines, restitution, probation fees and court costs, to JCS.
29. This public ruse was maintained by Montgomery for purposes of imposing and collecting fines, fees and costs from citizens such as the Plaintiff, and was accomplished by allowing JCS to control the money, determine how much each municipal court “offender” must pay each month, how much JCS would keep for its own fees for collection “services” each month, and how much of the payment JCS would rebate to Montgomery toward the fines adjudged.
30. This system, as a matter of routine, violates the rights of persons such as the 9

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Plaintiff and the class he seeks to represent by imposing fines, fees and surcharges to indigent persons with no hearing or consideration of their indigency and by converting fines to jail time.
31. Despite the lack of authority to do so, Montgomery allowed JCS to use threats of revoking probation, arrest, increased fines and costs and jail time for purposes of collection. Under the system operated by Montgomery, JCS’s determination to incarcerate an individual and/or impose unreasonable bond requirements was routinely accepted by City personnel as a matter of policy without conducting delinquency or probation hearings and without making any findings, much less any determination of indigency.
32. The lack of indigency or Bearden hearing is especially disturbing as the court records show many indigent people were supposedly represented by attorneys paid by the City (through the “Fair Trial Tax Fund” funded by court fees). All of the court personnel hired by Montgomery have a significant financial stake in the proceedings.
33. The collective actions of Montgomery and its agents, including JCS and Kloess, are inextricably interwoven with each other and routinely result in court costs and fines which exceed the statutory maximum of $500 for municipal courts. Similarly, the periods of “probation” imposed for purposes of collecting fines and fees routinely exceed the two-year statutory maximum, all of which results in Montgomery taking action to detain and otherwise incarcerate individuals without any jurisdiction to do so. Additionally, Montgomery approves routinely adding to the “offender” probation balance any unpaid fines it can resurrect from old traffic tickets or fines, even though those predate the “probation.”
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34. After improperly imposing probation even when no jail sentence is involved, incarceration then follows if the fine, together with the fees added by JCS, are not paid as dictated. The collection purpose of this system is emphasized by the fact that probation is terminated once full payment is made.
35. Under the Montgomery system, JCS had a monetary interest to conduct its role as “probation officer” in a way that maximized its personal profit and not as a neutral court officer.
36. Under the scheme implemented by Montgomery, its agent JCS decided whether to initiate probation revocation proceedings, and made recommendations to the city judge about that revocation, and charges of failure to appear or failure to obey court order – all while financially interested in the outcome of these strong-arm collection efforts.
37. Under the scheme implemented by Montgomery, JCS did not undertake determination of the reasons for nonpayment, and did not consider such things as the Plaintiff’ disability, unemployment or assets, in regard to the nonpayment of the fines and routinely sought collection from exempt income such as Social Security Disability payments.
38. Under the scheme implemented by Montgomery, JCS denied any responsibility to determine indigency, and provided no instruction to its employees for the consideration of indigency.
39. Under the scheme implemented by Montgomery, after simple fines are converted to “probation” for payment, jail often resulted for the “offender” who did not meet the payment schedule. This system used JCS’s conclusion of a “probation violation” or “failure to obey court order” to incarcerate individuals who, had they been financially able
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to pay, would have paid only a fine with no probation whatsoever. 40. If a person is unable to make a full payment, JCS, often took out the amount
owed to JCS first so that JCS was paid even if a person’s debt to the City was not reduced. 41. Many people have made payments to the City and to JCS, only to learn later
that there was no record of those payments and to be ordered to make them again. 42. If a person missed payments or paid less than required, JCS had the
purported contractual authority and discretion to decide whether to petition the City for “revocation” of probation. JCS also has a policy of placing people who cannot make full payments – from whom the company has difficulty making a profit – on “warrant status,” which could result in warrants issued for their arrest by the City and which constituted a JCS determination that JCS would not accept the person for future probation supervision. JCS communicated this decision to the City, and the City’s policy and practice was to agree not to place such people back on probation, requiring instead that those people pay in full or go to jail.
43. In other cases in which a person was making substantial payments, JCS, had a personal financial interest in extending a person’s probation and in keeping the person on a payment plan for as long as possible so that it could profit from the collection of more monthly fees.
44. Thus, under the City’s scheme, JCS, was allowed not only to decide whether to initiate judicial revocation proceedings, but could also decide whether a person was put on probation and what judicially ordered conditions were imposed. JCS would also make other recommendations to the City judge concerning how JCS believed the person had faired on probation, whether the person should be placed on probation, whether JCS
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considered the person “eligible” for probation, what the amount of monthly court-ordered payments should be, and a variety of other case-related decisions.
45. JCS had a personal financial interest to conduct its role as a probation officer in a way that maximized its personal profit and not necessarily as a neutral public court officer.
46. JCS used a “probation” room inside the City building that also houses the Municipal Court, directly across from the Municipal courtroom. A JCS employee often sat in the courtroom near the judge and advised the judge about how to handle the cases of “probationers” and potential “probationers.”
47. The City enforced a policy and practice of initiating and issuing warrants when a person missed a payment or failed to make sufficient payments without considering the person’s ability to pay5—even when the City or its agent, JCS, had knowledge that the person was indigent – and without providing notice and validly summoning the person to court for a hearing.
48. Instead, City policy allows the City to issue and execute warrants,6 and City officers go to the homes of traffic debtors to arrest them. The City policy and practice is also therefore to deprive people of their liberty without any prior notice and opportunity to be heard and without any basic inquiry into whether the debt is owed, actually unpaid, or still valid.
49. The City often chooses to execute these warrants prior to or over the
5 See DOJ Report pp.54-55 6 See DOJ Report pg. 55
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weekend, which results in a person serving needless extra time in jail prior to the next available court date.
50. People placed on “probation” because they cannot afford to pay their fines, fees, costs, and surcharges immediately were also forced to abide by additional restrictions on their liberty, which the City called “conditions” of probation, which were imposed solely because of their wealth status. These restrictions include: 1) not changing residence or employment without notifying JCS, 2) avoiding “injurious or vicious habits,” 3) not using alcohol or visiting places where “intoxicants, drugs, or dangerous substances are sold, dispensed or used, 4) working diligently at a lawful occupation, 5) “truthfully answer all inquiries” by the JCS employees and “comply with all instructions” the JCS employee gives. In addition to these unlawful constraints, the order states in bold type. “You are subject to arrest for violation of any condition imposed by this order, and your probation may be revoked accordingly.”
51. When warrants are issued and executed, the City adds fees, costs, and surcharges to the amounts of debt already owed. In addition to court fees and JCS fees and costs, the City routinely adds surcharges for warrants, a “solicitor” fee, and even a 30% debt-collection fee.
52. The City’s policy and practice was to conduct no inquiry into the person’s ability to pay, and the City’s policy and practice also refused to use even the state-issued Affidavit of Substantial Hardship that is available for courts to use to determine indigence. As such, the offenders had no opportunity to present evidence concerning their ability to
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pay or concerning any other relevant question.7 53. If family members were present, the City’s practice was to call them up to the
bench and to ask them to pay as much of their family member’s debts as they could on the threat that the person who allegedly owes the money would be jailed if the family members did not pay.
54. The City did not conduct any meaningful inquiry into the person’s ability to pay and did not even explain to people how they might claim indigency through standard forms issued by the State of Alabama.
55. The amount of debt announced to debtors by the judge in open court often differed from the amount listed on the paperwork that they received on their return to the jail. The paperwork amount is usually less than the open court amount, meaning that debtors would often have a balance remaining after they “served out” their fines, leading to their placement back on a payment plan and their continued supervision.8 The City appears to refer to this as “reopening” their cases, although this “reopening” and the corresponding modifications that it entails are not performed at any formal hearing or even in the person’s presence. Once people returned to the jail from City court, they were told of the City’s policy of “working off” an extra $25 per day of their debts if the person agreed to labor in the City jail while being imprisoned.
56. Inmates desperate to return to their families by “working off” their debts more quickly competed on a daily basis to be selected by City jail employees for a limited
7 See DOJ Report pg.58 8 See DOJ Report pp. 59-61
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number of difficult, unsanitary, and demeaning daily labor tasks. These tasks included cleaning the offices of City employees in the Municipal Court building, the bathrooms in the City police department and Municipal Court, and cells and bathrooms in the City’s overcrowded jail.
57. The City’s debt collection practices are enormously profitable, especially in getting family members with no legal obligation to pay any money to the City to come up with money to get their loved ones released from jail and in getting low-income people to forgo basic necessities of life in order to pay JCS and the City in an attempt to avoid jail.
58. For example, the 2013 City of Birmingham budget reflects approximately $2.8 million from court and traffic citations, the City of Mobile approximately $2 million, and the City of Huntsville approximately $2.5 million. In contrast, the City of Montgomery budget reflects revenue of $15.9 million from municipal court “fines and forfeitures.”
59. The City uses the money collected through these procedures to fund the City jail, to pay Municipal Court judicial salaries, to pay City Attorney’s Office salaries, and to fund other portions of the City budget.
60. The City’s recent “Amnesty Day” program starkly demonstrates its practice of jailing persons who are unable to pay debts to the City. In May 2013, Montgomery Mayor Todd Strange and City Municipal Court Administrator Kenneth Nixon (who is also a member of the Mayor’s cabinet), announced that the City would offer an “Amnesty” program on the first two Saturdays in June. Under this program, the City announced that it would remove certain fees, eliminate arrest warrants, and institute a payment plan if individuals were unable to pay the full amount to which the City claimed it was entitled.
61. However, at least 15 people were arrested on the first day of the “Amnesty” 16

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program because they had too much debt allegedly outstanding (greater than $2,500) or because they did not bring at least $150 (or 10% of what was owed, if greater) to pay the City. These people were arrested pursuant to a City policy that required the arrest and jailing of people whose debts met these criteria regardless of a person’s ability to pay or financial circumstances.
62. The City’s publicly available budget does not itemize “fines and forfeitures” in as much detail as do the budgets of some other cities, which makes it difficult for the public to know the exact source of these funds. But, the “fines and forfeitures” collected by the City of Montgomery appear substantially higher than those collected by any other major Alabama City, even those cities are larger than Montgomery. These policies and practices have created a culture of fear among the City’s poorest residents9 who are afraid even to appear in City court to explain their indigence because they know they will be jailed by the City without any meaningful process. Indeed, Mr. Nixon, the court administrator, reported to the Montgomery Advertiser that many residents were jailed during the amnesty program because they owed too much and could not pay even 10% of what they owed. Mr. Nixon publicly acknowledged that the arrests probably scared others from participating in the “Amnesty” program.
63. The same fear motivates many very poor City residents to sacrifice expenditures on food, clothing, utilities, sanitary home repairs, and other basic necessities
9 See DOJ Report pg. 48 “There are also historical reasons, of which the City is well aware, that many Ferguson residents may not appear in court. Some individuals fear that if they cannot immediately pay the fines they owe, they will be arrested and sent to jail. Ferguson court staff members told us that they believe the high number of missed court appearances in their court is attributable, in part, to this popular belief. These fears are well founded.” (Emphasis added)
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of life in order to scrape together money to pay traffic debt to the City. 64. Mr. Nixon warned that, following the 2013 Amnesty Program, the City would
be “stricter” about arresting people for unpaid debt. The City also has a policy of referring unpaid debt to the Montgomery County District Attorney’s Office, which will send letters to debtors on the City’s behalf threatening imminent arrest if they do not pay their debts. A surcharge of 30% of the value of the debt is added to the debt to compensate the District Attorney’s Office for its participation in the City’s debt collection. The City purports to have the authority to arrest and jail indigent people when they cannot pay even these additional surcharges.
65. The City has stated that it seeks to use these collection programs and tactics to go after old traffic debt, including debt dating back to the 1980s.
66. As in the Plaintiff’s case, the City’s policy is to modify orders of incarceration outside of any formal judicial process. These modifications include: decreasing a person’s jail time from what was announced in open court so that a person is released with a remaining balance owed; allowing a person’s release without any hearing if the person or family members present some money to the City clerk; and allowing City employees to reduce the time a person is ordered to be in jail based on labor performed in the jail without any judicial involvement.
67. Plaintiff and witnesses have observed numerous other similar violations of basic constitutional rights in the Montgomery Municipal Court within the past year.
68. Under its scheme, Montgomery, which is also financially interested, takes advantage of its control over its police force and jail facilities to deny these “offender”/debtors the statutory and constitutional protections that every other Alabama
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debtor may invoke against a private creditor by allowing JCS to use or threaten debtors of the City with arrest and jail as coercion for payment.
69. Under this scheme, it was the policy and practice of Montgomery to jail people when they could not afford to pay debts owed to the City resulting from prior traffic tickets or fines and to do so without any inquiry into the person’s ability to pay and without considering alternatives to imprisonment. THE PLAINTIFF
70. Plaintiff and others similarly situated are individuals who were unable to fully pay fines, fees, costs and surcharges levied by the Montgomery Municipal Court, and who, as a result, were assigned to JCS for “probation” under JCS for purposes of collecting the fine. Plaintiff and many like him are currently or were formerly indigent and, despite that indigency, were incarcerated for failure to pay charges and fees for services allegedly rendered by JCS to Montgomery with which it contracted.
ALDARESS CARTER 71. Aldaress Carter (‘Mr. Carter') is over the age of nineteen (19) and is a resident of Montgomery, Alabama. 72. On January 24, 2014, Mr. Carter was riding home from work, and the driver of the car in which he was a passenger was pulled over for a broken tail light. 73. The officer asked Mr. Carter, a passenger, his name and proceeded to run his name through the police records’ database.10 The officer then informed Mr. Carter that
10 See DOJ Report pg. 56,57 “We have found that FPD officers frequently check individuals for warrants, even when the person is not reasonably suspected of engaging in any criminal activity, and, if a municipal warrant exists, will often make an arrest. City officials have told us that the decision to arrest a person for an outstanding warrant is “highly discretionary” and that officers will frequently not arrest unless the person is “ignorant.” Records show, however, that officers do arrest individuals for outstanding
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he was under arrest, informing him that there were ten capias warrants outstanding on him.
74. This was the first Mr. Carter had heard of the warrants, and at that time he
did not know what the warrants could be related to.
75. Mr. Carter was surprised that he did not know of these warrants because he
was on supervised probation with the state and he regularly reported to his probation
officer. Despite regularly communicating with his state probation officer and finding work,
he was now being told that Montgomery had ten active arrest warrants that no one else knew about.11
76. The private company -- Judicial Correction Services, (‘JCS') - Montgomery --
hired to collect outstanding fines, had requested that these warrants be issued for unpaid
fines, fees and costs relating to traffic tickets Mr. Carter had incurred several years earlier.
When Mr. Carter first received those tickets, he had been fined by the Montgomery Municipal Court for the charges but did not receive a jail sentence.12
77. Mr. Carter was unable to pay the fines and costs in full when levied and, on
municipal warrants with considerable frequency...Similarly, data collected during vehicle stops shows that, during a larger period of time between October 2012 and October 2014, FPD arrested roughly 460 individuals following a vehicle stop solely because they had outstanding warrants.”
11 See DOJ Report pg. 61 “As with “warrant warning letters” described above, our investigation has been unable to verify that the court consistently sends bond forfeiture warning letters. And, as with warrant warning letters, bond forfeiture warning letters are sometimes returned to the court, but court staff members do not appear to make any further attempt to contact the intended recipient.”
12 See DOJ Report pg. 55 “The large number of warrants issued by the court, by any count, is due exclusively to the fact that the court uses arrest warrants and the threat of arrest as its primary tool for collecting outstanding fines for municipal code violations. With extremely limited exceptions, every warrant issued by the Ferguson municipal court was issued because: 1) a person missed consecutive court appearances, or 2) a person missed a single required fine payment as part of a payment plan. Under current court policy, the court issues a warrant in every case where either of those circumstances arises—regardless of the severity of the code violation that the case involves. Indeed, the court rarely issues a warrant for any other purpose.”
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or around 2011, was ordered to be on "probation" with JCS and to pay JCS an additional $40 per month.
78. However, Mr. Carter was and has been indigent at all relevant times. At times, Mr. Carter paid what little money he could toward his fines and JCS fees, but eventually stopped paying when his money ran out.
79. Mr. Carter was not able to pay all the fines and fees, but, in accordance with the policy and practice of Montgomery which was established in its contract with JCS, neither the Montgomery Municipal Court nor JCS ever made any inquiry into his inability to pay at the time of levying the fine or thereafter.
80. Montgomery's agent, JCS, sent Mr. Carter a "failure to report" letter dated March 29, 2012, but Mr. Carter did not receive this letter and it was returned to JCS and scanned into its files.
81. Montgomery's agent, JCS, sent Mr. Carter another "failure to report" letter to the same bad address. Mr. Carter did not receive this letter and it was returned to JCS and scanned into its files. The date 4/23/12 is handwritten on the returned letter.
82. Because Mr. Carter failed to pay his City fines and JCS fees, on December 6, 2012 JCS requested that his "probation" be revoked. The City itself sent no notice to Mr. Carter and delegated that to its agent JCS.
83. In its revocation petition, JCS does not mention that letters notifying Mr. Carter of JCS requests have been returned nor does it mention the fact that Mr. Carter is indigent and unable pay, nor does it mention the meager payments Mr. Carter has made.
84. Mr. Carter did not receive a copy of JCS's petition for revocation and did not attend the court hearing because he had no notice of the hearing.
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85. Despite the fact that Mr. Carter did not receive notice of the hearing, a warrant for his arrest was issued by the City and a new charge of “Failure to Appear” (‘FTA') was assessed to Mr. Carter on January 30, 2013.
86. This common scheme of revoking probation and assessing new charges of FTA benefitted both JCS and the City as it resulted in higher fees and fines owed to the City and it enabled JCS to keep probationers in their system longer which resulted in higher profits to the private company.
87. Mr. Carter had no notice of the original court hearing or the warrant that was issued for his purported "Failure to Appear" and the City made no effort to give him notice.
88. After he was arrested on January 24, 2014, Mr. Carter was then taken to the Montgomery City jail where he learned for the first time that he had been arrested for old, unpaid traffic tickets.
89. Mr. Carter sat in jail for three days and then appeared in the Montgomery Municipal Court on Monday, January 27, 2014 -- along with sixty-seven (67) other jailed inmates.
90. Before appearing in court, the jailed inmates were told by a man who did not introduce himself that they needed to "Pay or they would Stay." It was later determined that this man was Branch Kloess, a “Public Defender” hired by the City.
91. Despite being in jail and being indigent as shown by his inability to bond out of jail, Mr. Carter appeared before the judge and was ordered to pay $915 for the fines and fees on his unpaid traffic tickets, after which he could be released. Otherwise, the court informed Mr. Carter that he must stay in jail and receive $50 in credit per day toward the payment of his fines and fees.
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92. Mr. Carter had recently obtained new employment, a job that had taken him a long time to acquire, and he knew he would be fired if he was forced to stay in jail. However, Mr. Carter had no money with which to pay his fines and was left with no option but to stay in jail. Mr. Carter's girlfriend offered to pay all the money she had, which totaled $120, to secure his release from jail so that he could go to work. This offer was refused and Mr. Carter was sent back to jail. Throughout the day, the amount demanded to secure Mr. Carter's release from jail changed several times without any court intervention or consideration. Mr. Carter's mother continued to call the jail to find out how she could get him out and finally learned that if a family member or friend could pay $452, then Mr. Carter would be released and the unpaid fines and JCS fees he owed would be cleared.
93. Mrs. Carter was able to borrow the money to get her son out of jail so that he could go to work. She paid the $452 to one of the clerks at the court window and they called the jail to get Mr. Carter released.
94. On January 30, 2014, Mr. Carter was released from jail when his mother paid $452.
95. Throughout this period of time, JCS provided no services to Mr. Carter and has acted merely as a collection agency charging additional fees, and despite knowledge that Mr. Carter was unable to pay these fines and was indigent, JCS sought to collect and has taken actions to incarcerate Mr. Carter without any due process.
96. Mr. Carter was incarcerated without any formal probation revocation hearing or any hearing on the issue of his indigency, but simply incarcerated and later released based upon the determination of the City of Montgomery pursuant to its policy and contract with JCS.
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97. Mr. Carter later learned that the public defender had entered a notice of appearance on Mr. Carter's behalf despite the fact that Mr. Carter did not know who he/she was nor had the public defender introduced himself to Mr. Carter or advocated on Mr. Carter's behalf.
98. Mr. Carter's mother discovered that the public defender that supposedly represented her son was Mr. Branch Kloess and called Kloess who rudely questioned her about how she found out he was her son’s attorney and then stated he was no longer his attorney. When she told her son that he had counsel appointed to him, her son was surprised because no one stood up and spoke on his behalf to the judge.
99. Later when Mr. Carter’s girlfriend saw a picture of Mr. Kloess, she recognized him as the man that was seated in the courtroom but had no contact with either her or Mr. Carter. Mr. Kloess did not appear before the judge to plead Mr. Carter's indigency or request that the judge reduce his sentence based on his inability to pay, nor did he meet with Mr. Carter and file any pleading raising the issue of his indigency.
100. In fact, despite the fact that Mr. Kloess was being paid to represent indigent people, Mr. Carter was sent back to jail until his family could somehow get enough money to get him released so he could go back to work and, hopefully, not lose his job.
101. Montgomery's agents and employees all participate in this revenue revitalization program that preys on the poor despite the fact that their actions violate state and federal constitutional freedoms.
Plaintiff's CLASS ALLEGATIONS 102. The Classes which the named Plaintiff seeks to represent consist of:
All individuals who have been assigned by the Montgomery 24

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Municipal Court to “probation” with JCS for the collection of fines. AND All individuals who, despite their indigency, were incarcerated, without consideration of their indigency for failure to pay fines, fees, costs and charges and levied by the Montgomery Municipal Court. 103. The members of the Classes and subclasses are so numerous that joinder of all members is impracticable. 104. As of this time, the exact number in the Classes is unknown but would be more than one thousand and is ascertainable. 105. Plaintiff's treatment by the Defendants is typical of the members of the Classes and subclasses and is ongoing. 106. Plaintiff will fairly and adequately protect the interests of the Classes and has retained counsel who are competent and experienced in class litigation. Plaintiff has no interests that are adverse or antagonistic to the Classes. 107. A class action is superior to all other available methods for the fair and efficient adjudication of this controversy. Since the damages suffered by many Class members may be small, the expense and burden of individual litigation make it virtually impossible for the Class members individually to seek redress for the wrongful conduct alleged. 108. Common questions of law and fact exist as to all members of the Class, and predominate over any questions affecting solely members of the Class. Among the questions of law and fact common to the Class are: a. Whether policy and practice of automatically placing on “probation” at
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additional cost all municipal offenders who cannot immediately pay fines and costs is legal; b. Whether the policy and practice of converting unpaid fines and costs to days of incarceration, without any determination concerning an individual’s ability to pay, is legal; c. Whether the policy and practice of requiring every order of the municipal court to require probation fees for JCS is legal; d. Whether the policy and practice of incarcerating individuals for failure to pay fines and costs with no finding of willfulness is legal; e. Whether the policy and practice of incarcerating individuals for failure to appear when no notice of the hearing was provided by the court is legal; f. Whether the policy and practice of incarcerating individuals for Failure to Obey Court Order when no such ordinance exist and with no finding of willful contempt is legal; g. Whether the policy and practice of failing to appoint counsel for indigent defendants when a jail sentence is involved is legal; h. Whether the policy and practice of failing to make any inquiry into indigency before imposing fines and costs is legal; i. Whether the policy and practice of failing to give adequate notice of the charge and nature of a probation revocation hearing, failing to provide a probation revocation hearing, failing to make written findings concerning the reasons for revoking probation and the evidence relied upon, failing to hold a hearing to determine indigency before revoking probation and otherwise
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imposing incarceration, failing to make written findings concerning an individual’s willful nonpayment of fines and costs before imposing incarceration for nonpayment, is legal; j. Whether the policy and practice of charging incarcerated municipal defendants a daily fee for each day the person is incarcerated is legal; k. Whether the policy and practice of imposing fines and court costs that exceed that statutory maximum for municipal is legal; l. Whether the policy and practice of extending “probation” for municipal offenses beyond 24 months is legal; m. Whether the policy and practice which fails to give any credit for time spent incarcerated is legal; n. Whether the policy and practice of adding unpaid fines that predate probation to the balance to be paid during probation is legal; o. Whether a municipality can legally enter a contract binding upon its municipal court; p. Whether a municipality can enter into a no bid contract to grant an exclusive franchise to a private probation company to operate in its municipal court; q. Whether setting bond based upon a fine balance owed the city is legal; r. Whether the policy of demanding a cash bond for release from jail without inquiry into ones’ financial situation or offense is legal. 109. Montgomery has acted on grounds generally applicable to the Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect
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to the Class as a whole. 110. Plaintiff knows of no difficulty which will be encountered in the management
of this litigation which would preclude its maintenance as a Class Action. The data concerning the Class members and the transaction details and amounts on each charge are largely computerized by Montgomery and by JCS.
111. The names and addresses of the Class members are a matter of public record and are also kept by JCS and notice can be provided to the Class members via First Class U.S. Mail or other appropriate means as may be directed by the Court.
COUNT ONE DENIAL OF DUE PROCESS AGAINST THE CITY OF MONTGOMERY AND KLOESS Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 112. The Plaintiff avers that Montgomery, acting under color of state law in violation of 42 U.S.C. § 1983, has denied him his right to due process and the rights of the Class members. 113. By contract, Montgomery delegated many administrative and judicial functions of its municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees. 114. That no bid agreement was signed by the City mayor and bound Montgomery and its municipal court requiring that its municipal “court agrees that each court order shall provide for the following: a probation fee of $40.00 per month flat fee
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One time probationer set up fee of $10.00. . . . " (emphasis added).
115. Montgomery, through its mayor and/or council, approved the agreements with
JCS.
116. Montgomery, through its mayor and council, also approved the employment
of the judges of its municipal court and its public defenders.
117. Municipalities are prohibited from laws, ordinances and policies which are in
conflict with state law. See Ala Code Section 11-45-1. Also see, Ala. Const. Article 4
Section 89.
118. State law also dictates a separation of the branches of government. Ala Const. Article 3, Section 43.13 Under that doctrine, legislative powers granted to cities and
towns are exercised by the city council, Ala. Code, Section 11-43-43, while the mayor of
the city is responsible for executive duties. Ala. Code, Section 11-43-83. If the town
establishes a municipal court, its administration is supervised by the Chief Justice of
Alabama. Ala. Code, Section 12-2-7 et. seq.; Ala Const., Article 6, Section 139.
119. Municipal mayors have the executive power to execute and enforce contracts14 and the city councils have the legislative power to enact regulations and
13Ala. Const. Art. III, Section 43 states: In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.
14Ala. Code Section 11-43-83 - The mayor shall see that all contracts with the town or city are
faithfully kept or performed. He shall execute all deeds and contracts and bonds required in judicial proceedings for and on behalf or performed. He shall execute all deeds and contracts and bonds required in judicial proceedings for and on behalf of the city or town and no sureties shall be required on such bond. He shall perform such other executive duties, in addition to those prescribed in this article, as may be required of him by the council.
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ordinances,15 but neither the mayor nor the council has the power to invade the administration of its judiciary.
120. Montgomery has exceeded its statutory authority and acted in conflict with state statute and constitutional limitations when, acting through its mayor, it agreed with JCS to bind its municipal court to include probation and fees for JCS in every court order entered by its hired judge. That action essentially sold the court process for purposes of increasing income to the City.
121. The illegal agreement and policy of Montgomery invaded and overrode the judicial authority and court administration reserved to the municipal judges and the Chief Justice.
122. Probation is only appropriate when an individual has been sentenced to jail time and not when only a fine has been assessed as is the case with the Plaintiff and Class members. As a result, the Montgomery policy and contract to include probation in every court order mandated a judicial practice that continually deprived indigent misdemeanants of their constitutional rights.
123. The policy and practice of Montgomery also violated the Alabama Constitution. Article I, Section 20 Ala. Const. specifically prohibits imprisonment for the payment of debts, yet the policy enforced at Montgomery regularly jailed misdemeanants upon the recommendation of its agent JCS for failure to pay fines, fees and costs. Article I, Section 16 Ala. Const. requires that all persons shall before conviction be bailable by
15Ala. Code Section 11-43-43 - All legislative powers and other powers granted to cities and towns
shall be exercised by the council, except those powers conferred on some officers by law or ordinance. The council shall perform the duties required by this title and other applicable provisions of law.
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sufficient surety, but despite this prohibition, misdemeanants were regularly jailed without lawful conviction under any contempt proceedings or probation violation.
124. The Plaintiff and some Class members were imprisoned, and some repeatedly, under these policies of Montgomery for their failure to pay fines, costs and the added fees mandated by the illegal contract between Montgomery and JCS. The Plaintiff was not accorded any hearing or consideration of his indigency before being jailed, nor was he provided any notice of charges, a hearing on charges levied that might result in imprisonment, or provided meaningful assistance of counsel before being imprisoned.
125. At the Montgomery Municipal Court, a person unable to fully pay fines and costs when levied was automatically placed on probation. The Montgomery system used JCS orders and forms even when no jail sentence was adjudicated. This was routinely done with no investigation into the indigency of the individual or the reasons for their inability to pay the fine and costs. The orders supplied by JCS under the agreement with Montgomery then required the individual to make payments to JCS, rather than the City clerk, of the fines, costs and additional monthly fees.
126. Montgomery, through its city clerks, actively enforced these requirements as part of the policy and procedures established under this contract and refused to accept payments of fines and costs referring those payers such as the Plaintiff instead to the JCS office.
127. Montgomery, through its contract, practice and policy, clothed its agent JCS with the appearance of state authority and has previously allowed JCS employees to carry
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badges.16 Under these practices and policies, JCS employees were allowed to attend each municipal court session and were referred to “probation officers” in the operation of the municipal court and in the City clerk’s office, though none ever had such authority under Alabama statutes.
128. Under this system at Montgomery, “offenders” are not permitted to pay fines at the City clerk’s office, but are instead directed to make all payments, including those for fines, restitution, probation fees and court costs, to JCS at the JCS office at hours and locations set by JCS.
129. Montgomery’s policy and practice also allowed JCS to control the money collected from persons such as Plaintiff and to determine how much each such municipal court “offender” must pay each month.
130. Montgomery’s policy and practice also allowed JCS to determine how much of the collected sums will be credited to the collection “services” of JCS each month and how much it will rebate to Montgomery toward the municipal court fines adjudged.
131. This system, as a matter of routine, violated the rights of persons such as the Plaintiff and the class he seeks to represent by imposing fines and charging fees to indigent persons with no hearing or consideration of their indigency.
132. Despite the lack of authority to do so, Montgomery, by its practice and policy,
16
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permitted, approved and conspired with JCS, a private actor with a financial stake in the outcome, to play the role of a neutral probation office and, at its discretion, to use threats of revoking probation, increased fines and costs, arrest and jail time for purposes of collection.
133. Under this system, should an individual fail to pay to the satisfaction of JCS, Montgomery permitted and approved JCS setting payment and reporting schedules and determining when the individual’s “probation” should be revoked, or when to impose additional fines and costs.
134. Under the system operated at Montgomery, JCS’s determination to incarcerate an individual and/or impose unreasonable release requirements was routinely accepted by city personnel without conducting delinquency or probation hearings and without making any findings, much less any determination of indigency despite the fact that city-paid ‘public defenders’ were assigned to many of these indigent folks, yet they were still subject to punitive action.
135. Montgomery permitted and conspired with JCS allowing it to control and dictate these functions and, as a consequence, this routinely resulted in court costs and fines which exceed the statutory maximum of $500 for municipal courts. Similarly, the periods of “probation” imposed for purposes of collecting fines and fees at Montgomery routinely exceeded the two-year statutory maximum, all of which result in action to detain and otherwise incarcerate individuals without any jurisdiction to do so.
136. The municipal court judges employed by Montgomery did no investigation of indigency as a matter of policy.
137. Despite the fact that many people are assigned a ‘public defender,’ these 33

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indigent people are not adequately represented and many times do not even know that an attorney has been assigned to their case. In fact, many times the ‘public defender’ never introduced himself/herself to their ‘client’ and did not speak to the court on the “‘clients’” behalf and kept no files on their “clients.”
138. Under the system at Montgomery, after simple fines are illegally converted to “probation” for payment, jail often resulted for the “offender” who did not meet the payment schedule set by JCS and enforced by Montgomery. This system used and accepted JCS’s conclusion of a “probation violation” or “failure to obey court order” and employed JCS recommendations for the issuance of a warrant of arrest to incarcerate individuals whose original obligation was only the payment of a fine.
139. Under this system at Montgomery, the Plaintiff was first fined, but then automatically placed on “probation” though no jail sentence was adjudicated. Though the Plaintiff was indigent, Montgomery made no investigation of that matter -- despite the fact that, unknown to him, Montgomery paid Kloess a ‘public defender’ to represent him. When the Plaintiff was unable to pay the fines, costs and additional JCS fees that Montgomery agreed to levy, recommendations from JCS were made and followed by Montgomery to incarcerate him for undetermined time unless a cash bond was made in amounts closely approximating the sums sought by JCS’s collection efforts.
140. Many individuals who cannot pay their fines and added fees, such as the Plaintiff and Class members, were jailed for charges against them for “failure to obey court order,” though there is no such state statute or city ordinance which defines this as a criminal act.
141. Though a determination of willful refusal to obey a court order as required by 34

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Ala. Code §15-18-62 can lawfully lead to incarceration, no such determinations were made under the system at Montgomery.
142. Montgomery adopted and implemented JCS’s conclusion of a “probation violation” or “failure to obey court order” and issued arrest warrants to incarcerate individuals whose original case had only been a fine.
143. In this process of converting fines to jail time, Montgomery did not give adequate notice to the “offender” of the nature of any lawful charge, it failed to conduct hearings, failed to make written findings concerning the reasons for any probation revocation or the evidence relied upon, and failed to make written findings concerning any willful nonpayment of fines and costs before imposing incarceration for failure to pay fines and costs.
144. Under this policy and practice at Montgomery, when a simple fine was transformed into a jail sentence of an undetermined time, the City failed to provide adequate counsel for the “offenders.” In fact, like the Plaintiff, many people are jailed for nonpayment despite the fact that ‘public defenders’ are retained by the City to represent the indigent,17 are listed as attorneys on their case, and are paid to supposedly represent them. Those public defenders like Kloess are paid from fines collected on convictions, do not routinely oppose the charges made, and do not raise issues of indigency nor request hearings for that purpose.
145. The public defenders have a policy and practice of not requesting indigency hearings despite the fact that the only clients they represent under the contract with the
17 See Doc. 1-2 - contract for Kloess.
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City are indigents. This policy and practice of not requesting indigency hearings benefits both the City and the ‘public defender,’ as all are enriched by avoiding the constitutional due process requirements and demanding money from the poor.
146. After jailing an “offender,” Montgomery acted to further violate the Plaintiff’s constitutional rights by arbitrarily granting early release to some individuals while denying it to others under similar circumstances without any rational basis other than payments it has secured. As a result, there was no consistent standard of review or logical system under which those incarcerated were granted release.
147. Under the practice and policies used at Montgomery, after an adjudication under which a fine is levied, additional fees, costs, and other charges are added to the “offender” bill including, in some cases, those relating to charges from years earlier.
148. As a proximate consequence of this deprivation of due process, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent.
COUNT TWO DENIAL OF DUE PROCESS AGAINST JCS, CHC and CHCC (‘JCS’) Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 149. The Plaintiff avers that JCS, acting under color of state law in violation of 42 U.S.C. § 1983, has denied her right to due process and has denied those rights to the
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class members and has done so in concert and by agreement conspiring with Montgomery. 150. JCS operates a “for profit” enterprise that markets its services to various
municipal and county governments and has contracted with over 100 cities and towns throughout Alabama including Montgomery. JCS’ marketing approach to these cities emphasizes that its fees will be paid by the “offender” before the municipal court and that its efforts will improve collection of court fines and costs at no cost to the City.
151. JCS routinely uses a form contract to establish its relationship with its customer cities and similarly trains its employees using a training manual replete with forms for court use and for contacting the “offenders” from whom it is seeking collection. As a result, the JCS approach is highly systemized and uniform.
152. Under the system established by JCS, its employees are not required to have criminal justice or legal training, nor are they required to have any social work education or meet any minimum law enforcement standards as is required of state probation officers. Instead, JCS requires only that its employees be 21 years old, a non felon, with two years of college who complete 40 hours of training by JCS on its processes. On satisfying those requirements, JCS employees are then labeled “Probation Officers” and were permitted to carry the JCS issued badge in collecting its fees, court fines and costs.
153. Under this system and by agreement with Montgomery, many administrative and judicial functions of Montgomery’s municipal court were unlawfully delegated to JCS, clothing it with the color of state law for the collection of court fines, costs and private fees.
154. The agreement drafted by JCS and signed by the Montgomery mayor and JCS attests that the Montgomery municipal “court agrees that each court order shall provide for the following:
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a probation fee of $40.00 per month flat fee One time probationer set up fee of $10.00. . . . " (emphasis added). 155. JCS was, by virtue of this no bid contract with Montgomery, clothed with the appearance of a state actor and its actions were inextricably interwoven with those of Montgomery with which it conspired and acted in concert. Under its contract and its operations with Montgomery, JCS employees represented itself to the Plaintiff and class members to be “probation officers” acting as agent “on behalf of City of Montgomery.” 156. The JCS system at Montgomery provided “Order of Probation” forms to the municipal court with the printed requirement on each form that the “offender” pay JCS $40 per month plus $10 for a file set up charge. The orders supplied by JCS required the individual to make payments to JCS of the fines, costs and additional monthly fees as required under its contract with the City. 157. Under the JCS contract and procedures, the resulting policy and practice at Montgomery’s municipal court automatically required “probation” for any person who, despite having no jail sentence, was unable to fully pay the fine and costs when levied by the municipal court. 158. The Plaintiff was initially placed on “probation” with JCS under this practice despite the fact that he had not been sentenced to any jail time. 159. That “probation” requirement, under agreement between JCS and Montgomery, was required to be part of every printed order at Montgomery’s municipal court and also required payment of monthly fees to JCS. 160. The policy and practice method of JCS, after requiring probation orders for those unable to immediately pay their fines, and adding additional, monthly fees for JCS,
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also imposed incarceration for a failure to pay fines, fees and costs when payment was not forthcoming as JCS demanded.
161. Incarceration of individuals who could not pay their fines and added fees, such as the Plaintiff and class members, was accomplished by JCS leveling charges against them for “failure to obey court order,” though there is no such state statute or city ordinance which defines this as a criminal act or by petition to revoke the “probation” based upon JCS’s conclusion that the person had not paid as directed.
162. Though a determination of willful refusal to obey a court order as required by Ala. Code §15-18-62 can lawfully lead to incarceration, no such determinations were made under the JCS system and Montgomery’s policy.
163. JCS expressly denies any responsibility to determine indigency of the “offenders” such as the Plaintiff or to determine any reasons for an inability to pay the fine. Therefore, when an “offender” is unable to pay the fine and additional fees required by JCS, JCS and Montgomery cooperated with each other to issue arrest warrants requested by JCS based upon claims of “failure to obey court order.”
164. The Plaintiff was indigent at the time the traffic fines were levied against him in Montgomery. His indigency was also evidenced by the fact that he could not pay the cash bond Montgomery demanded for his release from jail. The Plaintiff and the class members were all unable to pay the fines and fees demanded by JCS due to their indigency and some were incarcerated as stated in detail in the above facts upon JCS’s recommendation to its conspirator Montgomery which then used its police force to carry out the arrest.
165. The incarceration process used by JCS includes the use of JCS drafted 39

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forms that it sent to “probationers” and JCS forms it used to request that a person be jailed. 166. JCS’s recommendations to jail people until a certain sum of money was paid
were then approved by administrative personnel at Montgomery without a hearing to determine indigency.
167. The JCS system and its “Probation Tracker” software is highly systemized and focuses on collections of fines and its fees -- not traditional probation services. That collection focus allows the “offenders” to mail in payments if they live 30 miles from the JCS office. See Doc. 1-5. The training manual used by JCS instructs its employees on the use of its computer systems in tracking the payments made by the “offenders” and provides court forms to order probation and payments to JCS. The JCS training system also provided sample letters for use after probation was ordered, threatening the “offender” that “a warrant will be issued for your arrest” and that their “court date cannot and will not be reset.” See Docs. 1-6 and 1-7. Similar JCS forms instructed the “offender” that they could avoid the court date if they paid an amount determined by JCS. See Doc 1-8. Notice to the offender of these JCS set “court dates” was, with the City’s knowledge, handled by JCS by regular mail with no proof of service and no consideration of returned mail showing no receipt. Similarly, the setting for any hearing on petitions instituted by JCS was done by JCS and listed on a separate “JCS Docket” which JCS established and which Montgomery then adopted. Finally, the JCS manual instructs its employees on the issuance of warrants of arrest and provides forms for that purpose. See Doc.1-9.
168. The agreement and forms drafted by JCS are uniformly used by it and were used at Montgomery.
169. Clothing JCS with the color of state law and authority was purposely 40

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structured under the JCS system for it to extort and collect its fees, fines and costs from citizens such as the Plaintiff, and is accomplished by providing JCS control over the money collected, the payment amount required, schedule of appointments, the location where the money must be paid and control over how much will be credited for each payment to the collection “services” of JCS each month as opposed to how much of it would be rebated to Montgomery toward the fines adjudged.
170. Despite the lack of authority to do so but in concert with Montgomery, JCS, at its discretion, used threats of revoking probation, increased fines and costs and jail time for purposes of collection. Under this system, when an individual failed to pay to the satisfaction of JCS, JCS would determine that the individual’s “probation” should be revoked. Under the system operated jointly by Montgomery and JCS, JCS’ determination to incarcerate an individual was routinely accepted without conducting delinquency or probation hearings and without making any findings, much less any determination of indigency or appointment of counsel before taking such punitive action.
171. The actions and efforts of JCS routinely resulted in court costs, fines and fees which exceed the jurisdictional maximum of $500 for municipal courts. Similarly, the periods of “probation” imposed for purposes of collecting fines and fees for JCS routinely exceed the two-year statutory maximum, all of which resulted in JCS taking action to detain and otherwise incarcerate individuals without any jurisdiction to do so.
172. This system at Montgomery used JCS’ conclusion of a “probation violation” or “failure to obey court order” and employed JCS recommendation for the issuance of warrants to incarcerate individuals whose original case had only been a fine.
173. In this process of converting fines to jail time, JCS and Montgomery did not 41

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give adequate notice of the nature of any lawful charge, failed to conduct hearings, failed to make written findings concerning the reasons for revoking probation or the evidence relied upon, and failed to make written findings concerning any willful nonpayment of fines and costs before imposing incarceration for failure to pay fines and costs.
174. Under this joint policy and practice of JCS and Montgomery, when a simple fine was transformed into a jail sentence of an undetermined time, JCS and Montgomery also failed to provide counsel for the “offenders.”
175. After jailing an “offender,” JCS and Montgomery acted to further violate the Plaintiff and class members’ constitutional rights by arbitrarily granting early release to some individuals while denying it to others under similar circumstances without any rational basis based upon the whim of JCS and payments it has secured. As a result, there was no consistent standard of review or logical system under which those incarcerated were granted release.
176. Under the practice and policy of JCS used at Montgomery, after a fine is levied, additional fees, costs and other charges were added including, in some cases, those relating to charges years earlier.
177. The Plaintiff and some Class members were imprisoned, and some repeatedly, under the JCS system implemented at Montgomery for their failure to pay fines, costs and the added fees mandated by the illegal contract between Montgomery and JCS. The Plaintiff was not accorded any hearing or consideration of his indigency before being jailed, nor was he provided any notice of charges, a hearing on charges levied that might result in imprisonment, or provided meaningful assistance of counsel before being imprisoned.
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178. At the City of Montgomery, under the JCS system, a person unable to fully pay fines and costs when levied was automatically placed on probation. The JCS system used at Montgomery used JCS orders and forms even when no jail sentence was adjudicated. This was routinely done with no investigation into the indigency of the individual or the reasons for their inability to pay the fine and costs. The orders supplied by JCS under the agreement with Montgomery then required the individual to make payments to JCS, rather than the City clerk, of the fines, costs and additional monthly fees.
179. As part of the JCS system and procedures established under this contract with Montgomery, the city refused to accept payments of fines and costs, referring those payers such as the Plaintiff instead to the JCS office.
180. Once clothed with the appearance of state authority, JCS allowed its employees to carry badges,18 attended each municipal court session and referred to themselves as “probation officers” and agents for the City, though none ever had such authority as “probation officers” under Alabama statutes.
181. Under the JCS system, persons such as the plaintiffs are directed to make all payments, including those for fines, restitution, probation fees and court costs, to JCS at the JCS office at hours and locations set by JCS.
182. This system gave control the money collected from persons such as Plaintiff
18
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to JCS which then determined how much each such municipal court “offender” must pay each month and how much would be credited to the collection “services” of JCS each month and how much it will rebate to Montgomery toward the municipal court fines adjudged.
183. This system, as a matter of routine, violated the rights of persons such as the Plaintiff and the class he seeks to represent by imposing fines and charging fees to indigent persons with no hearing or consideration of their indigency.
184. Despite the lack of authority to do so, JCS, a private actor with a financial stake in the outcome, playing the role of a neutral probation office, at its discretion, used threats of revoking probation, increased fines and costs, arrest and jail time for purposes of extorting the collection.
185. Under this system, JCS set payment amounts and reporting schedules and recommended when the individual’s “probation” should be revoked, or when to impose additional fines and costs.
186. Under the system operated at Montgomery, JCS’s determination to incarcerate an individual and/or impose unreasonable release requirements was routinely accepted by city personnel without conducting delinquency or probation hearings and without making any findings, much less any determination of indigency despite the fact that city-paid ‘public defenders’ were assigned to many of these indigent folks, yet they were still subject to punitive action.
187. JCS conspired with Montgomery to control and dictate these functions and, as a consequence, this routinely resulted in court costs and fines which exceed the statutory maximum of $500 for municipal courts. Similarly, the periods of “probation”
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imposed for purposes of collecting fines and fees at Montgomery routinely exceeded the two-year statutory maximum, all of which result in action to detain and otherwise incarcerate individuals without any jurisdiction to do so.
188. JCS nor, the municipal court judges or public defenders employed by Montgomery did any investigation of indigency as a matter of policy.
189. Despite the fact that many people are assigned a ‘public defender,’ these indigent people are not adequately represented and many times do not even know that an attorney has been assigned to their case. In fact, many times the ‘public defender’ never introduced himself/herself to their ‘client’ and did not speak to the court on the “‘clients’” behalf and kept no files on their “clients.”
190. Under the JCS system at Montgomery, after simple fines are illegally converted to “probation” for payment, jail often resulted for the “offender” who did not meet the payment schedule set by JCS and which in turn is enforced by Montgomery. This system used and accepted JCS’s conclusion of a “probation violation” or “failure to obey court order” and employed JCS’s recommendations for the issuance of a warrant of arrest to incarcerate individuals whose original obligation was only the payment of a fine.
191. Under the JCS system at Montgomery, the Plaintiff was first fined, but then automatically placed on “probation” though no jail sentence was adjudicated. Though the Plaintiff was indigent, neither JCS nor Montgomery made any investigation of that matter -despite the fact that, unknown to him, Montgomery paid a ‘public defender’ to represent him. When the Plaintiff was unable to pay the fines, costs and additional JCS fees, recommendations from JCS were made and followed by Montgomery to incarcerate him for undetermined time unless a cash bond was made in amounts closely approximating the
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sums sought by JCS’s collection efforts. 192. Under this policy and practice at Montgomery, when a simple fine was
transformed into a jail sentence of an undetermined time, the City failed to provide adequate counsel for the “offenders.” In fact, like the Plaintiff, many people are jailed for nonpayment despite the fact that ‘public defenders’ are retained by the City to represent the indigent,19 are listed as attorneys on their case, and are paid to supposedly represent them. Those public defenders like Kloess are paid from fines collected on convictions, do not routinely oppose the charges made, and do not raise issues of indigency nor request hearings for that purpose.
193. The public defenders have a policy and practice of not requesting indigency hearings despite the fact that the only clients they represent under the contract with the City are indigents. This policy and practice of not requesting indigency hearings benefits both the City and the ‘public defender’, as well as JCS, since all are enriched by avoiding the constitutional due process requirements and demanding money from the poor.
194. As a proximate consequence of this deprivation of due process, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent.
COUNT THREE VIOLATION OF THE FOURTH AMENDMENT
19 (Doc.1-2) - contract for Kloess.
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CITY OF MONTGOMERY Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 195. The Plaintiff avers that Montgomery, acting under color of state law in violation of 42 U.S.C. § 1983, has violated their Fourth Amendment rights and the rights of the Class members to be free from unreasonable seizure. 196. By a no bid contract as discussed in detail above, Montgomery illegally delegated many administrative and judicial functions of its municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees. 197. In addition to a denial of due process guaranteed the Plaintiff under the Fourteenth Amendment, the arrest and detainment of these “offenders” who could not pay the fine imposed under this system constitutes a “seizure” in violation of the Fourth Amendment as well. 198. Under Alabama law, a simple fine can only be converted into jail time if the court makes findings under Ala. Code, Section 15-18-62 (1975) that a defendant has willfully failed to pay the fines. 199. Montgomery’s policy and practice of including probation with JCS in every municipal court order created the process by which misdemeanants were incarcerated without a willfulness hearing as required by Ala. Code, Section 15-18-62, and in violation of Alabama case law, the Alabama Constitution and the U.S. Constitution. 200. Under Alabama case law, the Alabama Constitution and the U.S. Constitution, an indigent defendant cannot be required to serve jail time for nonpayment
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of fines or costs.20
201. Despite longstanding legal precedent prohibiting incarceration for one’s
inability to pay a fine/debt, Montgomery’s personnel, working in conjunction with JCS,
unlawfully arrested and jailed the Plaintiff for his inability to pay a simple fine with added
fees and costs dictated by the Montgomery contract with JCS.
202. Montgomery’s police, municipal court processes and jail access all became
tools of collection under forms and processes issued by its agent JCS and which were
routinely followed by Montgomery. Montgomery’s policy and practice, after clothing its
agent JCS with the appearance of state actor acting on their behalf, allowed JCS to
threaten arrest or revocation of probation and/or incarceration in order to coerce these
indigents to pay the city fines and fees for misdemeanor offenses not otherwise subject to
jail time under the original adjudication.
203. When these threats failed to produce sufficiently, Montgomery police, clerks
and other personnel, cooperated with JCS to arrest and jail the Plaintiff class members
20It is clear as a matter of constitutional law that an indigent defendant cannot be required to serve jail time for nonpayment of fine and costs. Tate v. Short, 401 U.S. 395 (1971); Lingle v. State, 51 Ala.App. 210, 283 So.2d 660 (1973); Smith v. State 51 Ala.App. 212, 283 So.2d 662 (1973). "To imprison an indigent when in the same circumstances an individual of financial means would remain free constitutes a denial of equal protection of the laws." Barnett v. Hopper, 548 F.2d 550, 554 (5th Cir.1977). This is not a case of a defendant who, though capable of paying a fine, refuses or neglects to do so.
Although Section 15-22-52, Alabama Code 1975, states that payment of fine and costs may be made a condition of suspension of sentence or probation, in State v. Esdale, 253 Ala. 550, 45 So.2d 865 (1950), our Supreme Court indicated that such a condition was contrary to our constitution.
"These benefits (probation and suspension of sentence) are not the subject of bargain and sale to be conditioned on the payment of costs and fees assessed as an incident to the prosecution and trial and to condition these benefits on the payment of such costs and fees violate the letter and spirit of Section 13 of the Constitution of 1901 which provides that 'justice shall be administered without sale, denial or delay.'" Esdale, 253 Ala. at 553.
Crutcher v. State, 439 So. 2d 725; 726 (Ala. Crim. App. 1983)
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such as Aldaress Carter. 204. The jailing of class members by Montgomery, as described under the
specific facts stated above, constitutes unlawful seizures in violation of the Fourth Amendment.21
205. As a proximate consequence of this unlawful seizure, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, all while being indigent.
COUNT FOUR VIOLATION OF THE FOURTH AMENDMENT BY JCS, CHC and CHCC (‘JCS’)
Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof.
206. The Plaintiff avers that JCS, acting under color of state law in violation of 42 U.S.C. § 1983, violated his Fourth Amendment rights and the rights of the class members to be free from unreasonable seizure and has done so in concert and by agreement conspiring with Montgomery.
207. By no bid contract as discussed in detail above, Montgomery illegally delegated many administrative and judicial functions of its municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees.
208. In addition to a denial of due process guaranteed the Plaintiff under the
21 “Fourth Amendment seizure [occurs] . . . when there is a governmental termination of freedom of movement through means intentionally applied." (internal quotation marks and emphasis omitted)); Oliver, 510 U.S. at 274 (plurality opinion) ("The Framers considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it.").
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Fourteenth Amendment, the arrest and detainment of these “offenders” who could not pay
the fine imposed under this system constitutes a “seizure” in violation of the Fourth
Amendment as well.
209. Under Alabama law, a simple fine can only be converted into jail time if the
court makes findings under Ala. Code, Section 15-18-62 (1975) that a defendant has
willfully failed to pay the fines.
210. Under the system created and implemented by JCS at Montgomery including
probation with JCS in every municipal court order created the process by which
misdemeanants were incarcerated without a willfulness hearing as required by Ala. Code,
Section 15-18-62, and in violation of Alabama case law, the Alabama Constitution and the
U.S. Constitution.
211. Under Alabama case law, the Alabama Constitution and the U.S.
Constitution, an indigent defendant cannot be required to serve jail time for nonpayment of fines or costs.22
22It is clear as a matter of constitutional law that an indigent defendant cannot be required to serve jail time for nonpayment of fine and costs. Tate v. Short, 401 U.S. 395 (1971); Lingle v. State, 51 Ala.App. 210, 283 So.2d 660 (1973); Smith v. State 51 Ala.App. 212, 283 So.2d 662 (1973). "To imprison an indigent when in the same circumstances an individual of financial means would remain free constitutes a denial of equal protection of the laws." Barnett v. Hopper, 548 F.2d 550, 554 (5th Cir.1977). This is not a case of a defendant who, though capable of paying a fine, refuses or neglects to do so.
Although Section 15-22-52, Alabama Code 1975, states that payment of fine and costs may be made a condition of suspension of sentence or probation, in State v. Esdale, 253 Ala. 550, 45 So.2d 865 (1950), our Supreme Court indicated that such a condition was contrary to our constitution.
"These benefits (probation and suspension of sentence) are not the subject of bargain and sale to be conditioned on the payment of costs and fees assessed as an incident to the prosecution and trial and to condition these benefits on the payment of such costs and fees violate the letter and spirit of Section 13 of the Constitution of 1901 which provides that 'justice shall be administered without sale, denial or delay.'" Esdale, 253 Ala. at 553.
Crutcher v. State, 439 So. 2d 725; 726 (Ala. Crim. App. 1983)
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212. Despite longstanding legal precedent prohibiting incarceration for one’s inability to pay a fine/debt, JCS instituted the issuance of arrest warrants for the plaintiff and many class members when JCS knew these people could not pay the fines and fees JCS demanded and despite the fact that many had no jail time assessed on their original conviction.
213. Montgomery’s police, municipal court processes and jail access all became tools of collection under forms and processes issued by its agent JCS and which were routinely followed by Montgomery. Montgomery’s policy and practice, after clothing its agent JCS with the appearance of state actor acting on their behalf, allowed JCS to threaten arrest or revocation of probation and/or incarceration in order to coerce these indigents to pay the city fines and fees for misdemeanor offenses not otherwise subject to jail time under the original adjudication.
214. Unless prompt payment of its fees and fines was made as determined by JCS, JCS took steps to have the “probation” revoked or initiated charges for “failure to obey court order” beginning the process of incarcerating an individual who otherwise would never have seen jail under the original adjudication.23
215. Many of the class members were unlawfully jailed at Montgomery under the JCS process as described and under the specific facts as stated above all of which constitute unlawful seizures in violation of the Fourth Amendment.24
23 “Fourth Amendment seizure [occurs] . . . when there is a governmental termination of freedom of movement through means intentionally applied." (internal quotation marks and emphasis omitted)); Oliver, 510 U.S. at 274 (plurality opinion) ("The Framers considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it.").
24 “Fourth Amendment seizure [occurs] . . . when there is a governmental termination of freedom of movement through means intentionally applied." (internal quotation marks and emphasis omitted)); Oliver, 510 U.S. at 274 (plurality opinion) ("The Framers considered the matter of pretrial deprivations of
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216. As a proximate consequence of this unlawful seizure, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, all while being indigent.
COUNT FIVE VIOLATION OF THE SIXTH AMENDMENT
CITY OF MONTGOMERY Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 217. The Plaintiff avers that Montgomery, acting under color of state law in violation of 42 U.S.C. § 1983, has violated his Sixth Amendment rights and the rights of the Class members. 218. By a no bid contract as discussed in detail above, Montgomery illegally delegated many administrative and judicial functions of their municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees. 219. Under the policy and practice at Montgomery, when a simple fine was transformed into a jail sentence of an undetermined time, adequate counsel was not provided for the indigent “offenders.” 220. The Plaintiff was initially ordered to pay only a fine at the Montgomery Municipal Court, but due to his inability to pay, he was placed on “probation” under JCS pursuant to JCS form orders and the contract approved by Montgomery.
liberty and drafted the Fourth Amendment to address it.").
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221. The no bid contract signed by Montgomery approved a “probation” process as essentially a collection vehicle for the City to collect its fines. That agreement, as discussed above, conflicts with state statutes, violates state constitutional requirements for separation of power in the branches of government, and exceeds the authority of the mayor and council.
222. Under that agreement, Montgomery allowed JCS to add monthly fees to the “offender” who had already disclosed an inability to pay the fine when adjudicated and despite the fact that JCS provided no services to them.
223. Under the agreement and with the knowledge and approval of Montgomery, JCS represented itself as acting on behalf of the City which clothed it with that appearance.
224. Under this agreement, Montgomery unlawfully invaded the province of the municipal court and mandated that each order there contain provisions for fees to JCS.
225. By this agreement, simple fines without jail sentences were automatically and illegally converted to ‘probation’ through JCS if the offender could not promptly pay the entire fine and costs.
226. After this conversion from a fine to ‘probation,’ threats of jail were used by JCS with the approval of Montgomery and actual incarceration then takes place by police and other City personnel if the fines, fees and costs were not paid as scheduled.
227. The jeopardy of jail time was not present when the simple fines were adjudicated against the Plaintiff and the Class members and would not have been present but for Montgomery’s policy and practice adopting and using the JCS collection system in the administration of its court system illegally requiring “probation” for simple fines.
228. With the Plaintiff’s inability to pay and the JCS focus on collections, charges 53

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are routinely initiated claiming “probation violation” or “failure to appear” or “failure to obey court order.” These are initiated by JCS under its system and then approved and enforced by Montgomery personnel.
229. At that point, jail sentences become potential jeopardy for the “offenders” such as the Plaintiff on charges that have never before been subjected to meaningful adversarial testing. Nevertheless, neither JCS nor Montgomery routinely provided adequate counsel for those “offenders.”
230. At the point when jail sentences become potential, Montgomery does not provide notice of charges, nor are findings made as required for conviction. Similarly, though JCS also regularly proposes a charge of “failure to obey court order” which Montgomery then pursues, that is not a valid offense. If willful failure to pay under state statutes such as Ala. Code Section 15-18-62 is used as the basis, under the City’s system with JCS, there is no finding or hearing on the issue of willfulness.
231. The named Plaintiff, Aldaress Carter, while indigent, was unlawfully jailed by Montgomery under this JCS system and was not provided meaningful assistance of counsel. In fact, Mr. Carter was surprised to learn that Mr. Kloess was appointed to his case that resulted in his incarceration. Mr. Kloess never identified himself to Mr. Carter, never met with him and, despite being paid to represent indigents, Mr. Kloess never advocated to the court on Mr. Carter’s behalf to raise any issue of his indigency as a bar to incarceration for failure to pay. This lack of representation by Kloess is indicative of his conflicted position under a contract which pays him for costs taxed on convictions. His position as “indigent defense counsel” has become essentially another part of the collection process utilized by the city and does not present adequate representation for the
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indigent class members such as Mr. Carter. 232. These actions constitute a denial of the Plaintiff’s rights secured by the Sixth
Amendment. 233. As a proximate consequence of this violation of their Sixth Amendment rights,
the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent.
COUNT SIX VIOLATION OF THE SIXTH AMENDMENT BY JCS, CHC and CHCC (‘JCS’)
Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof.
234. The Plaintiff avers that JCS, acting under color of state law in violation of 42 U.S.C. § 1983, has violated his Sixth Amendment rights and the rights of the Class members.
235. By a no bid contract as discussed in detail above, Montgomery illegally delegated many administrative and judicial functions of their municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees. JCS performed those functions in a manner which violated the rights of the Class members.
236. Under this joint policy and practice of JCS at Montgomery, when a simple fine was transformed into a jail sentence of an undetermined time, adequate counsel was not
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provided for the indigent “offenders.” 237. The Plaintiff was initially ordered to pay only a fine at the Montgomery
Municipal Court, but due to his inability to pay, he was placed on “probation” under JCS pursuant to JCS form orders and the contract approved by Montgomery.
238. The JCS “probation” process is essentially a collection vehicle for the City to collect its fines which adds monthly fees to the “offender” who had already disclosed an inability to pay the fine. JCS provided no services to the Plaintiff, but represents itself as acting on behalf of which clothed it with that appearance.
239. Under that process at Montgomery, JCS has added monthly fees to “offenders” who had already disclosed an inability to pay the fine when levied and despite the fact that JCS provided no services to them.
240. Though representing itself as an agent of the City, JCS denies any responsibility to investigate the indigency of the “offenders” and thus took no action to determine or consider disabilities, employment status or other reasons justifying non payment.
241. Simple fines without jail sentences were automatically and illegally converted to “probation” under the JCS system used at Montgomery if the offender could not promptly pay the entire fine and costs.
242. After this conversion from a fine to probation, JCS makes threats of jail and actual incarceration if the fines, fees and costs were not paid as demanded by JCS.
243. Under its illegal agreement with Montgomery, simple fines without jail sentences were automatically and illegally converted to ‘probation’ through JCS if the offender could not promptly pay the entire fine and costs.
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244. After this conversion from a fine to ‘probation,’ threats of jail were used by JCS with the approval of Montgomery and actual incarceration then takes place by police and other City personnel if the fines, fees and costs were not paid as scheduled.
245. The jeopardy of jail time was not present when the simple fines were adjudicated against the Plaintiff and the Class members and would not have been present but for the JCS collection system used at Montgomery.
246. With the Plaintiff’s inability to pay and the JCS focus on collections, charges are routinely initiated claiming “probation violation” or “failure to appear” or “failure to obey court order.” These are initiated by JCS under its system and then approved by Montgomery personnel.
247. At that point, jail sentences become potential jeopardy for the “offenders” such as the Plaintiff on charges that have never before been subjected to meaningful adversarial testing. Nevertheless, neither JCS nor Montgomery routinely provided adequate counsel for those “offenders.”
248. Though JCS also regularly proposes a charge of “failure to obey court order” which Montgomery then pursues, that is not a valid offense. If willful failure to pay under state statutes such as Ala. Code Section 15-18-62 is used as the basis, under the City’s system with JCS, there is no finding or hearing on the issue of willfulness.
249. The named Plaintiff, Aldaress Carter, while indigent, was unlawfully jailed by Montgomery under this JCS system and was not provided meaningful assistance of counsel. In fact, Mr. Carter was surprised to learn that Mr. Kloess was appointed to his case that resulted in his incarceration. Mr. Kloess never identified himself to Mr. Carter, never met with him and, despite being paid to represent indigents, Mr. Kloess never
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advocated to the court on Mr. Carter’s behalf to raise any issue of his indigency as a bar to incarceration for failure to pay. This lack of representation by Kloess is indicative of his conflicted position under a contract which pays him for costs taxed on convictions. His position as “indigent defense counsel” has become essentially another part of the collection process utilized by the city and did not provide adequate representation for the indigent class members such as Mr. Carter.
250. These actions constitute a denial of the Plaintiff’s rights secured by the Sixth Amendment.
251. As a proximate consequence of this violation of their Sixth Amendment rights, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent. Incarceration of Class members routinely followed the decision by JCS to institute proceedings to coerce payments.
COUNT SEVEN VIOLATION OF THE EIGHTH AMENDMENT
CITY OF MONTGOMERY Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 252. The Plaintiff avers that Montgomery, acting under color of state law in violation of 42 U.S.C. § 1983, violated the Eighth Amendment prohibitions against excessive fines, cruel and unusual punishment and excessive bail, in its actions with the
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Plaintiff and Class members and has done so in concert and by agreement conspiring with JCS.
253. As discussed in detail above, Montgomery has illegally delegated many administrative and judicial functions of their municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees.
254. The Eighth Amendment prohibits cruel and unusual punishment and, as such, limits the kinds of punishment that can be imposed on those convicted of crimes, proscribes punishment grossly disproportionate to the severity of the crime and imposes substantive limits on what can be made criminal and punished as such and prohibits excessive bail.
255. Under Alabama law, a municipal court has no authority to award a fine on any particular charge over $500, Ala. Code § 13A-5-12(a)(3), and even lawful probation for misdemeanors cannot, by statute, extend beyond a two-year period. See Ala. Code § 1522-54(a).
256. As mentioned above, Ala. Code § 15-18-62 is the only statutory method under which a fine levied by a court on adjudication can be converted to imprisonment, but that can legally occur only where the court finds willful nonpayment of the fine and cost.
257. Even upon proper notice and a finding of willful nonpayment under § 15-1862, the conversion of fine to imprisonment has a specific ratio such that a fine not to exceed $500 shall result in no more than 20 days. See Ala. Code § 15-18-62(2).
258. Rule 26.11 of the Alabama Rules of Criminal Procedure provides the method for dealing with fines, restitution and the failure to pay under a variety of circumstances,
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none of which were followed by Montgomery. 259. Under these facts, Montgomery illegally contracted and conspired with JCS
to add monthly fees and costs to each municipal court order. This agreement increased the substantial fines levied against indigent persons such as the Plaintiff.
260. Neither Montgomery, nor its agent JCS, made inquiries into the indigency of the “offenders” in the system. As a result, the Plaintiff’s failure to make payments as dictated resulted in threats of arrests. If threats failed to produce the demanded payments, arrest and incarceration followed under the process based upon JCS’s representation that the offender had “failed to obey a court order” or had “failed to appear” or had violated “probation.”
261. These fines exceeded the statutory limits of the municipal court and the incarceration periods imposed for the failure to pay exceeded those in Ala. Code §15-1862.
262. The practice and policy of imposing jail time for an inability to pay its fees, fines and costs violate the Eighth Amendment prohibition against excessive fines and cruel and unusual punishment.
263. The named Plaintiff was at all pertinent times indigent and yet was incarcerated by City personnel for his inability to pay fines, fees and costs.
264. After being arrested, JCS, with the City, calculates the amount claimed to be owed for fines, fees and costs which is then used as the bail required for release without consideration of factors justifying release on recognizance or other factors provided for under Ala Rule Crim Pro. 7.2. This practice results in excessive bail requirements in violation of the Eighth Amendment.
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265. As a result of the violation of the Eighth Amendment, the Plaintiff was subjected to excessive fines, fees, and costs beyond the jurisdictional limits of the municipality and violation of the prohibition against excessive fines and cruel and unusual punishment and excessive bail.
266. As a proximate consequence of this violation of his Eighth Amendment rights, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent.
COUNT EIGHT VIOLATION OF THE EIGHTH AMENDMENT BY JCS, CHC and CHCC (‘JCS’)
Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof.
267. The Plaintiff avers that JCS, acting under color of state law in violation of 42 U.S.C. § 1983, has violated the Eighth Amendment prohibition against excessive fines, excessive bail and cruel and unusual punishment in its actions with the Plaintiff and Class members and has done so in concert and by agreement conspiring with Montgomery.
268. As discussed in detail above, Montgomery has illegally delegated many administrative and judicial functions of their municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees.
269. The Eighth Amendment prohibits cruel and unusual punishment and, as such, limits the kinds of punishment that can be imposed on those convicted of crimes,
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proscribes punishment grossly disproportionate to the severity of the crime and imposes substantive limits on what can be made criminal and punished as such and prohibits excessive bail.
270. Under Alabama law, a municipal court has no authority to award a fine on any particular charge over $500, Ala. Code § 13A-5-12(a)(3), and even lawful probation for misdemeanors cannot, by statute, extend beyond a two-year period. See Ala. Code § 1522-54(a).
271. As mentioned above, Ala. Code § 15-18-62 is the only statutory method under which a fine levied by a court on adjudication can be converted to imprisonment, but that can legally occur only where the court finds willful nonpayment of the fine and cost.
272. Even upon proper notice and a finding of willful nonpayment under § 15-1862, the conversion of fine to imprisonment has a specific ratio such that a fine not to exceed $500 shall result in no more than 20 days. See Ala. Code § 15-18-62(2).
273. Rule 26.11 of the Alabama Rules of Criminal Procedure provides the method for dealing with fines, restitution and the failure to pay under a variety of circumstances, none of which were followed by Montgomery.
274. Under these facts, JCS, operating under an illegal contract with Montgomery, increased the financial burden on the plaintiffs by adding additional monthly fees and costs to their balance after fines were levied against these indigent persons. For many class members, the total amounts demanded by JCS regularly exceeded the $500 limitation on the municipal court authority.
275. Under the JCS extortion system at Montgomery, though JCS made no inquiry
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into the indigency of the “offenders” in the system or the reason for their failure to make payments, JCS increased the amount demanded from the Plaintiffs to the point that even partial payments could not be made.
276. As a result, the Plaintiff’s failure to make payments as dictated resulted in threats of arrests. If threats failed to produce the demanded payments, arrest and incarceration followed under the process based upon JCS’s representation that the offender had “failed to obey a court order” or had “failed to appear” or had violated “probation.”
277. These fines exceeded the statutory limits of the municipal court and the incarceration periods imposed for the failure to pay exceeded those in Ala. Code §15-1862.
278. The practice and policy of imposing jail time for an inability to pay its fees, fines and costs violate the Eighth Amendment prohibition against excessive fines and cruel and unusual punishment.
279. The named Plaintiff was at all pertinent times indigent and yet was incarcerated by City personnel for his inability to pay fines, fees and costs.
280. After being arrested, JCS, with the City, calculates the amount claimed to be owed for fines, fees and costs which is then used as the bail required for release without consideration of factors justifying release on recognizance or other factors provided for under Ala. Rule Crim. Pro. 7.2. This practice results in excessive bail requirements in violation of the Eighth Amendment.
281. As a result of the violation of the Eighth Amendment, the Plaintiff was subjected to excessive fines, fees, and costs beyond the jurisdictional limits of the
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municipality and violation of the prohibition against excessive fines and cruel and unusual punishment and excessive bail.
282. As a proximate consequence of this violation of his Eighth Amendment rights, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent.
COUNT NINE DENIAL OF EQUAL PROTECTION
CITY OF MONTGOMERY Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 283. Montgomery has acted under color of state law in violation of 42 U.S.C. § 1983 to deny the Plaintiff and Class members’ rights to equal protection secured by the Fourteenth Amendment and did so in concert by agreement conspiring with JCS. 284. This was accomplished by the illegal contractual agreement Montgomery had with JCS. Under that agreement, the actions of its agent JCS were inextricably intertwined in a practice and policy at Montgomery. That practice and policy automatically required “probation” for any person who, despite having no jail sentence, was financially unable to fully pay the fine and costs when levied by the municipal court. That probation requirement was part of the agreement between Montgomery and JCS and was part of every printed order at the municipal court and required payment of monthly fees to JCS.
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285. Persons who are financially able to fully pay the levied fine and costs at Montgomery are not placed on “probation.” As a result, those persons are not charged any fees for JCS and are not subjected to threats of arrest and incarceration in the collection process.
286. For those such as the Plaintiff who were unable to fully pay the fine and costs when levied by the municipal court, not only were they required to come to court for traffic tickets, were charged court costs, they were also put on “probation” with JCS.
287. This requirement was part of the Montgomery contract with JCS. That no bid contract, as mentioned above, exceeded the statutory and constitutional authority of municipalities and imposed on the municipal court an agreement in violation of the separation of powers doctrine between the branches of government.
288. Once on “probation” for purposes of paying a fines and costs, this policy and practice at Montgomery routinely imposed incarceration and additional costs on individuals who are unable to pay fines and costs, without any determination of willfulness as would lawfully be required under Alabama statutes. See Ala Code Section 15-18-62.
289. This disparate treatment based upon the wealth of the “offender” before the municipal court is a violation of equal protection and cannot be justified on any legitimate rational state interest basis.
290. This inequality of treatment is also beyond the authority of the municipal court which is required by Alabama statute to uniformly process traffic infractions and penalties for misdemeanors in accordance with specified maximum fines. See Ala. Code Section 12-14-8. The policy at Montgomery was not uniform with the procedures established by the Alabama Administrative Office of Courts because it added fees only to “offenders” who
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could not pay immediately and created its own “rules” for penalizing individuals who could not pay as directed.
291. These additional JCS fines resulted in disparate treatment between those who could immediately pay the fine from those who were unable to immediately pay the fine. Furthermore, those “offenders” at Montgomery with its JCS system arrangement were processed and fined differently than “offenders” in jurisdictions that have not allowed JCS to charge additional fees to those who cannot pay. There is no state authority for such disparate treatment.
292. By its policies, agreement and conspiratorial actions with JCS, the City has also deprived Carter and the Class members of all the civil debt protections available to others.
293. The Plaintiff Aldaress Carter and the Class members were required to pay the additional costs and fees under this disparate system and many like Aldaress Carter were unlawfully jailed for their inability to pay as demanded.
294. As a proximate consequence of this denial of the right to equal protection under the Fourteenth Amendment, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent.
COUNT TEN DENIAL OF EQUAL PROTECTION BY JCS, CHC and CHCC (‘JCS’) Plaintiff incorporates by reference the previous paragraphs and makes them a part
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hereof. 295. JCS and Montgomery have acted jointly under color of state law in violation
of 42 U.S.C. § 1983, to deny the Plaintiff and class members’ rights to equal protection secured by the Fourteenth Amendment and have done so in concert and by agreement conspiring with Montgomery.
296. JCS, though a private company, has been clothed with the color of state law by the specific actions of Montgomery all pursuant to an agreement between these parties.
297. As referenced above, by agreement, JCS employees attended all municipal court sessions, collected city fines and costs, were labeled as “probation officers,” carried badges and regularly represented themselves as acting “on behalf of the City of Montgomery.” Additionally, the JCS forms were used at the municipal court and fees for JCS were included in every court order there.
298. Under its illegal contractual agreement with Montgomery, the actions of JCS were inextricably intertwined with its co-conspirator Montgomery in a practice and policy at Montgomery. That practice and policy automatically required “probation” for any person who, despite having no jail sentence, was financially unable to fully pay the fine and costs when levied by the municipal court. That probation requirement was part of the agreement between Montgomery and JCS and was part of every printed order at the municipal court and required payment of monthly fees to JCS.
299. Persons who were financially able to fully pay the levied fine and costs at Montgomery were not placed on “probation.” As a result, those persons were not charged any JCS fees and were not subjected to threats of arrest and incarceration in the collection process.
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300. For those such as the Plaintiff who were unable to fully pay the fine and costs when levied by the municipal court, not only were they required to come to court for traffic tickets, were charged court costs, they were also put on “probation” with JCS.
301. This requirement was part of the Montgomery contract with JCS. That no bid contract, as mentioned above, exceeded the statutory and constitutional authority of municipalities and imposed on the municipal court an agreement in violation of the separation of powers doctrine between the branches of government.
302. Once on “probation” for purposes of paying a fines and costs, this policy and practice at Montgomery routinely imposed incarceration and additional costs on individuals who are unable to pay fines and costs, without any determination of willfulness as would lawfully be required under Alabama statutes. See Ala Code Section 15-18-62.
303. This disparate treatment based upon the wealth of the “offender” before the municipal court is a violation of equal protection and cannot be justified on any legitimate rational state interest basis.
304. This inequality of treatment is also beyond the authority of the municipal court which is required by Alabama statute to uniformly process traffic infractions and penalties for misdemeanors in accordance with specified maximum fines. See Ala. Code Section 12-14-8. The policy at Montgomery was not uniform with the procedures established by the Alabama Administrative Office of Courts because it added fees only to “offenders” who could not pay immediately and created its own “rules” for penalizing individuals who could not pay as directed.
305. These additional JCS fines resulted in disparate treatment between those who could immediately pay the fine from those who were unable to immediately pay the
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fine. Furthermore, those “offenders” at Montgomery with its JCS arrangement were processed and fined differently than “offenders” in jurisdictions that have not allowed JCS to charge additional fees to those who cannot pay. There is no state authority for such disparate treatment. JCS was also illegally afforded the ability to exercise discretion over which persons to sanction or request warrant status, and such discrimination was applied in an effort to enhance revenue.
306. By its policies, agreement and conspiratorial actions with the City, JCS has also deprived Carter and the Class members of all the civil debt protections available to other debtors.
307. The Plaintiff Aldaress Carter and the Class members were required to pay the additional costs and fees under this disparate system and many like Aldaress Carter were unlawfully jailed for their inability to pay as demanded.
308. As a proximate consequence of this denial of the right to equal protection under the Fourteenth Amendment, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent.
RACKETEERING INFLUENCED AND CORRUPT ORGANIZATIONS ACT 18 U.S.C. § 1962(a)(b) (c) & (b)
(Counts Eleven through Fourteen follow this Background)
RICO SCHEME - EXTORTION - MONEY FOR FREEDOM
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A. THE ENTERPRISE 309. JCS and the City of Montgomery constitute an association-in-fact, and therefore an enterprise within the meaning of 18 U.S.C. § 1961(4). Such RICO Enterprise was an ongoing business relationship with the common purpose of maximizing the collection of money without consideration of the individual's ability to pay. 310. The enterprise was a result of the parties’ conspiratorial agreement to use the city court’s authority and police power to extort money from the poor. JCS and the City of Montgomery (hereinafter “RICO Defendants”) conspired and jointly participated in this extortion scheme. 311. JCS acted in concert with the City of Montgomery and the Montgomery Municipal Court by keeping their records separate from the City’s records and never checking the probation orders against the original court order. This allowed JCS to demand money from “probationers” that was not verified against a valid court order or adjudication. 312. Neither the City nor JCS checked or audited their files to ensure that their records matched records of an adjudicated offense. 313. JCS shredded the probation orders after they were scanned into its Probation Tracker system. 314. Montgomery used its police department as an integral participant within the Enterprise by arresting folks who were unable to pay and by demanding cash bonds for their release from jail without considering the nature of the underlying crime, probability of flight risk, representation by counsel, or the person’s ability to post a cash bond. 315. Additionally, Montgomery police would bring misdemeanants who were unable to pay the cash bond demanded for their release from jail to court each setting. The
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prisoners were handcuffed, shackled, and dressed in their jail issued orange jumpsuit and directed to sit on the front row while court was held.
316. The contract between the City of Montgomery and JCS (Doc. 1-2) states the roles of the participants in the enterprise. In that contract the Mayor agreed that “in consideration of the probation service provided by JCS, the court agrees that each court order shall provide for the following:
a probation fee of $35.00 per month flat fee one time probationer set up fee of $10.00. . . . " (emphasis added). (Doc. 1-2) 317. The Montgomery police enforced the illegal extraction of moneys after Montgomery sold its police power in this illegal contract. While JCS threatened jail for non payment, the city employees issued arrest warrants and jailed people in the city jail upon JCS’s recommendation. 318. JCS and Montgomery further oppressed these indigent misdemeanants by submitting requests to the Alabama Department of Transportation that their driver’s licenses be revoked due to nonpayment of fines. These requests for revocation were made despite knowledge of the people’s indigency, without offering community service or alternative methods of punishment as required under the Criminal Rules of Procedure and the Supreme Court’s ruling in Bearden, and without a finding of willful nonpayment. 319. This punitive revocation of the impoverished persons’ driver’s license resulted in their inability to travel, work, cash checks, and vote. 320. JCS and Montgomery were both financially motivated to add fees and
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charges to “probationer” accounts even when not substantiated by an adjudication or valid court order such as charges. As a result, these amounts often exceeded statutory maximum fine amounts.
321. Montgomery and JCS were engaged in interstate commerce in that their activities and transactions relating to the collection of fines, fees, and costs, and the movement of the profits received pursuant to this operation, frequently required movement and communications across state lines.
322. JCS employees were also employees of CHCC after CHCC fully integrated its subsidiaries. JCS operates in Alabama, Florida, Georgia, and Mississippi and had its corporate office in Georgia.
323. During this time, CHCC which jointly employed JCS employees and controlled their operations, had its corporate headquarters in Colorado while the money was extorted from people living in Alabama.
324. Cash and money orders received from the extortion scheme were deposited into federally chartered banks in Alabama and the money was then accounted for and deposited into the accounts of JCS/CHCC and the City of Montgomery.
325. Montgomery and JCS functioned as a continuing unit from the inception of their contract in 2009 until the contract was terminated in 2014. This continuing unit worked to achieve a common objective of the Enterprise - increasing cash receipts - by extorting money, illegally using threats of jail, illegally adding extra costs JCS fees, and illegally adding bogus “probation violation” charges that had not been adjudicated or had a proper sentencing order to people’s court records.
326. Montgomery and JCS violated 18 U.S.C. § 1962(c) because they were 72

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engaged in activities which affected interstate commerce and have directly conducted or participated in the conduct of the enterprise's affairs through a pattern of racketeering activity.
327. Montgomery and JCS violated 18 U.S.C. § 1962(d) because they conspired with each other to violate 18 U.S.C. § 1962(c), as described in the previous paragraph.
328. Specifically, Montgomery and JCS conducted and participated in and conspired to conduct the affairs of the RICO Enterprise by engaging in the following predicate acts of racketeering activity under §18 U.S.C. § 1961(1):
a. Extortion in violation of the Hobbes Act, 18 U.S.C. § 1951; b. Extortion in violation of Ala. Code§ 13A-8-13; and c. Extortion in violation of the Travel Act, 18 U.S.C. § 1952. B. PREDICATE ACTS Extortionate Acts Generally 329. Montgomery and JCS have, on their own and in conspiracy with each other, obtained by threat a $10 set-up fee and $35/40-per-month probation fee from Plaintiff and class members, with intent to deprive them of this money. 330. These demands for money from poor people appearing in Montgomery’s municipal court number into the thousands and many of these demands/threats were sent using United States Mail. 331. Specifically, JCS, individually and in conspiracy with Montgomery, the other participant in the RICO Enterprise, threatened Plaintiff and class members that if they did not agree to pay the set-up and monthly fees and fines then they: (a) would be
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incarcerated; (b) would have their probation revoked; (c) would be accused by JCS of violating an Order of Probation; and (d) would face testimony by JCS against them regarding nonpayment, but without any investigation into the reasons for nonpayment (including an inability to pay and indigency).
332. The threats described above are inherently wrong because they were motivated to extort and used the unlawful threat of incarceration to extort money.
333. The threats described above were wrong because, as a matter of law, the fees were being charged pursuant to an illegal contract between JCS and the City of Montgomery and because the fees JCS added were not justified as either court costs or fines.
334. Because of the threats described above, Plaintiff and class members have paid some of the fees demanded by JCS and Montgomery.
335. Because of the extortionate acts described above, Plaintiff and some class members have had warrants issued for their arrest due to their inability to pay.
336. Because of the extortionate acts described above, some class members have been wrongfully incarcerated and been unable to pursue gainful employment while defending themselves against unjust charges while being wrongfully incarcerated.
Extortion in violation of the Hobbes Act, 18 U.S.C. § 1951 337. JCS and Montgomery obtained fees from the Plaintiff and class members with their consent, which consent has been induced by the wrongful use of fear, in violation of 18 U.S.C. § 1951 (Hobbes Act). 338. JCS and Montgomery obstructed, delayed and affected commerce, and the movement of articles and commodities in commerce, and attempted to do so by extortion,
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in that they obtained and attempted to obtain money from the Plaintiff and class members which was not lawfully due them under color of official right in violation of Title 18, U.S.C., Section 1951(a).
339. The proceeds of the extortionate activities were used in commerce and therefore affected commerce or the movement of any article or commodity in commerce, as these terms are understood by 18 U.S.C. § 1951(a).
340. JCS and Montgomery were motivated to participate in the extortion scheme by the profits they expected to receive from the scheme.
Extortion in violation of Ala. Code § 13A-8-13 341. JCS and Montgomery obtained by threat fees from the Plaintiff and class members with intent to deprive them of this money, in violation of Ala. Code§ 13A-8-13. Extortion in violation of the Travel Act, 18 U.S.C. § 1952 342. JCS and Montgomery obtained by threat fees from the Plaintiff and class members with intent to deprive them of this money, in violation of 18 U.S.C. § 1952 (Travel Act) and Ala. Code § 13A-8-13. 343. In fact, JCS and Montgomery used letters sent through the U.S. Mail as a primary method to demand payment. (Docs 1-5 to 1-8) Some of the most frequent mailings are - Delinquency Letter, petition to revoke probation letter, failure to report letter, Notice to Show Cause and violation of probation letter. These are form letters produced by JCS software system where they are stored. 344. JCS kept copies of the form letters in their Probation Tracker system and has purportedly sent thousands of these letters to City of Montgomery “probationers.”
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345. JCS has traveled in interstate commerce, and has used the mail and facilities in interstate commerce to distribute the proceeds of the extortionate scheme, specifically by operating a corporate entity that is based outside of Alabama but is operating the extortionate activities described herein within Montgomery, Alabama, in violation of 18 U.S.C. § 1952(a)(l).
346. JCS has traveled in interstate commerce, and has used the mail and facilities in interstate commerce to otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of an extortionate scheme, specifically by operating a corporate entity that is based outside of Alabama, but is operating the extortionate activities described herein within Montgomery, Alabama, in violation of 18 U.S.C. § 1952(a)(3).
347. The City of Montgomery issued general obligation warrants using interstate commerce to secure financing at preferential rates. The low interest rates given to the City to repay these warrants was based on the strength of its audited financial statements. After instituting the joint enterprise with JCS, Montgomery City revenue from “court” fines and fees accounted for a substantial part of the City’s total revenue. The City of Montgomery used the mail and wire services to perpetuate its extortion scheme and to borrow money on interstate exchanges at low rates.
C. PATTERN OF RELATED RACKETEERING ACTS 348. JCS and Montgomery have engaged in the racketeering activity described in this Claim repeatedly starting in about 2009 and continuing through at least July 2014 with respect to thousands of persons appearing before the Montgomery Municipal Court. These racketeering acts are part of the enterprise's regular way of doing business.
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349. JCS and Montgomery relied on the racketeering acts described in this Complaint to conduct the regular business activities of the RICO Enterprise.
350. JCS and Montgomery have a similar purpose: to maximize the collection of money without consideration of the individual's proper adjudication, guilt, or ability to pay.
351. The racketeering acts of the RICO Defendants have yielded similar results and caused similar injuries to Plaintiff and class members: Plaintiff and class members have, inter alia, all been subjected to excessive fees paid to JCS, been labeled as “probationers,” been subjected to required, frequent office visits, and lived in fear of arrest due to their inability to pay as demanded as a result of the unlawful conduct of Montgomery and JCS.
352. As set forth in the preceding paragraphs, the racketeering acts have similar participants: JCS and the City of Montgomery which comprise the RICO Enterprise.
353. As set forth in the preceding paragraphs, JCS and Montgomery directed their racketeering activities at similar victims: Plaintiff and the class members specifically, and also more generally, all Montgomery Municipal Court defendants who could not afford to pay the entirety of their fines, fees, restitution, and costs on the date that they were adjudicated and assessed fines, fees, costs, and restitution.
354. As set forth in the preceding paragraphs, the racketeering acts of JCS and Montgomery have similar methods of commission, namely: extorting Plaintiff and class members specifically, and more generally extorting all Montgomery Municipal Court defendants who could not afford to pay their entire fine, fees, restitution, and costs on the date they were adjudicated and assigned, into paying probation fees to JCS.
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D. INJURY 355. As a direct and proximate result of JCS’s and Montgomery’s willful, knowing, and intentional acts discussed in this Claim, Plaintiff and class members have suffered injuries to their property. Plaintiff and class members have all been subjected to probation fees paid to JCS, and have been forced to continue paying these fees even when they could not afford to do so and often after the fines had been paid in full, resulting in economic harm to themselves and their families. 356. As a direct and proximate result of JCS’s and Montgomery’s willful, knowing, and intentional acts discussed in this Claim, Plaintiff and class members have also suffered injuries to their personal dignity. Plaintiff and class members have all been labeled ‘probationers’ due to their inability to completely pay the assessed fine or court costs when demanded. 357. Plaintiff and class members have also incurred additional hardship by having to drive to the JCS office to make payments in order to satisfy JCS’s appointment policy. JCS increased the frequency of the appointments when the Plaintiff and Class members could not pay the entire monthly amount JCS demanded. The required monthly payment was established by JCS in accordance with JCS policy and without consideration of the individual’s ability to pay. This additional travel requirement burdened the class members making it difficult to keep and find employment. 358. Plaintiff and class members suffered additional stress that was brought on by JCS’s continued threats of jail if sufficient payment was not made. The fear of incarceration was a continual threat that increased the Plaintiff and class members’ daily stress level as warrants for their arrest were made without any notice to them and without
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any meaningful adversarial testing. COUNT ELEVEN – 18 U.S.C. § 1962(a) AGAINST ALL “RICO Defendants”
(JCS, CHC, CHCC, (‘JCS’) and the City of Montgomery) The Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 359. 18 U.S.C. § 1962(a) states in pertinent part: (a)It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through a collection of an unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code, or to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment and operation of, any enterprise which is engaged in, or the activities which affect, interstate or foreign commerce… 360. For purposes of this paragraph, JCS and Montgomery are an "enterprise" as defined by 18 U.S.C. § 1961(4). 361. As the enterprise, JCS and Montgomery were also the direct beneficiaries of the proceeds from the pattern of racketeering activity. 362. JCS and Montgomery engaged in, and its activities have substantially affected, interstate commerce. JCS receives interstate disbursements of thousands of dollars in illegal fees from "probationers" in several states, it markets its services in several states, and commits or causes to be committed misstatements in municipal court proceedings in which it had a financial interest in the outcome. Specifically, though having a financial interest therein, JCS recommended that probations be revoked and that misdeamenants go to jail. This enhanced the recoverable fees and the amounts collectable from relatives and others who had no obligation to pay, but who would pay to
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free a relative or friend. Furthermore, testimony and information it supplied to the court was often inaccurate, incomplete and biased, omitting and ignoring salient facts about an inability to pay, such that justice was perverted. The City of Montgomery used interstate exchanges to borrow money at low rates and used the interstate banking system to safeguard its deposits, enhancing its perceived financial strength based on its extortion scheme.
363. The Plaintiffs and the class members have suffered a "racketeering injury" that flowed from the use of JCS and Montgomery’s investment of racketeering income. The contract between the City of Montgomery and JCS states their intention to produce the racketeering income by agreeing that "each court order shall provide for the following:
a probation fee of $40.00 per month flat fee one time probationer set up fee of $10.00. . . . " (Doc. 1-2) 364. Specifically, the class members were required to appear at JCS's office to pay the money JCS demanded. JCS would require them to appear once a month if they were able to pay the required monthly payment. Those who were unable to pay the monthly payment were required to come to the JCS office more frequently. These required appointments were sometimes only a few days apart. These onerous reporting requirements made it difficult for the class members to get and keep jobs. 365. Additionally, the extortion scheme of JCS and Montgomery produced fear in the class members even in renewing their driver’s license or obtaining valid identification over concerns of warrants issued for arrest for non payment. Without valid identification the class members were often unable to pursue gainful employment, cash checks, and
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vote. Some class members have been wrongfully incarcerated and been unable to pursue gainful employment while defending themselves against unjust charges while being wrongfully incarcerated. All of these "racketeering injuries" were sustained by JCS and Montgomery’s coordinated scheme to extort money from those in poverty.
366. Had JCS and Montgomery not perpetuated its coordinated strategy to illegally demand and collect "probation" fees through the investment of racketeering income, a strategy that was conducted through the use of the mails, the Plaintiff and Class members would not have had arrest warrants issued, been jailed for non-payment, and would have been able to pay off the properly adjudicated fines and fees more quickly without the additional fear and harassment from JCS and Montgomery.
367. Furthermore, the Plaintiff and class members suffered a cognizable "investment injury" that flowed from the use of JCS’s investment of racketeering income, in that JCS used such income to undercut other legitimate debt collection services, thus preventing the Plaintiff and class members from treatment by properly trained and regulated debt collectors. Specifically, debt collectors which would not have charged illegal fees to the Plaintiff and class members and would not have used the threat of jail and jailing folks as an integral part of their collection process.
368. Furthermore, the Plaintiff and class members suffered a cognizable "investment injury" that flowed from the use of the City of Montgomery’s investment of racketeering income, in that money collected from Montgomery’s “court” system accounted for a significant part of the City’s total revenue encouraging the City to perpetuate the system.
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the Plaintiff and class members by charging illegal fees, illegally using the City's police power of arrest and jail to demand payment, adding money due for charges that had never been pled or adjudicated, and falsely representing that they were providing "probation" services when they were only collecting debts. These coordinated policies consistently ignored constitutional precepts in order to increase prof its.
370. The Plaintiff and class members were harmed by these egregious practices of extortion and had no choice but to sign or agree to anything the RICO Defendants told them in an attempt to avoid jail.
371. By implementing the Scheme as described herein, JCS and Montgomery violated 18 U.S.C. §1961 and 18 U.S.C. §1962(a).
COUNT TWELVE – 18 U.S.C. § 1962(b) AGAINST ALL “RICO Defendants”
(JCS, CHC, CHCC, (‘JCS’) and the City of Montgomery) The Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 372. 18 U.S.C. § 1962 (b) states in pertinent part: (b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. 373. For purposes of this paragraph, JCS and Montgomery are an "enterprise" as defined by 18 U.S.C. § 1961(4). 374. As the enterprise, JCS and Montgomery were also the direct beneficiaries of the proceeds from the pattern of racketeering activity. The enterprise used or invested income derived from their pattern of racketeering activity, in part in acquiring an interest in
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or operating the enterprise. Specifically, illegal fees and charges to "probationers" garnered by threats of jail were then used in acquiring an interest in and/or operating the enterprise.
375. Specifically, the class members were required to appear at JCS's office to pay the money JCS demanded. JCS would require them to appear once a month if they were able to pay the required monthly payment. Those who were unable to pay the monthly payment were required to come to the JCS office more frequently. These required appointments were sometimes only a few days apart. These onerous reporting requirements made it difficult for the class members to get and keep jobs.
376. Additionally, class members feared to update their driver’s license and get valid identification due to the enterprise's policy of issuing warrants for arrest for non payment. Without valid identification, the class members were unable to pursue gainful employment, cash checks, and vote. Some class members have been wrongfully incarcerated and been unable to pursue gainful employment while defending themselves against unjust charges while being wrongfully incarcerated. All of these "racketeering injuries" were sustained by the enterprise's coordinated scheme to extort money from those in poverty.
377. Furthermore, the Plaintiff and class members suffered a cognizable "investment injury" that flowed from the use of JCS’s investment of racketeering income, in that JCS used such income to undercut other debt collection services by circumventing the restrictions and regulations on other collection services, thus preventing the Plaintiff and class members from treatment by properly trained debt collectors. Specifically, debt collectors which would not have charged illegal fees to the Plaintiff and class members and would not have used the threat of jail and jailing folks as a integral part of their collection
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process. 378. JCS and Montgomery pursued their scheme to extort money from the Plaintiff
and class members by charging illegal fees, illegally using the City's police power of arrest and jail to demand payment, adding money due for charges that had never been pled or adjudicated, and falsely representing that they were providing "probation" services when they were only collecting debts. These coordinated policies consistently ignored constitutional precepts in order to increase profits.
379. The Plaintiff and class members were harmed by these egregious practices of extortion and had no choice but to sign or agree to anything JCS and Montgomery told them in an attempt to avoid jail.
380. By implementing the Scheme as described herein, JCS and Montgomery violated 18 U.S.C. §1961 and 18 U.S.C. §1962(b).
381. Plaintiff and class members are entitled to an award of damages in an amount to be determined at trial, including treble damages and attorneys' fees and costs associated with this action.
COUNT THIRTEEN – 18 U.S.C. § 1962(c) AGAINST ALL “RICO Defendants”
(JCS, CHC, CHCC, (‘JCS’) and the City of Montgomery) The Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 382. RICO, the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68, provides a private civil action to recover treble damages for “any person injured in his business or property by reason of a violation of section 1962.” 18 U.S.C. §
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1964(c). 383. At all relevant times, the Plaintiff and class members were “persons” within
the meaning of RICO, 18 U.S.C. §§ 1961(3) and 1964(c). 384. Under 18 U.S.C. § 1962(c), it is unlawful “for any person employed by or
associated with any enterprise . . . to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity. . . .”
385. At all relevant times, JCS and employees of the City of Montgomery were “persons” within the meaning of RICO, 18 U.S.C. §§ 1961(3) and 1962(c).
386. At all relevant times, JCS and Montgomery, formed an association-in-fact enterprise as defined by 18 U.S.C. § 1961(4) that was and is engaged in activities which affect interstate and foreign commerce, within the meaning of RICO, 18 U.S.C. § 196(c).
387. The structure and purpose of the enterprise was to extort money from poor people who could not pay fines and fees for City misdemeanor offenses and caused injury to the property and business of the Plaintiff and the class members.
388. Due to the fear that people had of being arrested and jailed, the enterprise profited from its activities. Each member of the association-in-fact enterprise had a common goal and purpose of making money by extorting from poor and unrepresented misdemeanants.
389. At all relevant times, JCS and Montgomery, as a result of their position and control, were able to participate in the operation and management of the enterprise by directing its affairs.
390. JCS and Montgomery worked together in extorting money from people as stated above.
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391. At all relevant times, JCS and Montgomery knowingly and willfully associated with the association-in-fact enterprise and conducted and participated in the conduct of the enterprise's affairs, directly and indirectly, through a “pattern of racketeering activity” within the meaning of RICO, 18 U.S.C.§ 1962(c). Specifically, JCS and Montgomery engaged in “racketeering activity” within the meaning of 18 U.S.C. § 1961(1)(A) by engaging in the acts set forth above. The acts set forth above constitute a violation of extortion and JCS and Montgomery each committed, directed or approved the commission of two or more of these acts of racketeering activity.
392. Additionally, JCS and Montgomery participated in acts of mail or wire fraud, as set forth in the facts above, by threatening the misdemeanants in letters sent through the U.S. Mail system. The acts of mail and wire fraud were directed or approved by JCS and Montgomery and the letters and money received through the enterprise crossed state lines.
393. JCS and Montgomery knowingly devised and participated in this scheme to extort money from the Plaintiff and class members, and did so willingly with an intent to misrepresent the true nature of their activities by presenting JCS as a probation service as opposed to a collection service which had no certification or training in probation services.
394. JCS and Montgomery used the United States mails and interstate wires for the purpose of executing the scheme within the meaning of 18 U.S.C. § 1961(1)(B), specifically, mail and wire fraud, as defined in 18 U.S.C. §§ 1341 and 1343.
395. The acts referred to constituted a “pattern of racketeering activity” within the meaning of RICO, 18 U.S.C. § 1961(5) and the acts alleged were related to each other by virtue of common participants, common victims, a common method of commission
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(threatening and arresting people who could not pay as demanded), and the common purpose and common result of the racketeering activities being interrelated by distinguishing characteristics.
396. The predicate acts committed by JCS and Montgomery had the common purpose and common result of inducing the Plaintiff and class members to agree to anything JCS and Montgomery demanded in order to keep their freedom as long as possible.
COUNT FOURTEEN – 18 U.S.C. § 1962(d) AGAINST ALL “RICO Defendants”
(JCS, CHC, CHCC, (‘JCS’) and the City of Montgomery) The Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 397. The Plaintiff and class members allege that JCS and Montgomery’s actions and conduct, and their agents’ actions and conduct, as alleged herein were at all times known to the officers, directors, executives, supervisors, managers and authorized agents of JCS and Montgomery, and were at all times known to JCS and Montgomery, but, that JCS and Montgomery nevertheless engaged in such conduct. 398. Further, JCS and Montgomery knowingly and intentionally permitted and acquiesced in such conduct on the part of each other, and in the conduct of the employees, servants, and agents of each other. The Plaintiff and class members allege that JCS and Montgomery knowingly participated in the extortion scheme and continued to allow and encourage such actions to continue by disregarding the constitutional rights of these people. 399. As stated in the facts set forth above, JCS and Montgomery agreed to and
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directed that the racketeering activity of extortion, mail and wire fraud would be conducted by the association-in-fact enterprise. Such agreement is evidenced by the contract between JCS and Montgomery and the form documents that JCS sent to the misdemeanants.
400. Title 18 U.S.C. § 1962(c) prohibits conducting the affairs of an enterprise through a pattern of racketeering activity and Title 18 U.S.C. § 1962(d) makes it “unlawful to conspire to violate [18 U.S.C. § 1962(c)].” Hence, 18 U.S.C. § 1962(d) makes it unlawful to conspire to conduct the affairs of an enterprise through a pattern of racketeering activity.
401. JCS and Montgomery conspired and agreed with each other to engage in the extortionate conduct, or attempted conduct, stated above, and also conspired and agreed to aid each other in the commission of the acts of mail and wire fraud as stated above.
402. JCS and Montgomery conspired, planned and schemed to conduct the affairs of the association-in-fact enterprise through a pattern of racketeering activity by committing multiple acts of extortion and mail and wire fraud in violation of 18 U.S.C. § 1962(c).
403. JCS and Montgomery combined, conspired and confederated with each other to commit a pattern of racketeering activity, and thereby violated 18 U.S.C. § 1962(d) by conspiring to violate 18 U.S.C. § 1962(c).
404. As a direct and proximate cause of JCS and Montgomery’s actions in violation of 18 U.S.C. § 1962(d), the Plaintiff and class members have been and continue to be injured in their business and property within the meaning of 18 U.S.C. § 1964(c) in an amount to be determined upon trial of this action, which sum is to be duly trebled in accordance with 18 U.S.C. § 1964.
405. Plaintiffs are entitled to recover and request reasonable attorneys’ fees and 88

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costs pursuant to 18 U.S.C. § 1964(c). COUNT FIFTEEN
DECLARATORY AND INJUNCTIVE RELIEF Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 406. A real controversy exists between these parties concerning several issues, including the validity of Montgomery’s attempt to bind its municipal court and the legality of the actions taken under the contract with JCS, such that declaratory relief is appropriate. Contract between the City and JCS is void 407. Plaintiff requests the Court to declare that Montgomery had no authority to contractually bind their municipal court. City does not have the power to bind the Court 408. Montgomery entered into an agreement with JCS that exceeded both its statutory and constitutional limitations on municipalities. Furthermore, that agreement violated the separation of powers doctrine embodied in the Alabama Constitution. See Ala. Const., Article 3, Section 43. As a result, that agreement is void and due to be declared a nullity. 409. Alabama state law also dictates a separation of the branches of government. Ala. Const., Article 3, Section 43. Under that doctrine, legislative powers granted to cities and towns are exercised by the city council, Ala. Code Section 11-43-43, while the mayor of the city is responsible for executive duties. Ala. Code, Section 11-43-83. If the town establishes a municipal court, its administration is supervised by the Chief Justice of Alabama. Ala. Code Section 12-2-7 et. seq.; Ala. Const., Art. 6, Section 139.
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410. A city’s mayor, such as Montgomery’s mayor, has the executive power to execute and enforce contracts and the city council has the legislative power to enact regulations and ordinances, but neither the mayor nor the council has the power to invade the administration of its judiciary.
411. Montgomery has exceeded its statutory authority and acted in conflict with state statute and constitutional limitations when, acting through its mayor, they agreed to require its municipal court to include probation and fees for JCS in every court order entered by its hired judge. That action essentially sold the court process for purposes of increasing income to the City.
Contract violates statutory limitation regarding traffic citations and municipal fines 412. That agreement also violates the uniformity required by statute for processing traffic infractions and penalties for misdemeanors in accordance with specified maximum fines. See Ala. Code Section 12-14-8. 413. The process at Montgomery is not uniform with the procedures established by the Alabama Administrative Office of Courts because it adds fees only to “offenders” who cannot pay immediately and creates other “rules” for further penalizing individuals who cannot pay as directed. “Offenders” who are able to immediately pay the fine are charged one rate, but those that are unable to immediately pay for the same offense are charged the fine and required to pay JCS monthly fees that accumulate each month that passes. 414. The “offenders” at Montgomery are processed and fined differently than “offenders” in municipal jurisdictions which have not contracted for JCS to charge its fees to those who cannot pay and, as a result, violates uniformity requirements of Ala. Code
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Section 12-14-8. Contract overrides judicial authority and administration of municipal courts reserved to the Chief Justice 415. The illegal agreement and policy of Montgomery invades and overrides the
judicial authority and court administration reserved to the municipal judge and the Chief Justice.
Contract is an exclusive franchise 416. The contract between JCS and the City of Montgomery grants an exclusive franchise for provision of probation services. 417. The contract was not competitively bid as required by Ala. Const. Art. I,§ 22 and Ala. Code 1975, §41-16-50. 418. Because the contract was not bid, it is void and unenforceable. 419. Plaintiff requests the Court to declare the actions of Montgomery under this contract to be unconstitutional under the premises discussed above. Under this void agreement, Montgomery has implemented policies and practices to prosecute persons such as the Plaintiff where there is no jurisdiction or authority to do so under Alabama law, doing so intentionally in an effort to extort the payment of fines and costs from indigent people. These efforts have resulted in the illegal prosecution and incarceration of the Plaintiff and the Class beyond the limited jurisdiction of the municipal courts. 420. Further, Montgomery has added increased punishment, fines and costs after adjudication and even where there has been no adjudication of guilt, all without jurisdiction or authority for such under Alabama law. 421. Montgomery has systematically applied Ala. Code § 15-18-62 in an
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unconstitutional fashion, denying the Plaintiff and the Class he seeks to represent constitutionally protected rights.
422. Section 15-18-62 provides for the imprisonment for the failure to pay fines and costs in limited circumstances and only upon the finding of a willful nonpayment.25
423. Under the policies and practices at Montgomery, “offenders” before the municipal court, such as the Plaintiff and the Class he seeks to represent, are systematically imprisoned for nonpayment with no determination of willfulness and with no consideration of their indigency or ability to pay.
424. Furthermore, once imprisoned, the requirements of time to be served under § 15-18-62 are ignored by the practice and policy of Montgomery.
425. The result of this consistent systematic policy and practice of Montgomery is essentially a debtor’s prison for fines and charges levied.
426. Plaintiff requests the Court to enjoin the actions of Montgomery identified herein to prevent the continuation of these violations of statutory and constitutional prohibitions.
25Section 15-18-62 Imprisonment for failure to pay fines and costs. In cases of willful nonpayment of the fine and costs, the defendant shall either be imprisoned in the county jail or, at the discretion of the court, sentenced to hard labor for the county as follows: (1) If the fine and costs do not exceed two hundred fifty dollars ($250), no more than 10 days; (2) If the fine and costs exceed two hundred fifty dollars ($250) but do not exceed five hundred dollars ($500), no more than 20 days; (3) If the fine and costs exceed five hundred dollars ($500), but do not exceed one thousand dollars ($1,000), no more than 30 days; and (4) For every additional one hundred dollars ($100) or fractional part thereof, 4 days.
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WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that the Court will take jurisdiction of this cause and upon the final hearing:
a. Certify this matter as a proper class action maintainable under Rule 23 of the Federal Rules of Civil Procedure for a plaintiff class;
b. Award the Plaintiff such damages as this Court shall find the Plaintiff have sustained, together with punitive, or exemplary damages as the law shall permit;
c. Enter an injunction and other declaratory relief which declares the Montgomery contract requiring fees to JCS to be void and in violation of the statutory and constitutional limitations on municipalities;
d. Enter an injunction and other declaratory relief which enjoins Montgomery from engaging in the violations of law set forth hereinabove;
e. Enter an injunction and other declaratory relief which prohibits Montgomery in the future from placing persons on probation for collection of fines and declares that any current probation and fees for simple fines is void;
f. Enter an injunction and other declaratory relief which prohibits Montgomery in the future from assessing fines in excess of $500 and/or extending probation periods beyond 24 months and declare that any previously assessed fines and probationary periods in excess of these limits to be void;
g. Enter an injunction and other declaratory relief which prohibits 93

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Montgomery in the future from imprisoning indigent persons for failure to pay fines and fees; h. Enter an injunction and other declaratory relief which prohibits Montgomery in the future from charging excessive bail established to collect claimed fines and fees; i. Award to the Plaintiff and Class members damages under 42 U.S.C. § 1983 equal to any amounts paid on fines and all fees to JCS and Montgomery that are found unconstitutional and/or unlawful (along with interest), and the annulment of any remaining unpaid fines and fees that are found unconstitutional and/or unlawful; j. Order that the culpable parties disgorge their ill-gotten gains derived from their unlawful conduct; k. Award to the Plaintiff and Class the cost of this matter, including a reasonable attorneys' fee; l. Award to the Plaintiff and the Class members such other, further and more general relief as the Court may deem appropriate under these circumstances including cost of these proceedings.
JURY DEMAND Plaintiff demands a trial struck by jury.
RESPECTFULLY SUBMITTED,
s/ G. Daniel Evans G. Daniel Evans ASB-1661-N76G Alexandria Parrish
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ASB-2477-D66P Attorney for the Plaintiffs The Evans Law Firm, P.C. 1736 Oxmoor Road, Suite 101 Birmingham, Alabama 35209 Telephone: (205) 870-1970 Fax: (205) 870-7763 E-Mail: gdevans@evanslawpc.com E-Mail: ap@evanslawpc.com
William M. Dawson ASB-3976-S80W Attorney for the Plaintiffs Dawson Law Office 1736 Oxmoor Road Birmingham, Alabama 35209 Telephone: 205-795-3512 E-Mail: bill@billdawsonlaw.com
CERTIFICATE OF SERVICE
I hereby certify that on September 11, 2015, I electronically filed the foregoing First Amended and Restate Complaint with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following:
Micheal S. Jackson WEBSTER, HENRY, LYONS, BRADWELL, COHAN & BLACK, P.C. P. O. Box 239 Montgomery, AL 36101-0239
Shannon Holliday Robert D. Segall Joel Caldwell COPELAND, FRANCO, SCREWS & GILL P. O. Box 347 Montgomery, AL 36101-0347
s/ G. Daniel Evans G. Daniel Evans
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DEFENDANTS' ADDRESSES:

JUDICIAL CORRECTION SERVICES, INC. SERVE REGISTERED AGENT: CORPORATE CREATIONS NETWORK, INC. 6 OFFICE PARK CIRCLE #100 MOUNTAIN BROOK, AL 35223

CORRECTIONAL HEALTHCARE COMPANIES, INC.

SERVE REGISTERED AGENT:

CORPORATE CREATIONS NETWORK, INC.

3411 SILVERSIDE RD #104 RODNEY BUILDING

WILMINGTON, DE 19810

PLEASE SERVE BY CERTIFIED MAIL

CHC COMPANIES, INC. SERVE REGISTERED AGENT: CORPORATE CREATIONS NETWORK, INC. 6 OFFICE PARK CIRCLE #100 MOUNTAIN BROOK, AL 35223

96

CaCsaese2:21:51-5c-vc-v0-00505555-5R-CWLH-SAM-CDSCDoDcoucmuemnet n1t81 FFilieledd0098/1/043/1/155 PPaaggee917 ooff 51373

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVII
E V ED

ALDARESS CARTER, INDIVIDUALLY, AND FOR )

A CLASS OF SIMILARLY SITUATED PERS099 5 AU 3 P J: 35 OR ENTITIES,

°FACETT,CLK

Plaintiffs
V.

JLL.j

ACTION N. 0.: II ..A

THE CITY OF MONTGOMERY and BRANCH D. KLOESS.
Defendants.
COMPLAINT

)

)

CLASS ACTION

) DEMAND FOR JURY TRIAL

)

COMES NOW, Aldaress Carter (hereinafter "Plaintiff'), individually and on behalf

of those similarly situated, upon personal knowledge as to himself and his own acts, and

upon information and belief as to all other matters, by and through his undersigned

counsel, files this complaint as follows:

JURISDICTION

1. The Court has jurisdiction over this matter because it concerns a controversy

arising under the Constitution of the United States. 28 U.S.C. §1331. This is a civil rights

action brought under 42 U.S.C. § 1983 and 1988. This Court also has jurisdiction of this

action by virtue of 28 U.S.C. § 1343(a)(3) and 1343(a)(4), authorizing jurisdiction of claims

brought under 42 U.S.C. § 1983 to enforce civil rights guaranteed by the United States

Constitution The Court also has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.

2. This action also seeks a declaratory judgment pursuant to 28 U.S.C. § 2201

and 2022.

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3. Venue in this judicial district is proper pursuant to 28 U.S.C. § 1391(b) and (c).
PARTIES TO THE COMPLAINT 4. The Plaintiff Aldaress Carter is an individual resident of Montgomery, Montgomery County, Alabama. 5. The classes which the individual Plaintiff seeks to represent consist of:
All individuals who have been in the past assigned by the Montgomery Municipal Court to "probation" with Judicial Correction Services (JCS) for the collection of fines. AND All individuals Who, despite their indigency, were incarcerated, without consideration of their indigency for failure to pay fines, charges and fees to Montgomery. 6. The City of Montgomery, Alabama, ("Montgomery") is a municipal corporation located within Montgomery County, Alabama. The City Council and Mayor control the policy making for Montgomery. The Mayor also hires the municipal court judges, the public defenders to provide legal representation for indigent offenders, and contracted for the services of JCS, a private probation company, to collect its municipal court fines'. (Exhibit 1) 7. Branch D. Kloess, ("Kloess") is an individual and a licensed attorney located within Montgomery County, Alabama. Kloess entered into an agreement with the City of Montgomery to provide "competent legal representation and services for indigent defendants charged with the violation of the municipal ordinances and laws before the
1 JCS's contract-with Montgomery was not renewed in 2014 when the contract renewal date
expired.
2

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Municipal Court of the City of Montgomery." He has not provided competent legal representation. Rather, he has a policy and practice of not requesting indigency hearings for the indigents he represents. As such, he has participated in the City's scheme to extort money from poor citizens he purportedly represents while gaining financially from not seeking indigency Status for them. (Exhibit 2)
FACTS 8. The Plaintiff brings this action because the policy and practices of Montgomery have violated and continue to violate-the Plaintiffs statutory and constitutional rights and those of persons similarly situated. 9. The treatment of the Plaintiff was caused by and is representative of the City's policies and practices employed to collect debts from the fines, fees, costs, and surcharges that the City assesses, usually for traffic tickets. These facts are similar to those alleged in the Amended Complaints in cases 2013-cv-732-MEF (Doc. 10), 201 3-cv733-MEF (Doc. 9) and 201 4-cv-1 86-MEF (Doc.26) which describe additional people whose rights were violated by the same policies and practices. 10. The policies and practices of the City of Montgomery are strikingly similar to the unconstitutional practices by which the City of Ferguson, Missouri, operated its courts and police department. These unconstitutional policies placed priority on generating cash for the City without regard to constitutional precepts. The Department of Justic&s Civil Rights Division outlined the unconstitutional practices it discovered at the City of Ferguson
3

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in its March 4, 2015 report. (Exhibit 3)2 11. Montgomery has contracted with JCS which operates a "for profit" enterprise
that markets its services to various municipal governments and has contracted with over 100 cities and towns throughout Alabama. JCS's marketing approach to these cities emphasizes that its fees will be paid by the "offender' and that its efforts will improve collection of court fines and costs at no cost to the city.
12. The JCS approach is highly systemized and uniformthroughout the Alabama municipal courts in which it operates, including Montgomery - until July 1, 2014.
13. Under the system implemented by Montgomery, it does not require JCS employees to have criminal justice or legal training, nor are they required to have any social work education or meet any minimum law enforcement. standards as is required of state probation officers. Instead, the only requirements of a JCS employee who is referred to as a "Probation Officer" is that the employee be 21 years old, a non felon, with two years of college who complete 40 hours of JCS training on its processes. On satisfying those requirements, JCS employees are then labeled 'Probation Officers"' and previously permitted to carry the JCS issued badge in collecting its fees, court fines and costs.
14. Montgomery by contract and practice unlawfully delegated to JCS many administrative and judicial functions of its municipal court, clothing it with the color of state law for the collection of court fines, costs and the JCS private fees.
2 Due to the many similarities between Montgomery's policies and practices that are coordinated through the city police and the city courts sections of the DOJ report are referenced by footnotes for the court's review.
3I contrast, even a judicial volunteer is required to meet greater and more specific qualifications, careful screening specific training and continual oversight established by the Administrative Office of Courts (AOC'). See Ala. Rule of Judicial Administration Rule 42.
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15. The agreement between Montgomery and JCS and signed by the city mayor attests that the Montgomery municipal "court agrees that each court ordershall pro vide for the following:
a probation fee of $40.00 per month flat fee one time probationer set up fee of $10.00... . "(emphasis added). 16. Montgomery, through its mayor Charles Jinright and council, approved the agreement with JCS, the City and its court beginning in March 19, 2009 and continued the relationship, by and through its City Council and Mayor, Todd Strange, until the summer of 2014. Throughoutthis period, the City police, City courts, and City hired public defenders who fully participated in the practices and system with JCS. 17. Montgomery also approved the employment of it municipal court judges including its Presiding Judge, Armstead Lester Hayes, Ill. 18. Montgomery also hired attorneys to represent indigent defendants in its City courts under a contract which provides that "A defendant's status as "indigent" shall be determined by the Judge in the said Court, in accordance with the criteria set forth in Code of Alabama (1975), Sections 15-12-5 and 15-12-20." Yet, despite the fact that offenders are designated as indigent for purposes of getting an appointed attorney, routinely the attorneys never introduce themselves to the client they purportedly represent and do not advocate on the client's behalf before the judge, which results in indigent people being fined, assessed court costs, put on the JCS 'payment plan' which costs them an additional $40/month and are threatened with jail if payments are missed. 19. These 'public defenders' do not request Bearden hearings or inquire into the offender's ability to pay, or fill out hardship forms requesting community service or other
5

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alternatives due to their client's poverty.4 Nor, do they even maintain files on their "clients." 20. Rather, the 'public defender' upholds the City's practice of prioritizing profits
over public welfare and safety by requiring their clients to 'pay or stay' and demanding court costs and fulj payment of fines for those they 'represent."
21. The contract between the City and the 'public defender' mandates that the attorneys will be paid out of the 'Fair Tax Trial Fund' which is funded through the collection of court costs levied and collected on convictions. This payment policy creates a conflict of interest as the City is not required to pay the attorneys more than it has collected in any one month.
In fact, Section Five of its public defender contract says: SECTION FIVE. Under the terms of this agreement, on or after the last day of each month during the period of this agreement, Kloess shall submit to the Clerk of Court for approval, a request for payment from the Fair Trial Tax fund not to exceed the sum of Ten Thousand and 00/100 Dollars ($10,000.00) per month, for services to be performed hereunder for the period of the agreement. Provided, in no event shall the City be required to pay more than the amount deposited in the Fair Trial Tax Fund for a particular month. (Exhibit 2 pg. 2)(emphasis added) 22. For a number of years, Montgomery has participated in implementing the JCS system. That system and JCS's "Probation Tracker" software used at Montgomery was highly systemized and focused on collections of fines and its fees not traditional probation services. For instance, the !probation officer" does not visit the probationei-'s home, job or family, and has contactwith them only at the JCS office in collecting fees and fines.
See bOJ Report pg. 53. n.

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That collection focus allows the "offenders" to mail in payments if they live 30 miles from the JCS office. See Exhibit 4. The training manual used by JCS instructs its employees on the use of its computer systems in tracking the payments made by the "offenders" and provides court forms to order probation and payments to JCS. The JCS training system also provides sample letters for use after probation is ordered, threatening the "offender" thatfailure to report to JCS "as directed may result in a warrant being issued for your arrest" and that their "court date cannot and will not be reset." See Exhibits 5 and 6. Similar JCS forms instruct the "offender" that they can avoid the court date if they pay an amount determined by JCS. See Exhibit 7. Notice to the Offender of these JCS set "court dates" was handled by JCS by regular mail with no proof of service and no consideration of returned mail showing no receipt. Similarly, the setting for any hearing on petitions instituted by JCS was done by JCS and listed on a separate "JCS Docket" which JCS established and which Montgomery then adopts. Finally, the JCS manual instructs its employees on the issuance of warrants of arrest and provides forms for that purpose. See Exhibit 8.
23. Once on probation to collect the fines, "offenders" who cannot keep up their payments at Montgomery are arrested typically based upon PTA or FTOCO rather than probation violation. These codes stand for "Failure to Appear" and 'Failure to Obey Court Order." Warrants are issued by the City based upon a report that the offender failed to appear as directed at the JCS established date after notice from JCS. Similarly, FTOCO arrests result from JCS reporting that the "offender" failed to comply with their probation order - that is, they failed to pay or appear at the JCS offices as JCS directed. There is no ordinance or statute establishing Failure to Obey Court Order as an offense. The arrests and incarceration on these charges occur without any determination of contempt
7

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or willfulness in these arrests and the additional costs are added without any finding whatsoever. Underthis system, the "offender" arrested is jailed for an undetermined period of time with bond set by the city magistrate to approximate the money claims to be owed on the balance at JCS. Unlike legitimate probation systems where a probationer would be entitled to a finding of the reasons for revocation, appointed counsel and, at worse, suffer jail time equating to the original sentence, the system at Montgomery ignores all those safeguards.
24. The City Council and Mayor control the policy making for Montgomery and also hire the municipal court judges, hire the public defenders and contract for services of JCS at the municipal court. The contract was a no bid contract and provided JCS with an exclusive franchise at the City. The decision to use this JCS system was an administrative decision of Montgomery, by and through its mayor, and not a decision of the municipal court judge or the Chief Justice, or any other employee of the Administrative Office of Courts ('AOC').
25. Montgomery, through its contract, pattern and practice, clothed JCS with the appearance of state authority and has previously even allowed JCS employees to carry badges. The JCS employees attend each municipal court session and are referred to as "probation officers" in the operation of the municipal court and city clerk's office, though none have such authority under Alabama statutes. Under this system, JCS "offenders" were not permitted to pay fines at the City payment window, but were required to make all payments, including those for fines, restitution, probation fees and court costs, to JCS.
26. This public ruse was maintained by Montgomery for purposes of imposing and collecting fines, fees and costs from citizens such as the Plaintiff, and was
8

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accomplished by allowing JCS to control the money, determine how much each municipal court "offender" must pay each month, how much JCS would keep for its own fees for collection "services" each month, and how much of the payment JCS would rebate to Montgomery toward the fines adjudged.
27. This system, as a matter of routine, violates the rights of persons such as the Plaintiff and the class he seeks to represent by imposing fines, fees and surcharges to indigent persons with no hearing or consideration of their indigency and by converting fines to jail time.
28. Despite the lack of authority to do so, Montgomery allowed JCS to use threats of revoking probation, arrest, increased fines and costs and jail time for purposes Of collection. Under the system operated by Montgomery, JCS's determination to incarcerate an individual and/or impose unreasonable bond requirements was routinely accepted by City personnel as a matter of policy without conducting delinquency or probation hearings and without making any findings, much less any determination of md igency.
29. The lack of indigency or Bearden hearing is especially disturbing as the court records show many indigent people were supposedly represented by attorneys paid by the City (through the "Fair Trial Tax Fund" funded by court fees). All of the court personnel hired by Montgomery have a significant financial stake in the proceedings.
30. The collective actions of Montgomery and its agents, including JCS and Kloess, are inextricably interwoven with each other and routinely result in court costs and fines which exceed the statutory maximum of $500 for municipal courts. Similarly, the periods of "probation" imposed for purposes of collecting fines and fees routinely exceed
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the two-year statutory maximum, all of which results in Montgomery taking action to detain and otherwise incarcerate individuals without any jurisdiction to do so. Additionally, Montgomery approves routinely adding to the "offender" probation balance any unpaid fines it can resurrect from old traffic tickets or fines, even though those predate the "probation."
31. After improperly imposing probation even when no jail sentence is involved, incarceration then follows if the fine, together with the fees added by JCS, are not paid as dictated. The collection purpose of this system is emphasized by the fact that probation is terminated once full payment is made.
32. Under the Montgomery system, JCS had a monetary interest to conduct its role as "probation officer" in a way that maximized its personal profit and not as a neutral court officer.
33. Under the scheme implemented by Montgomery, its agent JCS decided whether to initiate probation revocation proceedings, and made recommendations to the city judge about that revocation, and charges of failure to appear or failure to obey court order— all while financially interested in the outcome of these strong-arm collection efforts.
34. Under the scheme implemented by Montgomery, JCS did not undertake determination of the reasons for nonpayment, and did not consider such things as the Plaintiff disability, unemployment or assets, in regard to the nonpayment of the fines and routinely sought collection from exempt income such as Social Security Disability payments.
35. Under the scheme implemented by Montgomery, JCS denied any responsibility to determine indigency, and provided no instruction to its employees for the
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consideration of indigency. 36. Under the scheme Implemented by Montgomery, after simple fines are
converted to "probation" for payment, jail often resulted for the "offender' who did not meet the payment schedule. This system used JCS's conclusion of a "probation violation" or "failure to obey court order" to incarcerate individuals who, had they been financially able to pay, would have paid only a fine with no probation whatsoever.
37. If a person is uhable to make a full payment, JCS, often took out the amount owed to JCS first so that JCS was paid even if a person's debt to the City was not reduced.
38. Many people have made payments to the City and to JCS, only to learn later that there was no record of those payments and to be ordered to make them again.
39. If a person missed payments or paid less than required, JCS had, the purported contractual authority and discretion to decide whether to petition the City for 'revocation" of probation. JCS also has a policy of placing people who cannot make full payments - from whom the company has difficulty making a profit - on "warrant status," which could result in warrants issued for their arrest by the City and which constituted a JCS determination that JCS would not accept the person for future probation super ision. JCS communicated this decision to the City, and the City's policy and practice was to agree not to place such people back on probation, requiring instead that those people pay in full or go to jail.
40. In other cases in which a person was making substantial payments, JCS, had a personal financial interest in extending a person's probation and in keeping the person on a payment plan for as long as possible so that it could profit from the collection of more monthly fees.
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41. Thus, under the City's scheme, JCS, was allowed not only to decide whether to initiate judicial revocation proceedings, but could also decide whether a person was put on probation and what judicially ordered conditions were imposed. JCS would also make other recommendations to the City judge concerning how JCS believed the person had faired on probation, whether the person should be placed on probation, whether JCS considered the person "eligible" for probation, what the amount of monthly court-ordered payments should be, and a variety of other case-related decisions.
42. JCS had a personal financial interest to conduct its role as a probation officer in a way that maximized its personal profit and not necessarily as a neutral public court officer.
43. JCS used a "probation" room inside the City building that also houses the Municipal Court, directly across from the Municipal courtroom. A JCS employee often sat in the courtroom near the judge and advised the judge about how to handle the cases of "probationers" and potential "probationers."
44. The City enforced a policy and practice of initiating and issuing warrants when a person missed a payment or failed to make sufficient payments without considering the person's ability to pay5—even when the City or its agent, JCS, had knowledge that the person was indigent - and without providing notice and validly summoning the person to court for a hearing.
45. Instead, City policy allows the City to issue and execute warrants, 6 and City
See DOJ Report pp.54-55 6 See DOJ Report pg. 55
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officers go to the homes of traffic debtors to arrest them. The City policy and practice is also therefore to deprive people of their liberty without any prior notice and opportunity to be heard and without any basic inquiry into whether the debt is owed, actually unpaid, or still valid.
46. The City often chooses to execute these warrants prior to or over the weekend, which results in a person serving needless extra time in jail prior to the next available court date.
47. People placed on "probation" because they cannot afford to pay their fines, fees, costs, and surcharges immediately were also forced to abide by additional restrictions on their liberty, which the City called "conditions" of probation, which were imposed solely because of their wealth status. These restrictions include: 1) not changing residence or employment without notifying JCS, 2) avoiding "injurious or vicious habits," 3) not using alcohol or visiting places where drugs, or dangerous substances are sold, dispensed or used, 4) working diligently at a lawful occupation, 5) "truthfully answer all inquiries" by the JCS employees and "comply with all instructions" the JCS employee gives. In addition to these unlawful constraints, the order states in bold type. "You are subject to arrest for violation of any condition imposed by this order, and your probation may be revoked accordingly."
48. When warrants are issued and executed, the City adds fees, costs, and surcharges to the amounts of debt already owed. In addition to court fees and JCS fees and costs, the City routinely adds surcharges for warrants, a "solicitor" fee, and even a 30% debt-collection fee.
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49. The City's policy and practice was to conduct no inquiry into the person's ability to pay, and the City's policy and practice also refused to use even the state-issued Affidavit of Substantial Hardship that isavailable for courts to use to determine indigence. As such, the offenders had no opportunity to present evidence concerning their ability to pay or concerning any other relevant question!
50. If family members were present, the City's practice was to call them up to the bench and to ask them to pay as much of their family member's debts as they could on the threat that the person who allegedly owes the money would be jailed if the family members did not pay.
51. The City did not conduct any meaningful inquiry into the person's ability to pay and did not even explain to people how they might claim indigency through standard forms issued by the State of Alabama.
52. The amount of debt announced to debtors by the judge in open court often differed from the amount listed on the paperwork that they received on their return to the jail. The paperwork amount is usually less than the open court amount, meaning that debtors would often have a balance remaining after they "served out" their fines, leading to their placement back on a payment plan and their continued supervision.' The City appears to refer to this as "reopening" their cases, although this "reopening" and the corresponding modifications that it entails are not performed at any formal hearing or even in the person's presence. Once people returned to the jail from City court, they were told
See DOJ Report pg.58 8 See DOJ Report pp. 59-61
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of the City's policy of "working off' an extra $25 per day of their debts if the person agreed to labor in the City jail while being imprisoned.
53. Inmates desperate to return to their families by "working off' their debts more quickly competed on a daily basis to be selected by City jail employees for a limited number of difficult, unsanitary, and demeaning daily labor tasks. These tasks included cleaning the offices of City employees in the Municipal Court building, the bathrooms in the City police department and Municipal Court, and cells and bathrooms in the City's overcrowded jail.
54. The City's debt collection practices are enormously profitable, especially in getting family members with no legal obligation to pay any money to the City to come up with money to get their loved ones released from jail and in getting lowincome people to forgo basic necessities of life in order to pay JCS and the City in an attempt to avoid jail.
55. For example, the 2013 City of Birmingham budget-reflects approximately $2.8 million from court and traffic citations, the City of Mobile approximately $2 million, and the City of Huntsville approximately $2.5 million. In contrast, the City of Montgomery budget reflects revenue of $15.9 million from municipal court fines and forfeitures."
56. The City uses the money collected through these procedures to fund the City jail, to pay Municipal Court judicial salaries, to pay City Attorney's Office salaries, and to fund other portions of the City budget.
57., The City's recent "Amnesty Day" program starkly demonstrates its practice of jailing persons who are unable to pay debts to the City. In May 2013, Montgomery Mayor Todd Strange and City Municipal Court Administrator Kenneth Nixon (who is also a member of the Mayor's cabinet), announced that the City would offer an "Amnesty"
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program On the first two Saturdays in June. Under this program, the City announced that it would remove certain fees, eliminate arrest warrants, and institute a payment plan if individuals were unable to pay the full amount to which the City claimed it was entitled.
58. However, at least 15 people were arrested on the first day of the "Amnesty" program because they had too much debt allegedly outstanding (greater than $2,500) or because they did not bring at least $10 (or 10% of what was owed, if greater) to pay the City. These people were arrested pursuant to a City policy that required the arrest and jailing of people whose debts met these criteria regardless Of a person's ability to pay or financial circumstances.
59. The City's publicly available budget does not itemize "fines and forfeitures" in as much detail as do the budgets of some other cities, which makes it difficult for the public to know the exact source of these funds. But, the "fines and forfeitures" collected by the City of Montgomery appear substantially higher than those collected by any other major Alabama City, even those cities are larger than Montgomery. These policies and practices have created a culture of fear among the City's poorest residents 9 who are afraid even to appear in City court to explain their indigence because they know they will be jailed by the City without any meaningful process. Indeed, Mr. Nixon, the court administrator, reported to the Montgomery Advertiser that many residents were jailed during the amnesty program because they owed too much and could not pay even 10% of what they owed. Mr. Nixon
See DOJ Report pg. 48 "There are also historical reasons, of Which the City is well aware, that many Ferguson residents may not appear in court. Some individuals fear that if they cannot immediately pay the fines they owe, they will be arrested and sent to jail Ferguson court staff members told us that they believe the high number of missed court appearances in their court is attnbutable, in part, to this popular belief. These fears are well founded." (Emphasis added)
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publicly acknowledged that the arrests probably scared others from participating in the Amnesty" program.
60. The same fear motivates many very poor City residents to sacrifice expenditures on food, clothing, utilities, sanitary home repairs, and other basic necessities of life in order to scrape together money to pay traffic debt to the City.
61. Mr. Nixon warned that, following the 2013 Amnesty Program, the City would be 'stricter" about arresting people for unpaid debt. The City also has a policy of referring unpaid debt to the Montgomery County District Attorney's Office, which will send letters to debtors on the City's behalf threatening imminent arrest if they do not pay their debts. A surcharge of 30% of the value of the debt is added to the debt to compensate the District Attorney's Office for its participation in the City's debt collection. The City purports to have the authority to arrest and jail indigent people when they cannot pay even these additional surcharges.
62. The City has stated that it seeks to use these collection programs and tactics to go after old traffic debt, including debt dating back to the 1980s.
63. As in the Plaintiffs case, the City's policy is to modify orders of incarceration outside of any formal judicial process. These modifications include: decreasing a person's jail time from what was announced in open court so that a person is released with a remaining balance owed; allowing a person's release without any hearing if the person or family members present some money to the City clerk; and allowing City employees to reduce the time a person is ordered to be in jail based on labor performed in the jail without any judicial involvement.
64. Plaintiff and witnesses have observed numerous other similar violations of 17

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basic constitutional rights in the Montgomery Municipal Court within the past year. 65. Under its scheme, Montgomery, which is also financially interested, takes
advantage of its control over its police force and jail facilities to deny these "offender"/debtors the statutory and constitutional protections that every other Alabama debtor may invoke against a private creditor by allowing JCS to use or threaten debtors of the City with arrest and jail as coercion for payment.
66. Under this scheme, it was the policy and practice of Montgomery to jail people when they could not afford to pay debts owed to the City resulting from prior traffic tickets or fines and to do so without any inquiry into the person's ability to pay and without considering alternatives to imprisonment. THE PLAINTIFF
67. Plaintiff and others similarly situated are individuals who were unable to fully pay fines, fees, costs and surcharges levied by the Montgomery Municipal Court, and who, as a result, were assigned to JCS for "probation" under JCS for purposes of collecting the fine. Plaintiff and many like him are currently or were formerly indigent and, despite that indigency, were incarcerated for failure to pay charges and fees for services allegedly rendered by JCS to Montgomery with which it contracted.
ALDARESS CARTER 68. Aldaress Carter ('Mr. Carter') is over the age of nineteen (19) and is a resident of Montgomery, Alabama. 69. On January 24, 2014, Mr. Carter was riding home from work, and the driver of the car in which he was a passenger was pulled over for a broken tail light.
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70. The officer asked Mr. Carter, a passenger, his name and proceeded to run
his name through the police records' database. 1 ° The officer then informed Mr. Carter that
he was under arrest, informing him that there were ten capias warrants outstanding on him.
71. This was the first Mr. Carter had heard of the warrants, and at that time he
did not know what the warrants could be related to.
72. Mr. Carter was surprised that he did not know of these Warrants because he
was on supervised probation with the state and he regularly reported to his probation
officer. Despite regularly communicating with his state probation officer and finding work,
he was now being told that Montgomery had ten active arrest warrants that no one else
knew abOut.11
73. The private company Judicial Correction Services, ('JCS') - Montgomery--
hired to collect outstanding fines, had requested that these warrants be issued for unpaid
fines, fees and costs relating to traffic tickets Mr. Carter had incurred several years earlier.
When Mr. Carter first received those tickets, he had been fined by the Montgomery
Municipal Court for the charges but did not receive a jail sentence.12
10 See DOJ Report pg. 56,57 "We have found that FPD officers frequently check individuals for warrants even when the person is not reasonably suspected of engaging in any criminal activity, and if a municipal warrant exists will often make an arrest City officials have told us that the decision to arrest a person for an outstanding warrant is highly discretionary and that officers will frequently not arrest unless the person is "ignorant." Records show, however, that officers do arrest individuals for outstanding municipal warrants with considerable frequency... Similarly, data collected during vehicle stops shows that, during a larger period of time between October 2012 and October 2014, FPD arrested roughly 460 individualS following a vehicle stop solely because they had outstanding warrants."
See DOJ Report pg. 61 "As with "warrant warning letters" described above, our investigation has been unable to verify that the court consistently sends bond forfeiture warning letters. And, as with warrant warning letters, bond forfeiture warning letters are sometimes returned to the court, but court staff members do not appear to make any further attempt to contact the intended recipient."
12 See DOJ Report pg. 55 "The large number of warrants issued by the court, by any count, is due
exclusively to the fact that the court uses arrest warrants and the threat of arrest as its primary tool for
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74. Mr. Carter was unable to pay the fines and costs in full when levied and, on or around 2011, was ordered to be on "probation" with JCS and to pay JCS an additional $40 per month.
75. However, Mr. Carter was and has been indigent at all relevant times. At times, Mr. Carter paid what little money he could toward his fines and JCS fees, but eventually stopped paying when his money ran out.
76. Mr. Carter was not able to pay all the fines and fees, but, in accordance with the policy and practice of Montgomery which was established in its contract with JCS, neither the Montgomery Municipal Court nor JCS ever made any inquiry into his inability to pay at the time of levying the fine or thereafter.
77. Montgomery's agent, JCS, sent Mr. Carter a "failure to report" letter dated March 29, 2012, but Mr. Carter did not receive this letter and it was returned to JCS and scanned into its files.
78. Montgomery's agent, JCS, sent Mr. Carter another "failure to report" letter to the same bad address. Mr. Carter did not receive this letter and it was returned to JCS and scanned into its files. The date 4/23/12 is handwritten on the returned letter.
79. Because Mr. Carter failed to pay his City fines and JCS fees, on December 6, 2012 JCS requested that his "probation" be revoked. The City itself sent no notice to Mr. Carter and delegated that to its agent JCS.
collecting outstanding fines for municipal code violations. With extremely limited exceptions, every warrant
issued by the Ferguson munici pal court was issued because: 1) a person missed consecutive court
appearances, or 2) a person missed a single required fine payment as part of a payment plan. Under current court policy, the court issues a warrant in every case where either of those circumstances arises—regardless of the severity of the code violation that the case involves. Indeed, the court rarely issues a warrant for any other purpose."
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80. In its revocation petition, JCS does not mention that letters notifying Mr. Carter of JCS requests have been returned nor does it mention the fact that Mr. Carter is indigent and unable pay, nor does it mention the meager payments Mr. Carter has made.
81. Mr. Carter did not receive a copy of JCS's petition for revocation and did not attend the court hearing because he had no notice of the hearing.
82. Despite the fact that Mr. Carter did not receive notice of the hearing, a warrant for his arrest was issued by the City and a new charge of "Failure to Appear' ('ETA') was assessed to Mr. Carter on January 30, 2013.
83. This common scheme of revoking probation and assessing new charges of FTA benefitted both JCS and the City as it resulted in higher fees and fines owed to the City and it enabled JCS to keep probationers intheirsystem longerwhich resulted in higher profits to the private company.
84. Mr. Carter had no notice of the original court hearing or the warrant that was issued for his purported "Failure to Appear" and the City made no effort to give him notice.
85. After he was arrested on January 24, 2014, Mr. Carter was then taken to the Montgomery City jail where he learned for the first time that he had been arrested for old, unpaid traffic tickets.
86. Mr. Carter sat in jail for three days and then appeared in the Montgomery Municipal Court on Monday, January 27, 2014 -- along with sixty-seven (67) other jailed inmates.
87. Before appearing in court, the jailed inmates were told by a man who did not introduce himself that they needed to "Pay or they would Stay." It was later determined that this man was Branch Kloess, a "Public Defender" hired by the City.
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88. Despite being in jail and being indigent as shown by his inability to bond out of jail, Mr. Carter appeared before the judge and was ordered to pay $915 for the fines and fees on his unpaid traffic tickets, after which he could be released. Otherwise, the court informed Mr. Carter that he must stay in jail and receive $50 in credit per day toward the payment of his fines and fees.
89. Mr. Carter had recently obtained new employment, a job that had taken him a long time to acquire, and he knew he would be fired if he was forced to stay in jail. However, Mr. Carter had no money with which to pay his fines and was left with no option but to stay in jail. Mr. Carter's girlfriend Offered to pay all the money she had, which totaled $120, to secure his release from jail so that he could go to work. This offer was refused and Mr. Carter was sent back to jail. Throughout the day, the amount demanded to secure Mr. Carters release from jail changed several times without any court intervention or consideration. Mr. Carter's mother continued to call the jail to find out how she could get him out and finally learned that if a family member or friend could pay $452, then Mr. Carter would be released and the unpaid fines and JCS fees he owed would be cleared.
90. Mrs. Carter was able to borrow the money to get her son out of jail so that he could go to work. She paid the $452 to one of the clerks at the court window and they called the jail to get Mr. Carter released.
91. On January 30, Mr. Carter was released from jail when his mother paid $452. 92. Throughout this period of time, JCS provided no services to Mr. Carter and has acted merely as a collection agency charging additional fees, and despite knowledge that Mr. Carter was unable to pay these fines and was indigent, JCS sought to collect and has taken actions to incarcerate Mr. Carter without any due process.
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93. Mr. Carter was incarcerated without any formal probation revocation hearing or any hearing on the issue of his indigency, but simply incarcerated and later released based upon the determination of the City of Montgomery pursuant to its policy and contractwith JCS.
94. Mr. Carter later learned that the public defender had entered a notice of appearance on Mr. Carter's behalf despite the fact that Mr. Carter did not know who he/she was nor had the public defender introduced himself to Mr. Carter or advocated on Mr. Carter's behalf.
95. Mr. Carter's mother discovered that the public defender that supposedly represented her son was Mr. Branch Kloess and called Kloess who rudely questioned her about how she found out he was her son's attorney and then stated he was no longer his attorney. When she told her son that he had counsel appointed to him, her son was surprised because no one stood up and spoke on his behalf to the judge.
96. Later when Mr. Carter's girlfriend sawa picture of Mr. Kloess, she recognized him as the man that was seated in the courtroom but had no contact with either her or Mr. Carter. Mr. Kloess did not appear before the judge to plead Mr. Carter's indigency or request that the judge reduce his sentence based on his inability to pay, nor did he meet with Mr. Carter and file any pleading raising the issue of his indigency.
97. In fact, despite the fact that Mr. Kloess was being paid to represent indigent people, Mr. Carter was sent back to jail until his family could somehow get enough money to get him released so he could go back to work and, hopefully, not lose his job.
98. Montgomery's agents and employees all participate in this revenue revitalization program that preys on the poor despite the fact that their actions violate state
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and federal constitutional freedoms. Plaintiffs CLASS ALLEGATIONS
99. The Classes which the named Plaintiff seeks to represent consist of: All individuals who have been assigned by the Montgomery Municipal Court to "probation" with JCS for the collection of fines. AND All individuals who, despite their indigency, were incarcerated, without consideration of their indigency for failure to pay fines, fees, costs and charges and levied by the Montgomery Municipal Court.
100. The members of the Classes and subclasses are so numerous that joinder of all members is impracticable.
101. As of this time, the exact number in the Classes is unknown but would be more than one thousand and is ascertainable.
102. Plaintiffs treatment by the Defendants is typical of the members of the Classes and subclasses and is ongoing.
103. Plaintiff will fairly and adequately protect the interests of the Classes and has retained counsel who are competent and experienced in class litigation. Plaintiff has no interests that are adverse or antagonistic to the Classes.
104. A class action is superior to all Other available methods for the fair and efficient adjudication of this controversy. Since the damages suffered by many Class members may be small, the expense and burden of individual litigation make it virtually impossible for the Class members individually to seek redress for the wrongful conduct alleged.
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105. Common questions of law and fact exist as to all members of the Class, and

predominate over any questions affecting solely members of the Class. Among the

questions of law and fact common to the Class are-

a. Whether policy and practice of automatically placing on "probation" at

additional cost all municipal offenders who cannot immediately pay fines and

costs is legal;

b. Whether the policy and practice of converting unpaid fines and costs

to days of incarceration, without any determination concerning an individual's

ability to pay, is legal;

C. Whether the policy and practice of requiring every order of the

municipal court to require probation fees for JCS is legal;

d. Whether the policy and practice of incarcerating individuals for failure

to pay fines and costs with no finding of willfulness is legal;

e. Whether the policy and practice of incarcerating individuals for failure

to appear when no notice of the hearing was provided by the court is legal;

f. Whether the policy and practice of incarcerating individuals for Failure

to Obey Court Order when no such ordinance exist and with no finding of

Willful contempt is legal;

g. Whether the policy and practice of failing to appoint counsel for

indigent defendants when a jail sentence is involved is legal;

h. Whether the policy and practice of failing to make any inquiry into

indigency before imposing fines and costs is legal

L

Whether the policy and practice of failing to give adequate notice of

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the charge and nature of a probation revocation hearing, failing to provide a

probation revocation hearing, failing to make written findings concerning the

reasons for revoking probation and the evidence relied upon, failing to hold

a hearing to determine indigency before revoking probation and otherwise

imposing incarceration, failing to make written findings concerning an

individual's willful nonpayment of fines and costs before imposing

incarceration for nonpayment, is legal;

j.

Whether the policy and practice of charging incarcerated municipal

defendants a daily fee for each day the person is incarcerated is legal;

k. Whether the policy and practice of imposing fines and court costs that

exceed that statutory maximum for municipal is legal;

I.

Whetherthe policy and practice of extending "probation" for municipal

offenses beyond 24 months is legal;

M. Whether the policy and practice which fails to give any credit for time

spent incarcerated is legal;

n. Whether the policy and practice of adding unpaid fines that predate

probation to the balance to be paid durin g probation is legal;

o. Whether a municipality can legally enter a contract binding upon its

municipal court;

P_ Whether a municipality can enter into a no bid contract to grant an

exclusive franchise to a private probation company to operate in its municipal

court;

q. Whether setting bond based upon a fine balance owed the city is legal;

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r. Whether the policy of demanding a cash bond for release from jail without inquiry into ones' financial situation or offense is legal. 106. Montgomery has acted on grounds generally applicable to the Class, thereby Making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class as a whole. 107. Plaintiff knows of no difficulty which will be encountered in the management of this litigation which would preclude its maintenance as a Class Action. The data concerning the Class members and the transaction details and amounts on each charge are largely computerized by Montgomery and by JCS. 108. The names and addresses of the Class members are a matter of public record and are also kept by JCS and notice can be provided to the Class members via First Class U.S. Mail or other appropriate means as may be directed by the Court.
COUNT ONE DENIAL OF DUE PROCESS AGAINST THE CITY OF MONTGOMERY AND KLOESS Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 109. The Plaintiff avers that Montgomery, acting under color of state law in violation of 42 U.S.C. § 1983, has denied him his right to due process and the rights of the Class members. 110. By contract, Montgomery delegated many administrative and judicial functions of its municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees.
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111. That no bid agreement was signed by the City mayor and bound Montgomery and its municipal court requiring that its municipal "court agrees that each court order shall provide for the following:
a probation fee of $40.00 per month flat fee One time probationer set up fee of $10.00. . . "(emphasis added). 112. Montgomery, through its mayor and/or council, approved the agreements with JCS. 113. Montgomery, through its mayor and council, also approved the employment of the judges of its municipal court and its public defenders. 114. Municipalities are prohibited from laws, Ordinances and policies which are in conflict with state law. See Ala Code Section 11-45-1. Also see, Ala. Const. Article 4 Section 89. 115. State law also dictates a separation of the branches of government. Ala Const. Article 3, Section 4313 Under that doctrine, legislative powers granted to cities and towns are exercised by the city council, Ala. Code, Section 11-43-43, while the mayor of the city is responsible for executive duties. Ala. Code, Section 11-43-83. if the town establishes a municipal court, its administration is supervised by the Chief Justice of Alabama. Ala. Code, Section 12-2-7 et. seq.; Ala Const., Article 6, Section 139. 116. Municipal mayors have the executive power to execute and enforce
13 Ala. Const. Art. III, Section 43 states: In the government of this state except in the instances in this Constitution hereinafter expressly directed or permitted the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers or either of them the judicial shall never exercise the legislative and executive powers or either of them to the end that it may be a government of laws and not of men.
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contracts14 and the city councils have the legislative power to enact regulations and ordinances, 15 but neither the mayor nor the council has the power to invade the administration of its judiciary.
117. Montgomery has exceeded its statutory authority and acted in conflict with state statute and constitutional limitations when, acting through its mayor, it agreed with JCS to bind its municipal court to include probation and fees for JCS in everycourt order entered by its hired judge. That action essentially sold the court process for purposes of increasing income to the City.
118. The illegal agreement and policy of Montgomery invaded and overrode the judicial authority and court administration reserved to the municipal judges and the Chief Justice.
119. Probation is only appropriate when an individual has been sentenced to jail time and not when only a fine has been assessed as is the case with the Plaintiff and Class members. As a result, the Montgomery policy and contract to include probation in every court order mandated a judicial practice that continually deprived indigent misdemeanants of their constitutional rights.
120. The policy and practice of Montgomery also violated the Alabama
"Ala. Code Section 11-43-83 - The mayor shall see that all contracts with the town or city are faithfully kept or performed .. He shall execute all deeds and contracts and bonds required in judicial proceedings for and on behalf or performed. He shall execute all deeds and contracts and bonds required in judicial proceedings for and on behalf of the city or town and no sureties shall be required on such bond He shall perform such other executive duties in addition to those prescribed in this article, as may be required of him by the council. ' 5Ala. Code Section 11-43-43 - All legislative powers and other powers granted to cities and towns shall be exercised by the council, except those powers conferred on some officers by law or ordinance. The council shall perform the duties required by this title and other applicable provisions of law.
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Constitution. Article I, Section 20 Ala. Const specifically prohibits imprisonment for the payment of debts, yet the policy enforced at Montgomery regularly jailed misdemeanants upon the recommendation of its agent JCS for failure to pay fines, fees and costs. Article I, Section 16 Ala. Const requires that all persons shall before conviction be bailable by sufficient surety, but despite this prohibition, misdemeanants were regularly jailed without lawful conviction under any contempt proceedings or probation violation.
121. The Plaintiff and some Class members were imprisoned, and some repeatedly, under these policies of Montgomery for their failure to pay fines, costs and the added fees mandated by the illegal contract between Montgomery and JCS. The Plaintiff was not accorded any hearing or consideration of his indigency before being jailed, nor was he provided any notice of charges, a hearing on charges levied that might result in imprisonment, or provided meaningful assistance of counsel before being imprisoned.
122. At the Montgomery Municipal Court, a person unable to fully pay fines and costs when levied was automatically placed on probation. The Montgomery system used JCS orders and forms even when no jail sentence was adjudicated. This was routinely done with no investigation into the indgency of the individual or the reasons for their inability to pay the fine and costs. The orders supplied by JCS under the agreement with Montgomery then required the individual to make payments to JCS, rather than the City clerk, of the fines, costs and additional monthly fees.
123. Montgomery, through its city clerks, actively enforced these requirements as part of the policy and procedures established under this contract and refused to accept payments of fines and costs referring those payers such as the Plaintiff instead to the JCS office.
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124. Montgomery, through its contract, practice and policy, clothed its agent JCS with the appearance of state authority and has previously allowed JCS employees to carry badge& 16 Underthese practices and policies, JCS employees were allowed to attend each municipal court session and were referred to "probation officers" in the operation of the municipal cbuit and in the City clerk's office, though none ever had such authority under Alabama statutes.
125. Under this system at Montgomery, "Offenders" are not permitted to pay fines at the City cIerks office, but are instead directed to make all payments, including those for fines, restitution, probation fees and court costs, to JCS at the JCS office at hOurs and locations set by JCS.
126. Montgomery's policy and practice also allowed JCS to control the money collected from persons such as Plaintiff and to determine how much each such municipal court "offender" must pay each month.
127. Montgomery's policy and practice also allowed JCS to determine how much of the collected sums will be credited to the collection "services" of JCS each month and how much it will rebate to Montgomery toward the municipal court fines adjudged.
128. This system, as a matter of routine, violated the rights of persons such asthe Plaintiff and the class he seeks to represent by imposing fines and charging fees to
16
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indigent persons with no hearing or consideration of their indigency. 129. Despite the lack of authority to do so, Montgomery, by its practice and policy,
permitted, approved and conspired with JCS, a private actor with a financial stake in the outcome, to play the role of a neutral probation office and, at its discretion, to use threats of revoking probation, increased fines and costs, arrest and jail time for purposes of collection.
130. Under this system, should an individual fail to pay to the satisfaction of JCS, Montgomery permitted and approved JCS setting payment and reporting schedules and determining when the individual's 'probation" should be revoked, or when to impose additional fines and costs.
131. Under, the system operated at Montgomery, JCS's determination to incarcerate an individual and/or impose unreasonable release requirements was routinely accepted by city personnel without conducting delinquency or probation hearings and without making any findings, much less any determination of indigency despite the fact that city-paid 'public defenders' were assigned to many of these indigent folks, yet they were still subject to punitive action.
132. Montgomery permitted and conspired with JCS allowing it to control and dictate these functions and, as a consequence, this routinely resulted in court costs and fines which exceed the statutory maximum of $500 for municipal courts and imposed additional "jail fees" determined by the city clerk for the costs of any incarceration. Similarly, the periods of "probation" imposed for purposes of collecting fines and fees at Montgomery routinely exceeded the two-year statutory maximum, all of which result in action to detain and otherwise incarcerate individuals without any jurisdiction to do so.
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133. The municipal court judges employed by Montgomery did no investigation of indigency as a matter of policy.
134. Despite the fact that many people are assigned a 'public defender,' these indigent people are not adequately represented and many times do not even know that an attorney has been assigned to their case. In fact, many times the 'public defender' never introduced himself/herself to their 'client' and did not speak to the court on the "clients" behalf and kept no files on their "clients."
135. Under the system at Montgomery, after simple fines are illegally converted to "probation" for payment, jail often resulted for the "offender" who did not meet the payment schedule set by JCS and enforced by Montgomery. This system used and accepted JOS's conclusion of a "probation violation" or "failure to obey court order" and employed JCS recommendations for the issuance of a warrant of arrest to incarcerate individuals whose original obligation was only the payment of a fine.
136. Under this system at Montgomery, the Plaintiff was first fined, but then automatically placed on "probation" though no jail sentence was adjudicated. Though the Plaintiff was indigent, Montgomery made no investigation of that matter -- despite the fact that, unknown to him, Montgomery paid a 'public defender' to represent him. When the Plaintiff was unable to pay the fines, costs and additional JCS fees that Montgomery agreed to levy, recommendations from JCS were made and followed by Montgomery to incarcerate him for undetermined time unless a cash bond was made in amounts closely approximating the sums sought by JCS's collection efforts.
137. Many individuals who cannot pay their fines and added fees, such as the Plaintiff and Class members, were jaded for charges against them for "failure to obey court
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order," though there is no such state statute or city ordinance which defines this as a criminal act.
138. Though a determination of willful refusal to obey a court order as required by Ala. Code §15-18-62 can lawfully lead to incarceration, no such determinations were made Under the system at Montgomery.
139. Montgomery adopted and implemented JCS's conclusion of a "probation violation" or "failure to obey court order" and issued arrest warrants to incarcerate individuals whose original case had only been a fine.
140. In this process of converting fines to jail time, Montgomery did not give adequate notice to the 'offender" of the nature of any lawful charge, it failed to conduct hearings, failed to make written findings concerning the reasons for any probation revocation or the evidence relied upon, and failed to make written findings concerning any willful nonpayment of fines and costs before imposing incarceration for failure to pay fines and costs.
141. Under this policy and practice at Montgomery, when a Simple fine was transformed into a jail sentence of an undetermined time, the City failed to provide adequate counsel for the "offenders." In fact, like the Plaintiff, many people are jailed for nonpayment despite the fact that 'public defenders' are retained by the City to represent the indigent, 17 are listed as attorneys on their case, and are paid to supposedly represent them. Those public defenders like Kloess are paid from fines collected on convictions, do not routinely oppose the charges made, and do hot raise issues of indigency nor request
17 See Exhibit 2 - contract for Kloess.
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hearings for that purpose. 142. The public defenders have a policy and practice of not requesting indigency
hearings despite the fact that the only clients they represent under the contract with the City are indigents. This policy and practice of not requesting indigency hearings benefits both the City and the 'public defender,' as all are enriched by avoiding the constitutional due process requirements and demanding money from the poor.
143. After jailing an "offender," Montgomery acted to further violate the Plaintiffs constitutional rights by arbitrarily granting early release to some individuals while denying it to others under similar circumstances without any rational basis other than payments it has secured. AS a result, there was no consistent standard of review or logical system under which those incarcerated were granted release.
144. Under the practice and policies used at Montgomery, after an adjudication under which a fine is levied, additional fees, costs, and other charges are added to the "offender bill for each new arrest, alleged probation violation, or contempt proceeding including, in some cases, those relating to charges years earlier.
145. As a proximate consequence of this deprivation of due process, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent.
COUNT TWO VIOLATION OF THE FOURTH AMENDMENT
CITY OF MONTGOMERY 35

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Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof.
146. The Plaintiff avers that Montgomery, acting under color of state law in violation of 42 U.S.C. § 1983, has violated their Fourth Amendment rights and the rights of the Class members to be free from unreasonable seizure.
147. By no bid contract as discussed in detail above, Montgomery illegally delegated many administrative and judicial functions of its municipal court to its agent JCS, clothing it with the color of state law for the collection Of court fines, costs and private fees.
148. In addition to a denial of due process guaranteed the Plaintiff under the Fourteenth Amendment, the arrest and detainment of these "offenders" who could not pay the fine imposed under this system constitutes a "seizure" in violation of the Fourth Amendment as well.
149. Under Alabama law, a simple fine can only be converted into jail time if the court makes findings under Ala. Code, Section 15-18-62 (1975) that a defendant has willfully failed to pay the fines.
150. Montgomery's policy and practice of including probation with JCS in every municipal court order created the process by which misdemeanants were incarcerated without a willfulness hearing as required by Ala. Code, Section 15-18-62, and in violation of Alabama case law, the Alabama Constitution and the U.S. Constitution.
151. Under Alabama case law, the Alabama Constitution and the U.S. Constitution, an indigent defendant cannot be required to serve jail time for nonpayment
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of fines or costs."' 152. Despite longstanding legal precedent prohibiting incarceration for one's
inability to pay a fine/debt, Montgomery's personnel, working in conjunction with JCS,
unlawfully arrested and jailed the Plaintiff fOr his inability to pay a simple fine with added
fees and costs dictated by the Montgomery contract with JCS. 153. Montgomery's police, municipal court processes and jail access all became
tools of collection under forms and processes issued by its agent JCS and which were
routinely followed by Montgomery. Montgomery's policy and practice, after clothing its
agent JCS with the appearance of state actor acting on their behalf, allowed JCS to
threaten arrest or revocation of probation and/or incarceration in order to coerce these indigents to pay the city fines and fees for misdemeanor offenses not otherwise subject to
jail time under the original adjudication.
154. When these threats failed to produce sufficiently, Montgomery police, clerks
and other personnel, cooperated with JCS to arrest and jail the Plaintiff class members
181t is clear as a matter of constitutional law that an indigent defendant cannot be required to serve
jail time for nonpayment of fine and costs. Tate v. Short, 401 U.S. 395 (1971); Lingle v. State, 51 Ala.App. 210, 283 So.2d 660 (1973); Smith v. State 51 Ala.App. 212, 283 So.2d 662 (1973). "To imprison an indigent when in the same circumstances an individual of financial means would remain free constitutes a denial of equal protection of the laws." Barnett v. Hopper, 548 F..2d 550, 554 (5th Cir.1977). This is not a case of a defendant who, though capable of paying a fine, refuses or neglects to do so.
Although Section 15-22-52, Alabama Code 1975, states that payment of fine and costs may be
made a condition of suspension of sentence or probation, in State v. Esdale, 253 Ala. 550, 45 So.2d 865 (1950), our Supreme Court indicated that such a condition was contrary to our constitution.
"These benefits (probation and suspension of sentence) are not the subject of bargain and sale to be conditioned on the payment of costs and fees assessed as an incident to the prosecution and trial arid to condition these benefits on the payment of such costs and fees violate the letter and spirit of Section 13 of the Constitution of 1901 which provides that justice shall be administered without sale denial or delay" Esdale 253 Ala at 553 rutcher v. State, 439 So. 2d 725; 726 (Ala. Grim. App. 1983)
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such as Aldaress Carter. 155. The jailing of class members by Montgomery, as described under the
specific facts stated above, constitutes unlawful seizures in violation of the Fourth Amendment.19
156. As a proximate consequence of this unlawful seizure, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, all while being indigent.
COUNT THREE VIOLATION OF THE SIXTH AMENDMENT
CITY OF MONTGOMERY Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 157. The Plaintiff avers that Montgomery, acting under color of state law in violation of 42 U.S.C. § 1983, has violated his Sixth Amendment rights and the rights of the Class members. 158. By a no bid contract as discussed in detail above, Montgomery illegally delegated many administrative and judicial functions of their municipal court to its agent JCS, clothing it With the color of state law for the collection of court fines, costs and private fees. 159. Under the policy and practice at Montgomery, when a simple fine was
19 "Fourth Amendment seizure [occurs] ... when there is a governmental termination of freedom
of movement through means intentionally applied." (internal quotation marks and emphasis omitted)) Oliver 510 U S at 274 (plurality opinion) ( Ihe Framers considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it.").
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transformed into a jail sentence of an undetermined time, adequate counsel was not provided for the indigent "offenders"
160. The Plaintiff was initially ordered to pay only a fine at the Montgomery Municipal Court, but due to his inability to pay, he was placed on "probation" under JCS pursuant to JCS form orders and the contract approved by Montgomery.
161. The no bid contract signed by Montgomery approved a "probation" process as essentially a collection vehicle for the City to collect its fines. That agreement, as discussed above, conflicts with state statutes, violates state constitutional requirements for separation of power in the branches of government, and exceeds the authority of the mayor and council.
162. Under that agreement, Montgomery allowed JCS to add monthly fees to the "offender" who had already disclosed an inability to pay the fine when adjudicated and despite the fact that JCS provided no services to them.
163. Under the agreement and with the knowledge and approval of Montgomery, JCS represented itself as acting on behalf of the City which clothed it with that appearance.
164. Under this agreement, Montgomery unlawfully invaded the province of the municipal court and mandated that each order there contain provisions for fees to JCS.
165. By this agreement, simple fines without jail sentences were automatically and illegally converted to 'probation' through JCS if the offender could not promptly pay the entire fine and costs.
166. After this conversion from a fine to 'probation,' threats of jail were used by JCS with the approval of Montgomery and actual incarceration then takes place by police and other City personnel if the fines, fees and costs were not paid as scheduled.
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167. The jeopardy of jail time was not present when the simple fines were adjudicated against the Plaintiff and the Class members and would not have been present but for Montgomery's policy and practice adopting and using the JCS collection system in the administration of its court system illegally requiring "probation" for simple fines.
168. With the Plaintiffs inability to pay and the JCS focus on collections, charges are routinely initiated claiming "probation violation" or "failure to appear" or "failure to obey court order." These are initiated by JCS under its system and then approved by Montgomery personnel.
169. At that point, jail sentences become potential jeopardy for the "offenders" such as the Plaintiff on charges that have never before been subjected to meaningful adversarial testing. Nevertheless, neither JCS nor Montgomery routinely provided adequate counsel for those "offenders."
170. At the point when jail sentences become potential, Montgomery does hot provide notice of charges, nor are findings made as required for conviction. Similarly, though JCS also regularly proposes a charge of "failure to obey court order" which Montgomery then pursues, that is not a valid offense. If willful failure to pay under state statutes such as Ala. Code Section 15-18-62 is used as the basis, under the City's system with JCS, there is no finding or hearing on the issue of willfulness.
171. The named Plaintiff, Aldaress Carter, while indigent, was unlawfully jailed by Montgomery under this JCS system and was not provided meaningful assistance of counsel. In fact, Mr. Carter was surprised to learn that Mr. Kloess was appointed to his case that resulted in his incarceration. Mr. Kloess never identified himself to Mr. Carter, never met with him and, despite being paid to represent indigents, Mr. Kloess never
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advocated to the court on Mr. Carter's behalf to raise any issue of his indigency as a bar to incarceration for failure to pay.
172. These actions constitute a denial of the Plaintiffs rights secured by the Sixth Amendment.
173. Asa proximate consequence of this violation of their Sixth Amendment rights, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent.
COUNT FOUR VIOLATION OF THE EIGHTH AMENDMENT
CITY OF MONTGOMERY Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 14. The Plaintiff avers that Montgomery, acting under color of state law in violation of 42 U.S.C. § 1983, has violated the Eighth Amendment prohibition against excessive fines, excessive bail and cruel and unusual punishment in its actions with the Plaintiff and Class members. 175. As discussed in detail above, Montgomery has illegally delegated many administrative and judicial functions of their municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees. 176. The Eighth Amendment prohibits cruel and unusual punishment and, as
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such, limits the kinds of punishment that can be imposed on those convicted of crimes, proscribes punishment grossly disproportionate to the severity of the crime and imposes substantive limits on What can be made criminal and punished as such and prohibits excessive bail.
177. Under Alabama law, a municipal court has no authority to award a fine on any particular charge over $500, Ala. Code I3A-5-12(a)(3), and even lawful probation for misdemeanors cannot, by statute, extend beyond a two-year period. See Ala. Code 1522-54(a).
178. As mentioned above, Ala. Code § 15-18-62 is the only statutory method under which a fine levied by a court on adjudication can be converted to imprisonment, but that can legally occur only where the court finds willful nonpayment of the fine and cost.
179. Even upon proper notice and a finding of willful nonpayment under § 15-1862, the conversion of fine to imprisonment has a specific ratio such that a fine not to exceed $500 shall result in no more than 20 days. See Ala. Code § 15-18-62(2).
180. Rule 26.11 of the Alabama Rules of Criminal Procedure provides the method for dealing with fines, restitution and the failure to pay under a variety of circumstances, none of which were followed by Montgomery.
181. Under these facts, Montgomery illegally contracted and conspired with JCS to add monthly fees and costs to each municipal court order. This agreement increased the substantial fines levied against indigent persons such as the Plaintiff.
182. Neither Montgomery, nor its agent JCS, made inquiries into the indigency of the "offenders" in the system. As a result, the Plaintiffs failure to make payments as
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dictated resulted in threats of arrests. If threats failed to produce the demanded payments, arrest and incarceration followed under the process based upon JCS's representation that the offender had "failed to obey a court order" or had "failed to appear" or had violated "probation."
183. These fines exceeded the statutory limits of the municipal court and the incarceration periods imposed for the failure to pay exceeded those in Ala. Code §15-1862.
184. The practice and policy of imposing jail time for an inability to pay its fees, fines and costs violates the Eighth Amendment prohibition against excessive fines and cruel and unusual punishment.
185. The named Plaintiff was at all pertinent times indigent and yet was incarcerated by City personnel for his inability to pay fines, fees and costs.
186. After being arrested, JCS, with the City, calculates the amount claimed to be owed for fines, fees and costs which is then used as the bail required for release without consideration of factors justifying release on recognizance or other factors provided for under Ala Rule Cnm Pro. 7.2. This practice results in excessive bail requirements in violation of the Eighth Amendment:.
187. As a result of the violation of the Eighth Amendment, the Plaintiff was subjected to excessive fines, fees, and costs beyond the jurisdictional limits of the municipality and violation of the prohibition against excessive fines and cruel and unusual punishment and excessive bail.
188. Asa proximate consequence of this violation of his Eighth Amendment rights, the Plaintiff and Class members suffered injuries, including having fines converted to jail
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sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JOS fees, costs and restitution levied, all while being indigent.
COUNT FIVE DENIAL OF EQUAL PROTECTION
CITY OF MONTGOMERY Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 189. Montgomery has acted under color of state law in violation of 42 U.S.C. § 1983 to deny the Plaintiff and Class members' rights to equal protection secured by the Fourteenth Amendment. 190. This was accomplished by the illegal contractual agreement Montgomery had with JCS. Under that agreement, the actions of its agent JCS were inextricably intertwined in a practice and policy at Montgomery. That practice and policy automatically required "probation" for any person who, despite having no jail sentence, was financially Unable to fully pay the fine and costs when levied by the municipal court. That probation requirement was part of the agreement between Montgomery and JCS and was part of every printed order at the municipal court and required payment of monthly fees to JCS. 191. Persons who are financially able to fully pay the levied fine and costs at Montgomery are not placed on "probation." As a result, those persons are not charged any fees for JCS and are not subjected to threats of arrest and incarceration in the collection process.
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192. For those such as the Plaintiff who were unable to fully pay the fine and costs when levied by the municipal court, not only were they required to come to court for traffic tickets, were charged court costs, they were also put on "probation" with JCS.
193. This requirement was part of the Montgomery contractwith JCS. That no bid contract, as mentioned above, exceeded the statutory and constitutional authority Of municipalities and imposed on the municipal court an agreement in violation of the separation of powers doctrine between the branches of government.
194. Once on "probation" for purposes of paying a fines and costs, this policy and practice at Montgomery routinely imposed incarceration and additional costs on individuals who are unable to pay fines and costs, without any determination of willfulness as would lawfully be required under Alabama statutes. See Ala Code Section 15-18-62.
195. This disparate treatment based upon the wealth of the "offender" before the municipal court is aviolation of equal protection and cannot be justified on any legitimate rational state interest basis.
196. This inequality of treatment is also beyond the authority of the municipal court which is required by Alabama Statute to uniformly process traffic infractions and penalties for misdemeanors in accordance with specified maximum fines. See Ala. Code Section 12-14-8. The policy at Montgomery was not uniform with the procedures established by the Alabama Administrative Office of Courts because it added fees only to "offenders" who could not pay immediately and created its own "rules" for penalizing individuals who could not pay as directed.
197. These additional JCS fines resulted in disparate treatment between those who could immediately pay the fine from those who were unable to immediately pay the
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fine. Furthermore, those 'offenders" at Montgomery with its JCS arrangement were processed and fined differently than !offenders in jurisdictions that have not allowed JCS to charge additional fees to those who cannot pay. There is no state authority for such disparate treatment.
198. By its policies, agreement and conspiratorial actions with JCS, the City has also deprived Carter and the Class members of all the civil debt protections available to others.
199. The Plaintiff Aldaress Carter and the Class members were required to pay the additional costs and fees under this disparate system and many like Aldaress Carter were unlawfully jailed for their inability to pay as demanded.
200. As a proximate consequence of this denial of the right to equal protection under the Fourteenth Amendment, the Plaintiff and Class members 'suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent.
COUNT SIX DECLARATORY AND INJUNCTIVE RELIEF
CITY OF MONTGOMERY Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 201. A real controversy exists between these parties concerning several issues, including the validity of Montgomery's attempt to bind its municipal court and the legality of the actions taken under the contract with JCS, such that declaratory relief is appropriate.
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Contract between the City and JCS is void 202. Plaintiff requests the Court to declare that Montgomery had no authority to contractually bind their municipal court. City does not have the power to bind the Court 203. Montgomery entered into an agreement with JCS that exceeded both its statutory and constitutional limitations on municipalities. Furthermore, that agreement violated theseparation of powers doctrine embodied in the Alabama Constitution. See A/a. Const., Article 3, Section 43. As a result, that agreement is void and due to be declared a nullity. 204. Alabama state law also dictates a separation of the branches of government. Ala. Const., Article 3, Section 43. Under that doctrine, legislative powers granted to cities and towns are exercised by the city council, Ala. Code Section 11-43-43, while the mayor of the city is responsible for executive duties. Ala. Code, Section 11-43-83. If the town establishes a municipal court, its administration is supervised by the Chief Justice of Alabama. Ala. Code Section 12-2-7 et. seq..; Ala. Const , Art. 6, Section 139. 205. A city's mayor, such as Montgomery's mayor, has the executive power to execute and enforce contracts and the city council has the legislative power to enact regulations and ordinances, but neitherthe mayor nor the council has the power to invade the administration of its judiciary. 206. Montgomery has exceeded its statutory authority and acted in conflict with state statute and constitutional limitations when, acting through its mayor, they agreed to require its municipal court to include probation and fees for JCS in every court order
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entered by its hired judge. That action essentially sold the court process for purposes of increasing income to the City.
Contract violates statutory limitation regarding traffic citations and municipal fines 207. That agreement also violates the uniformity required by statute for processing traffic infractions and penalties for misdemeanors in accordance with specified maximum fines. See Ala. Code Section 12-14-8. 208. The process at Montgomery is not uniform with the procedures established by the Alabama Administrative Office of Courts because it adds fees only to "offenders" who cannot pay immediately and creates other "rules" for further penalizing individuals who cannot pay as directed. "Offenders" who are able to immediately pay the fine are charged one rate, but those that are unable to immediately pay for the same offense are charged the fine and required to pay JCS monthly fees that accumulate each month that passes. 209. The "offenders'. at Montgomery are processed and fined differently than "offenders" in municipal jurisdictions which have not contracted for JCS to charge its fees to those who cannot pay and, as a result, violates uniformity requirements of Ala. Code Section 12-14-8. Contract overrides judicial authority and administration of municipal courts reserved to the Chief Justice 210. The illegal agreement and policy of Montgomery invades and overrides the judicial authority and court administration reserved to the municipal judge and the Chief Justice.
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Contract is an exclusive franchise 211. The contract between JCS and the City of Montgomery grants an exclusive franchise for provision of probation services. 212. The contract was not competitively bid as required by Ala. Const. Art. l, 22 and Ala. Code 1975, 41-1650. 213. Because the contract was not bid, it is void and unenforceable. 214. Plaintiff requests the Court to declare the actions of Montgomery under this contract to be unconstitutional under the premises discussed above. Under this void agreement, Montgomery has implemented policies and practices to prosecute persons such as the Plaintiff where there is no jurisdiction or authority to do so under Alabama law, doing so intentionally in an effort to extort the payment of fines and costs from indigent people. These efforts have resulted in the illegal prosecution and incarceration Of the Plaintiff and the Class beyond the limited jurisdiction of the municipal courts. 215. Further, Montgomery has added increased punishment, fines and costs after adjudication and even where there has been no adjudication of guilt, all without jurisdiction or authority for such under Alabama law. 216. Montgomery has systematically applied Ala. Code § 15-18-62 in an unconstitutional fashion, denying the Plaintiff and the Class he seeks to represent constitutionally protected rights. 217. Section 15-18-62 provides for the imprisonment for the failure to pay fines
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and costs in limited circumstances and only upon the finding of a willful nonpayment.2° 218. Under the policies and practices at Montgomery, "offenders" before the
municipal court, such as the Plaintiff and the Class he seeks to represent, are systematically imprisoned for nonpayment with no determination of willfulness and with no consideration of their indigency or ability to pay.
219. Furthermore, once imprisoned, the requirements of time to be Served under § 15-18-62 are ignored by the practice and policy of Montgomery.
220. The result of this consistent systematic policy and practice of Montgomery is essentially a debtor's prison for fines and charges levied.
221. Plaintiff requests the Court to enjoin the actions of Montgomery identified herein to prevent the continuation of these violations of statutory and constitutional prohibitions.
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that the Court will take jurisdiction of this cause and upon the final hearing:
a. Certify this matter as a proper class action maintainable under Rule
20Section 15-18-62 Imprisonment for failure to pay fines and costs.
In cases of willful nonpayment of the fine and costs, the defendant shall either be imprisoned in the county jail or, at the discretion of the court, sentenced to hard labor for the county as follows:
(I) If the fine and costs do not exceed two hundred fifty dollars ($250), no more than 10 days;
(2) If the fine and costs exceed two hundred fifty dollars ($250) but do not exceed five hundred dollars ($500), no more than 20 days; (3) If the fine and costs exceed five hundred dollars ($500), but do not exceed one thousand dollars ($1,000), no more than 30 days; and (4) For every additional one hundred dollars ($100) or fractional part thereof, 4 days.
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23 of the Federal Rules of Civil Procedure for a plaintiff class and for the defendant class; b. Award the Plaintiff such damages as this Court shall find the Plaintiff have sustained, together with punitive, or exemplary damages as the law shall permit, C. Enter an injunction and other declaratory relief which declares the Montgomery contract requiring fees to JCS to be void and in violation of the statutory and constitutional limitations on municipalities; d. Enter an injunction and other declaratory relief which enjoins Montgomery from engaging in the violations of law set forth hereinabove; e. Enter an injunction and other declaratory relief which prohibits Montgomery in the future from placing persons on probation for collection of fines and declares that any current probation and fees for simple fines is void; f. Enter an injunction and other declaratory relief which prohibits Montgomery in the future from assessing fines in excess of $500 and/or extending probation periods beyond 24 months and declare that any previously assessed fines and probationary periods in excess of these limits to be void; g. Enter an injunction and other declaratory relief which prohibits Montgomery in the future from imprisoning indigent persons for failure to pay fines and fees;
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h. Enter an injunction and other declaratory relief which prohibits Montgomery in the future from charging excessive hail established to collect claimed fines and fees; Award to the Plaintiff and Class members damages under 42 U.S.C. § 1983 equal to any amounts paid on fines and all fees to JCS and Montgomery that are found unconstitutional and/or unlawful (along with interest), and the annulment of any remaining unpaid fines and fees that are found unconstitutional and/or unlawful; Award to the Plaintiff and Class the cost of this matter, including a reasonable attorneys' fee;
k. Award to the Plaintiff and the Class members such other, further and more general relief as the Court may deem appropriate under these circumstances including cost of these proceedings. RESPECTFULLY SUBMITTED,
G;'baniel Evans ASB-1 661 -N76G Attorney for the Plaintiffs The Evans Law Firm, P.C. 1736 Oxmoor Road, Suite 101 Birmingham, Alabama 35209 Telephone: (205) 870-1970 Fax: (205) 870-7763 E-Mail: devansevanslawpc.com
Alexandria Parrish ASB-2477-D66P Attorney for the Plaintiffs The Evans Law Firm, P.C.
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1736 Oxmoor Road, Suite 101 Birmingham, Alabama 35209 Telephone: (205) 870-1970 Fax: (205) 870-7763 E-Mail: apevanslawpç.com
ft.
William M. Dawson AS B-3976-580W Attorney for the Plaintiffs Dawson Law Office 1736 Oxmoor Road Birmingham, Alabama 35209 Telephone: 205-307-7021 E-Mail: bill@billdawsonlaw.com JURY DEMAND Plaintiffs demand trial by struck jury.
Plaintiff's address:
do The Evans Law Firm, P.C.
Defendants' addresses: CITY OF MONTGOMERY, ALABAMA
do City Attorney's Office
Legal Department 103 North Perry Street Montgomery, AL 36104 BRANQHD KLOESS 8073 Lakeridge:Drive Montgomery, AL 36117-5141
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0

EXHIBIT 1

•

.

..

JU)ICJAL CORREC'flOId SERVICES. INC

CLIENT AGREEMENT

CIT OFMONTGOMERY ALABAMA

. • COUNTY OF MONTGOMERV

THIS AGREEMENrin5damidentee tlas'day ofI

. 2010. by gad kiween die

City ofMonigomeey, Alalanna (the 'Ciy"J the Cny's Municipal Cairn Dhe Couifl and Judicial

Coerecilon Services. br, S Dew"M CQiPolaihni, rJCS"

RECITALS

WHEREAS, the City, duough its dSty elected or appointed oflisiala is awbosizod to awer into abmdin$ could web a qualified vender to provide psubanan supervision and telaled snivioss for the benefit of the CftyendCoiui;

WHEREAS, KS who condocis poobauoa services for venoes county and city sndtles and ispresenis that 1 is a qualified veadorable and wiling to provds dic services to the City and Cwt

NOW, THEREFORE for and in consideration of the muwal covenams contained herein, and other good

and vaIuble cooddeisiiom, the ram .adequacy and sufliciency olvltith is acknowledged by the

pai*ies hereto, die City and Court eseer into this agresnieiit web KS to provide probation services upon

Oto

Exhibit A- Uailbnn Standards of Probation Speivision

&JdW 8 — Swim Provided by JCS

EhibliC—CrflpnsddanwJCS

.

This a&cement wifl in&uaHy extend for one yonr flom thc date of ezecution, and shall awomaheally aniew

one-ym inc

iendioaled by cithCr FM witha y(3 veinan

Together with the a nehededdendom. the fosegologoonstinites the entire agreement between the patties

• .

saftPoledessay -i 1; 1A rk!' *

Wietfoimide. This agreamette ltbe goed byihe

laws of the State of Alabama and maybe amended only by a document in writing signed bya duly

•• autharkzed reieseua$veofthe city and JCS.

WiTNESS the band and seal of the authorized representatives of die City and KS effective as oflhe date first above wrItten.

CityOf

•

__

Y.Mebmaa

• •

.

.

••

0

Ju: dlt BY rift

. .._..
•J*ø.i' 1y(tmM'/

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EXIJIBITA EJNIcORMSTANDARflS OY PROBATION SUPERVISlON

1. AIDCSy baio.officwi will beat 'east 21 years otage at the uinutofaointinenL

•

2. icS w II employ at lanai 00. sIeLir of pd spiobetionofficeis vñtha ioinmurn orgy.

3. No pereas

a felony will be eniplayedata private probation officer, thetide

private probstion officur

be responb3e toe do supervision Of PZ0buti0nL

4. JCS will complete iccond checks ce all neff in eccorthaca with na sian&d opsiating

S. JCS will sulmviwaH probated cam aemence4ythcCourt 10will.alsosuperviseirAgent. casesvwhen detemuned by die Coun. Thece omen will not be charged the standard probation Ibe but wilt will beOffeted all JCS services.
6. Probedinwça not complying withthnsectlbtih.Coen order wilberenimedtothe Count at which dine the probation oWicer will WOW as to the cimemetences of the casc giving the probationer full Opponunhty to refute any oral! pmnts. The prdcn officer will then comply with the Cowt'e titling in reference to aemenaltig or possible revocation of

7 obationers who pay their enlire Atic and Court coen within one week of tlte antemeing date will not he charged a p nsupert'&slon fee by JCS, although they would be mspMstble for

8. ics siwit .oapty with.ii provitimoftate and federal law.

•.

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xmarr
sRx!10Es PROVIDED SY JCS

I. Aneadiegutady scheduled cowi sessions for th putposc of obtaining senasocznn ml nation and

personal b

mlbnnatio foe koffender placed on probation

C togulaily scheduled cean

•

$$SiOns Will bediada available to JCS at least 30 days In advance..

2 Conduct an initial interview With inch probaunnerat the time othit ocher sentencing IN pinposes of iwning the mops of the noun cadet telativo to fimes, fees, andler resthrnoo imposed as well as roqUimmems and conditions ler probation supeMsiom

3. MOnitOf offamkes (or compWatma withhmn aWcoedrohatktn as required by dseCowt, noti1ung the Cows of any uon .comphance The Cowt win decide wben rovocatmo of probation is

4. XmqueWd by the Coun todo Moollect frompsobaiionetsCceutordued lines, restitutions ned Other cOmes associated With the ComM and dithwse said monies as follows

(a) Restitution "be paid to JCS who w$ disbuise monicadirecily to the 'bunt, or, den restitution

may be paid to the Clerk of Lowt for &Wbotion to the victim, as ditected by the Coufl.

•

(b) All lineS, soichaigoandotherfbesmhaIl be paid tJCS who Will di

is to the City as

directed byCoun.

.

S. Pzepare refeminla sad lend aedatance in probationats either ordered to tecelusor desiting canploymcnt • . . _i4sipce or counseling.

• 6C. iCqoXo*tMhawatoilcldomaninthilyewwvaaackemwinoicmkakscraelql uciermednausmciioynsdeirtvioicneo. Jf CprSowbailtlicooncbrdylnthaexeCooinnltyTdhieet conaamflity service woik that Is reasonably consistent with itWie duties performed by regular City
• employees.

7. Muntain case tUcson each probationer regarding coanpl ance t'.ith the terms and condidoto of pmbWmwqmdft dates, fieldcommaim as thoy costar and hi the AWAVAg and dsucsofmonicacoflcvted.

.8. P 4de reports to the Ccvii reguiding compliance and payment information as tequssled.
9. JCS shall supervise all persons assiid to probation by the Court with a ratio of probationers to staff of no greater tMn 300to1.

10. JCS shall anaimain Promessiond liability insurance in an amount not less than One million (*1mom

II. E probAtioner placed on probation Under the supervtsiots oflCS will be required to meet with their assgnnd probation officer at least every 30 days Probationers that do not comply with the probation guidelinnc and the Court's order may be required to meet with dolt probation officer town dma once a month (teferrad to as intense" supeMsion).
12. Any modification to the original court sentence will be decided by the Court.
13. JCS may recommend lathealCl owi early probation release ifs probefiew has unliNed all Cotni ordered iequiremcnts and paid fines. Any annaitiag teAs will not be assessed apim the puibaioiier if 65 COurt smets early release.

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RXHIBITC
COMPEMSATL4 TOJ(

ItS areas that It will tc invoice lbs City or Cowi for its servIces, in consideration of the probation sorvicea provided by JCS, the Cows agrees that such Cows Order shall provide for the following:

1. probefin he

2. One

tee ofS 10.00. This tot-up Ibe includes councoonipsoceasingeed data

ncddighal tnwge entry lion JCS's proptleievy

Trackelee flwaie system,

3. CCn**irmfty seMcoiianceof$lS00 per 40 bows ofcemmwiityoeivice assigned. if ordered by

the Court. This lasmaeoprovidosvp to $10,000 of m.dicaVdeath benefits iCthe proba$onsrls

injured or Iliad while pert

coronneky ear ire.

4. JCS provides a wide army ofothrprobaiion related services such as E)actroic MonItoring. Should the Couridecids Omit would like to avail liselfaf any orthese sorvtces a ropetwoAdva of
JCS will be glad to mess with the Court sad discuss die fee ucrure(s). Certain services inquire a nnicwntiekiedicveL

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ADDEtIDUMTO JUDICIAL CORRECTION SERVICES INC. CLIENT AGREEMENT

ThsAdddUifl IOgndI *itb dWC31M Agreementsowhkh bacbedconsiitutesdie
thorn s a conflia between tha addendum and tbeajauj IIU Addendum thai) peeved.

I. Thiagreesneni will initiallyeat.nd for one yOSt from the dale of excculâon,

end mny be renewed bytlwClly r an addidonal smm of en. jnar ald

umenily dmmAkr inone year jucreJanols

withathlny(30)daywdneñmoiicC.

2. JCS thaN and does aomme aespoaeibilky end Ilabdily fordomago. ins or

•

hgwy (biclndMg death) crony kind whatsoever in pmum or property.

•

tcIndngensIoyees OW to o,eny orihe City, eaUad by erutth5 from any

eat oroalastonofiCS, b vn)oycea. agents, selvenleor nsnplcyces or Its

sobccnsraclozs or any of their offlcsea, agents, seivants cc employees, arumg

from the perfonnance of the woek under this A$leenIenL JCS ohell IndemnlPj

and bold hnnlcss Iho City of Mcntgoinsiy. its offiCCss, .gCnta, servafltsOiid

employsea from and against any claims, loss, damage cc tharge caused by a

resuldug from such am oromissloms

t ft Wksots f loesi =dud of atahoilaod rop enmilves of lInt City and ICE effewe

CMMOURT OF MONTGO)1RMA

JUDICL4LCO*RWTION SERVICES, INC.

Thlst

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EXHIBIT 2
AGREEMENT BETWEEN KLOESS, PLLC AND THE CITY OF MONTGOMERY
FOR INDIGENT DEFENSE SERVICES IN THE MUNICIPAL COURT
STATE OPALABAMA.
MONTGOMERY COUNTY
THIS AGREEMENT, made and entered into this ( 1 day of Februwy, 2011, by and between the City of Montgomery, a municipal corporation in the state of Alabama (hereinafter called uthe City"), and Branch D. IClocss (hereinafter called 'Kloeis");
WITNESSETH:.
FOR AND IN CONSIDERATION of the mutual covenants, promises and terms hereinafter stated, the City and Kloess do hereby agree as follows:
SECTION ONE. Kloess shall provide full, competent legal representation and services tbr indigent defendants charged with the violation of the municipal ordinances and laws before the Municipal Court of the City of Montgomery. A defendant's status as "indigent" shall be determined by the Judge in the said Court, in accordance with the criteria set forth in Code of Alabama (1975), Sections 1542-5 and 15-12-20.
SECTION TWO. Kloess shall provide an attorney to be present and prepared to provide competent, indigent defense services in each division of Municipal Court of the City at and during each. session of the Court, including arraignments and trial sessions, based upon the Court Schedule published by the Clerk of Court. Kloess shall, no later than the 25 day of each month, provide to the Clerk of Court a schedule of the attorneys assigned to each court Session for the following month.
SECTION THREE LAgal.representz4op and service for indigent defendants as contemplated in Section One above shall not include.represefltatioñ of such defendants in any subsequent appeal proceedings before any Court.
SECTION FOUR. Kloess shall provide the said attorneys, administrative secretarial and clerical personnel, office space, finnituze, fixtures, equipment, library. facilities and such other incidental expenses as it determines necessary to effectuate the purpose of the Agreement.. Kloess, its attorneys and employees are independent contractors, and are not employees of the City. K]oess further agrees to ma intain adequate records and accounts of momes expended by its personnel in effectuating the provisions of the agreement and to provide such information to the City as may be required by its Director of Finance. Said records and accounts shall be open to inspection by the City, and any other public or governmental agency having an interest in the fiscal, administrative or operational affairs of the Municipal Court including but not limited to the Clerk of Court, the Administrative Office of Courts or State Comptroller Privileged matters covered by the attorney-client privilege shall not be divulged or open to inspection, except as otherwise authorized by bw

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SECTION FIVE. Under the teems of this agreement, on or after the last day of each month

during the period of this agreement, Kloess shall submit to the Clerk of Court for approval, a

request for payment from the Fair Trial Tax fund not to exceed the sum of Ten Thousand and

001100 Dollars the agreement

(P$r1o0v,0i0d0e.d0,0)inpenromwoenntht,sfhoarlsletrhveicCesittyobbeerpeeqrufiorremdetdo

hereunder for the period of pay more than the amount

deposited in the Far Trial Tax Fund for a particular month.

ft SECTION SIX Kloess shall submit to Clerk of the Municipal Court a statement for service

rendered, in a form approved by the Administrative Office of Courts along with a billing

summary, on or within five (5) days after the first of each calendar month. Such statement shall

include services only for cases concluded during the calendar month covered by the statement.

The Clerk of Court shall review the statement for accuracy and reasonableness and upon the

approval of the Presiding Judge the statement shall be forwarded to the City of Montgomery

Finance Department for payment in the lesser amount of (1) the total amount of the approved

Ostaf ttehme efnaitrntortiatloleaxxcceoeldletchteeda,mdouurnintgsptheceifmieodnitnhSceocvtieornedFibvye

referenced herein or (2) the amount the statement. The City shall make

every reasonable effort to assure payment of the approved statement by the fifteenth (15th) day of

the month next succeeding the month covered by the statement. Rntts shall be bUted at the

approved State rate of $60.00 per hour for "In court Appearance" and $40.00 per hour for TMOut.

of-Court Preparation" An overhead rate of $25.00 per hour shall be allowed to be billed.

SECTION SEVEN. The City shall furnish to Kloess, prior to execution of this Agreement, written certification of the total amount of fair trail tax collected for each of the past two (2) fiscal years. The City waiTants that it is aware of no factors, which will substantially affect in a negative way the amount of Fair Trail Tax to be collected during the term of this agreement The City makes no otherwarrenty or representation to Kloess as to the amount of fair trial tax to be collected by the city during the term of this Agreement

SECTION EIGHT. The City shall have, no obligation to Kloess except as expressly provided in terms of this Agreement.

SECTION N.W.E. 1U. Irma of this Agreement Shall be and becomes effective March 1, 2011, and shall terminate at midnight on February 29, 201 .7, approved by the Mayor as provided by law. The foregoing notwithstanding, either party to this agreement may terminate said
agreement for any reason by giving the other sixty (60) days advance written notice. Kiocas Shall work its first docket/court session beginning March 1, 2011.

SECTION TEN. Kloess may subcontract services to any other licensed attorney or attorneys in the performance of its dude under this Agreement, provided that prior written approval has been granted by the Clerk of Court Kloess shall immediately notify the Clerk of Court upon knowledge of any conflict, of interest arising pursuant to representation under this agreement Upon the Courts granting of any motion to withdraw or other relief due to a conflict of interest. the Court shall appoint other counsel as authorized by law. Any attorney appointed because of a conflict of interest with Kloess, shall be paid from the Fair Trial Tax Fund pursuant to Title IS, Chapter 12, Code -of Alabama (1975). Upon approvalof a reasonable amount by the appointing

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judge, the Presiding. Judge shall order Kloess to pay said attorney the sum approved from the
monies paid under this Agreement.
SECTION ELEVEN. Kloess shall, prior to the.effective date of this Agreernent submit to the a certificate from an attorney whose opinion is acceptable to the City Attorney slating that Kloess is a lawful entity and is lawfully authorized to enter into this Agreement SECTION TWELVE. Kloess does hereby covenant and agree that in performing its obligations and responsibilities under this Agreement it will not discriminate on the basis of color, sex, race, religim disability, age, national origin or any other basis in violation of any Local, State or Federal Law or Regulation.
IN WITNESS WHEREOF the parties have executed this Agreement On the date first hereinabove written.
THE CITY OF MONTGOMERY, ALABAMA
By Todd Slnnge, Mayor
ATTIST:
City Attorney 'Pr /(

CCaassee22:1:155--ccvv--0000555555--RWCHLA-S-CMSDC DDooccuummeennt t118-3FilFeidled090/81/40/31/515PaPgaege1518ooff110753 IEXHIBIT 31
Investigation of the Ferguson Police Department
United States Department of Justice Civil Rights Division March 4, 2015

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TABLE OF CONTENTS
I. REPORT SUMMARY ....................................... ...........1 H. BACKGROUND ........................................................................ .. ........................................ 6 III. FERGUSON LAW ENFORCEMENT EFFORTS ARE FOCUSED ON
GENERATINGREVENUE .................................................................... .......... ... ............ 9 IV. FERGUSON LAW ENFORCEMENT PRACTICES VIOLATE THE LAW AND
UNDERMINE COMMUNITY TRUST, ESPECIALLY AMONG AFRICAN AMERICANS A. Ferguson's Police Practices ............................................................................................ 15
1. FPD Engages in a Pattern of Unconstitutional Stops and Arrests in Violation of the Fourth Amendment .... ..... ......... ..... .............................................................. 16
2. FPD Engages in a Pattern of First Amendment Violations ...................................24 3. FPD Engages in a Pattern of Excessive Force in Violation of the Fourth
Amendment............................................................................ . ...... ........................ . .... 28 B. Ferguson's Municipal Court Practices ...........................................................................42
1. Court Practices Impose Substantial and Unnecessary Barriers to the Challenge or Resolution of Municipal Code Violations....................... ........43
2. The Court Imposes Unduly Harsh Penalties for Missed Payments or Appearances............ ................................................................................................ 54
C. Ferguson Law Enforcement Practices Disproportionately Harm Ferguson's African-American Residents and Are Driven in Part by Racial Bias ............................62 1. Ferguson's Law Enforcement Actions Impose a Disparate Impact on African Americans that Violates Federal Law ..................................... . ............................. 63 2. Ferguson's Law Enforcement Practices Are Motivated in Part by Discriminatory Intent in Violation of the Fourteenth Amendment and Other FederalLaws ........... . .............................................. ................ ... . ....... ... ... . ................. 70
D. Ferguson Law Enforcement Practices Erode Community Trust, Especially Among Ferguson's African-American Residents, and Make Policing Less Effective, More Difficult, and Less Safe..................................................................................... ... ............. 79 1. Ferguson's Unlawful Police and Court Practices Have Led to Distrust and Resentment Among Many in Ferguson .....................................................................79 2. FPD's Exercise of Discretion, Even When Lawful, Often Undermines Community Trust and Public Safety ..................................................................... 81 3. FPD's Failure to Respond to Complaints of Officer Misconduct Further Erodes Community Trust ........................................................................................ 82 4. FPD's Lack of Community Engagement Increases the Likelihood of Discriminatory Policing and Damages Public Trust.............................................86

CCaassee22:1:155--ccvv--0000555555--RWCHLA-S-CMSDC DDooccuummeennt t118-3FilFeidled090/81/40/31/515PaPgaege1630ooff110753 5. Ferguson's Lack of a Diverse Police Force Further Undermines Community Trust. ... .......... ....... ... .................................................................................................. 88
V. CHANGES NECESSARY TO REMEDY FERGUSON'S UNLAWFUL LAW ENFORCEMENT PRACTICES AND REPAIR COMMUNITY TRUST .................90
VI. CONCLUSION ................................................................................................................. 102
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I. REPORT SUMMARY
The Civil Rights Division of the United States Department of Justice opened its investigation of the Ferguson Police Department ("FPD") on September 4, 2014. This investigation was initiated under the pattern-or-practice provision of the Violent Crime Control and Law Enforcement Act of 1994,42 U.S.C. § 14141, the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d ("Safe Streets Act"), and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d ("Title VI"). This investigation has revealed a pattern or practice of unlawful conduct within the Ferguson Police Department that violates the First, Fourth, and Fourteenth Amendments to the United States Constitution, and federal statutory law.
Over the course of the investigation, we interviewed City officials, including City Manager John Shaw, Mayor James Knowles, Chief of Police Thomas Jackson, Municipal Judge Ronald Brockrneyer, the Municipal Court Clerk, Ferguson's Finance Director, half of FPD's sworn officers, and others. We spent, collectively, approximately 100 person-days onsite in Ferguson. We participated in ride-alongs with on-duty officers, reviewed over 35,000 pages of police records as well as thousands of emails and other electronic materials provided by the police department. Enlisting the assistance ofstatistical experts, we analyzed FPD's data on stops, searches, citations, and arrests, as well as data collected by the municipal court. We observed four separate sessions of Ferguson Municipal Court, interviewing dozens of people charged with local offenses, and we reviewed third-party studies regarding municipal court practices in Ferguson and St Louis County more broadly. As in all of our investigations, we sought to engage the local community, conducting hundreds of in-person and telephone interviews of individuals who reside in Ferguson or who have had interactions with the police department. We contacted ten neighborhood associations and met with each group that responded to us, as well as several other community groups and advocacy organizations. Throughout the investigation, we relied on two police chiefs who accompanied us to Ferguson and who themselves interviewed City and police officials, spoke with community members, and reviewed FPD policies and incident reports.
We thank the City officials and the rank-and-file officers who have cooperated with this investigation and provided us with insights into the operation of the police department, including the municipal court. Notwithstanding our findings about Ferguson's approach to law enforcement and the policing culture it creates, we found many Ferguson police officers and other City employees to be dedicated public servants striving each day to perform their duties lawfully and with respect for all members of the Ferguson community. The importance of their often-selfless work cannot be overstated.
We are also grateful to the many members of the Ferguson community who have met with us to share their experiences. It became clear during our many conversations with Ferguson residents from throughout the City that many residents, black and white, genuinely embrace Ferguson's diversity and want to reemerge from the events of recent months a truly inclusive, united community. This Report is intended to strengthen those efforts by recognizing the harms caused by Ferguson's law enforcement practices so that those harms can be better understood and overcome.

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Ferguson's law enforcement practices are shaped by the City's focus on revenue rather than by public safety needs This emphasis on revenue has compromised the institutional character of Ferguson's police department, contributing to a pattern of unconstitutional policing, and has also shaped its municipal court, leading to procedures that raise due process concerns and inflict unnecessary harm on members of the Ferguson community. Further, Ferguson's police and municipal court practices both reflect and exacerbate existing racial bias, including racial stereotypes. Ferguson's own data establish clear racial disparities that adversely impact African Americans. The evidence shows that discriminatory intent is part of the reason for these disparities. Over time, Ferguson's police and municipal court practices have sown deep mistrust between parts of the community and the police department, undermining law enforcement legitimacy among African Americans in particular.
Focus on Generating Revenue
The City budgets for sizeable increases in municipal fines and fees each year, exhorts police and court staff to deliver those revenue increases, and closely monitors whether those increases are achieved. City officials routinely urge Chief Jackson to generate more revenue through enforcement. In March 2010, for instance, the City Finance Director wrote to Chief Jackson that "unless ticket writing ramps up significantly before the end of the year, it will be hard to significantly raise collections next year.... Given that we are looking at a substantial sales tax shortfall, it's not an insignificant issue." Similarly, in March 2013, the Finance Director wrote to the City Manager: "Court fees are anticipated to rise about 7.5%. 1 did ask the Chief if he thought the PD could deliver 10% increase. He indicated they could try." The importance of focusing on revenue generation is communicated to FPD officers. Ferguson police officers from all ranks told us that revenue generation is stressed heavily within the police department, and that the message comes from City leadership. The evidence we reviewed supports this perception.
Police Practices
The City's emphasis on revenue generation has a profound effect on FPD's approach to law enforcement. Patrol assignments and schedules are geared toward aggressive enforcement of Ferguson's municipal code, with insufficient thought given to whether enforcement strategies promote public safety or unnecessarily undermine community trust and cooperation. Officer evaluations and promotions depend to an inordinate degree on "productivity," meaning the number of citations issued. Partly as a consequence of City and FPD priorities, many officers appear to see some residents, especially those who live in Ferguson's predominantly AfricanAmerican neighborhoods, less as constituents to be protected than as potential offenders and sources of revenue.
This culture within FPD influences officer activities in all areas of policing, beyond just ticketing. Officers expect and demand compliance even when they lack legal authority. They are inclined to interpret the exercise of free-speech rights as unlawful disobedience, innocent movements as physical threats, indications of mental or physical illness as belligerence Police supervisors and leadership do too little to ensure that officers act in accordance with law and policy, and rarely respond meaningfully to civilian complaints of officer misconduct The result is a pattern of stops without reasonable suspicion and arrests without probable cause in violation of the Fourth Amendment; infringement on free expression, as well as retaliation for protected
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expression, in violation of the First Amendment; and excessive force in violation of the Fourth Amendment.
Even relatively routine misconduct by Ferguson police officers can have significant consequences for the people whose rights are violated. For example, in the Summer of 2012, a 32-year-old African-American man sat in his car cooling off after playing basketball in a Ferguson public park. An officer pulled up behind the man's car, blocking him in, and demanded the man's Social Security number and identification. Without any cause, the officer accused the man of being a pedophile, referring to the presence of children in the park, and ordered the man out of his car for a pat-down, although the officer had no reason to believe the man was armed. The officer also asked to search the man's car. The man objected, citing his constitutional rights. In response, the officer arrested the man, reportedly at gunpoint, charging him with eight violations of Ferguson's municipal code One charge, Making a False Declaration, was for initially providing the short form of his first name (e.g., "Mike" instead of "Michael"), and an address which, although legitimate, was different from the one on his driver's license. Another charge was for not wearing a seat belt, even though he was seated in a parked car. The officer also charged the man both with having an expired operator's license, and with having no operator's license in his possession. The man told us that, because of these charges, he lost his job as a contractor with the federal government that he had held for years.
Municipal Court Practices
Ferguson has allowed its focus on revenue generation to fundamentally compromise the role of Ferguson's municipal court. The municipal court does not act asa neutral arbiter of the law or a check on unlawful police conduct. Instead, the court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City's financial interests. This has led to court practices that violate the Fourteenth Amendment's due process and equal protection requirements. The court's practices also impose unnecessary harm, overwhelmingly on African-American individuals, and run counter to public safety.
Most strikingly, the court issues municipal arrest warrants not on the basis of public safety needs, but rather as a routine response to missed court appearances and required fine payments. In 2013 alone, the court issued over 9,000 warrants on cases stemming in large part from minor violations such as parking infractions, traffic tickets, or housing code violations. Jail time would be considered far too harsh a penalty for the great majority of these code violations, yet Ferguson's municipal court routinely issues warrants for people to be arrested and incarcerated for failing to timely pay related fines and fees. Under state law, a failure to appear in municipal court on a traffic charge involving a moving violation also results in a license suspension. Ferguson has made this penalty even more onerous by only allowing the suspension to be lifted after payment of an owed fine is made in full. Further, until recently, Ferguson also added charges, fines, and fees for each missed appearance and payment. Many pending cases still include such charges that were imposed before the court recently eliminated them, making it as difficult as before for people to resolve these cases.
The court imposes these severe penalties for missed appearances and payr1ents even as several of the court's practices create unnecessary barriers to resolving a municipal violation. The court often fails to provide clear and accurate information regarding a person's charges or court obligations. And the court's fine assessment procedures do not adequately provide for a defendant to seek a fine reduction on account of financial incapacity or to seek alternatives to
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payment such as community service. City and court officials have adhered to these court practices despite acknowledging their needlessly harmful consequences. In August 2013, for example, one City Councilmember wrote to the City Manager, the Mayor, and other City officials lamenting the lack of a community service option and noted the benefits of such a program, including that it would "keep those people that simply don't have the money to pay their fines from constantly being arrested and going to jail, only to be released and do it all over again."
Together, these court practices exacerbate the harm of Ferguson's unconstitutional police practices. They impose a particular hardship upon Ferguson's most vulnerable residents, especially upon those living in or near poverty. Minor offenses can generate crippling debts, result in jail time because of an inability to pay, and result in the loss of a driver's license, employment, or housing.
We spoke, for example, with an African-American woman who has a still-pending case stemming from 2007, when, on a single occasion, she parked her car illegally. She received two citations and a $151 fine, plus fees. The woman, who experienced financial difficulties and periods of homelessness over several years, was charged with seven Failure to Appear offenses for missing court dates or fine payments on her parking tickets between 2007 and 2010 For each Failure to Appear, the court issued an arrest warrant and imposed new fines and fees From 2007 to 2014, the woman was arrested twice, spent six days in jail, and paid $550 to the court for the events stemming from this single instance of illegal parking. Court records show that she twice attempted to make partial payments of $25 and $50, but the court returned those payments, refusing to accept anything less than payment in full One of those payments was later accepted, but only after the court's letter rejecting payment by money order was returned as undeliverable. This woman is now making regular payments on the fine. As of December 2014, over seven years later, despite initially owing a $151 fine and having already paid $550, she still owed $541.
Racial Bias
Ferguson's approach to law enforcement both reflects and reinforces racial bias, including stereotyping The harms of Ferguson's police and court practices are borne disproportionately by African Americans, and there is evidence that this is due in part to intentional discrimination on the basis of race.
Ferguson's law enforcement practices overwhelmingly impact African Americans. Data collected by the Ferguson Police Department from 2012 to 2014 shows that African Americans account for 85% of vehicle stops, 90% of citations, and 93% of arrests made by FPD officers, despite comprising only 67% of Ferguson's population African Americans are more than twice as likely as white drivers to be searched during vehicle stops even after controlling for non-race based variables such as the reason the vehicle stop was initiated, but are found in possession of contraband 26% less often than white drivers, suggesting officers are impermissibly considering race as a factor when determining whether to search. African Americans are more likely to be cited and arrested following a stop regardless of why the stop was initiated and are more likely to receive multiple citations during a single incident. From 2012 to 2014, FPD issued four Or more citations to African Americans on 73 occasions, but issued four or more citations to non-African Americans Only twice. FPD appears to bring certain offenses almost exclusively against African Americans. For example, from 2011 to 2013, African Americans accounted for 95% of Mariner of Walking in Roadway charges, and 94% of all Failure to Comply charges. Notably, with
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respect to speeding charges brought by FPD, the evidence shows not only that African Americans are represented at disproportionately high rates overall, but also that the disparate impact of FPD's enforcement practices on African Americans is 48% larger when citations are issued not on the basis of radar or laser, but by some other method, such as the officer's own visual assessment.
These disparities are also present in FPD's use of force. Nearly 90% of documented force used by FPD officers was used against African Americans. In every canine bite incident for which racial information is available, the person bitten was African American.
Municipal court practices likewise cause disproportionate harm to African Americans. African Americans are 68% less likely than others to have their cases dismissed by the court, and are more likely to have their cases last longer and result in more required court encounters African Americans are at least 50% more likely to have their cases lead to an arrest warrant, and accounted for 92% of cases in which an arrest warrant was issued by the Ferguson Municipal Court in 2013. Available data show that, of those actually arrested by FPD only because of an outstanding municipal warrant, 96% are African American.
Our investigation indicates that this disproportionate burden on African Americans cannot be explained by any difference in the rate at which people of different races violate the law. Rather, our investigation has revealed that these disparities occur, at least in part, because of unlawful bias against and stereotypes about African Americans. We have found substantial evidence of racial bias among police and court staff in Ferguson. For example, we discovered emails circulated by police supervisors and court staff that stereotype racial minorities as criminals, including one email that joked about an abortion by an African-American woman being a means of crime control.
City officials have frequently asserted that the harsh and disparate results of Ferguson's law enforcement system do not indicate problems with police or court practices, but instead reflect a pervasive lack of "personal responsibility" among "certain segments" of the community. Our investigation has found that the practices about which area residents have complained are in fact unconstitutional and unduly harsh But the City's personal-responsibility refrain is telling it reflects many of the same racial stereotypes found in the emails between police and court Supervisors. This evidence of bias and stereotyping, together with evidence that Ferguson has long recognized but failed to correct the consistent racial disparities caused by its police and court practices, demonstrates that the discriminatory effects of Ferguson's conduct are driven at least in part by discriminatory intent in violation of the Fourteenth Amendment.
Community Distrust
Since the.Augut 2014 shooting death of Michael Brown, the lack of trust between the Ferguson Police Department and a significant portion of Ferguson's residents, especially African Americans, has become undeniable. The causes of this distrust and division, however, have been the subject of debate. Police and other City officials, as well as some Ferguson residents, have insisted to us that the public outcry is attributable to "outside agitators" who do not reflect the opinions of "real Ferguson residents." That view is at odds with the facts we have gathered during our investigation. Our investigation has shown that distrust of the Ferguson Police Department is longstanding and largely attributable to Ferguson's approach to law enforcement. This approach results in patterns of unnecessarily aggressive and at times unlawful policing,
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reinforces the harm of discriminatory stereotypes; discourages a culture of accountability; and neglects community engagement. In recent years, FPD has moved away from the modest community policing efforts it previously had implemented, reducing opportunities for positive police-community interactions, and losing the little familiarity it had with some AfricanAmerican neighborhoods. The confluence of policing to raise revenue and racial bias thus has resulted in practices that not only violate the Constitution and cause direct harm to the individuals whose rights are violated, but also undermine community trust, especially among many African Athericans. As a consequence of these practices, law enforcement is seen as illegitimate, and the partnerships necessary for public safety are, in some areas, entirely absent
Restoring trust in law enforcement will require recognition of the harms caused by Ferguson's law enforcement practices, and diligent, committed collaboration with the entire Ferguson community. At the conclusion of this report, we have broadly identified the changes that are necessary for meaningful and sustainable reform. These measures build upon a number of other recommended changes we communicated verbally to the Mayor, Police Chief, and City Manager in September so that Ferguson could begin immediately to address problems as we identified them. As a result of those recommendations, the City and police department have already begun to make some changes to municipal court and police practices. We commend City officials for beginning to take steps to address some of the concerns we have already raised. Nonetheless, these changes are only a small part of the reform necessary. Addressing the deeply embedded constitutional deficiencies we found demands an entire reorientation of law enforcement in Ferguson. The City must replace revenue-driven policing with a system grounded in the principles of community policing and police legitimacy, in which people are equally protected and treated with compassion, regardless of race.
II BACKGROUND
The City of Ferguson is one of 89 municipalities in St. Louis County, Missouri.' According to United States Census Data from 2010, Ferguson is home to roughly 21,000 residents. While Ferguson's total population has stayed relatively constant in recent decades, Ferguson's racial demographics have changed dramatically during that time. In 1990, 74% of Ferguson's population was White, while 25% was black. 3 By 2000, African Americans became the new majority, making up 52% of the City's population. 4 According to the 2010 Census, the black 5population in Ferguson has grown to 67% whereas the white population has decreased to 29%. According to the 2009-2013 American Community Survey, 25% of the City's population lives below the federal poverty level.6
See 2012 Census of Governments, U.S. Census Bureau (Sept. 2013), available at http:llfactfinder.census.gov/bkmk/table/1 .0/enICOG/20 12/ORG1 3.ST05P?slice=GEO-0400000US29 (last visited Feb. 26, 2015). 2 See 2010 Census, U.S. Census Bureau (2010), available at http:IIfactfinder.census.gov/bkmk/table/1 .0/en/DEC/i 0_SF 1/QTP3/1 600000U52923986 (last visited Feb. 26, 2015).
See 1990 Census of Population General Population Characteristics Missouri, U.S. Census Bureau (Apr. 1992), available at ftp://ftp2.census.gov/library/publications/1 992/dec/cp-1 -27.pdf (last visited Feb. 26, 2015).
See Race Alone or in Combination: 2000, U.S. Census Bureau (2000), available at http:/!factfinder.census.gov/ bkink/table/1 .O/en/DEC/00_SF 1/QTP5/1 600000U52923986 (last visited Feb. 26, 2015).
2010 Census, supra note 2. 6 See Poverty Status in the Past 12 Months 2009-2013 American Community Survey 5-Year Estimates, U.S. Census Bureau (2014), available at
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Residents of Ferguson elect a Mayor and six individuals to serve on a City Council. The City Council appoints a City Manager to an indefinite term, subject to removal by a Council vote. See Ferguson City Charter § 4.1. The City Manager serves as chief executive and administrative officer of the City of Ferguson, and is responsible for all affairs of the City. The City Manager directs and supervises all City departments, including the Ferguson Police Department
The current Chief of Police, Thomas Jackson, has commanded the police department since he was appointed by the City Manager in 2010. The department has a total of 54 sworn officers divided among several divisions. The patrol division is the largest division; 28 patrol officers are supervised by four sergeants, two lieutenants, and a captain. Each of the four patrol squads has a canine officer. While all patrol officers engage in traffic enforcement, FPD also has a dedicated traffic officer responsible for collecting traffic stop data required by the state of Missouri. FPD has two School Resource Officers ("SROs"), one who is assigned to the McCluer South-Berkeley High School and one who is assigned to the Ferguson Middle School, FPD has a single officer assigned to be the "Community Resource Officer," who attends community meetings, serves as FPD's public relations liaison, and is charged with collecting crime data FPD operates its own jail, which has ten individual cells and a large holding cell. The jail is staffed by three non-sworn correctional officers. Of the 54 sworn officers currently serving in FPD, four are African American.
FPD officers are authorized to initiate charges—by issuing citations or summonses, or by making arrests—under both the municipal code and state law. Ferguson's municipal code addresses nearly every aspect of civic life for those who live in Ferguson, and regulates the conduct of all who work, travel through, or otherwise visit the City. In addition to mirroring some non-felony state law violations, such as assault, stealing, and traffic violations, the code establishes housing violations, such as High Grass and Weeds; requirements for permits to rent an apartment or use the City's trash service; animal control ordinances, such as Barking Dog and Dog Running at Large; and a number of other violations, such as Manner of Walking in Roadway. See, e.g., Ferguson Mun. Code § 29-16 etseq.; 37-1 etseq.; 46-27; 6-5, 6-11; 44344.
FPD files most charges as municipal offenses, not state, violations, even when an analogous state offense exists. Between July 1, 2010, and June 30, 2014, the City of Ferguson issued approximately 90,000 citations and summonses for municipal violations. Notably, the City issued nearly 50% more citations in the last year of that time period than it did in the first This increase in enforcement has not been driven by a rise in serious crime. While the ticketing rate has increased dramatically, the number of charges for many of the most serious offenses covered by the municipal code g,, Assault, Driving While Intoxicated, and Stealing—has remained relatively constant.7
http:Itfactfinder.census.govfbkrnk!tablell .OIenIACSI1 3_5YBJS 170 1/1600000US2923986 (last visited Feb. 26, 2015).
This is evidenced not only by FPD's own records, but also by Uniform Crime Reports data for Ferguson, which show a downward trend in serious crime over the last ten years See Uniform Crime Reports Federal Bureau of Investigation, http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s (last visited Feb. 26, 2015).
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Because the overwhelming majority of FPD's enforcement actions are brought under the municipal code, most charges are processed and resolved by the Ferguson Municipal Court, Which has primary jurisdiction over all code violations. Ferguson Mun. Code § 13-2. Ferguson's municipal court operates as part of the police department. The court is supervised by the Ferguson Chief of Police, is considered part of the police department for City organizational purposes, and is physically located within the police station. Court staff report directly to the Chief of Police. Thus, if the City Manager or other City officials issue a court-related directive, it is typically sent to the Police Chief's attention In recent weeks, City officials informed us that they are considering plans to bring the court under the supervision of the City Finance Director.

A Municipal Judge presides over court sessions. The Municipal Judge is not hired or supervised by the Chief of Police, but is instead nominated by the City Manager and elected by the City Council. The Judge serves a two-year term, subject to reappointment. The current Municipal Judge, Ronald Brockmeyer, has presided in Ferguson for approximately ten years. The City's Prosecuting Attorney and her assistants officially prosecute all actions before the court, although in practice most cases are resolved without trial or a prosecutor's involvement. The current Prosecuting Attorney was appointed in April 2011. At the time of her appointment, the Prosecuting Attorney was already serving as City Attorney, and she continues to serve in that separate capacity, which entails providing general counsel and representation to the City. The Municipal Judge, Court Clerk, Prosecuting Attorney, and all assistant court clerks are white.

While the Municipal Judge presides over court sessions, the Court Clerk, who is employed under the Police Chief's supervision, plays the most significant role in managing the court and exercises broad discretion in conducting the court's daily operations Ferguson's municipal code confers broad authority on the Court Clerk, including the authority to collect all fines and fees, accept guilty pleas, sign and issue subpoenas, and approve bond determinations. Ferguson Mun. Code § 13-7. Indeed, the Court Clerk and assistant clerks routinely perform duties that are, for all practical purposes, judicial. For example, documents indicate that court clerks have disposed of charges without the Municipal Judge's involvement.

Louis

CTohuentcyoCuritrcoufifticCiaolulyrto(p2e1rsat tJeusdsiucibajlecCtirtocutihte)

oversight under the

of the presiding judge of the St. rules promulgated by that Circuit

Court and the Missouri Supreme Court. Notwithstanding these rules, the City of Ferguson and

the court itself retain considerable power to establish and amend court practices and procedures.

The Ferguson municipal code sets forth a limited number of protocols that the court must follow,

but the code leaves most aspects of court operations to the discretion of the court itself. See

Ferguson Mun. Code Ch. 13, Art. III. The code also explicitly authorizes the Municipal Judge to

"make and adopt such rules of practice and procedure as are necessary to hear and decide matters

pending before the municipal court." Ferguson Mun. Code § 13-29.

The Ferguson Municipal Court has the authority to issue and enforce judgments, issue warrants for search and arrest, hold parties in contempt, and order imprisonment as a penalty for contempt. The court may conduct trials, although it does so rarely, and most charges are resolved without one. Upon resolution of a charge, the court has the authority to impose fines, fees, and imprisonment when violations are found. Specifically, the court can impose imprisonment in the Ferguson City Jail for up to three months, a fine of up to $1,000, or a combination thereof. It is rare for the court to sentence anyone to jail as a penalty for a violation of the municipal code; indeed, the Municipal Judge reports that he has done so only once.

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Rather, the court almost always imposes a monetary penalty payable to the City of Ferguson, plus court fees. Nonetheless, as discussed in detail below, the court issues arrest warrants when a person misses a court appearance or fails to timely pay a fine. As a result, violations that would normally not result in a penalty of imprisonment can, and frequently do, lead to municipal warrants, arrests, and jail time.

As the number of charges initiated by FPD has increased in recent years, the size of the

court's docket has also increased. According to data the City reported to the Missouri State

Courts Administrator, at the end of fiscal year 2009, the municipal court had roughly 24,000

traffic cases and 28,000 non-traffic cases pending. As of October 31, 2014, both of those figures

had roughly doubled to 53,000 and 50,000 cases, respectively. In fiscal year 2009, 16,178 new

cases were filed, and 8,727 were resolved. In 2014, by contrast, 24,256 new offenses were filed,

and 10,975 offenses were resolved.

-

The court holds three or four sessions per month, and each session lasts no more than three hours. It is not uncommon for as many as 500 people to appear before the court in a single session, exceeding the court's physical capacity and leading individuals to line up outside of court waiting to be heard. Many people have multiple offenses pending; accordingly, the court typically considers 1,200-1,500 offenses in a single session, and has in the past considered over 2,000 offenses during one sitting. Previously there was a cap on the number of offenses that could be assigned to a particular docket date Given that cap, and the significant increase in municipal citations in recent years, a problem developed in December 2011 in which more citations were issued than court sessions could timely accommodate. At one point court dates were initially scheduled as far as six months after the date of the citation. To address this problem, court staff first raised the cap to allow 1,000 offenses to be assigned to a single court date and later eliminated the cap altogether. To handle the increasing caseload, the City Manager also requested and secured City Council approval to fund additional court positions, noting in January 2013 that "each month we are setting new all-time records in fines and forfeitures," that this was overburdening court staff, and that the funding for the additional positions "will be more than covered by the increase in revenues."

HI.

FERGUSON LAW ENFORCEMENT EFFORTS ARE FOCUSED

ON GENERATING REVENUE

City officials have consistently set maximizing revenue as the priority for Ferguson's law enforcement activity. Ferguson generates a significant and increasing amount of revenue from the enforcement of code provisions. The City has budgeted for, and achieved, significant increases in revenue from municipal code enforcement over the last several years, and these increases are projected to continue. Of the $11.07 million in general fund revenue the City, collected in fiscal year 2010, $1.38 million came from fines and fees collected by the court; similarly, in fiscal year 2011, the City's general fund revenue of $11.44 million included $1.41 million from fines and fees. In its budget for fiscal year 2012, however, the City predicted that revenue from municipal fines and fees would increase over 30% from the previous year's amount to $1.92 million; the court exceeded that target, collecting $2.11 million. In its budget for fiscal year 2013, the City budgeted for fines and fees to yield $2.11 million; the court exceeded that target as well, collecting $2.46 million. For 2014, the City budgeted for the municipal court to generate $2.63 million in revenue The City has not yet made public the actual revenue collected that year, although budget documents forecasted lower revenue than
re'

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was budgeted. Nonetheless, for fiscal year 2015, the City's budget anticipates fine and fee revenues to account for $3.09 million of a projected $13.26 million in general fund revenues.8
City, police, and court officials for years have worked in concert to maximize revenue at every stage of the enforcement process, beginning with how fines and fine enforcement processes are established In a February 2011 report requested by the City Council at a Financial Planning Session and drafted by Ferguson's Finance Director with contributions from Chief Jackson, the Finance Director reported on "efforts to increase efficiencies and maximize collection" by the municipal court The report included an extensive comparison of Ferguson's fines to those of surrounding municipalities and noted with approval that Ferguson's fines are "at or near the top of the list." The chart noted, for example, that while other municipalities' parking fines generally range from $5 to $100, Ferguson's is $102. The chart noted also that the charge for "Weeds/Tall Grass" was as little as $5 in one city but, in Ferguson, it ranged from $77 to $102. The report stated that the acting prosecutor had reviewed the City's "high volume offenses" and "started recommending higher fines on these cases, and recommending probation only infrequently." While the report stated that this recommendation was because of a "large volume of non-compliance," the recommendation was in fact emphasized as one of several ways that the code enforcement system had been honed to produce more revenue.
In combination with a high fine schedule, the City directs FPD to aggressively enforce the municipal code. City and police leadership pressure officers to write citations, independent of any public safety need, and rely on citation productivity to fund the City budget. In an email from March 2010, the Finance Director wrote to Chief Jackson that "unless ticket writing ramps up significantly before the end of the year, it will be hard to significantly raise collections next year. What are your thoughts? Given that we are looking at a substantial sales tax shortfall, it's not an insignificant issue." Chief Jackson responded that the City would see an increase in fines once more officers were hired and that he could target the $1.5 million forecast. Significantly, Chief Jackson stated that he was also "looking at different shift schedules which will place more officers on the street, which in turn will increase traffic enforcement per shift." Shortly thereafter, FPD switched to the 12-hour shift schedule for its patrol officers, which FPD continues to use. Law enforcement experience has shown that this schedule makes community policing more difficult—a concern that we have also beard directly from FPD officers. Nonetheless, while FPD heavily considered the revenue implications of the 12-hour shift and certain other factors such as its impact on overtime and sick time usage, we have found no evidence that FPD considered the consequences for positive community engagement. The City's 2014 budget itself stated that since December 2010, "the percent of [FPD] resources allocated to traffic enforcement has increased," and "[a]s a result, traffic enforcement related collections increased" in the following two years The 2015 budget added that even after those initial increases, in fiscal year 2012-2013, FPD was once again "successful in increasing their proportion of resources dedicated to traffic enforcement" and increasing collections.
Each of these yearly totals excludes certain court fees that are designated for particular purposes, but that nonetheless are paid directly to the City. For example, $2 of the court fee that accompanies every citation for a municipal code violation is set aside to be used for police training That fee is used only by the City of Ferguson and is deposited in the City's general fund, nonetheless, the City's budget does not include that fee in its totals for "municipal court" revenue In 2012 and 2013, the police training fee brought in, respectively, another $24,724 and $22,938 in revenue.
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As directed, FPD supervisors and line officers have undertaken the aggressive code enforcement required to meet the City's revenue generation expectations. As discussed below in Part III.A., FPD officers routinely conduct stops that have little relation to public safety and a questionable basis in law. FPD officers routinely issue multiple citations during a single stop, often for the same violation Issuing three or four charges in one stop is not uncommon in Ferguson. Officers sometimes write six, eight, or, in at least one instance, fourteen citations for a single encounter. Indeed, officers told us that some compete to see who can issue the largest number of citations during a single stop.
The February 2011 report to the City Council notes that the acting prosecutor—with the apparent approval of the Police Chief—"talked with police officers about ensuring all necessary summonses are written for each incident, i.e. when DWI charges are issued, are the correct companion charges being issued, such as speeding, failure to maintain a single lane, no insurance, and no seat belt, etc." The prosecutor noted that "[t]his is done to ensure that a proper resolution to all cases is being achieved and that the court is maintaining the correct volume for offenses occurring within the city." Notably, the "correct volume" of law enforcement is uniformly presented in City documents as related to revenue generation, rather than in terms of what is necessary to promote public safety. 9 Each month, the municipal court provides FPD supervisors with a list of the number of tickets issued by each officer and each squad. Supervisors have posted the list inside the police station, a tactic officers say is meant to push them to write more citations.
The Captain of FPD's Patrol Division regularly communicates with his Division commanders regarding the need to increase traffic "productivity," and productivity is a common topic at squad meetings. Patrol Division supervisors monitor productivity through monthly "self-initiated activity reports" and instruct officers to increase production when those reports show they have not issued enough citations. In April 2010, for example, a patrol supervisor criticized a sergeant for his squad only issuing 25 tickets in a month, including one officer who issued "a grand total" of 11 tickets to six people on three days "devoted to traffic stops." In November 2011, the same patrol supervisor wrote to his patrol lieutenants and sergeants that "[t]he monthly self-initiated activity totals just came out," and they "may Want to advise [their] officers who may be interested in the open detective position that one of the categories to be considered when deciding on the eligibility list will be self-initiated activity" The supervisor continued: "Have any of you heard comments such as, why should I produce when I know I'm not getting a raise? Well, some people are about to find out why." The email concludes with the instruction to "[k]eep in mind, productivity (self-initiated activity) cannot decline for next year"
FPD has communicated to officers not only that they must focus on bringing in revenue, but that the department has little concern with how officers do this. FPD's weak systems of supervision, review, and accountability, discussed below in Part III.A., have sent a potent message to officers that their violations of law and policy will be tolerated, provided that officers
' FPD's financial focus has also led FPD to elevate municipal enforcement over state-law enforcement. Even where
individuals commit violations of state law, if there is an analogous municipal code provision, the police department will nearly always charge the offense under municipal law. A senior member of FPD's command told us that all Ferguson police officers understand that when a fine is the likely punishment municipal rather than state charges should be pursued so that Ferguson will reap the financial benefit.
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continue to be "productive" in making arrests and writing citations. Where officers fail to meet productivity goals, supervisors have been instructed to alter officer assignments or impose discipline. In August 2012, the Captain of the Patrol Division instructed other patrol supervisors that, "[f]or those officers who are not keeping up an acceptable level of productivity and they have already been addressed at least once if not multiple times, take it to the next level." He continued: "As we have discussed already, regardless of the seniority and experience take the officer out of the cover car position and assign them to prisoner pick up and bank runs. Failure to perform can result in disciplinary action not just a bad evaluation." Performance evaluations also heavily emphasize productivity. A June 2013 evaluation indicates one of the "Performance-Related Areas of Improvements" as "Increase/consistent in productivity, the ability to maintain an average ticket [sic] of 28 per month."
Not all officers within FPD agree with this approach Several officers commented on the futility of imposing mounting penalties on people who will never be able to afford them. One member of FPD's command staff quoted an old adage, asking: "How can you get blood from a turnip?" Another questioned why FPD did not allow residents to use their limited resources to fix equipment violations, such as broken headlights, rather than paying that money to the City, as fixing the equipment violation would more directly benefit public safety. '°
However, enough ôfficers----at all ranks—have internalized this message that a culture of reflexive enforcement action, unconcerned With whether the police action actually promotes public safety, and unconcerned with the impact the decision has on individual lives or community trust as a whole, has taken hold within FPD. One commander told us, for example, that when he admonished an officer for writing too many tickets, the officer challenged the commander, asking if the commander was telling him not to do his job. When another commander tried to discipline an officer for over-ticketing, he got the same response from the Chief of Police: "No discipline for doing your job."
The City closely monitors whether FPD's enforcement efforts are bringing in revenue at the desired rate. Consistently over the last several years, the Police Chief has directly reported to City officials FPD's successful efforts at raising revenue through policing, and City officials have continued to encourage those efforts and request regular updates. For example, in June 2010, at the request of the City, the Chief prepared a report comparing court revenues in Ferguson to court revenues for cities of similar sizes. The Chief's email sending the report to the City Manager notes that, "of the 80 St. Louis County Municipal Courts reporting revenue, only 8, including Ferguson, have collections greater than one million dollars." In the February 2011 report referenced above, Chief Jackson discussed various obstacles to officers writing tickets in previous months, such as training, injury leave, and officer deployment to Iraq, but noted that those factors had subsided and that, as a result, revenues were increasing. The acting prosecutor echoed these statements, stating "we now have several new officers writing tickets, and as a result our overall ticket volume is increasing by 400-700 tickets per month. This increased volume Will lead to larger dockets this year and should have a direct effect, in increasing overall revenue to the municipal court."
10 After a recommendation we made during this investigation, Ferguson has recently begun a very limited "correctable violation" or "fix-it" ticket program, Under which charges for certain violations can be dismissed if corrected within a certain period of time.
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Similarly, in March 2011, the Chief reported to the City Manager that court revenue in February was $179,862.50, and that the total "beat our next biggest month in the last four years by over $17,000," to which the City Manager responded: "Wonderful!" In a June 8011 email from Chief Jackson to the Finance Director and City Manager, the Chief reported that "May is the 6th straight month in which court revenue (gross) has exceeded the previous year." The City Manager again applauded the Chief's efforts, and the Finance Director added praise, noting that the Chief is "substantially in control of the outcome." The Finance Director further recommended in this email greater police and judicial enforcement to "have a profound effect on collections" Similarly, in a January 2013 email from Chief Jackson to the City Manager, the Chief reported: "Municipal Court gross revenue for calendar year 2012 passed the $2,000,000 mark for the first time in history, reaching $2,066,050 (not including red light photo enforcement)." The City Manager responded: "Awesome! Thanks!" In one March 2012 email, the Captain of the Patrol Division reported directly to the City Manager that court collections in February 2012 reached $235,000, and that this was the first month collections ever exceeded $200,000. The Captain noted that "[t]he [court clerk] girls have been swamped all day with a line of people paying off-fines today. Since 9:30 this morning there hasn't been less than 5 people waiting in line and for the last three hours 10 to 15 people at all times." The City Manager enthusiastically reported the Captain's email to the City Council and congratulated both police department and court staff on their "great work."
Even as officers have answered the call for greater revenue through code enforcement, the City continues to urge the police department to bring in more money. In a March 2013 email, the Finance Director wrote: "Court fees are anticipated to rise about 7.5%. I did ask the Chief if he thought the PD could deliver 10% increase. He indicated they could try." Even more recently, the City's Finance Director stated publicly that Ferguson intends to make up a 2014 revenue shortfall in 2015 through municipal code enforcement, stating to Bloomberg News that "[t]here's about a million-dollar increase in public-safety fines to makeup the difference." The City issued a statement to "refute[]" the Bloomberg article in part because it "insinuates" an "over reliance on municipal court fines as a primary source of revenues when in fact they represented less than 12% of city revenues for the last fiscal year." But there is no dispute that the City budget does, in fact, forecast an increase of nearly a million dollars in municipal code enforcement fines and fees in 2015 as reported in the Bloomberg News report.
The City goes so far as to direct FPD to develop enforcement strategies and initiatives, not to better protect the public, but to raise more revenue. In an April 2014 communication from the Finance Director to Chief Jackson and the City Manager, the Finance Director recommended immediate implementation of an "1-270 traffic enforcement initiative" in order to "begin to fill the revenue pipeline" The Finance Director's email attached a computation of the net revenues that would be generated by the initiative, which required paying five officers overtime for highway traffic enforcement for a four-hour shift. The Finance Director stated that "there is nothing to keep us from running this initiative 1,2,3,4,5,6, or even 7 days a week. Admittedly at 7 days per week[] we would see diminishing returns." Indeed, in a separate email to FPD
" Katherine Smith, Ferguson to Increase Police Ticketing to Close City sBudget Gap, Bloomberg News (Dec. 12,
2014), budget-gap.
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 Case 2:15-cv-00555-RCL-WC Document 97 Filed 03/10/17 Page 1 of 11

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

_______________________________________

)

ALDARESS CARTER, et al.,

)

)

Plaintiffs,

)

)

v.

)

Case No. 2:15-cv-555 (RCL)

)

THE CITY OF MONTGOMERY, et al., )

)

Defendants.

)

_______________________________________)

MEMORANDUM OPINION This case is one of several cases concerning the treatment of indigent persons in various Alabama cities. In this particular case, plaintiffs maintain that the City of Montgomery violated their rights by denying them due process and creating debtor’s prisons, where plaintiffs were made to “sit out” the fines and fees they could not afford to pay. This was done, according to plaintiffs, without due process or indigency determinations. Plaintiffs now seek to file suit on behalf of a class against the City; a private company that ran the City’s probation services, Judicial Correctional Services (JCS)1 and other related corporate entities; and Branch Kloess, an attorney hired by Montgomery to represent indigent defendants. This case involves facts and legal arguments incredibly similar to or identical to those made before this Court in McCullough v. City of Montgomery, 2:15-cv-463. For the sake of brevity, the Court will not repeat its analysis here other than as necessary. Accordingly, this opinion should

1 The Court notes that the name of this entity differs from brief to brief. The Complaint in this case lists a “Judicial Correctional Services.” In McCullough the Complaint identifies the same company as “Judicial Correction Services.” Additionally, the dockets in McCullough identify the party as “Judicial Corrections Services.” Additionally, the plaintiffs identify several corporate entities and refer to them collectively as JCS. The Court will take the same approach, only distinguishing between them as necessary.
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be read in conjunction with the opinion filed in that case as well as the other, similar, cases before this Court.
Defendants filed motions to dismiss for failure to state a claim. For the reasons specified both in the related opinions and herein, the Court GRANTS in part and DENIES in part defendants’ motions to dismiss.
I. Background
As in the other cases, plaintiffs allege that the City of Montgomery had policies and practices designed to increase revenue at the expense of indigents. Plaintiffs maintain that people were arrested and placed on JCS probation, where they had to pay monthly fees in addition to the fines levied against them. Those who did not pay were subject to arrest without an indigency determination. Those individuals would sit in jail to pay off their debts with the “option” of working off their debt at a rate of $25/day of labor.
The facts in this case overlap significantly with McCullough, so this section will only address the pertinent unique allegations. Chief among them is that Branch Kloess, the attorney hired to defend indigents, “fully participated” in the City’s policies, Am. Comp. ¶ 19, ECF No. 18, and did not inquire into ability to pay, fill out hardship forms, or even maintain files on his clients. Id. at ¶ 22. Indeed, the public defenders, including Kloess, allegedly told their clients to “pay or stay,” that is, pay fines or stay incarcerated, as these defenders are funded out of the costs and fees levied against those defendants. Id. at ¶ 23-24.
With respect to JCS, plaintiffs also allege that though a private company, JCS used a room inside the city building, issued badges to JCS employees, and sat in the courtroom near the judge and advised the judge. Id. at ¶ 46. Plaintiffs thus maintain that as JCS’s actions were interwoven with City policies, they are liable for a number of constitutional violations.
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Additionally, plaintiffs allege that City policy allowed for the City itself to issue and execute warrants. Id. at ¶ 48.
II. Counts and Issues in this Case The Complaint contains the following counts: Count one, against the City and Kloess is for denial of due process. Count two against JCS is for denial of due process. Count three, against the City, is for violations of the Fourth Amendment. Count four, against JCS, is for violations of the Fourth Amendment. Count five, against the City, is for violations of the Sixth Amendment. Count six is against JCS for violations of the Sixth Amendment. Count seven is against the City for violations of the Eighth Amendment. Count eight is against JCS for violations of the Eighth Amendment. Count nine is against the City for denial of equal protection. Count ten is against JCS for denial of due process. Counts eleven through fourteen are RICO claims against JCS. Count fifteen is for declaratory and injunctive relief. The Court has already addressed due process, the Fourth Amendment, the Sixth Amendment, the Eighth Amendment, and RICO in McCullough, and will not repeat its analysis here. The Court has also addressed equal protection in McCullough, but the arguments and basis for the count presented in this case appear to be completely distinct from those presented there. Accordingly, the Court will only address the following counts and issues in full: 1) JCS arguments not raised in McCullough, including the relationship between JCS and the various other identified corporate entities; 2) the equal protection counts; and 3) the count against Kloess.
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III. Legal Standard for Motions to Dismiss A motion to dismiss is appropriate when the complaint fails “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Such a failure occurs when the complaint is so factually deficient that the plaintiff’s claim for relief is not plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Though facts in a complaint need not be detailed, Rule 8 “demands more than an unadorned, the-defendant-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must accept all factual statements as true when deciding a Rule 12(b)(6) motion to dismiss. Id. at 678. However, conclusory legal allegations devoid of any factual support do not enjoy the same presumption of truth. Id. at 679. “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. This is not a high bar however, as plaintiffs need only plead facts sufficient to “nudge[] their claims across the line from conceivable to plausible.” Id. at 547. IV. Analysis of Pending Issues The Court is aware of the recent memorandum opinion issued in Ray v. Judicial Corrections Services Inc., 2:12-cv-02819, in the Northern District of Alabama. In that case, summary judgment was granted for the defendants in a case with a number of very similar claims. While the Court looks at all relevant law, Ray is neither binding nor particularly applicable at this stage of the proceedings. The court in Ray made its summary judgment determination after reviewing specific facts about the JCS contract with the city in question, Childersburg. Before this Court are motions to dismiss, which are governed by a different legal standard. Additionally, the parties have not yet conducted discovery.
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1. Equal Protection Where plaintiffs in McCullough discuss equal protection as associated with their claim that minority residents of the city were being targeted, the equal protection count in this case is premised wholly upon indigency. Am. Comp. ¶¶ 283-294. In McCullough this Court wrote that it “recognizes that prior Supreme Court precedent has spoken in the language of both due process and equal protection” when addressing indigency. McCullough v. City of Montgomery, 2:15-cv-463, Mem. Op. n. 1. Here, the equal protection count appears to do the same, overlapping significantly with plaintiffs’ due process counts. Thus, to the extent that plaintiffs’ count is intertwined with due process, they have stated a claim for the reasons specified in the due process section of McCullough. However, the Court also notes that plaintiffs use language that could be interpreted to attack all levying of surcharges or fees related to payment plans. The Court has addressed a similar issue in Rudolph v. City of Montgomery, 2:16-cv-0057, Mem. Op. 14-16, and the same reasoning applies here. It is not the case that all fees that affect indigents are a violation of equal protection. For example, in one paragraph plaintiffs write: “[t]he policy at Montgomery was not uniform with the procedures established by the Alabama Administrative Office of Courts because it added fees only to ‘offenders’ who could not pay immediately and created its own ‘rules’ for penalizing individuals who could not pay as directed.” Am. Comp. ¶ 196. The Court sees no legal basis to believe that late fees or routine processing fees are violations of equal protection, though their impact may be most visible to those without the means to pay. For example, if there is a processing fee of $1 each time someone pays with a credit card, those on payment plans may end up paying more (a $1 fee each time they make a payment) than those who had the means to pay in a single transaction. The
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Court sees no precedent nor basis for holding that such routine fees would be violations of equal protection however.
Thus to the degree this Count seeks to invalidate any or all fees associated with probation or payment plans as a matter of course, the Court sees no basis for such a claim. However, given the broader context of this count and the Supreme Court’s language in Bearden v. Georgia, 461 U.S. 660, 664 (1983), plaintiffs have stated a claim.
2. JCS While many of the arguments made by JCS are the same or very similar to the arguments made in McCullough, some of the arguments are sufficiently distinct that they are addressed below.
a. The Motion to Dismiss by CHC Companies Defendant CHC Companies, Inc. filed a motion [37] to dismiss arguing that the complaint simply alleges that CHC Companies, Inc. (CHCC) wholly owns JCS or Correctional Healthcare Companies, Inc. The amended complaint, however, does not argue that CHCC is an alter ego of the other defendants nor, according to the motion to dismiss, are there any allegations that would allow the Court to reach CHCC’s separate corporate structure. This case is one of many similar cases being litigated in Alabama. Plaintiffs explain that discovery in those cases has revealed that JCS merged with CHCC in 2011. Moreover, CHCC entered into a “management services agreement” with Correctional Healthcare Companies, Inc. that made employees of JCS also employees of CHCC and Correctional Healthcare Companies, Inc. Pls.’ Response Mot. Dismiss 1-2, ECF No. 45. In light of these facts, Judge Proctor allowed the plaintiffs in Ray to amend their complaint to add CHCC. CHCC appears to have made very similar arguments both in Ray and this case in
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support of their motions to dismiss. Compare Ray v. Judicial Corrections Services Inc., 2:12-cv02819, Opp’n. Pls.’ Mot. File Am. Comp., ECF No. 229, with CHC Companies, Inc. Mot. Dismiss, ECF No. 37. Given the overlapping facts in this issue, where the cases are dealing with the same corporate entities and same factual relationship, the facts and arguments presented in Ray are applicable here. While there are important distinctions between the cases, including the fact that the allegations relate to different cities, there is no indication that the corporate structure or JCS personnel are distinctly situated in this case as compared to Ray.
Thus, taken as true for the purposes of this motion, plaintiffs in this case have stated a claim against CHCC. They have noted that CHCC directed JCS’s operations and that nominal JCS employees identified themselves as employees of CHCC. Regardless of the precise employment relationship any individual employees may have had with JCS or CHCC, plaintiffs’ claims are sufficient at this point in the proceedings, as they are alleging that JCS employees are also employees of CHCC, which in fact controls JCS.
b. Other Arguments Advanced by JCS JCS’s motion to dismiss repeats the same, or similar, arguments advanced in McCullough. The same reasoning articulated there applies equally here. JCS’s arguments center on their not being responsible for various actions undertaken by other actors. However, as in McCullough, plaintiffs maintain that the actions of the various defendants were “inextricably interwoven.” Am. Comp. ¶ 33. The precise nature of the relationship between the defendants or the role—or lack thereof—of JCS in any particular activity is likely to be relevant at later stages of this litigation. However, given the nature of the complaint and the claims in this case, JCS’s arguments about its limited role or activities are not persuasive.
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3. Due Process Claim Against Kloess
Kloess, identified as the public defender for the City of Montgomery, filed a motion [34] to dismiss. Kloess is identified as a defendant only for count one, alleged violations of due process. Kloess argues that he did not represent Carter, was not involved with JCS, and played no role in many of the facts alleged in the complaint. He further argues that he was not a state actor who can be liable under 42 U.S.C. § 1983. In the alternative, he argues that he is immune from liability due to the doctrine of qualified immunity.
Given that this is a motion to dismiss, the Court takes the allegations in the complaint as true for the purposes of determining if a claim has been stated. In this case, plaintiffs argue that Kloess was an active participant in the City’s “pay or stay” program that gave indigent defendants the option of paying fines they could not afford or remaining incarcerated. Pls.’ Resp. Kloess’ Mot. Dismiss 3, ECF No. 39. The complaint further alleges that Kloess filed a notice of appearance in Carter’s case but did not introduce himself to Carter or speak on his behalf during the proceeding. Am. Comp. ¶¶ 89-98. According to plaintiffs, this was part of a widespread practice, as the “public defender” was funded through the fines that were levied against Carter and others. Id. at ¶ 145 (“[B]oth the City and the ‘public defender’. . . are enriched by avoiding the constitutional due process requirements and demanding money from the poor.”).
The Court also finds the reasoning in Powers v. Hamilton Cty. Pub. Def. Comm’n, both in the district court’s opinion and in the Sixth Circuit’s opinion, to be persuasive. Powers v. Hamilton Cty. Pub. Def. Comm’n, 501 F.3d 592, 608 (6th Cir. 2007). There, the court held that public defenders could be liable under § 1983 for constitutional violations. Indeed, the facts in question were strikingly similar to those presented here as they concerned the liability of a public defender who failed to move for an indigency hearing. Kloess argues that the “court in Powers was wrong
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and that the case is not precedent,” Pls.’ Resp. Kloess’ Mot. Dismiss 7, and that Polk County v. Dodson, 454 U.S. 312 (1981), “essentially overrules” Powers. Id.
Kloess is clearly correct that Powers is not binding. However, how exactly Polk, decided in 1981, overrules Powers is much less clear.2 See also Hamilton Cty. Pub. Def. Comm’n v. Powers, 555 U.S. 813 (2008) (denying certiorari). The Court sees no reason to diverge from the district or circuit court on this issue.
With regards to Kloess’ argument on qualified immunity, plaintiffs have argued that dismissal is not proper at this stage as more facts are needed to conduct a proper functional analysis. It appears Kloess did not file a reply brief. Kloess spends two paragraphs on qualified immunity, both of which are conclusory. Kloess’ Mot. Dismiss 8-9. He states that he is a lawyer who exercises discretion and therefore “is entitled to qualified immunity.” Id. He also states that plaintiffs do not allege “any intentional acts were done by Kloess.” As noted above, this is not the case—plaintiffs do allege Kloess acted intentionally. Given that the Court is not in a position to analyze the scope of Kloess’ employment, the dearth of substantive arguments regarding qualified immunity made thus far, and based on the allegations in this case, the arguments made in the briefs, and the motions hearing held in August, 2016, the Court agrees with plaintiffs that in this case the question of qualified immunity would be more appropriate at a later stage of the proceeding.
Accordingly, the complaint does state a claim against Kloess for violations of due process.
2 The Court notes that Kloess writes “Polk County v. Dodson, 454 U.S. 312, 127 S.Ct. 1955, 2007 [sic] essentially overrules Powers.” Pls.’ Resp. Kloess’ Mot. Dismiss 7. It is not clear if this was inadvertent but improper bluebooking on Kloess’ part, or if Kloess was intentionally attempting to create a typographical error ending in “2007” to grant at least temporal logic to the notion that Polk could have overruled Powers. Regardless, 127 S. Ct. 1955 is the citation for Bell Atlantic Corp. v. Twombly—not Polk—and it does not continue onto page 2007. 127 S. Ct. 2007 is a page in Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516 (2007) which is largely the introduction to a concurrence by Justices Scalia and Thomas in a case brought under the Individuals with Disabilities Education Act.
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V. Conclusion
Counts One and Two, regarding Denial of Due Process, state a claim for the reasons articulated above, in plaintiffs’ briefs, and in the previously referenced cases.
Counts Three and Four, concerning violations of the Fourth Amendment, state a claim for the reasons stated in plaintiffs’ briefs and the referenced cases, particularly the discussion of Count Three in the memorandum opinion issued by this Court in McCullough v. City of Montgomery, 2:15-cv-463.
Counts Five and Six, alleging violations of the Sixth Amendment, state a claim for the reasons stated in plaintiffs’ briefs and in the previously referenced cases.
Counts Seven and Eight, concerning the Eighth Amendment, also state a claim. Though the wording in this complaint and McCullough do not line up precisely, both address the issue of the Eighth Amendment being violated by use of bail systems that do not take into account the defendant’s ability to pay. While McCullough’s Eighth Amendment claim focuses on the fixedsum system and Carter’s places an increased emphasis on the resulting incarceration when the fixed bail is not paid, the underlying law and logic is the same.
Counts Nine and Ten concern Equal Protection and state a claim for the reasons stated above.
Counts Eleven through Fourteen allege RICO violations. Plaintiffs do not state a claim in these counts for the reasons specified in defendant’s briefs and in the previously referenced cases.
Count Fifteen concerns Carter’s request for relief. Carter states a claim for declaratory or injunctive relief for the same reasons articulated in McCullough. Defendants appear to focus on changes to municipal policy, but as explained in the motions hearing, Montgomery’s current policy is both unclear and subject to change. Moreover, the City did not accept liability in Mitchell, and
10

Case 2:15-cv-00555-RCL-WC Document 97 Filed 03/10/17 Page 11 of 11 the Court understands Count Fifteen as seeking to enjoin City action. The Court also notes that this count is tied to a separate motion for summary judgment seeking to declare the contract between the City and JCS void. For the purposes of the motion to dismiss, plain tiffs have stated a claim. However, the Court notes that it reserves judgment on the pending motion [71] for partial summary judgment along with subsequently filed motions to strike [75, 76].
A separate order shall issue on this date.
~c ~ Rc;c. Lamberth United States District Judge
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 Case 2:15-cv-00555-RCL-SMD Document 145 Filed 08/28/18 Page 1 of 82

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

ALDARESS CARTER, INDIVIDUALLY, AND FOR )

A CLASS OF SIMILARLY SITUATED PERSONS )

OR ENTITIES,

)

)

Plaintiffs

)

v.

)

)

THE CITY OF MONTGOMERY and

)

BRANCH D. KLOESS; JUDICIAL CORRECTIONAL )

SERVICES, INC., a corporation; CORRECTIONAL )

HEALTHCARE COMPANIES, INC., a corporation; )

CHC COMPANIES, INC., a corporation.

)

)

Defendants.

)

CIVIL ACTION NO.: 2:15-cv-00555-RCL-WC CLASS ACTION
DEMAND FOR JURY TRIAL

SECOND AMENDED AND RESTATED COMPLAINT

COMES NOW, Aldaress Carter (hereinafter “Plaintiff”), individually and on behalf

of those similarly situated, upon personal knowledge as to himself and his own acts, and

upon information and belief as to all other matters, by and through his undersigned

counsel, files this Second Amended and Restated Complaint as follows:

JURISDICTION

1. The Court has jurisdiction over this matter because it concerns a controversy

arising under the Constitution of the United States. 28 U.S.C. '1331. This is a civil rights

action brought under 42 U.S.C. '' 1983 and 1988 and pursuant to 18 U.S.C. 1962. T his

Court also has jurisdiction of this action by virtue of 28 U.S.C. '' 1343(a)(3) and

1343(a)(4), authorizing jurisdiction of claims brought under 42 U.S.C. ' 1983 to enforce

civil rights guaranteed by the United States Constitution. The Court also has supplemental

jurisdiction over the state law claims pursuant to 28 U.S.C. ' 1367.

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2. This action also seeks a declaratory judgment pursuant to 28 U.S.C. '' 2201 and 2022.
3. Venue in this judicial district is proper pursuant to 28 U.S.C. ' 1391 (b) and (c).
PARTIES TO THE COMPLAINT 4. The Plaintiff Aldaress Carter is an individual resident of Montgomery, Montgomery County, Alabama. 5. The classes which the individual Plaintiff seeks to represent consist of:
All individuals who have been in the past assigned by the Montgomery Municipal Court to “probation” with Judicial Correction Services (JCS) for the collection of fines. AND All individuals who, despite their indigency, were incarcerated, without consideration of their indigency for failure to pay fines, charges and fees to Montgomery. 6. The City of Montgomery, Alabama, (“Montgomery”) is a municipal corporation located within Montgomery County, Alabama. The City Council and Mayor control the policy making for Montgomery. The Mayor also hires the municipal court judges, the public defenders to provide legal representation for indigent offenders, and contracted for the services of JCS, a private probation company, to collect its municipal court fines1. (Exhibit 1) 7. Branch D. Kloess (“Kloess”) is an individual and a licensed attorney located within Montgomery County, Alabama. Kloess entered into an agreement with the City of
1JCS’s contract with Montgomery was not renewed in 2014 when the contract renewal date expired.
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Montgomery to provide “competent legal representation and services for indigent defendants charged with the violation of the municipal ordinances and laws before the Municipal Court of the City of Montgomery.” He has not provided competent legal representation. Rather, he has a policy and practice of not requesting indigency hearings for the indigents he represents. As such, he has participated in the City’s scheme to extort money from poor citizens he purportedly represents while gaining financially from not seeking indigency status for them. (Exhibit 2)
8. The Defendant Judicial Corrections Services, Inc. (hereinafter “JCS”) is a Delaware corporation, registered as a foreign corporation and doing business in the State of Alabama and in this District which markets itself as “not a social service agency,” but a “for profit”company which offers services to governmental entities “free of charge” to the cities as “an offender paid system.” At all times, JCS has operated under the color of state law.
9. The Defendant Correctional Healthcare Companies, Inc. (‘CHC’) (also hereinafter “JCS”) is a Delaware corporation, registered as a foreign corporation and doing business in the State of Alabama. It appears to be the successor of JCS, having purchased or otherwise acquired it, continuing to do business as JCS and operating the same.
10. The Defendant CHC Companies, Inc. (‘CHCC’) (also hereinafter “JCS”) is a Delaware corporation, registered as a foreign corporation and doing business in the State of Alabama. JCS and Correctional Healthcare Companies, Inc. are, upon information and belief, wholly-owned and fully integrated corporations of CHC Companies, Inc. CHC Companies, Inc. also does business under the name of Correctional Healthcare Companies and employs and/or directs and controls employees in the JCS operations.
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FACTS 11. The Plaintiff brings this action because the policy and practices of Montgomery and its agents JCS, CHC and CHCC (hereinafter ‘JCS’) and Kloess have violated the Plaintiff’s statutory and constitutional rights and those of persons similarly situated. 12. The treatment of the Plaintiff was caused by and is representative of the City’s policies and practices employed to collect debts from the fines, fees, costs, and surcharges that the City assesses, usually for traffic tickets. These facts are similar to those alleged in the Amended Complaints in cases 2013-cv-732-MEF (Doc. 10), 2013-cv733-MEF (Doc. 9) and 2014-cv-186-MEF (Doc.26) which describe additional people whose rights were violated by the same policies and practices. 13. The policies and practices of the City of Montgomery are strikingly similar to the unconstitutional practices by which the City of Ferguson, Missouri, operated its courts and police department. These unconstitutional policies placed priority on generating cash for the City without regard to constitutional precepts. The Department of Justice’s Civil Rights Division outlined the unconstitutional practices it discovered at the City of Ferguson in its March 4, 2015 report. (Exhibit 3)2 14. Montgomery has contracted with JCS which operates a “for profit” enterprise that markets its services to various municipal governments and has contracted with over 100 cities and towns throughout Alabama. JCS’s marketing approach to these cities
2 Due to the many similarities between Montgomery’s policies and practices that are coordinated through the city police and the city courts, sections of the DOJ report are referenced by footnotes for the court’s review.
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emphasizes that its fees will be paid by the “offender” and that its efforts will improve collection of court fines and costs at no cost to the City.
15. The JCS approach is highly systemized and uniform throughout the Alabama municipal courts in which it operates, including Montgomery - until July 1, 2014.
16. Under the system implemented by Montgomery, it does not require JCS employees to have criminal justice or legal training, nor are they required to have any social work education or meet any minimum law enforcement standards as is required of state probation officers. Instead, the only requirements of a JCS employee who is referred to as a “Probation Officer” is that the employee be 21 years old, a non felon, with two years of college who complete 40 hours of JCS training on its processes. On satisfying those requirements, JCS employees are then labeled “Probation Officers”3 and previously permitted to carry the JCS issued badge in collecting its fees, court fines and costs.
17. Montgomery by contract and practice, unlawfully delegated to JCS many administrative and judicial functions of its municipal court, clothing it with the color of state law for the collection of court fines, costs and the JCS private fees.
18. The agreement between Montgomery and JCS and signed by the city mayor attests that the Montgomery municipal “court agrees that each court order shall provide for the following:
a probation fee of $40.00 per month flat fee one time probationer set up fee of $10.00. . . . " (emphasis added).
3In contrast, even a judicial volunteer is required to meet greater and more specific qualifications, careful screening, specific training and continual oversight established by the Administrative Office of Courts (‘AOC’). See Ala. Rule of Judicial Administration Rule 42.
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19. Montgomery, through its Mayor, Charles Jinright, and Council, approved the agreement with JCS, the City and its court beginning in March 19, 2009 and continued the relationship, by and through its City Council and Mayor, Todd Strange, until the summer of 2014. Throughout this period, the City police, City courts, and City hired public defenders who fully participated in the practices and system with JCS.
20. Montgomery also approved the employment of it municipal court judges, including its Presiding Judge, Armstead Lester Hayes, III.
21. Montgomery also hired attorneys to represent indigent defendants in its city courts under a contract which provides that “A defendant's status as ‘indigent’ shall be determined by the Judge in the said Court, in accordance with the criteria set forth in Code of Alabama (1975), Sections 15-12-5 and 15-12-20.” Yet, despite the fact that offenders are designated as indigent for purposes of getting an appointed attorney, routinely the attorneys never introduce themselves to the client they purportedly represent and do not advocate on the client’s behalf before the judge, which results in indigent people being fined, assessed court costs, put on the JCS ‘payment plan’ which costs them an additional $40/month, and are threatened with jail if payments are missed.
22. These ‘public defenders’ do not request Bearden hearings or inquire into the offender’s ability to pay, or fill out hardship forms requesting community service or other alternatives due to their client’s poverty.4 Nor, do they even maintain files on their “clients.”
23. Rather, the ‘public defender’ upholds the City’s practice of prioritizing profits over public welfare and safety by requiring their clients to ‘pay or stay’ and demanding
4 See DOJ Report pg. 53.
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court costs and full payment of fines for those they “represent.” 24. The contract between the City and the ‘public defender’ mandates that the
attorneys will be paid out of the ‘Fair Tax Trial Fund’ which is funded through the collection of court costs levied and collected on convictions. This payment policy creates a conflict of interest as the City is not required to pay the attorneys more than it has collected in any one month.
In fact, Section Five of its public defender contract says: SECTION FIVE. Under the terms of this agreement, on or after the last day of each month during the period of this agreement, Kloess shall submit to the Clerk of Court for approval, a request for payment from the Fair Trial Tax fund not to exceed the sum of Ten Thousand and 00/100 Dollars ($10,000.00) per month, for services to be performed hereunder for the period of the agreement. Provided, in no event shall the City be required to pay more than the amount deposited in the Fair Trial Tax Fund for a particular month. (Exhibit 2, pg. 2)(emphasis added) 25. For a number of years, Montgomery has participated in implementing the JCS system. That system and JCS’s “Probation Tracker” software used at Montgomery was highly systemized and focused on collections of fines and its fees -- not traditional probation services. For instance, the “probation officer” does not visit the probationer’s home, job or family, and has contact with them only at the JCS office in collecting fees and fines. That collection focus allows the “offenders” to mail in payments if they live 30 miles from the JCS office. (Doc 1-4). The training manual used by JCS instructs its employees on the use of its computer systems in tracking the payments made by the “offenders” and provides court forms to order probation and payments to JCS. The JCS training system also provides sample letters for use after probation is ordered, threatening the “offender”
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that failure to report to JCS “as directed may result in a warrant being issued for your arrest” and that their “court date cannot and will not be reset.” (See Exhibits 5 and 6). Similar JCS forms instruct the “offender” that they can avoid the court date if they pay an amount determined by JCS. (See Exhibit 7). Notice to the offender of these JCS set “court dates” was handled by JCS by regular mail with no proof of service and no consideration of returned mail showing no receipt. Similarly, the setting for any hearing on petitions instituted by JCS was done by JCS and listed on a separate “JCS Docket” which JCS established and which Montgomery then adopts. Finally, the JCS manual instructs its employees on the issuance of warrants of arrest and provides forms for that purpose. (See Exhibit 8).
26. Once on probation to collect the fines, “offenders” who cannot keep up their payments at Montgomery are arrested typically based upon FTA or FTOCO rather than probation violation. These codes stand for “Failure to Appear” and “Failure to Obey Court Order.” Warrants are issued by the City based upon a report that the offender failed to appear as directed at the JCS established date after notice from JCS. Similarly, FTOCO arrests result from JCS reporting that the “offender” failed to comply with their probation order – that is, they failed to pay or appear at the JCS offices as JCS directed. There is no ordinance or statute establishing Failure to Obey Court Order as an offense. The arrests and incarceration on these charges occur without any determination of contempt or willfulness in these arrests and the additional costs are added without any finding whatsoever. Under this system, the “offender” arrested is jailed for an undetermined period of time with bond set by the city magistrate to approximate the money claims to be owed on the balance at JCS. Unlike legitimate probation systems where a probationer would be
8

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entitled to a finding of the reasons for revocation, appointed counsel and, at worse, suffer jail time equating to the original sentence, the system at Montgomery ignores all those safeguards.
27. The City Council and Mayor control the policy making for Montgomery and also hire the municipal court judges, hire the public defenders and contract for services of JCS at the municipal court. The contract was a no bid contract and provided JCS with an exclusive franchise at the City. The decision to use this JCS system was an administrative decision of Montgomery, by and through its mayor, and not a decision of the municipal court judge or the Chief Justice, or any other employee of the Administrative Office of Courts (“AOC”).
28. Montgomery, through its contract, pattern and practice, clothed JCS with the appearance of state authority and has previously even allowed JCS employees to carry badges. The JCS employees attend each municipal court session and are referred to as “probation officers” in the operation of the municipal court and city clerk’s office, though none have such authority under Alabama statutes. Under this system, JCS “offenders” were not permitted to pay fines at the City payment window, but were required to make all payments, including those for fines, restitution, probation fees and court costs, to JCS.
29. This public ruse was maintained by Montgomery for purposes of imposing and collecting fines, fees and costs from citizens such as the Plaintiff, and was accomplished by allowing JCS to control the money, determine how much each municipal court “offender” must pay each month, how much JCS would keep for its own fees for collection “services” each month, and how much of the payment JCS would rebate to Montgomery toward the fines adjudged.
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30. This system, as a matter of routine, violates the rights of persons such as the Plaintiff and the class he seeks to represent by imposing fines, fees and surcharges to indigent persons with no hearing or consideration of their indigency and by converting fines to jail time.
31. Despite the lack of authority to do so, Montgomery allowed JCS to use threats of revoking probation, arrest, increased fines and costs and jail time for purposes of collection. Under the system operated by Montgomery, JCS’s determination to incarcerate an individual and/or impose unreasonable bond requirements was routinely accepted by City personnel as a matter of policy without conducting delinquency or probation hearings and without making any findings, much less any determination of indigency.
32. The lack of indigency or Bearden hearing is especially disturbing as the court records show many indigent people were supposedly represented by attorneys paid by the City (through the “Fair Trial Tax Fund” funded by court fees). All of the court personnel hired by Montgomery have a significant financial stake in the proceedings.
33. The collective actions of Montgomery and its agents, including JCS and Kloess, are inextricably interwoven with each other and routinely result in court costs and fines which exceed the statutory maximum of $500 for municipal courts. Similarly, the periods of “probation” imposed for purposes of collecting fines and fees routinely exceed the two-year statutory maximum, all of which results in Montgomery taking action to detain and otherwise incarcerate individuals without any jurisdiction to do so. Additionally, Montgomery approves routinely adding to the “offender” probation balance any unpaid fines it can resurrect from old traffic tickets or fines, even though those predate the
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“probation.” 34. After improperly imposing probation even when no jail sentence is involved,
incarceration then follows if the fine, together with the fees added by JCS, are not paid as dictated. The collection purpose of this system is emphasized by the fact that probation is terminated once full payment is made.
35. Under the Montgomery system, JCS had a monetary interest to conduct its role as “probation officer” in a way that maximized its personal profit and not as a neutral court officer.
36. Under the scheme implemented by Montgomery, its agent JCS decided whether to initiate probation revocation proceedings, and made recommendations to the city judge about that revocation, and charges of failure to appear or failure to obey court order – all while financially interested in the outcome of these strong-arm collection efforts.
37. Under the scheme implemented by Montgomery, JCS did not undertake determination of the reasons for nonpayment, and did not consider such things as the Plaintiff’ disability, unemployment or assets, in regard to the nonpayment of the fines and routinely sought collection from exempt income such as Social Security Disability payments.
38. Under the scheme implemented by Montgomery, JCS denied any responsibility to determine indigency, and provided no instruction to its employees for the consideration of indigency.
39. Under the scheme implemented by Montgomery, after simple fines are converted to “probation” for payment, jail often resulted for the “offender” who did not meet the payment schedule. This system used JCS’s conclusion of a “probation violation” or
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“failure to obey court order” to incarcerate individuals who, had they been financially able to pay, would have paid only a fine with no probation whatsoever.
40. If a person is unable to make a full payment, JCS, often took out the amount owed to JCS first so that JCS was paid even if a person’s debt to the City was not reduced.
41. Many people have made payments to the City and to JCS, only to learn later that there was no record of those payments and to be ordered to make them again.
42. If a person missed payments or paid less than required, JCS had the purported contractual authority and discretion to decide whether to petition the City for “revocation” of probation. JCS also has a policy of placing people who cannot make full payments – from whom the company has difficulty making a profit – on “warrant status,” which could result in warrants issued for their arrest by the City and which constituted a JCS determination that JCS would not accept the person for future probation supervision. JCS communicated this decision to the City, and the City’s policy and practice was to agree not to place such people back on probation, requiring instead that those people pay in full or go to jail.
43. In other cases in which a person was making substantial payments, JCS, had a personal financial interest in extending a person’s probation and in keeping the person on a payment plan for as long as possible so that it could profit from the collection of more monthly fees.
44. Thus, under the City’s scheme, JCS, was allowed not only to decide whether to initiate judicial revocation proceedings, but could also decide whether a person was put on probation and what judicially ordered conditions were imposed. JCS would also make other recommendations to the City judge concerning how JCS believed the person had
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faired on probation, whether the person should be placed on probation, whether JCS considered the person “eligible” for probation, what the amount of monthly court-ordered payments should be, and a variety of other case-related decisions.
45. JCS had a personal financial interest to conduct its role as a probation officer in a way that maximized its personal profit and not necessarily as a neutral public court officer.
46. JCS used a “probation” room inside the City building that also houses the Municipal Court, directly across from the Municipal courtroom. A JCS employee often sat in the courtroom near the judge and advised the judge about how to handle the cases of “probationers” and potential “probationers.”
47. The City enforced a policy and practice of initiating and issuing warrants when a person missed a payment or failed to make sufficient payments without considering the person’s ability to pay5—even when the City or its agent, JCS, had knowledge that the person was indigent – and without providing notice and validly summoning the person to court for a hearing.
48. Instead, City policy allows the City to issue and execute warrants,6 and City officers go to the homes of traffic debtors to arrest them. The City policy and practice is also therefore to deprive people of their liberty without any prior notice and opportunity to be heard and without any basic inquiry into whether the debt is owed, actually unpaid, or still valid.
5 See DOJ Report pp. 54-55 6 See DOJ Report p. 55.
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49. The City often chooses to execute these warrants prior to or over the weekend, which results in a person serving needless extra time in jail prior to the next available court date.
50. People placed on “probation” because they cannot afford to pay their fines, fees, costs, and surcharges immediately were also forced to abide by additional restrictions on their liberty, which the City called “conditions” of probation, which were imposed solely because of their wealth status. These restrictions include: 1) not changing residence or employment without notifying JCS, 2) avoiding “injurious or vicious habits,” 3) not using alcohol or visiting places where “intoxicants, drugs, or dangerous substances are sold, dispensed or used, 4) working diligently at a lawful occupation, 5) “truthfully answer all inquiries” by the JCS employees and “comply with all instructions” the JCS employee gives. In addition to these unlawful constraints, the order states in bold type. “You are subject to arrest for violation of any condition imposed by this order, and your probation may be revoked accordingly.”
51. When warrants are issued and executed, the City adds fees, costs, and surcharges to the amounts of debt already owed. In addition to court fees and JCS fees and costs, the City routinely adds surcharges for warrants, a “solicitor” fee, and even a 30% debt-collection fee.
52. The City’s policy and practice was to conduct no inquiry into the person’s ability to pay, and the City’s policy and practice also refused to use even the state-issued Affidavit of Substantial Hardship that is available for courts to use to determine indigence. As such, the offenders had no opportunity to present evidence concerning their ability to
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pay or concerning any other relevant question.7 53. If family members were present, the City’s practice was to call them up to the
bench and to ask them to pay as much of their family member’s debts as they could on the threat that the person who allegedly owes the money would be jailed if the family members did not pay.
54. The City did not conduct any meaningful inquiry into the person’s ability to pay and did not even explain to people how they might claim indigency through standard forms issued by the State of Alabama.
55. The amount of debt announced to debtors by the judge in open court often differed from the amount listed on the paperwork that they received on their return to the jail. The paperwork amount is usually less than the open court amount, meaning that debtors would often have a balance remaining after they “served out” their fines, leading to their placement back on a payment plan and their continued supervision.8 The City appears to refer to this as “reopening” their cases, although this “reopening” and the corresponding modifications that it entails are not performed at any formal hearing or even in the person’s presence. Once people returned to the jail from City court, they were told of the City’s policy of “working off” an extra $25 per day of their debts if the person agreed to labor in the City jail while being imprisoned.
56. Inmates desperate to return to their families by “working off” their debts more quickly competed on a daily basis to be selected by City jail employees for a limited
7 See DOJ Report p. 58. 8 See DOJ Report pp. 59-61.
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number of difficult, unsanitary, and demeaning daily labor tasks. These tasks included cleaning the offices of City employees in the Municipal Court building, the bathrooms in the City police department and Municipal Court, and cells and bathrooms in the City’s overcrowded jail.
57. The City’s debt collection practices are enormously profitable, especially in getting family members with no legal obligation to pay any money to the City to come up with money to get their loved ones released from jail and in getting low-income people to forgo basic necessities of life in order to pay JCS and the City in an attempt to avoid jail.
58. For example, the 2013 City of Birmingham budget reflects approximately $2.8 million from court and traffic citations, the City of Mobile approximately $2 million, and the City of Huntsville approximately $2.5 million. In contrast, the City of Montgomery budget reflects revenue of $15.9 million from municipal court “fines and forfeitures.”
59. The City uses the money collected through these procedures to fund the City jail, to pay Municipal Court judicial salaries, to pay City Attorney’s Office salaries, and to fund other portions of the City budget.
60. The City’s recent “Amnesty Day” program starkly demonstrates its practice of jailing persons who are unable to pay debts to the City. In May 2013, Montgomery Mayor Todd Strange and City Municipal Court Administrator Kenneth Nixon (who is also a member of the Mayor’s cabinet), announced that the City would offer an “Amnesty” program on the first two Saturdays in June. Under this program, the City announced that it would remove certain fees, eliminate arrest warrants, and institute a payment plan if individuals were unable to pay the full amount to which the City claimed it was entitled.
61. However, at least 15 people were arrested on the first day of the “Amnesty” 16

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program because they had too much debt allegedly outstanding (greater than $2,500) or because they did not bring at least $150 (or 10% of what was owed, if greater) to pay the City. These people were arrested pursuant to a City policy that required the arrest and jailing of people whose debts met these criteria regardless of a person’s ability to pay or financial circumstances.
62. The City’s publicly available budget does not itemize “fines and forfeitures” in as much detail as do the budgets of some other cities, which makes it difficult for the public to know the exact source of these funds. But, the “fines and forfeitures” collected by the City of Montgomery appear substantially higher than those collected by any other major Alabama city, even though those cities are larger than Montgomery. These policies and practices have created a culture of fear among the City’s poorest residents9 who are afraid even to appear in City court to explain their indigence because they know they will be jailed by the City without any meaningful process. Indeed, Mr. Nixon, the court administrator, reported to the Montgomery Advertiser that many residents were jailed during the amnesty program because they owed too much and could not pay even 10% of what they owed. Mr. Nixon publicly acknowledged that the arrests probably scared others from participating in the “Amnesty” program.
63. The same fear motivates many very poor City residents to sacrifice expenditures on food, clothing, utilities, sanitary home repairs, and other basic necessities of life in order to scrape together money to pay traffic debt to the City.
9 See DOJ Report p. 48 - “There are also historical reasons, of which the City is well aware, that many Ferguson residents may not appear in court. Some individuals fear that if they cannot immediately pay the fines they owe, they will be arrested and sent to jail. Ferguson court staff members told us that they believe the high number of missed court appearances in their court is attributable, in part, to this popular belief. These fears are well founded.” (Emphasis added)
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64. Mr. Nixon warned that, following the 2013 Amnesty Program, the City would be “stricter” about arresting people for unpaid debt. The City also has a policy of referring unpaid debt to the Montgomery County District Attorney’s Office, which will send letters to debtors on the City’s behalf threatening imminent arrest if they do not pay their debts. A surcharge of 30% of the value of the debt is added to the debt to compensate the District Attorney’s Office for its participation in the City’s debt collection. The City purports to have the authority to arrest and jail indigent people when they cannot pay even these additional surcharges.
65. The City has stated that it seeks to use these collection programs and tactics to go after old traffic debt, including debt dating back to the 1980s.
66. As in the Plaintiff’s case, the City’s policy is to modify orders of incarceration outside of any formal judicial process. These modifications include: decreasing a person’s jail time from what was announced in open court so that a person is released with a remaining balance owed; allowing a person’s release without any hearing if the person or family members present some money to the City clerk; and allowing City employees to reduce the time a person is ordered to be in jail based on labor performed in the jail without any judicial involvement.
67. Plaintiff and witnesses have observed numerous other similar violations of basic constitutional rights in the Montgomery Municipal Court within the past year.
68. Under its scheme, Montgomery, which is also financially interested, takes advantage of its control over its police force and jail facilities to deny these “offender”/debtors the statutory and constitutional protections that every other Alabama debtor may invoke against a private creditor by allowing JCS to use or threaten debtors of
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the City with arrest and jail as coercion for payment. 69. Under this scheme, it was the policy and practice of Montgomery to jail
people when they could not afford to pay debts owed to the City resulting from prior city crimes and to do so without any inquiry into the person’s ability to pay and without considering alternatives to imprisonment. THE PLAINTIFF
70. Plaintiff and others similarly situated are individuals who were unable to fully pay fines, fees, costs and surcharges levied by the Montgomery Municipal Court, and who, as a result, were assigned to JCS for “probation” under JCS for purposes of collecting the fine. Plaintiff and many like him are currently or were formerly indigent and, despite that indigency, were incarcerated for failure to pay charges and fees for services allegedly rendered by JCS to Montgomery with which it contracted.
ALDARESS CARTER 71. Aldaress Carter (‘Mr. Carter') is over the age of nineteen (19) and is a resident of Montgomery, Alabama. 72. On January 24, 2014, Mr. Carter was riding home from work, and the driver of the car in which he was a passenger was pulled over for a broken tail light. 73. The officer asked Mr. Carter, a passenger, his name and proceeded to run his name through the police records’ database.10 The officer then informed Mr. Carter that
10 See DOJ Report pp. 56, 57 - “We have found that FPD officers frequently check individuals for warrants, even when the person is not reasonably suspected of engaging in any criminal activity, and, if a municipal warrant exists, will often make an arrest. City officials have told us that the decision to arrest a person for an outstanding warrant is “highly discretionary” and that officers will frequently not arrest unless the person is “ignorant.” Records show, however, that officers do arrest individuals for outstanding municipal warrants with considerable frequency...Similarly, data collected during vehicle stops shows that, during a larger period of time between October 2012 and October 2014, FPD arrested roughly 460 individuals following
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he was under arrest, informing him that there were ten capias warrants outstanding on him. 74. This was the first Mr. Carter had heard of the warrants, and at that time he
did not know what the warrants could be related to. 75. Mr. Carter was surprised that he did not know of these warrants because he
was on supervised probation with the state and he regularly reported to his probation officer. Despite regularly communicating with his state probation officer and finding work, he was now being told that Montgomery had ten active arrest warrants that no one else knew about.11
76. The private company -- Judicial Correction Services, (‘JCS') - Montgomery -hired to collect outstanding fines, had requested that these warrants be issued for unpaid fines, fees and costs relating to traffic tickets Mr. Carter had incurred several years earlier. When Mr. Carter first received those tickets, he had been fined by the Montgomery Municipal Court for the charges but did not receive a jail sentence.12
77. Mr. Carter was unable to pay the fines and costs in full when levied and, on or around 2011, was ordered to be on "probation" with JCS and to pay JCS an additional $40 per month.
a vehicle stop solely because they had outstanding warrants.” 11 See DOJ Report p. 61 - “As with “warrant warning letters” described above, our investigation has
been unable to verify that the court consistently sends bond forfeiture warning letters. And, as with warrant warning letters, bond forfeiture warning letters are sometimes returned to the court, but court staff members do not appear to make any further attempt to contact the intended recipient.”
12 See DOJ p. 55 - “The large number of warrants issued by the court, by any count, is due exclusively to the fact that the court uses arrest warrants and the threat of arrest as its primary tool for collecting outstanding fines for municipal code violations. With extremely limited exceptions, every warrant issued by the Ferguson municipal court was issued because: 1) a person missed consecutive court appearances, or 2) a person missed a single required fine payment as part of a payment plan. Under current court policy, the court issues a warrant in every case where either of those circumstances arises—regardless of the severity of the code violation that the case involves. Indeed, the court rarely issues a warrant for any other purpose.”
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78. However, Mr. Carter was and has been indigent at all relevant times. At times, Mr. Carter paid what little money he could toward his fines and JCS fees, but eventually stopped paying when his money ran out.
79. Mr. Carter was not able to pay all the fines and fees, but, in accordance with the policy and practice of Montgomery which was established in its contract with JCS, neither the Montgomery Municipal Court nor JCS ever made any inquiry into his inability to pay at the time of levying the fine or thereafter.
80. Montgomery's agent, JCS, sent Mr. Carter a "failure to report" letter dated March 29, 2012, but Mr. Carter did not receive this letter and it was returned to JCS and scanned into its files.
81. Montgomery's agent, JCS, sent Mr. Carter another "failure to report" letter to the same bad address. Mr. Carter did not receive this letter and it was returned to JCS and scanned into its files. The date 4/23/12 is handwritten on the returned letter.
82. Because Mr. Carter failed to pay his City fines and JCS fees, on December 6, 2012, JCS requested that his "probation" be revoked. The City itself sent no notice to Mr. Carter and delegated that to its agent JCS.
83. In its revocation petition, JCS does not mention that letters notifying Mr. Carter of JCS requests have been returned nor does it mention the fact that Mr. Carter is indigent and unable pay, nor does it mention the meager payments Mr. Carter has made.
84. Mr. Carter did not receive a copy of JCS's petition for revocation and did not attend the court hearing because he had no notice of the hearing.
85. Despite the fact that Mr. Carter did not receive notice of the hearing, a warrant for his arrest was issued by the City and a new charge of “Failure to Appear”
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(‘FTA') was assessed to Mr. Carter on January 30, 2013. 86. This common scheme of revoking probation and assessing new charges of
FTA benefitted both JCS and the City as it resulted in higher fees and fines owed to the City and it enabled JCS to keep probationers in their system longer which resulted in higher profits to the private company.
87. Mr. Carter had no notice of the original court hearing or the warrant that was issued for his purported "Failure to Appear" and the City made no effort to give him notice.
88. After he was arrested on January 24, 2014, Mr. Carter was then taken to the Montgomery City jail where he learned for the first time that he had been arrested for old, unpaid traffic tickets.
89. Mr. Carter sat in jail for three days and then appeared in the Montgomery Municipal Court on Monday, January 27, 2014 -- along with sixty-seven (67) other jailed inmates.
90. Before appearing in court, the jailed inmates were told by a man who did not introduce himself that they needed to "Pay or they would Stay." It was later determined that this man was Branch Kloess, a “Public Defender” hired by the City.
91. Despite being in jail and being indigent as shown by his inability to bond out of jail, Mr. Carter appeared before the judge and was ordered to pay $915 for the fines and fees on his unpaid traffic tickets, after which he could be released. Otherwise, the court informed Mr. Carter that he must stay in jail and receive $50 in credit per day toward the payment of his fines and fees.
92. Mr. Carter had recently obtained new employment, a job that had taken him a long time to acquire, and he knew he would be fired if he was forced to stay in jail.
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However, Mr. Carter had no money with which to pay his fines and was left with no option but to stay in jail. Mr. Carter's girlfriend offered to pay all the money she had, which totaled $120, to secure his release from jail so that he could go to work. This offer was refused and Mr. Carter was sent back to jail. Throughout the day, the amount demanded to secure Mr. Carter's release from jail changed several times without any court intervention or consideration. Mr. Carter's mother continued to call the jail to find out how she could get him out and finally learned that if a family member or friend could pay $452, then Mr. Carter would be released and the unpaid fines and JCS fees he owed would be cleared.
93. Mrs. Carter was able to borrow the money to get her son out of jail so that he could go to work. She paid the $452 to one of the clerks at the court window and they called the jail to get Mr. Carter released.
94. On January 30, 2014, Mr. Carter was released from jail when his mother paid $452.
95. Throughout this period of time, JCS provided no services to Mr. Carter and has acted merely as a collection agency charging additional fees, and despite knowledge that Mr. Carter was unable to pay these fines and was indigent, JCS sought to collect and has taken actions to incarcerate Mr. Carter without any due process.
96. Mr. Carter was incarcerated without any formal probation revocation hearing or any hearing on the issue of his indigency, but simply incarcerated and later released based upon the determination of the City of Montgomery pursuant to its policy and contract with JCS.
97. Mr. Carter later learned that the public defender had entered a notice of appearance on Mr. Carter's behalf despite the fact that Mr. Carter did not know who he/she
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was nor had the public defender introduced himself to Mr. Carter or advocated on Mr. Carter's behalf.
98. Mr. Carter's mother discovered that the public defender that supposedly represented her son was Mr. Branch Kloess and called Kloess who rudely questioned her about how she found out he was her son’s attorney and then stated he was no longer his attorney. When she told her son that he had counsel appointed to him, her son was surprised because no one stood up and spoke on his behalf to the judge.
99. Later when Mr. Carter’s girlfriend saw a picture of Mr. Kloess, she recognized him as the man that was seated in the courtroom but had no contact with either her or Mr. Carter. Mr. Kloess did not appear before the judge to plead Mr. Carter's indigency or request that the judge reduce his sentence based on his inability to pay, nor did he meet with Mr. Carter and file any pleading raising the issue of his indigency.
100. In fact, despite the fact that Mr. Kloess was being paid to represent indigent people, Mr. Carter was sent back to jail until his family could somehow get enough money to get him released so he could go back to work and, hopefully, not lose his job.
101. Montgomery's agents and employees all participate in this revenue revitalization program that preys on the poor despite the fact that their actions violate state and federal constitutional freedoms.
PLAINTIFF'S CLASS ALLEGATIONS 102. The Classes which the named Plaintiff seeks to represent consist of:
All individuals who have been assigned by the Montgomery Municipal Court to “probation” with JCS for the collection of fines. AND
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All individuals who, despite their indigency, were incarcerated, without consideration of their indigency for failure to pay fines, fees, costs and charges and levied by the Montgomery Municipal Court. 103. The members of the Classes and subclasses are so numerous that joinder of all members is impracticable. 104. As of this time, the exact number in the Classes is unknown but would be more than one thousand and is ascertainable. 105. Plaintiff's treatment by the Defendants is typical of the members of the Classes and subclasses and is ongoing. 106. Plaintiff will fairly and adequately protect the interests of the Classes and has retained counsel who are competent and experienced in class litigation. Plaintiff has no interests that are adverse or antagonistic to the Classes. 107. A class action is superior to all other available methods for the fair and efficient adjudication of this controversy. Since the damages suffered by many Class members may be small, the expense and burden of individual litigation make it virtually impossible for the Class members individually to seek redress for the wrongful conduct alleged. 108. Common questions of law and fact exist as to all members of the Class, and predominate over any questions affecting solely members of the Class. Among the questions of law and fact common to the Class are: a. Whether policy and practice of automatically placing on “probation” at additional cost all municipal offenders who cannot immediately pay fines and costs is legal;
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b. Whether the policy and practice of converting unpaid fines and costs to days of incarceration, without any determination concerning an individual’s ability to pay, is legal; c. Whether the policy and practice of requiring every order of the municipal court to require probation fees for JCS is legal; d. Whether the policy and practice of incarcerating individuals for failure to pay fines and costs with no finding of willfulness is legal; e. Whether the policy and practice of incarcerating individuals for failure to appear when no notice of the hearing was provided by the court is legal; f. Whether the policy and practice of incarcerating individuals for Failure to Obey Court Order when no such ordinance exist and with no finding of willful contempt is legal; g. Whether the policy and practice of failing to appoint counsel for indigent defendants when a jail sentence is involved is legal; h. Whether the policy and practice of failing to make any inquiry into indigency before imposing fines and costs is legal; i. Whether the policy and practice of failing to give adequate notice of the charge and nature of a probation revocation hearing, failing to provide a probation revocation hearing, failing to make written findings concerning the reasons for revoking probation and the evidence relied upon, failing to hold a hearing to determine indigency before revoking probation and otherwise imposing incarceration, failing to make written findings concerning an individual’s willful nonpayment of fines and costs before imposing
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incarceration for nonpayment, is legal; j. Whether the policy and practice of charging incarcerated municipal defendants a daily fee for each day the person is incarcerated is legal; k. Whether the policy and practice of imposing fines and court costs that exceed that statutory maximum for municipal is legal; l. Whether the policy and practice of extending “probation” for municipal offenses beyond 24 months is legal; m. Whether the policy and practice which fails to give any credit for time spent incarcerated is legal; n. Whether the policy and practice of adding unpaid fines that predate probation to the balance to be paid during probation is legal; o. Whether a municipality can legally enter a contract binding upon its municipal court; p. Whether a municipality can enter into a no bid contract to grant an exclusive franchise to a private probation company to operate in its municipal court; q. Whether setting bond based upon a fine balance owed the city is legal; r. Whether the policy of demanding a cash bond for release from jail without inquiry into ones’ financial situation or offense is legal. 109. Montgomery has acted on grounds generally applicable to the Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class as a whole. 110. Plaintiff knows of no difficulty which will be encountered in the management
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of this litigation which would preclude its maintenance as a Class Action. The data concerning the Class members and the transaction details and amounts on each charge are largely computerized by Montgomery and by JCS.
111. The names and addresses of the Class members are a matter of public record and are also kept by JCS and notice can be provided to the Class members via First Class U.S. Mail or other appropriate means as may be directed by the Court.
COUNT ONE DENIAL OF DUE PROCESS AGAINST THE CITY OF MONTGOMERY AND KLOESS Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 112. The Plaintiff avers that Montgomery, acting under color of state law in violation of 42 U.S.C. § 1983, has denied him his right to due process and the rights of the Class members. 113. By contract, Montgomery delegated many administrative and judicial functions of its municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees. 114. That no bid agreement was signed by the City mayor and bound Montgomery and its municipal court requiring that its municipal “court agrees that each court order shall provide for the following: a probation fee of $40.00 per month flat fee One time probationer set up fee of $10.00. . . . " (emphasis added). 115. Montgomery, through its mayor and/or council, approved the agreements with
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JCS.
116. Montgomery, through its mayor and council, also approved the employment
of the judges of its municipal court and its public defenders.
117. Municipalities are prohibited from laws, ordinances and policies which are in
conflict with state law. See Ala Code Section 11-45-1. Also see, Ala. Const. Article 4
Section 89.
118. State law also dictates a separation of the branches of government. Ala Const. Article 3, Section 43.13 Under that doctrine, legislative powers granted to cities and
towns are exercised by the city council, Ala. Code, Section 11-43-43, while the mayor of
the city is responsible for executive duties. Ala. Code, Section 11-43-83. If the town
establishes a municipal court, its administration is supervised by the Chief Justice of
Alabama. Ala. Code, Section 12-2-7 et. seq.; Ala Const., Article 6, Section 139.
119. Municipal mayors have the executive power to execute and enforce contracts14 and the city councils have the legislative power to enact regulations and ordinances,15 but neither the mayor nor the council has the power to invade the
13Ala. Const. Art. III, Section 43 states: In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.
14Ala. Code Section 11-43-83 - The mayor shall see that all contracts with the town or city are
faithfully kept or performed. He shall execute all deeds and contracts and bonds required in judicial proceedings for and on behalf or performed. He shall execute all deeds and contracts and bonds required in judicial proceedings for and on behalf of the city or town and no sureties shall be required on such bond. He shall perform such other executive duties, in addition to those prescribed in this article, as may be required of him by the council.
15Ala. Code Section 11-43-43 - All legislative powers and other powers granted to cities and towns
shall be exercised by the council, except those powers conferred on some officers by law or
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administration of its judiciary. 120. Montgomery has exceeded its statutory authority and acted in conflict with
state statute and constitutional limitations when, acting through its mayor, it agreed with JCS to bind its municipal court to include probation and fees for JCS in every court order entered by its hired judge. That action essentially sold the court process for purposes of increasing income to the City.
121. The illegal agreement and policy of Montgomery invaded and overrode the judicial authority and court administration reserved to the municipal judges and the Chief Justice.
122. Probation is only appropriate when an individual has been sentenced to jail time and not when only a fine has been assessed as is the case with the Plaintiff and Class members. As a result, the Montgomery policy and contract to include probation in every court order mandated a judicial practice that continually deprived indigent misdemeanants of their constitutional rights.
123. The policy and practice of Montgomery also violated the Alabama Constitution. Article I, Section 20 Ala. Const. specifically prohibits imprisonment for the payment of debts, yet the policy enforced at Montgomery regularly jailed misdemeanants upon the recommendation of its agent JCS for failure to pay fines, fees and costs. Article I, Section 16 Ala. Const. requires that all persons shall before conviction be bailable by sufficient surety, but despite this prohibition, misdemeanants were regularly jailed without lawful conviction under any contempt proceedings or probation violation.
ordinance. The council shall perform the duties required by this title and other applicable provisions of law.
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124. The Plaintiff and some Class members were imprisoned, and some repeatedly, under these policies of Montgomery for their failure to pay fines, costs and the added fees mandated by the illegal contract between Montgomery and JCS. The Plaintiff was not accorded any hearing or consideration of his indigency before being jailed, nor was he provided any notice of charges, a hearing on charges levied that might result in imprisonment, or provided meaningful assistance of counsel before being imprisoned.
125. At the Montgomery Municipal Court, a person unable to fully pay fines and costs when levied was automatically placed on probation. The Montgomery system used JCS orders and forms even when no jail sentence was adjudicated. This was routinely done with no investigation into the indigency of the individual or the reasons for their inability to pay the fine and costs. The orders supplied by JCS under the agreement with Montgomery then required the individual to make payments to JCS, rather than the City clerk, of the fines, costs and additional monthly fees.
126. Montgomery, through its city clerks, actively enforced these requirements as part of the policy and procedures established under this contract and refused to accept payments of fines and costs referring those payers such as the Plaintiff instead to the JCS office.
127. Montgomery, through its contract, practice and policy, clothed its agent JCS with the appearance of state authority and has previously allowed JCS employees to carry badges.16 Under these practices and policies, JCS employees were allowed to attend each
16
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municipal court session and were referred to “probation officers” in the operation of the municipal court and in the City clerk’s office, though none ever had such authority under Alabama statutes.
128. Under this system at Montgomery, “offenders” are not permitted to pay fines at the City clerk’s office, but are instead directed to make all payments, including those for fines, restitution, probation fees and court costs, to JCS at the JCS office at hours and locations set by JCS.
129. Montgomery’s policy and practice also allowed JCS to control the money collected from persons such as Plaintiff and to determine how much each such municipal court “offender” must pay each month.
130. Montgomery’s policy and practice also allowed JCS to determine how much of the collected sums will be credited to the collection “services” of JCS each month and how much it will rebate to Montgomery toward the municipal court fines adjudged.
131. This system, as a matter of routine, violated the rights of persons such as the Plaintiff and the class he seeks to represent by imposing fines and charging fees to indigent persons with no hearing or consideration of their indigency.
132. Despite the lack of authority to do so, Montgomery, by its practice and policy, permitted, approved and conspired with JCS, a private actor with a financial stake in the outcome, to play the role of a neutral probation office and, at its discretion, to use threats of revoking probation, increased fines and costs, arrest and jail time for purposes of collection.
133. Under this system, should an individual fail to pay to the satisfaction of JCS, Montgomery permitted and approved JCS setting payment and reporting schedules and
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determining when the individual’s “probation” should be revoked, or when to impose additional fines and costs.
134. Under the system operated at Montgomery, JCS’s determination to incarcerate an individual and/or impose unreasonable release requirements was routinely accepted by city personnel without conducting delinquency or probation hearings and without making any findings, much less any determination of indigency despite the fact that city-paid ‘public defenders’ were assigned to many of these indigent folks, yet they were still subject to punitive action.
135. Montgomery permitted and conspired with JCS allowing it to control and dictate these functions and, as a consequence, this routinely resulted in court costs and fines which exceed the statutory maximum of $500 for municipal courts. Similarly, the periods of “probation” imposed for purposes of collecting fines and fees at Montgomery routinely exceeded the two-year statutory maximum, all of which result in action to detain and otherwise incarcerate individuals without any jurisdiction to do so.
136. The municipal court judges employed by Montgomery did no investigation of indigency as a matter of policy.
137. Despite the fact that many people are assigned a ‘public defender,’ these indigent people are not adequately represented and many times do not even know that an attorney has been assigned to their case. In fact, many times the ‘public defender’ never introduced himself/herself to their ‘client’ and did not speak to the court on the “‘clients’” behalf and kept no files on their “clients.”
138. Under the system at Montgomery, after simple fines are illegally converted to “probation” for payment, jail often resulted for the “offender” who did not meet the
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payment schedule set by JCS and enforced by Montgomery. This system used and accepted JCS’s conclusion of a “probation violation” or “failure to obey court order” and employed JCS recommendations for the issuance of a warrant of arrest to incarcerate individuals whose original obligation was only the payment of a fine.
139. Under this system at Montgomery, the Plaintiff was first fined, but then automatically placed on “probation” though no jail sentence was adjudicated. Though the Plaintiff was indigent, Montgomery made no investigation of that matter -- despite the fact that, unknown to him, Montgomery paid Kloess a ‘public defender’ to represent him. When the Plaintiff was unable to pay the fines, costs and additional JCS fees that Montgomery agreed to levy, recommendations from JCS were made and followed by Montgomery to incarcerate him for undetermined time unless a cash bond was made in amounts closely approximating the sums sought by JCS’s collection efforts.
140. Many individuals who cannot pay their fines and added fees, such as the Plaintiff and Class members, were jailed for charges against them for “failure to obey court order,” though there is no such state statute or city ordinance which defines this as a criminal act.
141. Though a determination of willful refusal to obey a court order as required by Ala. Code §15-18-62 can lawfully lead to incarceration, no such determinations were made under the system at Montgomery.
142. Montgomery adopted and implemented JCS’s conclusion of a “probation violation” or “failure to obey court order” and issued arrest warrants to incarcerate individuals whose original case had only been a fine.
143. In this process of converting fines to jail time, Montgomery did not give 34

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adequate notice to the “offender” of the nature of any lawful charge, it failed to conduct hearings, failed to make written findings concerning the reasons for any probation revocation or the evidence relied upon, and failed to make written findings concerning any willful nonpayment of fines and costs before imposing incarceration for failure to pay fines and costs.
144. Under this policy and practice at Montgomery, when a simple fine was transformed into a jail sentence of an undetermined time, the City failed to provide adequate counsel for the “offenders.” In fact, like the Plaintiff, many people are jailed for nonpayment despite the fact that ‘public defenders’ are retained by the City to represent the indigent,17 are listed as attorneys on their case, and are paid to supposedly represent them. Those public defenders like Kloess are paid from fines collected on convictions, do not routinely oppose the charges made, and do not raise issues of indigency nor request hearings for that purpose.
145. The public defenders have a policy and practice of not requesting indigency hearings despite the fact that the only clients they represent under the contract with the City are indigents. This policy and practice of not requesting indigency hearings benefits both the City and the ‘public defender,’ as all are enriched by avoiding the constitutional due process requirements and demanding money from the poor.
146. After jailing an “offender,” Montgomery acted to further violate the Plaintiff’s constitutional rights by arbitrarily granting early release to some individuals while denying it to others under similar circumstances without any rational basis other than payments it
17 See Exhibit 2 - contract for Kloess.
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has secured. As a result, there was no consistent standard of review or logical system under which those incarcerated were granted release.
147. Under the practice and policies used at Montgomery, after an adjudication under which a fine is levied, additional fees, costs, and other charges are added to the “offender” bill including, in some cases, those relating to charges from years earlier.
148. As a proximate consequence of this deprivation of due process, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent.
COUNT TWO DENIAL OF DUE PROCESS AGAINST JCS, CHC and CHCC (‘JCS’) Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 149. The Plaintiff avers that JCS, acting under color of state law in violation of 42 U.S.C. § 1983, has denied her right to due process and has denied those rights to the class members and has done so in concert and by agreement conspiring with Montgomery. 150. JCS operates a “for profit” enterprise that markets its services to various municipal and county governments and has contracted with over 100 cities and towns throughout Alabama including Montgomery. JCS’ marketing approach to these cities emphasizes that its fees will be paid by the “offender” before the municipal court and that its efforts will improve collection of court fines and costs at no cost to the City.
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151. JCS routinely uses a form contract to establish its relationship with its customer cities and similarly trains its employees using a training manual replete with forms for court use and for contacting the “offenders” from whom it is seeking collection. As a result, the JCS approach is highly systemized and uniform.
152. Under the system established by JCS, its employees are not required to have criminal justice or legal training, nor are they required to have any social work education or meet any minimum law enforcement standards as is required of state probation officers. Instead, JCS requires only that its employees be 21 years old, a non felon, with two years of college who complete 40 hours of training by JCS on its processes. On satisfying those requirements, JCS employees are then labeled “Probation Officers” and were permitted to carry the JCS issued badge in collecting its fees, court fines and costs.
153. Under this system and by agreement with Montgomery, many administrative and judicial functions of Montgomery’s municipal court were unlawfully delegated to JCS, clothing it with the color of state law for the collection of court fines, costs and private fees.
154. The agreement drafted by JCS and signed by the Montgomery mayor and JCS attests that the Montgomery municipal “court agrees that each court order shall provide for the following:
a probation fee of $40.00 per month flat fee One time probationer set up fee of $10.00. . . . " (emphasis added). 155. JCS was, by virtue of this no bid contract with Montgomery, clothed with the appearance of a state actor and its actions were inextricably interwoven with those of Montgomery with which it conspired and acted in concert. Under its contract and its
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operations with Montgomery, JCS employees represented itself to the Plaintiff and class members to be “probation officers” acting as agent “on behalf of City of Montgomery.”
156. The JCS system at Montgomery provided “Order of Probation” forms to the municipal court with the printed requirement on each form that the “offender” pay JCS $40 per month plus $10 for a file set up charge. The orders supplied by JCS required the individual to make payments to JCS of the fines, costs and additional monthly fees as required under its contract with the City.
157. Under the JCS contract and procedures, the resulting policy and practice at Montgomery’s municipal court automatically required “probation” for any person who, despite having no jail sentence, was unable to fully pay the fine and costs when levied by the municipal court.
158. The Plaintiff was initially placed on “probation” with JCS under this practice despite the fact that he had not been sentenced to any jail time.
159. That “probation” requirement, under agreement between JCS and Montgomery, was required to be part of every printed order at Montgomery’s municipal court and also required payment of monthly fees to JCS.
160. The policy and practice method of JCS, after requiring probation orders for those unable to immediately pay their fines, and adding additional, monthly fees for JCS, also imposed incarceration for a failure to pay fines, fees and costs when payment was not forthcoming as JCS demanded.
161. Incarceration of individuals who could not pay their fines and added fees, such as the Plaintiff and class members, was accomplished by JCS leveling charges against them for “failure to obey court order,” though there is no such state statute or city
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ordinance which defines this as a criminal act or by petition to revoke the “probation” based upon JCS’s conclusion that the person had not paid as directed.
162. Though a determination of willful refusal to obey a court order as required by Ala. Code §15-18-62 can lawfully lead to incarceration, no such determinations were made under the JCS system and Montgomery’s policy.
163. JCS expressly denies any responsibility to determine indigency of the “offenders” such as the Plaintiff or to determine any reasons for an inability to pay the fine. Therefore, when an “offender” is unable to pay the fine and additional fees required by JCS, JCS and Montgomery cooperated with each other to issue arrest warrants requested by JCS based upon claims of “failure to obey court order.”
164. The Plaintiff was indigent at the time the traffic fines were levied against him in Montgomery. His indigency was also evidenced by the fact that he could not pay the cash bond Montgomery demanded for his release from jail. The Plaintiff and the class members were all unable to pay the fines and fees demanded by JCS due to their indigency and some were incarcerated as stated in detail in the above facts upon JCS’s recommendation to its conspirator Montgomery which then used its police force to carry out the arrest.
165. The incarceration process used by JCS includes the use of JCS drafted forms that it sent to “probationers” and JCS forms it used to request that a person be jailed.
166. JCS’s recommendations to jail people until a certain sum of money was paid were then approved by administrative personnel at Montgomery without a hearing to determine indigency.
167. The JCS system and its “Probation Tracker” software is highly systemized 39

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and focuses on collections of fines and its fees -- not traditional probation services. That collection focus allows the “offenders” to mail in payments if they live 30 miles from the JCS office. See Exhibit 5. The training manual used by JCS instructs its employees on the use of its computer systems in tracking the payments made by the “offenders” and provides court forms to order probation and payments to JCS. The JCS training system also provided sample letters for use after probation was ordered, threatening the “offender” that “a warrant will be issued for your arrest” and that their “court date cannot and will not be reset.” See Docs. 1-6 and 1-7. Similar JCS forms instructed the “offender” that they could avoid the court date if they paid an amount determined by JCS. See Doc 1-8. Notice to the offender of these JCS set “court dates” was, with the City’s knowledge, handled by JCS by regular mail with no proof of service and no consideration of returned mail showing no receipt. Similarly, the setting for any hearing on petitions instituted by JCS was done by JCS and listed on a separate “JCS Docket” which JCS established and which Montgomery then adopted. Finally, the JCS manual instructs its employees on the issuance of warrants of arrest and provides forms for that purpose. See Exhibit 8.
168. The agreement and forms drafted by JCS are uniformly used by it and were used at Montgomery.
169. Clothing JCS with the color of state law and authority was purposely structured under the JCS system for it to extort and collect its fees, fines and costs from citizens such as the Plaintiff, and is accomplished by providing JCS control over the money collected, the payment amount required, schedule of appointments, the location where the money must be paid and control over how much will be credited for each payment to the collection “services” of JCS each month as opposed to how much of it would be rebated
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to Montgomery toward the fines adjudged. 170. Despite the lack of authority to do so but in concert with Montgomery, JCS,
at its discretion, used threats of revoking probation, increased fines and costs and jail time for purposes of collection. Under this system, when an individual failed to pay to the satisfaction of JCS, JCS would determine that the individual’s “probation” should be revoked. Under the system operated jointly by Montgomery and JCS, JCS’ determination to incarcerate an individual was routinely accepted without conducting delinquency or probation hearings and without making any findings, much less any determination of indigency or appointment of counsel before taking such punitive action.
171. The actions and efforts of JCS routinely resulted in court costs, fines and fees which exceed the jurisdictional maximum of $500 for municipal courts. Similarly, the periods of “probation” imposed for purposes of collecting fines and fees for JCS routinely exceed the two-year statutory maximum, all of which resulted in JCS taking action to detain and otherwise incarcerate individuals without any jurisdiction to do so.
172. This system at Montgomery used JCS’ conclusion of a “probation violation” or “failure to obey court order” and employed JCS recommendation for the issuance of warrants to incarcerate individuals whose original case had only been a fine.
173. In this process of converting fines to jail time, JCS and Montgomery did not give adequate notice of the nature of any lawful charge, failed to conduct hearings, failed to make written findings concerning the reasons for revoking probation or the evidence relied upon, and failed to make written findings concerning any willful nonpayment of fines and costs before imposing incarceration for failure to pay fines and costs.
174. Under this joint policy and practice of JCS and Montgomery, when a simple 41

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fine was transformed into a jail sentence of an undetermined time, JCS and Montgomery also failed to provide counsel for the “offenders.”
175. After jailing an “offender,” JCS and Montgomery acted to further violate the Plaintiff and class members’ constitutional rights by arbitrarily granting early release to some individuals while denying it to others under similar circumstances without any rational basis based upon the whim of JCS and payments it has secured. As a result, there was no consistent standard of review or logical system under which those incarcerated were granted release.
176. Under the practice and policy of JCS used at Montgomery, after a fine is levied, additional fees, costs and other charges were added including, in some cases, those relating to charges years earlier.
177. The Plaintiff and some Class members were imprisoned, and some repeatedly, under the JCS system implemented at Montgomery for their failure to pay fines, costs and the added fees mandated by the illegal contract between Montgomery and JCS. The Plaintiff was not accorded any hearing or consideration of his indigency before being jailed, nor was he provided any notice of charges, a hearing on charges levied that might result in imprisonment, or provided meaningful assistance of counsel before being imprisoned.
178. At the City of Montgomery, under the JCS system, a person unable to fully pay fines and costs when levied was automatically placed on probation. The JCS system used at Montgomery used JCS orders and forms even when no jail sentence was adjudicated. This was routinely done with no investigation into the indigency of the individual or the reasons for their inability to pay the fine and costs. The orders supplied
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by JCS under the agreement with Montgomery then required the individual to make payments to JCS, rather than the City clerk, of the fines, costs and additional monthly fees.
179. As part of the JCS system and procedures established under this contract with Montgomery, the city refused to accept payments of fines and costs, referring those payers such as the Plaintiff instead to the JCS office.
180. Once clothed with the appearance of state authority, JCS allowed its employees to carry badges,18 attended each municipal court session and referred to themselves as “probation officers” and agents for the City, though none ever had such authority as “probation officers” under Alabama statutes.
181. Under the JCS system, persons such as the plaintiffs are directed to make all payments, including those for fines, restitution, probation fees and court costs, to JCS at the JCS office at hours and locations set by JCS.
182. This system gave control the money collected from persons such as Plaintiff to JCS which then determined how much each such municipal court “offender” must pay each month and how much would be credited to the collection “services” of JCS each month and how much it will rebate to Montgomery toward the municipal court fines adjudged.
183. This system, as a matter of routine, violated the rights of persons such as the
18
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Plaintiff and the class he seeks to represent by imposing fines and charging fees to indigent persons with no hearing or consideration of their indigency.
184. Despite the lack of authority to do so, JCS, a private actor with a financial stake in the outcome, playing the role of a neutral probation office, at its discretion, used threats of revoking probation, increased fines and costs, arrest and jail time for purposes of extorting the collection.
185. Under this system, JCS set payment amounts and reporting schedules and recommended when the individual’s “probation” should be revoked, or when to impose additional fines and costs.
186. Under the system operated at Montgomery, JCS’s determination to incarcerate an individual and/or impose unreasonable release requirements was routinely accepted by city personnel without conducting delinquency or probation hearings and without making any findings, much less any determination of indigency despite the fact that city-paid ‘public defenders’ were assigned to many of these indigent folks, yet they were still subject to punitive action.
187. JCS conspired with Montgomery to control and dictate these functions and, as a consequence, this routinely resulted in court costs and fines which exceed the statutory maximum of $500 for municipal courts. Similarly, the periods of “probation” imposed for purposes of collecting fines and fees at Montgomery routinely exceeded the two-year statutory maximum, all of which result in action to detain and otherwise incarcerate individuals without any jurisdiction to do so.
188. JCS nor, the municipal court judges or public defenders employed by Montgomery did any investigation of indigency as a matter of policy.
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189. Despite the fact that many people are assigned a ‘public defender,’ these indigent people are not adequately represented and many times do not even know that an attorney has been assigned to their case. In fact, many times the ‘public defender’ never introduced himself/herself to their ‘client’ and did not speak to the court on the “‘clients’” behalf and kept no files on their “clients.”
190. Under the JCS system at Montgomery, after simple fines are illegally converted to “probation” for payment, jail often resulted for the “offender” who did not meet the payment schedule set by JCS and which in turn is enforced by Montgomery. This system used and accepted JCS’s conclusion of a “probation violation” or “failure to obey court order” and employed JCS’s recommendations for the issuance of a warrant of arrest to incarcerate individuals whose original obligation was only the payment of a fine.
191. Under the JCS system at Montgomery, the Plaintiff was first fined, but then automatically placed on “probation” though no jail sentence was adjudicated. Though the Plaintiff was indigent, neither JCS nor Montgomery made any investigation of that matter -despite the fact that, unknown to him, Montgomery paid a ‘public defender’ to represent him. When the Plaintiff was unable to pay the fines, costs and additional JCS fees, recommendations from JCS were made and followed by Montgomery to incarcerate him for undetermined time unless a cash bond was made in amounts closely approximating the sums sought by JCS’s collection efforts.
192. Under this policy and practice at Montgomery, when a simple fine was transformed into a jail sentence of an undetermined time, the City failed to provide adequate counsel for the “offenders.” In fact, like the Plaintiff, many people are jailed for nonpayment despite the fact that ‘public defenders’ are retained by the City to represent
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the indigent,19 are listed as attorneys on their case, and are paid to supposedly represent them. Those public defenders like Kloess are paid from fines collected on convictions, do not routinely oppose the charges made, and do not raise issues of indigency nor request hearings for that purpose.
193. The public defenders have a policy and practice of not requesting indigency hearings despite the fact that the only clients they represent under the contract with the City are indigents. This policy and practice of not requesting indigency hearings benefits both the City and the ‘public defender’, as well as JCS, since all are enriched by avoiding the constitutional due process requirements and demanding money from the poor.
194. As a proximate consequence of this deprivation of due process, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent.
COUNT THREE VIOLATION OF THE FOURTH AMENDMENT
CITY OF MONTGOMERY Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 195. The Plaintiff avers that Montgomery, acting under color of state law in violation of 42 U.S.C. § 1983, has violated their Fourth Amendment rights and the rights
19 Exhibit 2- contract for Kloess. 46

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of the Class members to be free from unreasonable seizure. 196. By a no bid contract as discussed in detail above, Montgomery illegally
delegated many administrative and judicial functions of its municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees.
197. In addition to a denial of due process guaranteed the Plaintiff under the Fourteenth Amendment, the arrest and detainment of these “offenders” who could not pay the fine imposed under this system constitutes a “seizure” in violation of the Fourth Amendment as well.
198. Under Alabama law, a simple fine can only be converted into jail time if the court makes findings under Ala. Code, Section 15-18-62 (1975) that a defendant has willfully failed to pay the fines.
199. Montgomery’s policy and practice of including probation with JCS in every municipal court order created the process by which misdemeanants were incarcerated without a willfulness hearing as required by Ala. Code, Section 15-18-62, and in violation of Alabama case law, the Alabama Constitution and the U.S. Constitution.
200. Under Alabama case law, the Alabama Constitution and the U.S. Constitution, an indigent defendant cannot be required to serve jail time for nonpayment of fines or costs.20
20It is clear as a matter of constitutional law that an indigent defendant cannot be required to serve jail time for nonpayment of fine and costs. Tate v. Short, 401 U.S. 395 (1971); Lingle v. State, 51 Ala.App. 210, 283 So.2d 660 (1973); Smith v. State 51 Ala.App. 212, 283 So.2d 662 (1973). "To imprison an indigent when in the same circumstances an individual of financial means would remain free constitutes a denial of equal protection of the laws." Barnett v. Hopper, 548 F.2d 550, 554 (5th Cir.1977). This is not a case of a defendant who, though capable of paying a fine, refuses or neglects to do so.
Although Section 15-22-52, Alabama Code 1975, states that payment of fine and costs may be made a condition of suspension of sentence or probation, in State v. Esdale, 253 Ala. 550, 45 So.2d 865 (1950), our Supreme Court indicated that such a condition was contrary to our constitution.
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201. Despite longstanding legal precedent prohibiting incarceration for one’s inability to pay a fine/debt, Montgomery’s personnel, working in conjunction with JCS, unlawfully arrested and jailed the Plaintiff for his inability to pay a simple fine with added fees and costs dictated by the Montgomery contract with JCS.
202. Montgomery’s police, municipal court processes and jail access all became tools of collection under forms and processes issued by its agent JCS and which were routinely followed by Montgomery. Montgomery’s policy and practice, after clothing its agent JCS with the appearance of state actor acting on their behalf, allowed JCS to threaten arrest or revocation of probation and/or incarceration in order to coerce these indigents to pay the city fines and fees for misdemeanor offenses not otherwise subject to jail time under the original adjudication.
203. When these threats failed to produce sufficiently, Montgomery police, clerks and other personnel, cooperated with JCS to arrest and jail the Plaintiff class members such as Aldaress Carter.
204. The jailing of class members by Montgomery, as described under the specific facts stated above, constitutes unlawful seizures in violation of the Fourth Amendment.21
"These benefits (probation and suspension of sentence) are not the subject of bargain and sale to be conditioned on the payment of costs and fees assessed as an incident to the prosecution and trial and to condition these benefits on the payment of such costs and fees violate the letter and spirit of Section 13 of the Constitution of 1901 which provides that 'justice shall be administered without sale, denial or delay.'" Esdale, 253 Ala. at 553. Crutcher v. State, 439 So. 2d 725; 726 (Ala. Crim. App. 1983) 21 “Fourth Amendment seizure [occurs] . . . when there is a governmental termination of freedom of movement through means intentionally applied." (internal quotation marks and emphasis omitted)); Oliver, 510 U.S. at 274 (plurality opinion) ("The Framers considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it.").
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205. As a proximate consequence of this unlawful seizure, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, all while being indigent.
COUNT FOUR VIOLATION OF THE FOURTH AMENDMENT BY JCS, CHC and CHCC (‘JCS’)
Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof.
206. The Plaintiff avers that JCS, acting under color of state law in violation of 42 U.S.C. § 1983, violated his Fourth Amendment rights and the rights of the class members to be free from unreasonable seizure and has done so in concert and by agreement conspiring with Montgomery.
207. By no bid contract as discussed in detail above, Montgomery illegally delegated many administrative and judicial functions of its municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees.
208. In addition to a denial of due process guaranteed the Plaintiff under the Fourteenth Amendment, the arrest and detainment of these “offenders” who could not pay the fine imposed under this system constitutes a “seizure” in violation of the Fourth Amendment as well.
209. Under Alabama law, a simple fine can only be converted into jail time if the court makes findings under Ala. Code, Section 15-18-62 (1975) that a defendant has willfully failed to pay the fines.
210. Under the system created and implemented by JCS at Montgomery including
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probation with JCS in every municipal court order created the process by which
misdemeanants were incarcerated without a willfulness hearing as required by Ala. Code,
Section 15-18-62, and in violation of Alabama case law, the Alabama Constitution and the
U.S. Constitution.
211. Under Alabama case law, the Alabama Constitution and the U.S.
Constitution, an indigent defendant cannot be required to serve jail time for nonpayment of fines or costs.22
212. Despite longstanding legal precedent prohibiting incarceration for one’s
inability to pay a fine/debt, JCS instituted the issuance of arrest warrants for the plaintiff
and many class members when JCS knew these people could not pay the fines and fees
JCS demanded and despite the fact that many had no jail time assessed on their original
conviction.
213. Montgomery’s police, municipal court processes and jail access all became
tools of collection under forms and processes issued by its agent JCS and which were
22It is clear as a matter of constitutional law that an indigent defendant cannot be required to serve jail time for nonpayment of fine and costs. Tate v. Short, 401 U.S. 395 (1971); Lingle v. State, 51 Ala.App. 210, 283 So.2d 660 (1973); Smith v. State 51 Ala.App. 212, 283 So.2d 662 (1973). "To imprison an indigent when in the same circumstances an individual of financial means would remain free constitutes a denial of equal protection of the laws." Barnett v. Hopper, 548 F.2d 550, 554 (5th Cir.1977). This is not a case of a defendant who, though capable of paying a fine, refuses or neglects to do so.
Although Section 15-22-52, Alabama Code 1975, states that payment of fine and costs may be made a condition of suspension of sentence or probation, in State v. Esdale, 253 Ala. 550, 45 So.2d 865 (1950), our Supreme Court indicated that such a condition was contrary to our constitution.
"These benefits (probation and suspension of sentence) are not the subject of bargain and sale to be conditioned on the payment of costs and fees assessed as an incident to the prosecution and trial and to condition these benefits on the payment of such costs and fees violate the letter and spirit of Section 13 of the Constitution of 1901 which provides that 'justice shall be administered without sale, denial or delay.'" Esdale, 253 Ala. at 553. Crutcher v. State, 439 So. 2d 725; 726 (Ala. Crim. App. 1983)
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routinely followed by Montgomery. Montgomery’s policy and practice, after clothing its agent JCS with the appearance of state actor acting on their behalf, allowed JCS to threaten arrest or revocation of probation and/or incarceration in order to coerce these indigents to pay the city fines and fees for misdemeanor offenses not otherwise subject to jail time under the original adjudication.
214. Unless prompt payment of its fees and fines was made as determined by JCS, JCS took steps to have the “probation” revoked or initiated charges for “failure to obey court order” beginning the process of incarcerating an individual who otherwise would never have seen jail under the original adjudication.23
215. Many of the class members were unlawfully jailed at Montgomery under the JCS process as described and under the specific facts as stated above all of which constitute unlawful seizures in violation of the Fourth Amendment.24
216. As a proximate consequence of this unlawful seizure, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, all while being indigent.
23 “Fourth Amendment seizure [occurs] . . . when there is a governmental termination of freedom of movement through means intentionally applied." (internal quotation marks and emphasis omitted)); Oliver, 510 U.S. at 274 (plurality opinion) ("The Framers considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it.").
24 “Fourth Amendment seizure [occurs] . . . when there is a governmental termination of freedom of movement through means intentionally applied." (internal quotation marks and emphasis omitted)); Oliver, 510 U.S. at 274 (plurality opinion) ("The Framers considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it.").
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COUNT FIVE VIOLATION OF THE SIXTH AMENDMENT
CITY OF MONTGOMERY Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 217. The Plaintiff avers that Montgomery, acting under color of state law in violation of 42 U.S.C. § 1983, has violated his Sixth Amendment rights and the rights of the Class members. 218. By a no bid contract as discussed in detail above, Montgomery illegally delegated many administrative and judicial functions of their municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees. 219. Under the policy and practice at Montgomery, when a simple fine was transformed into a jail sentence of an undetermined time, adequate counsel was not provided for the indigent “offenders.” 220. The Plaintiff was initially ordered to pay only a fine at the Montgomery Municipal Court, but due to his inability to pay, he was placed on “probation” under JCS pursuant to JCS form orders and the contract approved by Montgomery. 221. The no bid contract signed by Montgomery approved a “probation” process as essentially a collection vehicle for the City to collect its fines. That agreement, as discussed above, conflicts with state statutes, violates state constitutional requirements for separation of power in the branches of government, and exceeds the authority of the mayor and council.
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222. Under that agreement, Montgomery allowed JCS to add monthly fees to the “offender” who had already disclosed an inability to pay the fine when adjudicated and despite the fact that JCS provided no services to them.
223. Under the agreement and with the knowledge and approval of Montgomery, JCS represented itself as acting on behalf of the City which clothed it with that appearance.
224. Under this agreement, Montgomery unlawfully invaded the province of the municipal court and mandated that each order there contain provisions for fees to JCS.
225. By this agreement, simple fines without jail sentences were automatically and illegally converted to ‘probation’ through JCS if the offender could not promptly pay the entire fine and costs.
226. After this conversion from a fine to ‘probation,’ threats of jail were used by JCS with the approval of Montgomery and actual incarceration then takes place by police and other City personnel if the fines, fees and costs were not paid as scheduled.
227. The jeopardy of jail time was not present when the simple fines were adjudicated against the Plaintiff and the Class members and would not have been present but for Montgomery’s policy and practice adopting and using the JCS collection system in the administration of its court system illegally requiring “probation” for simple fines.
228. With the Plaintiff’s inability to pay and the JCS focus on collections, charges are routinely initiated claiming “probation violation” or “failure to appear” or “failure to obey court order.” These are initiated by JCS under its system and then approved and enforced by Montgomery personnel.
229. At that point, jail sentences become potential jeopardy for the “offenders” such as the Plaintiff on charges that have never before been subjected to meaningful
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adversarial testing. Nevertheless, neither JCS nor Montgomery routinely provided adequate counsel for those “offenders.”
230. At the point when jail sentences become potential, Montgomery does not provide notice of charges, nor are findings made as required for conviction. Similarly, though JCS also regularly proposes a charge of “failure to obey court order” which Montgomery then pursues, that is not a valid offense. If willful failure to pay under state statutes such as Ala. Code Section 15-18-62 is used as the basis, under the City’s system with JCS, there is no finding or hearing on the issue of willfulness.
231. The named Plaintiff, Aldaress Carter, while indigent, was unlawfully jailed by Montgomery under this JCS system and was not provided meaningful assistance of counsel. In fact, Mr. Carter was surprised to learn that Mr. Kloess was appointed to his case that resulted in his incarceration. Mr. Kloess never identified himself to Mr. Carter, never met with him and, despite being paid to represent indigents, Mr. Kloess never advocated to the court on Mr. Carter’s behalf to raise any issue of his indigency as a bar to incarceration for failure to pay. This lack of representation by Kloess is indicative of his conflicted position under a contract which pays him for costs taxed on convictions. His position as “indigent defense counsel” has become essentially another part of the collection process utilized by the city and does not present adequate representation for the indigent class members such as Mr. Carter.
232. These actions constitute a denial of the Plaintiff’s rights secured by the Sixth Amendment.
233. As a proximate consequence of this violation of their Sixth Amendment rights, the Plaintiff and Class members suffered injuries, including having fines converted to jail
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sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent.
COUNT SIX VIOLATION OF THE SIXTH AMENDMENT BY JCS, CHC and CHCC (‘JCS’)
Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof.
234. The Plaintiff avers that JCS, acting under color of state law in violation of 42 U.S.C. § 1983, has violated his Sixth Amendment rights and the rights of the Class members.
235. By a no bid contract as discussed in detail above, Montgomery illegally delegated many administrative and judicial functions of their municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees. JCS performed those functions in a manner which violated the rights of the Class members.
236. Under this joint policy and practice of JCS at Montgomery, when a simple fine was transformed into a jail sentence of an undetermined time, adequate counsel was not provided for the indigent “offenders.”
237. The Plaintiff was initially ordered to pay only a fine at the Montgomery Municipal Court, but due to his inability to pay, he was placed on “probation” under JCS pursuant to JCS form orders and the contract approved by Montgomery.
238. The JCS “probation” process is essentially a collection vehicle for the City to
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collect its fines which adds monthly fees to the “offender” who had already disclosed an inability to pay the fine. JCS provided no services to the Plaintiff, but represents itself as acting on behalf of which clothed it with that appearance.
239. Under that process at Montgomery, JCS has added monthly fees to “offenders” who had already disclosed an inability to pay the fine when levied and despite the fact that JCS provided no services to them.
240. Though representing itself as an agent of the City, JCS denies any responsibility to investigate the indigency of the “offenders” and thus took no action to determine or consider disabilities, employment status or other reasons justifying non payment.
241. Simple fines without jail sentences were automatically and illegally converted to “probation” under the JCS system used at Montgomery if the offender could not promptly pay the entire fine and costs.
242. After this conversion from a fine to probation, JCS makes threats of jail and actual incarceration if the fines, fees and costs were not paid as demanded by JCS.
243. Under its illegal agreement with Montgomery, simple fines without jail sentences were automatically and illegally converted to ‘probation’ through JCS if the offender could not promptly pay the entire fine and costs.
244. After this conversion from a fine to ‘probation,’ threats of jail were used by JCS with the approval of Montgomery and actual incarceration then takes place by police and other City personnel if the fines, fees and costs were not paid as scheduled.
245. The jeopardy of jail time was not present when the simple fines were adjudicated against the Plaintiff and the Class members and would not have been present
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but for the JCS collection system used at Montgomery. 246. With the Plaintiff’s inability to pay and the JCS focus on collections, charges
are routinely initiated claiming “probation violation” or “failure to appear” or “failure to obey court order.” These are initiated by JCS under its system and then approved by Montgomery personnel.
247. At that point, jail sentences become potential jeopardy for the “offenders” such as the Plaintiff on charges that have never before been subjected to meaningful adversarial testing. Nevertheless, neither JCS nor Montgomery routinely provided adequate counsel for those “offenders.”
248. Though JCS also regularly proposes a charge of “failure to obey court order” which Montgomery then pursues, that is not a valid offense. If willful failure to pay under state statutes such as Ala. Code Section 15-18-62 is used as the basis, under the City’s system with JCS, there is no finding or hearing on the issue of willfulness.
249. The named Plaintiff, Aldaress Carter, while indigent, was unlawfully jailed by Montgomery under this JCS system and was not provided meaningful assistance of counsel. In fact, Mr. Carter was surprised to learn that Mr. Kloess was appointed to his case that resulted in his incarceration. Mr. Kloess never identified himself to Mr. Carter, never met with him and, despite being paid to represent indigents, Mr. Kloess never advocated to the court on Mr. Carter’s behalf to raise any issue of his indigency as a bar to incarceration for failure to pay. This lack of representation by Kloess is indicative of his conflicted position under a contract which pays him for costs taxed on convictions. His position as “indigent defense counsel” has become essentially another part of the collection process utilized by the city and did not provide adequate representation for the
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indigent class members such as Mr. Carter. 250. These actions constitute a denial of the Plaintiff’s rights secured by the Sixth
Amendment. 251. As a proximate consequence of this violation of their Sixth Amendment rights,
the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent. Incarceration of Class members routinely followed the decision by JCS to institute proceedings to coerce payments.
COUNT SEVEN VIOLATION OF THE EIGHTH AMENDMENT
CITY OF MONTGOMERY Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 252. The Plaintiff avers that Montgomery, acting under color of state law in violation of 42 U.S.C. § 1983, violated the Eighth Amendment prohibitions against excessive fines, cruel and unusual punishment and excessive bail, in its actions with the Plaintiff and Class members and has done so in concert and by agreement conspiring with JCS. 253. As discussed in detail above, Montgomery has illegally delegated many administrative and judicial functions of their municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees.
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254. The Eighth Amendment prohibits cruel and unusual punishment and, as such, limits the kinds of punishment that can be imposed on those convicted of crimes, proscribes punishment grossly disproportionate to the severity of the crime and imposes substantive limits on what can be made criminal and punished as such and prohibits excessive bail.
255. Under Alabama law, a municipal court has no authority to award a fine on any particular charge over $500, Ala. Code § 13A-5-12(a)(3), and even lawful probation for misdemeanors cannot, by statute, extend beyond a two-year period. See Ala. Code § 1522-54(a).
256. As mentioned above, Ala. Code § 15-18-62 is the only statutory method under which a fine levied by a court on adjudication can be converted to imprisonment, but that can legally occur only where the court finds willful nonpayment of the fine and cost.
257. Even upon proper notice and a finding of willful nonpayment under § 15-1862, the conversion of fine to imprisonment has a specific ratio such that a fine not to exceed $500 shall result in no more than 20 days. See Ala. Code § 15-18-62(2).
258. Rule 26.11 of the Alabama Rules of Criminal Procedure provides the method for dealing with fines, restitution and the failure to pay under a variety of circumstances, none of which were followed by Montgomery.
259. Under these facts, Montgomery illegally contracted and conspired with JCS to add monthly fees and costs to each municipal court order. This agreement increased the substantial fines levied against indigent persons such as the Plaintiff.
260. Neither Montgomery, nor its agent JCS, made inquiries into the indigency of
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the “offenders” in the system. As a result, the Plaintiff’s failure to make payments as dictated resulted in threats of arrests. If threats failed to produce the demanded payments, arrest and incarceration followed under the process based upon JCS’s representation that the offender had “failed to obey a court order” or had “failed to appear” or had violated “probation.”
261. These fines exceeded the statutory limits of the municipal court and the incarceration periods imposed for the failure to pay exceeded those in Ala. Code §15-1862.
262. The practice and policy of imposing jail time for an inability to pay its fees, fines and costs violate the Eighth Amendment prohibition against excessive fines and cruel and unusual punishment.
263. The named Plaintiff was, at all pertinent times, indigent and yet was incarcerated by City personnel for his inability to pay fines, fees and costs.
264. After being arrested, JCS, with the City, calculates the amount claimed to be owed for fines, fees and costs which is then used as the bail required for release without consideration of factors justifying release on recognizance or other factors provided for under Ala Rule Crim Pro. 7.2. This practice results in excessive bail requirements in violation of the Eighth Amendment.
265. As a result of the violation of the Eighth Amendment, the Plaintiff was subjected to excessive fines, fees, and costs beyond the jurisdictional limits of the municipality and violation of the prohibition against excessive fines and cruel and unusual punishment and excessive bail.
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the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent.
COUNT EIGHT VIOLATION OF THE EIGHTH AMENDMENT BY JCS, CHC and CHCC (‘JCS’)
Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof.
267. The Plaintiff avers that JCS, acting under color of state law in violation of 42 U.S.C. § 1983, has violated the Eighth Amendment prohibition against excessive fines, excessive bail and cruel and unusual punishment in its actions with the Plaintiff and Class members and has done so in concert and by agreement conspiring with Montgomery.
268. As discussed in detail above, Montgomery has illegally delegated many administrative and judicial functions of their municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees.
269. The Eighth Amendment prohibits cruel and unusual punishment and, as such, limits the kinds of punishment that can be imposed on those convicted of crimes, proscribes punishment grossly disproportionate to the severity of the crime and imposes substantive limits on what can be made criminal and punished as such and prohibits excessive bail.
270. Under Alabama law, a municipal court has no authority to award a fine on any particular charge over $500, Ala. Code § 13A-5-12(a)(3), and even lawful probation for
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misdemeanors cannot, by statute, extend beyond a two-year period. See Ala. Code § 1522-54(a).
271. As mentioned above, Ala. Code § 15-18-62 is the only statutory method under which a fine levied by a court on adjudication can be converted to imprisonment, but that can legally occur only where the court finds willful nonpayment of the fine and cost.
272. Even upon proper notice and a finding of willful nonpayment under § 15-1862, the conversion of fine to imprisonment has a specific ratio such that a fine not to exceed $500 shall result in no more than 20 days. See Ala. Code § 15-18-62(2).
273. Rule 26.11 of the Alabama Rules of Criminal Procedure provides the method for dealing with fines, restitution and the failure to pay under a variety of circumstances, none of which were followed by Montgomery.
274. Under these facts, JCS, operating under an illegal contract with Montgomery, increased the financial burden on the plaintiffs by adding additional monthly fees and costs to their balance after fines were levied against these indigent persons. For many class members, the total amounts demanded by JCS regularly exceeded the $500 limitation on the municipal court authority.
275. Under the JCS extortion system at Montgomery, though JCS made no inquiry into the indigency of the “offenders” in the system or the reason for their failure to make payments, JCS increased the amount demanded from the Plaintiffs to the point that even partial payments could not be made.
276. As a result, the Plaintiff’s failure to make payments as dictated resulted in threats of arrests. If threats failed to produce the demanded payments, arrest and
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incarceration followed under the process based upon JCS’s representation that the offender had “failed to obey a court order” or had “failed to appear” or had violated “probation.”
277. These fines exceeded the statutory limits of the municipal court and the incarceration periods imposed for the failure to pay exceeded those in Ala. Code §15-1862.
278. The practice and policy of imposing jail time for an inability to pay its fees, fines and costs violate the Eighth Amendment prohibition against excessive fines and cruel and unusual punishment.
279. The named Plaintiff was at all pertinent times indigent and yet was incarcerated by City personnel for his inability to pay fines, fees and costs.
280. After being arrested, JCS, with the City, calculates the amount claimed to be owed for fines, fees and costs which is then used as the bail required for release without consideration of factors justifying release on recognizance or other factors provided for under Ala. Rule Crim. Pro. 7.2. This practice results in excessive bail requirements in violation of the Eighth Amendment.
281. As a result of the violation of the Eighth Amendment, the Plaintiff was subjected to excessive fines, fees, and costs beyond the jurisdictional limits of the municipality and violation of the prohibition against excessive fines and cruel and unusual punishment and excessive bail.
282. As a proximate consequence of this violation of his Eighth Amendment rights, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of
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their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent.
COUNT NINE DENIAL OF EQUAL PROTECTION
CITY OF MONTGOMERY Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 283. Montgomery has acted under color of state law in violation of 42 U.S.C. § 1983 to deny the Plaintiff and Class members’ rights to equal protection secured by the Fourteenth Amendment and did so in concert by agreement conspiring with JCS. 284. This was accomplished by the illegal contractual agreement Montgomery had with JCS. Under that agreement, the actions of its agent JCS were inextricably intertwined in a practice and policy at Montgomery. That practice and policy automatically required “probation” for any person who, despite having no jail sentence, was financially unable to fully pay the fine and costs when levied by the municipal court. That probation requirement was part of the agreement between Montgomery and JCS and was part of every printed order at the municipal court and required payment of monthly fees to JCS. 285. Persons who are financially able to fully pay the levied fine and costs at Montgomery are not placed on “probation.” As a result, those persons are not charged any fees for JCS and are not subjected to threats of arrest and incarceration in the collection process. 286. For those such as the Plaintiff who were unable to fully pay the fine and costs
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when levied by the municipal court, not only were they required to come to court for traffic tickets, were charged court costs, they were also put on “probation” with JCS.
287. This requirement was part of the Montgomery contract with JCS. That no bid contract, as mentioned above, exceeded the statutory and constitutional authority of municipalities and imposed on the municipal court an agreement in violation of the separation of powers doctrine between the branches of government.
288. Once on “probation” for purposes of paying a fines and costs, this policy and practice at Montgomery routinely imposed incarceration and additional costs on individuals who are unable to pay fines and costs, without any determination of willfulness as would lawfully be required under Alabama statutes. See Ala Code Section 15-18-62.
289. This disparate treatment based upon the wealth of the “offender” before the municipal court is a violation of equal protection and cannot be justified on any legitimate rational state interest basis.
290. This inequality of treatment is also beyond the authority of the municipal court which is required by Alabama statute to uniformly process traffic infractions and penalties for misdemeanors in accordance with specified maximum fines. See Ala. Code Section 12-14-8. The policy at Montgomery was not uniform with the procedures established by the Alabama Administrative Office of Courts because it added fees only to “offenders” who could not pay immediately and created its own “rules” for penalizing individuals who could not pay as directed.
291. These additional JCS fines resulted in disparate treatment between those who could immediately pay the fine from those who were unable to immediately pay the fine. Furthermore, those “offenders” at Montgomery with its JCS system arrangement were
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processed and fined differently than “offenders” in jurisdictions that have not allowed JCS to charge additional fees to those who cannot pay. There is no state authority for such disparate treatment.
292. By its policies, agreement and conspiratorial actions with JCS, the City has also deprived Carter and the Class members of all the civil debt protections available to others.
293. The Plaintiff Aldaress Carter and the Class members were required to pay the additional costs and fees under this disparate system and many like Aldaress Carter were unlawfully jailed for their inability to pay as demanded.
294. As a proximate consequence of this denial of the right to equal protection under the Fourteenth Amendment, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent.
COUNT TEN DENIAL OF EQUAL PROTECTION BY JCS, CHC and CHCC (‘JCS’) Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 295. JCS and Montgomery have acted jointly under color of state law in violation of 42 U.S.C. § 1983, to deny the Plaintiff and class members’ rights to equal protection secured by the Fourteenth Amendment and have done so in concert and by agreement conspiring with Montgomery.
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296. JCS, though a private company, has been clothed with the color of state law by the specific actions of Montgomery all pursuant to an agreement between these parties.
297. As referenced above, by agreement, JCS employees attended all municipal court sessions, collected city fines and costs, were labeled as “probation officers,” carried badges and regularly represented themselves as acting “on behalf of the City of Montgomery.” Additionally, the JCS forms were used at the municipal court and fees for JCS were included in every court order there.
298. Under its illegal contractual agreement with Montgomery, the actions of JCS were inextricably intertwined with its co-conspirator Montgomery in a practice and policy at Montgomery. That practice and policy automatically required “probation” for any person who, despite having no jail sentence, was financially unable to fully pay the fine and costs when levied by the municipal court. That probation requirement was part of the agreement between Montgomery and JCS and was part of every printed order at the municipal court and required payment of monthly fees to JCS.
299. Persons who were financially able to fully pay the levied fine and costs at Montgomery were not placed on “probation.” As a result, those persons were not charged any JCS fees and were not subjected to threats of arrest and incarceration in the collection process.
300. For those such as the Plaintiff who were unable to fully pay the fine and costs when levied by the municipal court, not only were they required to come to court for traffic tickets, were charged court costs, they were also put on “probation” with JCS.
301. This requirement was part of the Montgomery contract with JCS. That no bid contract, as mentioned above, exceeded the statutory and constitutional authority of
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municipalities and imposed on the municipal court an agreement in violation of the separation of powers doctrine between the branches of government.
302. Once on “probation” for purposes of paying a fines and costs, this policy and practice at Montgomery routinely imposed incarceration and additional costs on individuals who are unable to pay fines and costs, without any determination of willfulness as would lawfully be required under Alabama statutes. See Ala Code Section 15-18-62.
303. This disparate treatment based upon the wealth of the “offender” before the municipal court is a violation of equal protection and cannot be justified on any legitimate rational state interest basis.
304. This inequality of treatment is also beyond the authority of the municipal court which is required by Alabama statute to uniformly process traffic infractions and penalties for misdemeanors in accordance with specified maximum fines. See Ala. Code Section 12-14-8. The policy at Montgomery was not uniform with the procedures established by the Alabama Administrative Office of Courts because it added fees only to “offenders” who could not pay immediately and created its own “rules” for penalizing individuals who could not pay as directed.
305. These additional JCS fines resulted in disparate treatment between those who could immediately pay the fine from those who were unable to immediately pay the fine. Furthermore, those “offenders” at Montgomery with its JCS arrangement were processed and fined differently than “offenders” in jurisdictions that have not allowed JCS to charge additional fees to those who cannot pay. There is no state authority for such disparate treatment. JCS was also illegally afforded the ability to exercise discretion over which persons to sanction or request warrant status, and such discrimination was applied
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in an effort to enhance revenue. 306. By its policies, agreement and conspiratorial actions with the City, JCS has
also deprived Carter and the Class members of all the civil debt protections available to other debtors.
307. The Plaintiff Aldaress Carter and the Class members were required to pay the additional costs and fees under this disparate system and many like Aldaress Carter were unlawfully jailed for their inability to pay as demanded.
308. As a proximate consequence of this denial of the right to equal protection under the Fourteenth Amendment, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent.
COUNT ELEVEN MONEY HAD AND RECEIVED
CITY OF MONTGOMERY The Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 309. The City of Montgomery charged plaintiff and class members extra fees if they did not pay the fines and fees owed from a city crime within ninety-days. 310. Routinely and as a matter of policy, once a city fine was ninety (90) days past due the city doubled the persons’ fine balance, charged a warrant fee, issued a warrant for the person’s arrest, and added a thirty percent (30%) surcharge. 311. These extra charges were not charged to those who immediately paid the
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fines and fees when adjudicated or to people who paid the fines online or people who were assigned to the JCS ‘payment plan’.
312. The city had no legal authority to charge these extra fees and costs. 313. Charging extra fees for non-payment is also beyond the authority of the municipal court which is required by Alabama statute to uniformly process traffic infractions and penalties for misdemeanors in accordance with specified maximum fines. See Ala. Code Section 12-14-8. The policy at Montgomery was not uniform with the procedures established by the Alabama Administrative Office of Courts because it added fees only to “offenders” who could not pay immediately and created its own “rules” for penalizing individuals who could not pay as directed. 314. These extra fees resulted in people being charged amounts that exceeded statutory maximums for the city ‘crime’ for which the fees were assessed. 315. The city under its contract and joint practice with JCS also illegally required those assigned to JCS to pay additional fees to JCS in order to acquire free collection services for the city. 316. Charging extra fees for non-payment is beyond the authority of the municipal court which is required by Alabama statute to uniformly process traffic infractions and penalties for misdemeanors in accordance with specified maximum fines. See Ala. Code Section 12-14-8. 317. The city unlawfully charged and collected these extra fees which were paid under duress to avoid arrest and jail. 318. The city owes the plaintiffs and class members for money had and received from the payment of these illegal charges.
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COUNT TWELVE MONEY HAD AND RECEIVED JCS, CHC and CHCC (‘JCS’) The Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 319. JCS charged the plaintiff and class members extra fees if they did not pay the fines and fees owed from a city crime within thirty days. Pursuant to its contract and joint practice with the City JCS charged a $10 setup fee and charged an additional $45 monthly fee for each month the person was on JCS ‘probation.’ 320. JCS also determined and assessed a minimum, monthly fee each person had to pay JCS to ‘stay current’. 321. When a person made a payment to JCS, the JCS employee decided the amount it would keep and the amount it would send to the City to reduce the person’s city debt. 322. These extra charges were not charged to those who immediately paid the city fines and fees when adjudicated or to people who paid the fines online or to people who were allowed to make periodic payments to the city at the window. 323. Neither JCS nor the city had legal authority to charge these extra fees. 324. Charging extra fees for non-payment is beyond the authority of the municipal court which is required by Alabama statute to uniformly process traffic infractions and penalties for misdemeanors in accordance with specified maximum fines. See Ala. Code Section 12-14-8. 325. These extra fees resulted in people being charged amounts that exceeded
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statutory maximums for the city ‘crime’ for which the fees were assessed. 326. JCS unlawfully charged and collected these extra fees which were also paid
under duress to avoid arrest and jail. 327. JCS owes the plaintiffs and class members for money had and received from
the payment of these illegal charges. COUNT THIRTEEN
FALSE IMPRISONMENT CITY OF MONTGOMERY The Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 328. Plaintiff Carter and numerous class members were falsely arrested and imprisoned by the City of Montgomery under its joint practice with JCS. 329. Plaintiff Carter and numerous class members were arrested and jailed on charges for which they had not been notified and for which they had not been found guilty due to their inability to pay fines, fees and costs. 330. Additionally, under the city policy and practice with JCS, Mr. Carter and other class members were kept in jail until a cash bond was paid despite the fact that many had no jail sentence and were not a safety risk. Rather, these persons were jailed and then put back on JCS "probation" which included old debts the city claimed they owed which predated the probation order. 331. Plaintiff and class members were arrested and jailed by City employees until cash bonds were paid. Under the city policy and practice, these cash bonds were generally set by adding up the amounts the City and JCS said the person owed. Their freedom was
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denied until cash payment was received by the City. 332. Plaintiff and class members were deprived of their personal liberty by the
City and under the city policy and practice with JCS and were only released when the City received the cash demanded. At times, the amount the City demanded for release would change since the jail time was not based on a jail sentence but on the amount the person owed. In those instances, the person stayed in jail until some money was paid and then told that the remaining balance was due or additional jail time would be demanded.
333. The city policy and practice with JCS was that when people could not pay the fines and fees imposed for a city crime they would have to spend a day in jail for each $50 owed (people were given $25/day credit prior to 2012).
334. This policy of ‘commuting' fines and fees to jail time made it difficult, if not impossible, for the poor to keep their freedom.
335. The City had a financial interest in people staying on ‘probation' and being arrested as payments were more likely to be received from the family and friends of the person incarcerated.
336. These arrests and jailings were unlawful as they were used to extort money which went to the City and to JCS and all of which damaged and harmed plaintiff Carter and the class members.
COUNT FOURTEEN FALSE IMPRISONMENT JCS, CHC and CHCC (‘JCS’) The Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 337. Plaintiff Carter and numerous class members were falsely arrested and
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imprisoned pursuant to requests by JCS and its joint practice with the City of Montgomery. 338. JCS participated in falsely imprisoning Plaintiffs and class members by asking
the City to arrest people when they did not pay as JCS demanded. Under the practice at the city, these requests by JCS for arrests were routinely followed resulting in the arrest and jailing of the plaintiff and many class members.
339. When a person did not pay JCS as JCS demanded, JCS would mail documents demanding that the person appear in the city court while stating that the hearing would be cancelled if the money JCS demanded was paid.
340. JCS did not use any civil methods of debt collection and did not deliver its notifications in a way that ensured the person received it (such as certified letters or hand delivery).
341. These threats by JCS were taken seriously by those threatened since JCS and the City employees jointly participated in the common practice of using the city police to arrest and jail persons to enforce collection of the City and JCS fees.
342. The City honored JCS’s request to arrest and jail people as it did with the plaintiff Carter and numerous class members, despite the fact that neither JCS nor the city alleged that the people were willfully refusing to pay.
343. JCS employees also provided testimony in support of its requests to arrest and jail persons when people did appear at the hearings JCS set. This testimony was readily accepted by the city and warrants were issued without inquiry into the validity of a private company demanding someone appear in court and without inquiry into whether the party had notice of the hearing.
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arrested as payments were more likely to be received from the family and friends of the person incarcerated.
345. These arrests and jailings were unlawful as they were used to extort money which went to the City and to JCS and all of which damaged the plaintiff and class members.
COUNT FIFTEEN DECLARATORY AND INJUNCTIVE RELIEF Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 346. A real controversy exists between these parties concerning several issues, including the validity of Montgomery’s attempt to bind its municipal court and the legality of the actions taken under the contract with JCS, such that declaratory relief is appropriate. Contract between the City and JCS is void 347. Plaintiff requests the Court to declare that Montgomery had no authority to contractually bind their municipal court. City does not have the power to bind the Court 348. Montgomery entered into an agreement with JCS that exceeded both its statutory and constitutional limitations on municipalities. Furthermore, that agreement violated the separation of powers doctrine embodied in the Alabama Constitution. See Ala. Const., Article 3, Section 43. As a result, that agreement is void and due to be declared a nullity. 349. Alabama state law also dictates a separation of the branches of government. Ala. Const., Article 3, Section 43. Under that doctrine, legislative powers granted to cities
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and towns are exercised by the city council, Ala. Code Section 11-43-43, while the mayor of the city is responsible for executive duties. Ala. Code, Section 11-43-83. If the town establishes a municipal court, its administration is supervised by the Chief Justice of Alabama. Ala. Code Section 12-2-7 et. seq.; Ala. Const., Art. 6, Section 139.
350. A city’s mayor, such as Montgomery’s mayor, has the executive power to execute and enforce contracts and the city council has the legislative power to enact regulations and ordinances, but neither the mayor nor the council has the power to invade the administration of its judiciary.
351. Montgomery has exceeded its statutory authority and acted in conflict with state statute and constitutional limitations when, acting through its mayor, they agreed to require its municipal court to include probation and fees for JCS in every court order entered by its hired judge. That action essentially sold the court process for purposes of increasing income to the City.
Contract violates statutory limitation regarding traffic citations and municipal fines 352. That agreement also violates the uniformity required by statute for processing traffic infractions and penalties for misdemeanors in accordance with specified maximum fines. See Ala. Code Section 12-14-8. 353. The process at Montgomery is not uniform with the procedures established by the Alabama Administrative Office of Courts because it adds fees only to “offenders” who cannot pay immediately and creates other “rules” for further penalizing individuals who cannot pay as directed. “Offenders” who are able to immediately pay the fine are charged one rate, but those that are unable to immediately pay for the same offense are charged
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the fine and required to pay JCS monthly fees that accumulate each month that passes. 354. The “offenders” at Montgomery are processed and fined differently than
“offenders” in municipal jurisdictions which have not contracted for JCS to charge its fees to those who cannot pay and, as a result, violates uniformity requirements of Ala. Code Section 12-14-8.
Contract overrides judicial authority and administration of municipal courts reserved to the Chief Justice 355. The illegal agreement and policy of Montgomery invades and overrides the judicial authority and court administration reserved to the municipal judge and the Chief Justice. Contract is an exclusive franchise 356. The contract between JCS and the City of Montgomery grants an exclusive franchise for provision of probation services. 357. The contract was not competitively bid as required by Ala. Const. Art. I,§ 22 and Ala. Code 1975, §41-16-50. 358. Because the contract was not bid, it is void and unenforceable. 359. Plaintiff requests the Court to declare the actions of Montgomery under this contract to be unconstitutional under the premises discussed above. Under this void agreement, Montgomery has implemented policies and practices to prosecute persons such as the Plaintiff where there is no jurisdiction or authority to do so under Alabama law, doing so intentionally in an effort to extort the payment of fines and costs from indigent people. These efforts have resulted in the illegal prosecution and incarceration of the Plaintiff and the Class beyond the limited jurisdiction of the municipal courts.
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360. Further, Montgomery has added increased punishment, fines and costs after adjudication and even where there has been no adjudication of guilt, all without jurisdiction or authority for such under Alabama law.
361. Montgomery has systematically applied Ala. Code § 15-18-62 in an unconstitutional fashion, denying the Plaintiff and the Class he seeks to represent constitutionally protected rights.
362. Section 15-18-62 provides for the imprisonment for the failure to pay fines and costs in limited circumstances and only upon the finding of a willful nonpayment.25
363. Under the policies and practices at Montgomery, “offenders” before the municipal court, such as the Plaintiff and the Class he seeks to represent, are systematically imprisoned for nonpayment with no determination of willfulness and with no consideration of their indigency or ability to pay.
364. Furthermore, once imprisoned, the requirements of time to be served under § 15-18-62 are ignored by the practice and policy of Montgomery.
365. The result of this consistent systematic policy and practice of Montgomery
25Section 15-18-62 Imprisonment for failure to pay fines and costs. In cases of willful nonpayment of the fine and costs, the defendant shall either be imprisoned in the county jail or, at the discretion of the court, sentenced to hard labor for the county as follows: (1) If the fine and costs do not exceed two hundred fifty dollars ($250), no more than 10 days; (2) If the fine and costs exceed two hundred fifty dollars ($250) but do not exceed five hundred dollars ($500), no more than 20 days; (3) If the fine and costs exceed five hundred dollars ($500), but do not exceed one thousand dollars ($1,000), no more than 30 days; and (4) For every additional one hundred dollars ($100) or fractional part thereof, 4 days.
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is essentially a debtor’s prison for fines and charges levied. 366. Plaintiff requests the Court to enjoin the actions of Montgomery identified
herein to prevent the continuation of these violations of statutory and constitutional prohibitions.
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that the Court will take jurisdiction of this cause and upon the final hearing:
a. Certify this matter as a proper class action maintainable under Rule 23 of the Federal Rules of Civil Procedure for a plaintiff class;
b. Award the Plaintiff such damages as this Court shall find the Plaintiff have sustained, together with punitive, or exemplary damages as the law shall permit;
c. Enter an injunction and other declaratory relief which declares the Montgomery contract requiring fees to JCS to be void ab initio and in violation of the statutory and constitutional limitations on municipalities;
d. Enter an injunction and other declaratory relief which enjoins Montgomery from engaging in the violations of law set forth hereinabove;
e. Enter an injunction and other declaratory relief which prohibits Montgomery in the future from placing persons on probation for collection of fines and declares that any current probation and fees for simple fines is void;
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Montgomery in the future from assessing fines in excess of $500 and/or extending probation periods beyond 24 months and declare that any previously assessed fines and probationary periods in excess of these limits to be void; g. Enter an injunction and other declaratory relief which prohibits Montgomery in the future from imprisoning indigent persons for failure to pay fines and fees; h. Enter an injunction and other declaratory relief which prohibits Montgomery in the future from charging excessive bail established to collect claimed fines and fees; i. Award to the Plaintiff and Class members damages under 42 U.S.C. § 1983 equal to any amounts paid on fines and all fees to JCS and Montgomery that are found unconstitutional and/or unlawful (along with interest), and the annulment of any remaining unpaid fines and fees that are found unconstitutional and/or unlawful; j. Order that the culpable parties disgorge their ill-gotten gains derived from their unlawful conduct; k. Award to the Plaintiff and Class the cost of this matter, including a reasonable attorneys' fee; l. Award to the Plaintiff and the Class members such other, further and more general relief as the Court may deem appropriate under these circumstances including cost of these proceedings.
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JURY DEMAND
Plaintiff demands a trial struck by jury.
RESPECTFULLY SUBMITTED,
s/ G. Daniel Evans G. Daniel Evans ASB-1661-N76G Alexandria Parrish ASB-2477-D66P Attorney for the Plaintiffs The Evans Law Firm, P.C. 1736 Oxmoor Road, Suite 101 Birmingham, Alabama 35209 Telephone: (205) 870-1970 Fax: (205) 870-7763 E-Mail: gdevans@evanslawpc.com E-Mail: ap@evanslawpc.com
William M. Dawson ASB-3976-S80W Attorney for the Plaintiffs Dawson Law Office 1736 Oxmoor Road Birmingham, Alabama 35209 Telephone: 205-795-3512 E-Mail: bill@billdawsonlaw.com
CERTIFICATE OF SERVICE
I hereby certify that on this the 28th day of August, 2018, I electronically filed the foregoing Second Amended and Restated Complaint with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following:
Shannon L. Holliday, Esquire Robert D. Segall, Esquire Joel Caldwell, Esquire COPELAND, FRANCO, SCREWS & GILL, P.A. P.O. Box 347 Montgomery, AL 36101-0347
Micheal S. Jackson, Esquire WEBSTER, HENRY, LYONS, BRADWELL,
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COHAN & BLACK, P.C. P. O. Box 239 Montgomery, AL 36101-0239
F. Lane Finch, Jr., Esquire Brian Richardson, Esquire Swift Currie McGhee and Hiers, LLP 2 North 20th Street, Suite 1405 Birmingham, Alabama 35203 Michael L. Jackson, Esquire Larry S. Logsdon, Esquire Wallace, Jordan, Ratliff & Brandt, L.L.C. P.O. Box 530910 Birmingham, Alabama 35253
Wilson F. Green, Esquire Fleenor & Green LLP 1657 McFarland Blvd. N., Ste. G2A Tuscaloosa, Alabama 35406
Kimberly O. Fehl, Esquire Michael D. Brymer, Esquire CITY OF MONTGOMERY Legal Department Post Office Box 1111 Montgomery, AL 36101-1111

s/ G. Daniel Evans G. Daniel Evans

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

Aldaress Carter, et al., Plaintiffs, v.
THE CITY OF MONTGOMERY, ALABAMA,el al.,
Defendants.

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) ) ) Case No:2:15-cv-555(RCL)
) ) ) )
) )

MEMORANDUM OPINION

Despite this Court's ruling substantially denying the City of Montgomery's (the "City") fully-briefed and argued motion to dismiss, Order,ECF No.98,the City seeks a second bite at the apple. The City moves for judgrnent on the pleadings, again asking this Court to dismiss all of Mr. Carter's claims against it. See Mot. J. Pleadings, ECF No. 200. In support of this defacto motion for reconsideration, the Court relies principally on McCullough v. Finley ("McCullough IP), an Eleventh Circuit opinion evaluating a distinct issue in a separate, albeit admittedly related, case involving different parties and a different coinplainti See 907 F.3d 1324 (11th Cir. 2018). Specifically, the City argues that "the Eleventh Circuit has now definitively rejected" this Court's ruling "that it could be found that a City policy was the moving force behind the alleged

I The City also attempts to gain traction from Thurman v. Judicial Corr. Servs., Inc, No. 17-14450,2019 WL 157547 (11th Cir. Jan. 10,2019).lit Thurman,the Circuit held that the Rooker-Feldman doetrine barred a claim by a plaintiff seeking return of fees paid to JCS pursuant to a probation order that was unsigned. Id. at *1-4. There, the Circuit stated it could not even "peer into Alabama law to determine whether an order must be signed because the RookerFeldman doctrine bars federal courts from adjudicating the validity of state court orders." Id. at *3. Mr. Carter's Section 1983 claims do not challenge the merits of the Municipal Court's decisions nor the bases on which those judgments were reached. These claims challenge only the post-judgment probationmy program. See Ray v. Judicial Corr. Servs., Inc., No. 2:12-cv-2819-RDP, 2013 WL 55428395, at *11. Thurman does not bear on those claims and does not necessitate dismissal ofthe City entirely.
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constitutional wrongs[d" Mot. J. Pleadings 8-9,ECF No.200. For the reasons stated herein, the Court disagrees. The City's motion will be DENIED.
At this time,the Court also considers the City's Motion to Dismiss Counts Eleven(moneyhad-and-received) and Count Thirteen (false imprisonment). See Mot. Dismiss, ECF No. 148. These causes of action were added to the Mr. Carter's complaint after the city's initial motion to disrniss. See Order, ECF No. 143. For the reasons stated herein, that motion will be GRANTED and those counts will be DISMISSED.
I. The City's Motion for Judgment on the Pleadings[ECF No.200] Under Federal Rule of Civil Procedure 12(c), a party may move for judgment on the
pleadings lalfter the pleadings are closed—but early enough not to delay trial." "Judgment on the pleadings is appropriate where there are no material facts in dispute and the moving party is entitled tojudgment as a matter oflaw." Cannon v. City ofPK Palm Beach,250 F.3d 1299, 1301 (11th Cir. 2001). In determining whether a party is entitled to judgment on the pleadings, the Court accepts as true all material facts alleged in the non-moving party's pleading and views those facts in the light most favorable to the non-moving party. Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370(11th Cir. 1998).
Setting aside the state law claims discussed in Part II of this opinion, nearly all of Mr. Carter's remaining claims against the City seek relief under 42 U.S.C. § 1983 for alleged constitutional violations related to the probation program run within the City. See Second Am.& Restated Conipl. Counts 1,3,5,7,9,ECF No. 145.
Section 1983 allows persons to sue municipalities acting under the color of state law for violations of federal law. Hill v. Cundiff, 797 F.3d 948, 976 (llth Cir. 2015). Under 1983, "municipal liability is limited to action for which the municipality is actually responsible."
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Penibaur v. City ofCincinnati,475 U.S.469,479(1986). "A municipality therefore may be held liable 'only ifsuch constitutional torts result from an official governrnent policy, the actions ofan official fairly deemed to represent government policy, or a custom or practice so pervasive and well-settled that it assumes the force oflaw.'" Hill, 797 F.3d at 977(quoting Denno v. Sch.Bd. of Volusia Cty., Fla., 218 F.3d 1267, 1276 (11th Cir. 2000)). The municipality must be shown to have "authority and responsibility over the governmental function in issue[J" Grech v. Clayton Cty.,335 F.3d 1326, 1330(1 Ith Cir. 2006),and the policy or custom must be the "moving force" behind the alleged constitutional torts. See Monell v. Dept. ofSoc. Sen,s., 436 U.S. 658, 694 (1978).
Here, the City argues that the Eleventh Circuit's opinion in McCullough II forecloses a finding that the City had authority and responsibility over Judicial Corrections Services, Inc.'s ("JCS") actions and that any policy by the City was the moving force behind the alleged constitutional violations.
McCullough et al. v. The City ofMontgomecy et al. is another case pending before this Court arising from the probation system operated by JCS in the City. 2:15-cv-463-RCL ("McCullough F). Although the underlying subject matter between that case and the present action is the same,the complaints are different, and the McCullough plaintiffs made daily's against a number ofpersons not in this action,such as the City's chiefofpolice,the former chiefofpolice, the presiding judge and the former presiding judge of the City's Municipal Court, and the mayor. See id. On the same day that the Court issued its order and opinion on the motions to dismiss in this case, the Court issued an order and opinion in McCullough L See 2:15-cv-463-RCL, 2017 WL 956362(M.D. Ala. Mar. 10,2017). In that opinion,the Court held,inter alia, that neither the presiding judge nor the forrner presiding judge could rely onjudicial immunity,id. at *9,and that
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the chiefofpolice,the former chiefofpolice, and the mayor could not rely on qualified immunity. Id. at *12.
On interlocutory appeal,the Eleventh Circuit reversed that holding. 907 F.3d at 1135. For the judges,the Circuit found that they are entitled tojudicial immunity because all the alleged acts were judicial in nature and the motivation behind the acts is irrelevant to the immunity analysis. Id. at 1330-33. For the other individual defendants, the Circuit held that the McCullough complaint was devoid of non-conclusory allegations connecting the mayor or pol ce chiefs to the alleged constitutional violations. Id. at 1332-35. Accordingly, the mayor and police chiefs were found to be entitled to qualified and state agent irnrnunity. Id. at 1335.
The City attempted to participate in the appeal in McCullough, but its appeal was dismissed. See McCullough II, Order(Aug. 17, 2017) at 3, No. 17-11554. The City claimed a right to appeal because the claims against it were "both inextricably intertwined with and solely dependent upon the actionc of one of the Municipal Court judges. McCullough II, Appellants' Joint Suppl. Mem. Jurisdiction, No. 17-11554. The Circuit rejected this argument, stating that it was this Court's denial ofimmunity that entitled the appellants to interlocutory appeal and that the City could not "piggybacr on the other defendants' proper appeal. See McCullough II, Order (Aug. 17, 2017) at 2, No. 17-11554. Specifically, the Circuit held:(1)that the Court "left open the possibility the judge and the City were independently responsible for creating the policies at issuer(2)that"the City's liability does not necessarily match thejudge's,"and(3)that"the City's appeal is not inextricably intertwined with the judge's entitlement to immunity." Id. at 3.
Still, the City argues that the Circuit's decision in McCullough 11 precludes its liability to separate plaintiffs in a separate case. Specifically, the City relies on this Court's incorporation of the reasoning from McCullough 1 into its motion to dismiss opinion in this case to argue that all
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the non-conclusory allegations in the Carter complaint are either judicial acts or insufficient to establish the City's liability. Mot. J. Pleadings 9-13,ECF No. 200.
Judicial acts by the Mun c pal Court, the argument goes, may not be attributed to the City because the City has no authority over the Municipal Court. See Mot. J. Pleadings 7, ECF No. 200; see also Turquitt v. Jefferson Cty., 137 F.3d 1285, 1292 (11th Cir. 1998) ("[L]ocal governments can never be liable under § 1983 for the acts of those whom the local government has no authority to control."). Municipal courts in Alabama are a part of Alabama's unified judicial system. See AIa. Const. of 1901,Art. VI,§ 139(a)(stating that "the judicial power ofthe state shall be vested exclusively in a unified judicial system which shalt consist of . . . such municipal courts as rnay be provided by law."); Ala. Code §12-1-2(Same). The Supreme Court of Alabama is authorized to create procedural and administrative rules for municipal courts. Ala. Code § 12-2-19(a). State law grants municipal courts authority to impose probation on defendants and set the conditions for such probation. See id. § 12-14-13. And the Court ofthe Judiciary—a state court—is responsible for sanct oning a municipal court judge for misconduct or ethical violations. See Ala. Const. of 1901, Art. VI, §§ 156 & 157. Accordingly,some courts in Alabama have held at the summary judgment stage that the municipality did not have control over JCS's actions and therefore could not be held liable under § 1983,see, e.g., Ray v. Judicial Corr. Servs., No.2:12-cv-2819-RDP,2017 WL 660842, at *12(N.D. Ala. Feb. 17, 2017),a fact of which this Court was aware at the time of its opinion on the City's motion to dismiss. Carter v. City of Montgomery,No. 2:15-cv-555(RCL),2017 WL 957540,at *2(M.D. Ala. Mar. 10,2017).
But tliis case is not at the summaryjudgment phase and Mr. Carter has pleaded rnore in his cornplaint—a complaint unevaluated by the Eleventh Circuit—than judicial acts. Under Alabama law, the inunicipalities are responsible for "provid[ing] appropriate facilities and necessary
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supportive personnel for the municipal court and may provide for probation services." Id. § 1214-12. This includes the"power to contract with a private firm to aid in the collection ofdelinquent municipal court fines." Wilkins v. Dan Haggerty & Assocs., 117C.,672 So.2d 507,510(Al. 1995). And here, Mr. Carter alleges that the City exercised its adrninistrative authority under Alabama law to contract with JCS as part of a scheme to increase revenue at the expense of its residents' constitutional rights. E.g., Second Am.& Restated Compl. ¶¶ 27,29, 101, ECF No. 145. In its contract, the City granted JCS an "exclusive franchise for the provision of probation services. Id. TT 27,356. It allowed JCS officers to carry badges and refer to themselves as "probation officers." Id. ¶ 28. Furthermore, Mr. Carter alleges that the City directly participated in the scheme, "modify[ing] orders of incarceration outside of any forrnal judicial process" by:
decreasing a person's jail time from what was announced in open court so that a person is released with a rernaining balance owed; allowing a person's release without any hearing if the person or farnily members present money to the City clerk; and allowing City employees to reduce the tirne a person is ordered to be in jail based on labor performed in the jail without any judicial involvement.
Id. ¶ 66.
The City, rather than the Municipal Court, chose to use JCS, signing the contract that allowed for the allegedly unconstitutional paynient system and policies taken by JCS. Id.¶11 6, 17, 19, 27. This was an adrninistrative act over which the City has control under Alabama law. The decision to use JCS was a city policy and practice. Perhaps, after discovery, the City will dernonstrate that the use of JCS was out of its hands and that JCS's actions were truly dictated by the Municipal Court and its judges. But at the present stage of proceedings, Mr. Carter has plausibly alleged that the City's decision to contract with JCS and rnake it the exclusive operator of probation services within the inunicipality was the rnoving force behind the constitutional deprivations alleged. The City's rnotion for judgrnent on the pleadings will be DENIED.
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II. The City's Motion to Dismiss Counts 11 and 13 of Mr. Carter's Second Amended and Restated Complaint[ECF No. 1481
After the Court's ruling on the City's motion to dismiss,see Order,ECF No.98,Mr.Carter asked for leave to file his second amended and restated complaint. Mot. Leave File Second Am. & Restated Compl., ECF No. 115. Mr. Carter sought to add causes of action for false imprisonment and money-had-and-received arising from the same facts against JCS, CHC Companies, Inc., and the City. Id. The Court granted Mr. Carter's motion for leave, Order, ECF No. 143, and the City filed a timely motion to dismiss the two new counts against it for false imprisonment (Count 13) and money-had-and-received (Count 11). See Mot. Dismiss, ECF No. 148. The Court addresses each in tum.
A motion to dismiss is appropriate when the complaint fails "to state a claim upon wh ch relief can be granted?' Fed. R. Civ. P. 12(b)(6). Such a failure occurs when the complaint is so factually deficient thatthe plaintiffs claim for reliefis not plausible on its face. BellAtlantic Corp. v. Twombly,550 U.S. 544,570(2007). Though facts in a complaint need not be detailed, Rule 8 "demands niore than an unadorned,the-defendant-harmed-me accusation." Ashcroft v. Iqbal,556 U.S. 662,678(2009). The Court must accept all factual statements as true when deciding a Rule 12(b)(6) motion to dismiss. Id. at 678. However, conclusory legal allegations devoid of any factual support do not enjoy the same presumption of truth. Id. at 679. Factual allegations must be enough to raise a right to relief above the speculative level." Twombly,550 U.S. at 555. This is not a high bar however, as plaintiffs need only plead facts sufficient to "nudge]]their claims across the line from conceivable to plausible." Id. at 547.
A. The City is immunefrom liabilityfor Mr. Carter's claimforfalse imprisonment. In Count 13 of the Second Amended and Restated Complaint, Mr. Carter asserts a claim against the City for false imprisonment. Specifically, Mr. Carter alleges that the City, through its
7

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scheme with JCS,unlawfully deprived him ofhis personal liberty as a means ofextorting payment.
Second Am.& Restated Compl.¶¶ 328-336,ECF No. 145. Because Mr. Carter's claim for false
imprisonment is based on intentional action by the City, it must be dismissed. Section 11-47-190 of the Alabama Code provides that a municipality is immune from tort
liability "unless such injury or wrong was done or suffered through the neglect, carelessness or unskillfulness of some agent, officer or employee of the municipality engaged in work therefor and while acting in the line ofhis or her duty." In other words,"[t]his statute limits a municipality's liability for the acts of its agents to those acts that are negligent, careless, or unskillful." Ex parte City of Tuskegee, 932 So.2d 895, 910 (Ala. 2005). The statute does not provide municipalities categorical immunity for false imprisonment claims. See Franklin v. City ofHuntsville,670 So.2d 848,852(Ala. 1995). But to state a claim for false imprisonment against a city, a plaintiff must allege conduct that could constitute neglect, carelessness or unskillfulness. See City ofBayou La Batre v. Robinson, 785 So.2d 1128, 1131 (Ala. 2000).
Here,Mr.Carter fails to meet that requirement. His false imprisonment allegations suggest intentionality on the City's part. He claims the City used arrests and jailings for extortion. Second Am.& Restated Compl.¶ 336,ECF No. 145. According to Mr.Carter,this was a part ofthe City's policy and practice with JCS. Id. ¶¶ 328. This suggests that the City made deliberate choices and •cannot reasonably be read to suggest neglect, carelessness, or unskillfiilness. The City is imrnune from such a clairn and Count 13 must therefore be dismissed.
Mr. Carterfails to slate a clahnfor money had and received.
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In Count 11 of the Second Amended and Restated Complaint, Mr. Carter asserts a claim against the City for money had and received. Mr. Carter alleges the City illegally charged extra fees when fines became past due. Id. 309-18.
"The cause ofaction for money had and received 'is based upon the theory that one person shall not be unjustly enriched at the expense ofthe other, and is equitable in nature." Azalea City Motels, Inc. v. First Ala. Bank ofMobile, 551 So.2d 967, 978 (Ala. 1989)(quoting Christie v. Durden,88 So. 667,668(Ala. 1921)). An act on for money had and received is "maintainable in all cases where one has received money under such circumstances that in equity and good conscience he ought not to retain it because in justness and fairness it belongs to another." Jewett v. Boihein, 23 So.3d 658, 661 (Ala.2009) (internal quotation omitted). "It aims at the abstract justice ofthe case, and looks solely to the inquiry, whether the defendant holds money, which ... belongs to the plaintiff" Id.(internal quotation ornitted).
Here, Mr. Carter has not adequately alleged that the City actually holds the extra fees paid by probationers. See Foshee,322 So.2d 715,717("The essence of... money had and received is that facts can be proved which show that defendant holds money . ."). In Count 11,Mr. Carter discusses:(1)the doubling ofcity fines, Second Am.& Restated Cornpl. ¶310,ECF No. 145;(2)
a warrant fee, id.;(3)a thirty percent surcharge, id.; and(4)additional fees paid to JCS,id. ¶ 315.
Mr. Carter broadly alleges that "[t]he city unlawfully charged and collected these extra fees which were paid under duress to avoid arrest and jail." Id. ¶ 317, ECF No. 145.
But Mr. Carter's complaint lacks context for this assertion. For example, the complaint is relatively clear that the City did not collect or hold the "additional fees [paid] to JCS." Id. ¶ 315. Furthermore, Count 11 alludes on multiple occasions to "extra fees" collected by the Municipal Court. Id.1111 313,315. As discussed in PartI,the Municipal Court is part ofthe State ofAlabama's
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Unified Judiciary,and there is no allegation that monies submitted to the Court were then disbursed to the City. The whole evaluation of the claim is only made more complicated by Mr. Carter's apparent use of "the City" and the "Municipal Court" interchangeably at times throughout the cornplaint. See, e.g., id. ¶ 53 (stating "the City's practice was to call [family members] up to the bench"). In sum,the complaint leaves the Courtignorant to which fees were collected by the City, as opposed to JCS and the Municipal Court,and more importantly which fees are actually held by the City or even benefitted the City in some way. Without further clarity, Mr. Carter's money had and received claim runs afoul ofRule 8 and Iqbal/Twombly and therefore must be dismissed.
III. Conclusion For the reasons stated herein, the City's Motion for Judgrnent on the Pleadings [ECF No.
200] will be DENIED,while the City's Motion to Dismiss Counts 11 and 13[ECF No. 148] will be GRANTED. A separate order will issue this date.

Date: f/7.4/I5

c-7,c4 c,
Royce C. Lamberth United States District Court

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 Case 2:15-cv-00555-RCL-SMD Document 293 Filed 07/07/20 Page 1 of 45

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

ALDARESS CARTER, individually and

)

for a class of similarly situated persons,

)

)

Plaintiff,

)

)

v.

)

)

THE CITY OF MONTGOMERY, et al., )

)

Defendants.

)

Case No. 2: 15-cv-555-RCL

MEMORANDUM OPINON For years, the Municipal Court in Montgomery, Alabama engaged in a systemic practice of jailing traffic offenders for failing to pay fines without inquiring into their ability to pay. In carrying out that system, the Municipal Court deprived offenders of their due process and equal protection rights not to be incarcerated for their poverty. Bearden v. Georgia, 461 U.S. 660, 67273 (1983). This case concerns the liability of the City of Montgomery and its contractors for their involvement in this system. The City of Montgomery entered a contract on behalf of itself and its Municipal Court with Judicial Correction Services, Inc. ("JCS"). 1 Under the contract, JCS supervised misdemeanor probation for those on Municipal Court-ordered probation from June 2009 through June 2014. The City also contracted with Branch D. Kloess to serve as a part-time public defender in the Municipal Court.

1 In 2011, CHC Companies, LLC and Correctional Healthcare Companies, Inc. (together "CHC") and JCS engaged in a reverse triangular merger, by which JCS became a wholly owned subsidiary of CHC.

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Plaintiff Aldaress Carter served probation with JCS when he was unable to pay his traffic tickets. After Mr. Carter missed probation appointments and failed to make payments, JCS petitioned the Municipal Court to revoke his probation. Without assessing his ability to pay, the Municipal Court "commuted" Mr. Carter's fines to jail time and imprisoned him. Mr. Kloess represented Mr. Carter at his commutation hearing but was not physically in the courtroom for the hearing.
Mr. Carter spent four days in the city jail. He earned a $50 credit against his fines for each day of incarceration and was released when his mother borrowed money to pay the balance of his fines.
Mr. Carter sued the City, JCS, its parent company CHC, and Kloess on behalf of himself and a purported class of similarly situated individuals. His operative complaint seeks damages under 42 U.S.C. § 1983 and two state law causes of action.
The City (ECF No. 252), CHC (ECF No. 255), JCS (ECF No. 258), and Mr. Kloess (ECF No. 263) moved for summary judgment against Mr. Carter under Rule 56 of the Federal Rules of Civil Procedure.
Their motions present seven major questions: 1. Does the Rooker-Feldman doctrine deny the Court jurisdiction to hear Mr. Carter's claims? 2. Does Humphrey v. Heck deny Mr. Carter a cause of action under § 1983? 3. Is CHC liable for JCS's actions? 4. Are defendants potentially liable under § 1983? 5. Did Mr. Carter validly state a claim for false imprisonment under Alabama law? 6. Are Mr. Carter's claims time barred?
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7. Are any of the defendants entitled to qualified or quasi-judicial immunity? For the reasons discussed below, the Court holds that:
1. The Rooker-Feldman doctrine denies the Court jurisdiction to hear Mr. Carter's unjust enrichment claim but not his§ 1983 and false imprisonment claims;
2. Humphrey v. Heck does not deny Mr. Carter a cause of action under § 1983; 3. CHC is not liable for JCS's actions; 4. Defendants are potentially liable under§ 1983, except that JCS and the City are not
liable for conspiracy, JCS is not liable for failing to inform Mr. Carter of his rights, and the City is not liable for harms arising from the so-called "window procedure" or for harms arising before it was on notice of JCS's practices; 5. Mr. Carter states a valid claiin for false imprisonment under Alabama law, but only for imprisonment following his commutation hearing; 6. Mr. Carter's claims are not time barred; and, 7. None of the defendants are entitled to qualified or quasi-judicial immunity. Upon consideration ofthe motions, briefs, statements and counter-statement ofuncontested facts, and evidentiary submissions, as well as all other papers of record, the Court will: • grant the City's motion as to Counts Three and Seven, grant the City's motion as to Counts One, Five, and Nine for all events before July 16, 2012, grant the City's motion as to Counts One and Nine for all claims alleging a conspiracy between the City and JCS and for claims basing liability solely on the JCS-City contract, grant the City's motion as to Count One for all claims related to operation of the magistrates' windows in the Municipal Court, and deny the City's motion as to Counts One, Five, and Nine in all other respects;
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• grant CHC's motion;
• grant JCS's motion as to Counts Four, Six, Eight, and Twelve, grant JCS's motion as to Counts Two and Ten for all claims alleging a conspiracy between the City and JCS, grant JCS's motion as to Count Two for all claims alleging that JCS failed to inform Mr. Carter of his rights, grant JCS's motion as to Count Two for all claims
alleging that JCS unlawfully charged probation fees, grant JCS's motion as to
Count Fourteen for any claims arising from arrest or detention before commutation, and deny JCS's motion as to Counts Two, Six, Ten, and Fourteen in all other
respects; and,
• deny Mr. Kloess's motion. A separate order accompanies this memorandum opinion.
I. BACKGROUND
A. Factual Background2 1. Fines and Probation in Montgomery (i) The Municipal Court
The City has a Municipal Court to adjudicate misdemeanors and traffic offenses. Ala. Code§§ 12-12-32, 12-12-51, 12-14-1. The Municipal Court is part of the state judiciary, see Ala.
2 For convenience, the Court uses the following short forms throughout this opinion to cite to evidence in the Rule 56 record. Citations to "City Evict." refer to Evict. Submissions Supp. City's Mot. Sum. J. (ECF No. 253). Citations to "Carter Evict." refer to Evict. Submissions Supp. Pl. 's Opp'n to Mots. Summ. J. (ECF No. 278). Citations to "Cater MSJ Evict." refer to Pl.'s Evict. Submissions Supp. Pl.'s Partial Mots. Summ. J. (ECF No. 73). Citations to "Carter Class Evict." refer to Pl. 's Submission of Evict. Matters Supp. Mot. Class Certification (ECF No. 118). Citations to "Carter CHC Evict" refer to Pl. 's Evict. Submission Opp'n CHC's Mot. Summ. J. (ECF No. 272). Citations to "JCS Evict." refer to Evict. Submission Supp. JCS's Renewed Mot. Summ. J. (ECF No. 262). Citations to "JCS Class Evict." refer to Evict. Submission Supp. JCS's Opp'n to Pl.'s Mot. Class Certification (ECF No. 163). Citations to "CHC Evict." refer to Evict. Submission Supp. CHC's Mot. Summ. J. (ECF No. 257). Citations to Kloess Evict. refer to Evict. Submission Supp. City's [sic] Mot. Summ. J. (ECF No. 265). The Court cites to depositions and declarations without reference to the evidentiary compilation in which they appear; it references docket only in the first citation to a deposition or declaration.
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Const. art. VI, § 145, so the City cannot control proceedings in the Municipal Court, see Ala. Const. art. III, § 42(c). But the City appoints the judges, Ala. Code § 12-14-30; the mayor appoints the presiding judge, id, and the mayor may remit fines and costs payable to the City, id. at § 1214-15. And the City must "provide appropriate facilities and necessary supportive personnel for the municipal court and may provide for probation services, clerks and municipal employees designated as magistrates." Id. at§ 12-14-2. The City must also provide indigent defense in its Municipal Court. Id at § 12-14-9. At the same time, the Municipal Court sets its own internal procedures, including those for processing traffic tickets.
During the time JCS operated probation service in Montgomery, the Municipal Court processed traffic tickets in one of two ways. When a person received a traffic ticket, the ticket required hini to appear in the Municipal Court on a given date.· See Nixon Dep. 42:16-23 (Apr. 18, 2014) (ECF No. 73-1) ("2014 Nixon Dep."). If the offense had a pre-set (scheduled) fine, court staff directed the appearing defendant to a magistrate's window. Id. at 45:16-21. The defendant could plead not guilty and receive a hearing before a judge or could plead guilty and pay the fine. Id. at 46:11-47:3; see also Ala. R. Jud. Admin. 20. If the offense did not have a scheduled fine, court staffrequired the defendant to appear before a judge. 2014 Nixon Dep. 52: 16. Once the defendant pleaded or was found guilty, the Municipal Court imposed a fine.
If a defendant could not afford to pay his fine, the Municipal Court could offer the defendant more time to pay. For small fines, Municipal Court policy authorized a magistrate to grant a thirty-day extension for fines of up to $250. 2014 Nixon Dep., Ex. 11. For defendants with higher fines or who needed more time to pay, the Municipal Court made payment plans available through JCS probation, id., purportedly under its statutory power to suspend a sentence and place a defendant on probation for up to two years, see Ala. Code§ 12-14-13. A magistrate
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could place certain defendants - those who owed less than $1,500 and who were either not already on probation with JCS or in good standing with JCS - on JCS probation pursuant to a general order.3 2014 Nixon Dep., Ex. 11; see also id. at 140:13-16. The Municipal Court required defendants who could not pay a fine of more than $1,500 to appear before a judge. Id. at Ex. 11; see also id. at 151:1-7, 12-23.
(ii) JCS Probation JCS provided for-profit probation services for courts throughout Alabama. Ray Dep. 57:19-21 (ECF No. 73-3). During the years at issue here, the City contracted with JCS to provide probation to Municipal Court offenders. City Evid., Ex. 11,. 12; Carter Evid., Ex. 13 at 2. Their contract ran for an initial term of one year and automatically renewed for subsequent one-year terms unless either party gave notice that it would not renew. City Evid., Ex. 12 at 5. The City's contract with JCS controlled the terms under which JCS could provide probation. For example, it provided that JCS must maintain case files on probationers and specified a maximum staff-to-probationer ratio. Id. at 3. The contract, though, did not facially require the Municipal Court to use JCS for probation services. And other than a provision that mandates JCS to "supervise indigent cases when determined by the [Municipal] Court" without charging probation fees, the contract is silent as to indigency determinations. Id. at 2. JCS does not charge courts or cities for their probation. Id. at 4. Rather, JCS operates on an offender-paid model. Under the City-JCS contract, JCS charged probationers $40 per month in addition to a $10 one-time fee at the onset of probation. Id.
3 The parties refer to magistrate-initiated probation as the window procedure. The window procedure offered no formal opportunity for a determination of the probationer's ability to pay. 2014 Nixon Dep., Ex. 11.
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JCS's services consisted "primarily" of facilitating extended payment plans. 2014 Nixon

Dep. 139:2-3. JCS would not petition to revoke probation the first time a probationer missed a

payment or an appointment. Ray Dep., Ex. 2 at p. 4.26. Instead, JCS would allow the delinquent

probationers to continue on probation - and to continue accruing monthly fees - under more

onerous conditions. JCS required probationers who made their monthly payments in full to appear

at a JCS office once a month. City Evid., Ex. 12 at 3. For those probationers who could not keep

up with monthly payments, however, JCS required them to appear more frequently- up to several

times each week. See Carter Dep. 84:15-16 (Sept. 14, 2018) (ECF No. 163-14) ("2018 Carter

Dep."); City Evid., Ex. 12 at 3. And when a probationer could not afford to make a payment in

full, JCS determined how much of the partial payment to apportion to fines and to probation fees.

See Carter Evid., Ex. 28 at 2.

Once placed on probation, a probationer made all payments through JCS. JCS provided

the probationers with information about their cases and fines. And JCS instructed probationers

when they first reported for probation not to "contact the Municipal Court" because "they will be

unable to help you." Carter Evid., Ex. 23.

I .

Over the term of its contract with the City, JCS collected more than $15.5 million in fees.

See Carter Evid., Ex. 32. It also collected more than $14.6 million in fines for the City. See id

(iii)Revocation and Commutation

When a probationer could not make payments or missed appointments, JCS would petition

the Municipal Court to revoke probation. JCS's standard-form petition did not allege that the

probationer willfully failed to pay. Carter MSJ Evid., Ex. 10. And despite JCS's claims that it

never asked the Municipal Court to revoke a probation, the standard-form petition "respectfully

requests that the probation of the Defendant be revoked and that this Honorable Court issue a

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warrant for the arrest of said defendant, if necessary ...." See, e.g., City Evid., Ex. 23. Once JCS filed a petition, either JCS or the Court would serve the probationer with a notice to appear at an initial revocation hearing. Nixon Dep. 233:16-23 (Sept. 16, 2019) (ECF No. 278-20) ("2019 Nixon Dep.").
If a probationer appeared at his revocation hearing, the Municipal Court would determine whether to revoke his probation. Hayes Dep. 22:8-16 (ECF No.' 73-2). When the Municipal Court revoked a probation, it would "commute" the probationer's fines into a jail term: the offender would "sit out" his fine at the rate of $50 per day. See id. at 9: 16-10:3. If a probationer failed to
appear, the Municipal Court would issue a warrant for his arrest. See Nixon Deel. at ,r 85 (ECF
No. 253-3). Once the police executed that warrant and arrested the probationer, they would bring
him before the Municipal Court for a commutation hearing. See id. at ,r,r 88, 91, 99. Commutation
hearings and revocation hearings proceed in similar ways - the judge determined whether to transform the fine into a jail sentence-except that JCS did not directly participate in commutation hearings. See HayesDep. 18:9, 13-14 ("The end result is the same.").
At revocation and commutation hearings, the Municipal Court routinely failed to inquire as to whether a defendant could pay his fines before sentencing him to jail time. In re Hayes, No. 49, slip op. at 2-3 (Ala. Ct. Judiciary Jan. 5, 2017). Though the Alabama court system has created a standard form to allow defendants to show their indigency, the Municipal Court did not use that form. 2014 Nixon Dep. 88:4-12. And the Municipal Court judges did not tell defendants that they could not be jailed if they could not afford to pay their fines. See Hayes Dep. 40: 10-14. The Municipal Court's conduct was so egregious that the Alabama Court of the Judiciary suspended Municipal Court Presiding Judge A. Lester Hayes III from the bench for eleven months for failing to conduct indigency hearings and for other ethics violations stemming from the Montgomery
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probation system. In re Hayes, slip op. at 2-7. In addition, the Municipal Court judges agreed in settling a lawsuit challenging its traffic ticket procedures to refrain from incarcerating defendants for inability to pay. See Mitchell v. City of Montgomery, No. 2:14CV186-MHT, 2014 WL 11099432, at *2-3, 5-10 (M.D. Ala. Nov. 17, 2014). They also agreed to train themselves, court staff, and public defenders to protect defendants' rights not to be jailed for inability to pay. Id.
Likewise, JCS did not formally assess whether a probationer could afford to pay his fines.
Hamby Deel. at ,r 33 (ECF No. 163-2). But JCS kept records of its probationers' employment
statuses, including when probationers were unemployed or relied on government benefits as their sole source of income. Carter Class Evid., Ex. 13. At least 217 probationers whom JCS listed as unemployed, disabled, or receiving Supplemental Security Income benefits served jail time after the Municipal Court revoked their probation. Compare id. (listing probationers' sources of income) with Carter Class Evid., Ex. 10 (listing probationers who served jail terms).
(iv) The City's Knowledge The parties dispute when the City became aware of JCS's allegedly unlawful conduct. Mr. Carter suggests several points at which the City became aware or should have become aware of how JCS operated:
• On May 9, 2009, when Municipal Court Administrator Ken Nixon, who also served in the Mayor's Cabinet, informed the Mayor that the JCS probation program had been "implemented as planned." Carter Evid., Ex. 15 Mr. Nixon reported both to the Presiding Judge of the Municipal Court and the Mayor. 2014 Nixon Dep. 35:11-14. He claims that he only shared and received information with the Mayor; Mr. Nixon testified that the Mayor did not supervise him. See 2019 Nixon Dep. 45:6-11, 46:19-23 (ECF No. 253-27).
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• On July 16, 2012, when Mr. Nixon received an email from JCS notifying him of a lawsuit challenging JCS's probation operations for the Harpersville Municipal Court. Carter Evid., Ex. 38. The complaint alleged that JCS engaged in many of same the practices in Harpersville and Montgomery including petitioning for probation revocation for indigent probationers. See id.
• On January 16, 2013, when Mr. Nixon received a subpoena from the plaintiffs in Thurman v. Judicial Correction Services for Municipal Court probation orders. Carter Evid., Ex. 38. The Thurman complaint alleged that JCS unlawfully collected probation fees in Montgomery. See Am. Compl. 10-14 (ECF No. 4), Thurman v. Judicial Correction Services, No. 2:12-cv-724-RDP (M.D. Ala. 2012).
In contrast, the City claims not to have been aware ofhow JCS operated until shortly before it terminated its contract with JCS. See City's Reply Br. 19 (ECF No. 283).
The City did not supervise JCS's operations. Strange Dep. 100:1-8 (ECF No. 278-35). (v) Public Defenders
Alabama requires municipalities that operate municipal courts to provide counsel to indigent defendants. Ala. Code § 12-14-9. The City purported to meet that obligation through a pair of contracts - one with Mr. Kloess and one with a small Montgomery law firm. See Second Am. Compl., Ex. 2 (ECF No. 145-2); Kloess Dep. 67:9-14 (ECF No. 265-1). Each public defender worked in the Municipal Court every other day, Kloess Dep. 79:23-80:4, representing every defendant who had been jailed prior to his court appearance, see id. at 104:16-19. The City paid the defenders an hourly rate. Id. at 69:4-6. It received invoices from the defenders every two weeks, listing the number of hours the defenders worked but not the number of clients or cases they handled. Id. at 72: 19-23.
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The defenders handled an enormous caseload. Over the course of 2012, Mr. Kloess handled 16,436 cases over 127 days in court. Parrish Deel. at 114 (ECF No. 278-1). Many defendants appeared for multiple cases, so Mr. Kloess represented fewer individuals than cases. Id.
Although many of Mr. Kloess's clients were poor, he does not provide evidence that he routinely asked the Municipal Court to consider their inability to pay fees. Mr. Kloess testified that he has requested indigency determinations for some clients, but he was unable to name a single client for whom he had requested such a hearing. Kloess Dep. 163: 1-11. He does not remember ever filing a written motion for an indigency hearing. Id. at 171: 18-21.
2. Mr. Carter In May 2011, a Montgomery police officer arrested Mr. Carter on outstanding warrants for failure to appear in the Municipal Court on several traffic tickets. 2018 Carter Dep. 68:7-10. Mr. Carter spent a night in jail and then appeared in court. Id. at 70:21-22. He could not afford to pay his fines, so the judge offered him a choice between further incarceration and JCS probation. Id. at 72:1-2. Mr. Carter elected to go on probation with JCS. Id. at 73:14-15. The probation order required Mr. Carter to pay $140 per month. Carter MSJ Evid., Ex. 17 (ECF No. 73-17). Mr. Carter made his first monthly payment in full but was never again able to pay the full amount due in any month. 2018 Carter Dep. 118:9-12. Over nineteen months on probation with JCS, Mr. Carter made a total of$833 in payments. Pl. 's Reply to CHC's Opp'n to Mot. Class Certification, Ex. 3 at 10-11 (ECF No. 174-3). JCS allocated $460 of those payments to fines and kept the rest as probation fees. Id. During those nineteen months Mr. Carter attended sixty-six JCS appointments and missed fifty-seven. Id. at 8-10. Eventually his payments slowed and, in November 2012, he missed several meetings and did not make a payment. See id. at 8, 10.
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In December 2012, JCS petitioned the Municipal Court to revoke Mr. Carter's probation for failure to make payments and attend meetings. Carter MSJ Evid., Ex. 10. JCS claims that it gave Mr. Carter notice of the revocation hearing, see Pl.'s Reply to CHC's Opp'n to Mot. Class Certification, Ex. 3 at 2; Mr. Carter claims he never received the notice, 2018 Carter Dep. 125: 1619. Regardless, Mr. Carter did not attend his revocation hearing. City Evid., Ex. 23. He claims that he believed he had completed his probation because a JCS employee told him "You're done Mr. Carter" when he came in to make a payment in late December 2012 or January 2013. See 2018 Carter Dep. 124:2-13. Because Mr. Carter did not appear, the Municipal Court revoked his probation and issued warrants for his arrest. City Evid., Ex. 23.
In January 2014, Mr. Carter was arrested during a traffic stop on ten warrants for failing to appear in court. 2018 Carter Dep. 126:4-6. Seven of the warrants were tied to tickets for which Mr. Carter had been sentenced to JCS probation. Nixon Deel., Ex 5 at 205. Mr. Carter spent the weekend in jail and then appeared before Judge Hayes. See id at 205-206.
At the revocation hearing, Mr. Kloess nominally represented Mr. Carter. On the day of the hearing, Mr. Kloess represented sixty-seven individuals over three and one-half hours. Kloess Dep. 133:16-18; Parrish Deel. Ex. C at 9 (ECF No. 278-4). And Mr. Kloess was not in the courtroom at all for Mr. Carter's hearing. Kloess Dep. 132:2-11. Mr. Carter alleges, however, that Mr. Kloess consulted with him briefly and asked him ifhe would "pay or stay." 2018 Carter Dep. 136:4:15. Mr. Carter told Mr. Kloessthathewouldpay. Id at 136:17.
But Mr. Carter could not pay his fines at the revocation hearing. His girlfriend brought $120 - all but $20 of Mr. Carter's liquid assets - to the Municipal Court. Id at 137:11-22; Carter Dep. 352:20-22 (Nov. 7, 2019) (ECF No. 262-3) ("2019 Carter Dep."). Judge Hayes rejected that proffered payment and sent Mr. Carter back to jail. Id at 138:1-15. Judge Hayes
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never asked Mr. Carter why he had not paid his fines. 2019 Carter Dep. 373:3-7. If he had inquired, he would have learned that Mr. Carter could not afford to pay much: when he appeared before Judge Hayes, he netted $300 per week from his job. 2018 Carter Dep. 221: 10-11.
Municipal Court paperwork indicates that Judge Hayes commuted to jail time the fines from tickets underlying the seven JCS warrants; he gave Mr. Carter additional time to pay the tickets underlying the other three warrants. Nixon Deel., Ex 5 at 204-05. Four days after his arrest (and one day after his commutation), Mr. Carter was released from jail when his mother borrowed enough money to pay his remaining fines. Id. at 206; 2018 Carter Dep. 138:22-23.
3. The JCS-CHC Merger In September 2011, CHC and JCS engaged in a reverse triangular merger. Carter MSJ Evid., Ex. 21. CHC formed a new, wholly owned subsidiary Judicial Merger Sub, Inc., which merged with JCS. Id. JCS survived the merger with the subsidiary, and, as part of the transaction, CHC paid cash to acquire all outstanding shares of JCS stock. Id. at 9-11. While CHC planned to integrate JCS into CHC, that integration never occurred. See Houston Dep. 35:16-36:2 (ECF No. 73-16). B. Procedural History This action has been pending for nearly five years. Mr. Carter filed this lawsuit in August 2015 against the City and Mr. Kloess. See Compl. (ECF No. 1). He subsequently amended the complaint, naming JCS and CHC and alleging fourteen causes of action under the Racketeer Influenced and Corrupt Organizations Act and § 1983. All four defendants moved to dismiss the complaint. The Court dismissed Mr. Carter's RICO causes of action but allowed his § 1983 claims to proceed. See Carter v. City ofMontgomery, No. 2:15-CV-555 (RCL), 2017 WL 957540, at *5-
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6 (M.D. Ala. Mar. 10, 2017). The Court then granted Mr. Carter's motion to file a second amended complaint. Order (Aug. 28, 2018) (ECF No. 143); Second Amended Complaint (ECF No. 145).
That filing is the operative complaint for these motions. It initially alleged fifteen causes of action:
• Count One: denial of due process under § 1983 against the City and Kloess; • Count Two: denial of due process under § 1983 against JCS and CHC; • Count Three: violation of the Fourth Amendment under§ 1983 against the City; • Count Four: violation of the Fourth Amendment under § 1983 against JCS and
CHC; • Count Five: violation of the Sixth Amendment under§ 1983 against the City; • Count Six: violation of the Sixth Amendment under§ 1983 against JCS and CHC; • Count Seven: violation of the Eighth Amendment under§ 1983 against the City; • Count Eight: violation of the Eighth Amendment under § 1983 against JCS and
CHC; • Count Nine: denial of equal protection under § 1983 against the City; • Count Ten: denial of equal protection under § 1983 against JCS and CHC; • Count Eleven: money had and received against the City; • Count Twelve: money had and received against JCS and CHC; • Count Thirteen: false imprisonment against the City; • Count Fourteen: false imprisonment against JCS and CHC; and, • Count Fifteen: declaratory and injunctive relief to invalidate the City-JCS contract
against the City and JCS.
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Second Am. Compl. 28-79. Mr. Carter moved for partial summary judgment on count fifteen (ECF No. 164); the Court denied that motion and ordered the count dismissed for lack of subjectmatter jurisdiction. See Order 15 (Mar. 29, 2019) (ECF No. 203). The City moved for judgment on the pleadings (ECF No. 200) and to dismiss counts eleven and thirteen (ECF No. 148); the Court held that the Rooker-Feldman doctrine barred it from considering Mr. Carter's unjust enrichment claim against the City, Order 15 (Mar. 29, 2019) (ECF No. 203), and that the City is immune from claims for intentional torts, see Carter v. City of Montgomery, No. 2:15-CV-555 (RCL), 2019 WL 1440284, at *5 (M.D. Ala. Mar. 29, 2019). Accordingly, the Court dismissed counts eleven and thirteen. See Order (Mar. 29, 2019) (ECF No. 207). But it also held that Mr. Carter had plausibly alleged that the City was the moving force behind his injuries and denied the City's motion for judgment on the pleadings. Carter, 2019 WL 1440284, at *4. JCS has moved for summary judgment once before (ECF No. 183). The Court denied that motion without prejudice, allowing time for further discovery. Order 2 (ECF No. 214). Accordingly, Counts One through Ten, Twelve, and Fourteen are currently before the Court.
Finally, the Court denied without prejudice Mr. Carter's motion for class certification, reserving the question until after it has addressed dispositive motions. Order 1 (Mar. 29, 2019) (ECF No. 204). And so, although the Court notes that the parties have conducted wide-ranging discovery, only Mr. Carter's individual claims are before the Court. II. LEGAL STANDARDS
The Court grants summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. The movant bears the burden of showing its entitlement to summary judgement; the movant, however, must simply show that the non-movant has not produced enough evidence to meet his burden at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
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In determining whether material facts are in dispute, the Court construes facts and makes inferences in favor of the non-moving party. Scott v. Harris, 550 U.S. 372,379 (2007). "[W]hen conflicts arise between the facts evidenced by the parties, we credit the nonmoving party's version." Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005) (emphasis omitted). Facts, however, are disputed only if a reasonable jury could believe either side of the dispute. See Scott, 550 U.S. at 380. A fact is material if it is necessary to the Court's decision. See United States v. Gilbert, 920 F.2d 878, 883 (11th Cir. 1991). III. ANALYSIS
A. Rooker-Feldman Doctrine The City and JCS argue that the Rooker-Feldman doctrine deprives the Court of
jurisdiction to adjudicate Mr. Carter's claims. Rooker-Feldman is a narrow jurisdictional doctrine that prohibits federal district courts
from reviewing of state court judgements. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 293 (2005); see also District ofColumbia Court ofAppeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). Congress has conferred jurisdiction to review state court judgments only on the Supreme Court. See 28 U.S.C. 1257; see also Exxon Mobil, 544 U.S. at 283-84. Because of that jurisdictional limit, Rooker-Feldman deprives federal courts ofjurisdiction over an issue that is "inextricably intertwined" with a state court judgment. Alvarez v. Att'y Gen., 679 F.3d 1257, 1262-63 (11th Cir. 2012). An issue is inextricably intertwined with a state court judgment when the federal claim cannot succeed without "effectively nullify[ing]" the state court judgement or requiring the conclusion that the state court wrongly decided its case. Id. Federal trial courts, however, may review claims that are independent of state judgements, even if those claims have previously been litigated in state courts. Exxon Mobil, 544 U.S. at 293.
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1. Unjust Enrichment Claim JCS argues that the Court lacks jurisdiction to decide Mr. Carter's unjust enrichment claim. The Court previously ruled that the Rooker-Feldman doctrine deprived it of jurisdiction to adjudicate Mr. Carter's unjust enrichment claim against the City. See Order 3-5 (Mar. 29, 2019) (ECF No. 207). For the same reasons, Mr. Carter's unjust enrichment claim against JCS must fail.
2. Section 1983 Claims The City argued in its motion for judgment on the pleadings that the Rooker-Feldman doctrine barred Mr. Carter's§ 1983 claims. The Court rejected that argument, holding that "Mr. Carter's [§] 1983 claims do not challenge the merits of the Municipal Court's decisions nor the bases on which those judgments were reached. These claims challenge only the post-judgment probationary program." Carter, 2019 WL 1440284, at *1 ii.I. Nevertheless, the City renews its argument here and JCS joins it. Defendants' Rooket-Feldman argument could succeed only if Mr. Carter challenged the Municipal Court's judgment. But Mr. Carter does not. Rather, his claims rest on the judgment. Without that judgment and without the probation order, Mr. Carter would have no claim against the City or JCS. Cf VanderKodde v. Mary Jane M Elliott, P.C., 951 F.3d 397,407 (6th Cir. 2020) (Sutton, J., concurring). Because Mr. Carter does not seek to overturn the Municipal Court's orders, Rooker-Feldman does not deprive the Court ofjurisdiction to decide his § 1983 claims. Thurman v. Judicial Correction Servs., Inc., 760 F. App'x 733 (11th Cir. 2019), which held that federal courts may not adjudicate efforts to void the JCS-City of Montgomery contract and recover probation fees in restitution, id. at 737, does not deny the Court jurisdiction. In Thurman, the parties tried to invalidate the Municipal Court's orders, implicating Rooker-Feldman's core concern. Here, the remaining claims assume that the Municipal Court's orders are valid and seek
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damages arising from those orders and the policies they implemented. Carter, 2019 WL 1440284, at *1 n.1. If Mr. Carter won the full relief he seeks, nothing would disturb the validity of his convictions. Therefore, Rooker-Feldman does not deny the Court jurisdiction to hear the bulk of Mr. Carter's § 1983 claims.
To the extent, however, that Mr. Carter seeks through§ 1983 to recover probation fees paid to JCS, the Court lacks jurisdiction to decide those claims for the same reason it may not decide his unjust enrichment claims. Mr. Carter cannot attack his probation order in federal court.
3. False Imprisonment Claim JCS also argues that the Rooker-Feldman doctrine prevents the Court from considering Mr. Carter's false imprisonment claim. That argument fails for the same reason as JCS's § 1983 argument: Mr. Carter's false imprisonment claim depends on - ·rather than challenges -· the Municipal Court's commutation order. Mr. Carter alleges that JCS harmed him because JCS acted in bad faith and persuaded the Municipal Court to jail him. Granting relief to Mr. Carter would censure JCS for its actions but not disturb the Municipal Court's order. Accordingly, RookerFeldman poses no barrier to the claim. B. Heck v. Humphrey The City and JCS argue that Mr. Carter lacks a cause of action under§ 1983 because the underlying state proceedings did not terminate in his favor. A plaintiff lacks a cause of action under § 1983 if a judgment in favor of plaintiff would necessarily imply the invalidity of an otherwise valid state conviction. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Heck does not apply if a plaintiffs success on a claim would not "necessarily imply that the plaintiffs conviction was unlawful." Id. at 487 n.7. And the rule does not apply to procedural claims. Harden v. Pataki, 320 F.3d 1289, 1295 (11th Cir. 2003).
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The City and JCS argue that Mr. Carter cannot bring his § 1983 claims because he cannot prevail without implying the invalidity of his Municipal Court convictions. That argument fails. Even if (1) Mr. Carter had been adequately informed of his rights and (2) properly represented and (3) the Municipal Court had conducted a Bearden hearing, Mr. Carter could have been found willfully in violation of his obligation to pay the fine and jailed. Moreover, Mr. Carter does not challenge the underlying conviction - his traffic offenses. Rather, he challenges the procedures used to impose probation and jail him. Therefore, Heck does not deny Mr. Carter a cause of action under § 1983.
JCS also points to Judge Tjoflat's concurring opinion in Teagan v. City of McDonough, 949 F.3d 670 (11th Cir.2020). In Teagan, a motorist sued McDonough and directly challenged orders the McDonough municipal court issued to imprison her in violation of her rights under the Fourth, Sixth, and Fourteenth Amendments. Id. at 674. Judge Tjoflat wrote separately to explain that he would have dismissed the plaintiffs claims under Heck.4 Id. at 684 (Tjoflat, J., concurring). Judge Tjoflat's analysis would not apply to the plaintiffs' claims, which accept, rather than challenge, the Municipal Court's orders.
C. CHC's Liability Generally, when one company buys the assets of another, it does not assume responsibility
for its debts and liabilities. 15 Fletcher Cyclopedia of the Law of Corporations § 7122 (2019). And a stockholder is generally not liable for the actions of a company in which it owns stock. 13 Fletcher Cyc. Corp.§ 6213. But Mr. Carter seeks to hold CHC responsible for JCS's actions.
4 The majority declined to reach the issue, believing that Heck's applicability presented an open and unnecessary question. Teagan, 949 F.3d at 678.
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CHC and JCS have not actually completed a merger. But Mr. Carter argues that CHC is liable for JCS's actions because JCS and CHC de facto merged and because CHC is a mere continuation of JCS. He also argues that JCS and CHC should be held jointly liable as a single employer. Finally, he argues that CHC is liable for JCS's actions because it controlled JCS. None of Mr. Carter's attempts to pierce the corporate veil succeeds. 5
The Court must first determine which law governs. Alabama's choice-of-law rules govern state law questions. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941). Under Alabama law, the law of the state of injury determines a tortfeasor's liability. Lifestar Response ofAla., Inc. v. Admiral Ins. Co., 17 So. 3d 200,213 (Ala. 2009). But because CHC is incorporated in Delaware, Delaware law governs whether CHC and JCS have merged. 6 See Ex parte Bentley, 50 So. 3d 1063, 1070 (Ala. 2010) (following internal affairs doctrine).
Under Alabama law, successor liability may be imposed on a purchasing corporation based on (1) express agreement, (2) de facto merger, (3) a fraudulent attempt to escape liability, or (4) "the transferee corporation [being] a mere continuation of the transferor." Asher v. KCS Int'!, Inc., 659 So. 2d 598, 599 (Ala. 1995).
1. De Facto Merger The de facto merger doctrine provides an exception to the general rule that an asset purchaser is not responsible for the asset seller's liabilities. Two companies have de facto merged when they effectively merge without meeting the statutory requirements for a true merger. "[T]he
5 CHC argues that Mr. Carter forfeited his successor liability argument by not including it in the operative complaint. Mr. Carter alleged is his complaint that CHC "appears to be the successor of JCS, having purchased or otherwise acquired it, continuing to do business as JCS and operating the same." Second Am. Comp!. 3. He further alleged that CHC was responsible for all of JCS's actions. See id. at 4. Those allegations suffice to put CHC on notice that Mr. Carter intended to pursue claims against it. See Resnick v. AvMed, Inc., 693 F.3d 1317, 1324 (11th Cir. 2012). 6 The parties briefed Alabama law, which has a more permissive de facto merger doctrine, but the Court would reach the same outcome under Alabama law.
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elements necessary to create a de facto merger under Delaware law are the following: (1) one corporation transfers all of its assets to another corporation; (2) payment is made in stock, issued by the transferee directly to the shareholders of the transferring corporation; and (3) in exchange for their stock in that corporation, the transferee agreeing to assume all the debts and liabilities of the transferor." Xperex Corp. v. Viasystems Techs. Corp., No. CIV.A. 20582-NC, 2004 WL 3053649, at *2 (Del. Ch. July 22, 2004) (citing Drug, Inc. v. Hunt, 168 A. 87, 96 (Del. 1933)).
Mr. Carter cannot show that the JCS-CHC transaction meets the test's second element. CHC paid in cash not stock when it purchased JCS's assets. Carter MSJ Evid., Ex. 13 at 9-11. Therefore, JCS and CHC have not de facto merged.
2. Mere Continuation A purchaser is a mere continuation of a seller if (1) "[t]here was basic continuity of the enterprise of the seller corporation, including, . . . a retention of key personnel, assets, general business operations and even the ... name," (2) the seller ceases ordinary business operations and winds down, (3) the purchaser assumes all liabilities and obligations necessary to continue the seller's operations, and (4) the purchaser holds itself out as "the effective continuation" of the seller. See Asher, 659 So. 2d at 599-600. The second prong requires the seller to dissolve as an entity. Id. at 600. Mr. Carter cannot point to evidence that JCS dissolved. JCS survived the reverse triangular merger and continued to operate. Indeed, Mr. Carter has repeatedly alleged that JCS exists. See,
e.g., Second Am. Compl. ,r 8. Indeed, if JCS had dissolved in 2011, it would not be a proper party
to this suit because a dissolved corporation may be continued for only three years to prosecute or defend suits. See Del. Code tit. 8, § 278. Because JCS still exists as a corporation, Mr. Carter's mere continuation theory of liability fails.
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3. Single Employer Test A third veil-piercing theory applies in the context of employee-employer disputes. Two nominally distinct entities may be treated as one under the single employer test if they exhibit "( 1) interrelation of operations, (2) centralized control oflabor relations, (3) common management, and (4) common ownership or financial control." Lyes v. City ofRiviera Beach, 166 F.3d 1332, 1341 (11th Cir. 1999). The doctrine originated to ensure that companies cannot structure themselves to evade the National Labor Relation Board's jurisdiction by using different entities to artificially diminish their headcounts. Sakrete ofNorthern California, Inc., 137 NLRB 1220, 1223 (1962). Courts apply the test to labor disputes, see, e.g., Int 'l Bhd. ofElec. Workers, Local 613 v. Fowler Indus., Inc., 884 F.2d 551, 553 n.3 (11th Cir. 1989), and employment discrimination claims, see, e.g., Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1244 (11th Cir. 1998). But the test has never been applied outside the context of an employee-employer dispute. Ray v. Judicial Correction Servs., Inc., No. 2:12-CV-02819-RDP, 2018 WL 2130408, at *6 & n.8 (N.D. Ala. May 9, 2018). And Mr. Carter offers no reason to extend it. Indeed, none of the policies underlying the rule suggest it should apply: Mr. Carter can point to no adjudicator who would have jurisdiction or substantive rule that would apply if JCS and CHC were a single employer. CHC and JCS are not a single employer for the purposes of this suit.
4. Control Mr. Carter argues that CHC controlled JCS and is therefore liable for JCS's actions. Because Mr. Carter has not explained how control over JCS could subject CHC to liability, the Court will not reach the question of whether CHC controlled JCS. In the portion of Mr. Carter's brief articulating the control theory, he cites neither a single statute nor a single case for a legal proposition. See Pl.'s Response Br. to CHC's Mot. Summ. J. 29-33 (ECF No. 273). The only
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plausible theory he could have offered is that JCS is an alter ego of CHC because CHC excessively controls JCS.
To pierce the veil between two corporations based on "excessive control," a plaintiff must show (1) complete control and domination, (2) misuse of that control, and (3) proximate cause. First Health, Inc. v. Blanton, 585 So. 2d 1331, 1335 (Ala. 1991). Fraud or failure to abide by corporate formalities evinces misuse of control. Econ Mktg., Inc. v. Leisure Am. Resorts, Inc., 664 So. 2d 869, 870 (Ala. 1994).
The record lacks evidence showing that CHC misused whatever control it had over JCS. Mr. Carter points only to evidence that could support the first and third prongs of the excessive control test.
Therefore, a jury could not conclude that JCS was an alter ego of CHC.
* * *
Mr. Carter can offer no reason to hold CHC liable for JCS's actions. Therefore, CHC is entitled to summary judgment on all of Mr. Carter's claims against it.
D. Section 1983 Liability Mr. Carter seeks damages against the City, JCS, and Mr. Kloess under 42 U.S.C, § 1983.
That statue provides a cause of action when a person acting under color of state law deprives another of a federally protected right, privilege, or immunity. The defendants seek summary judgment on the grounds that they are not subject to suit under § 1983 and that they did not violate Mr. Carter's rights.
The Court will (1) first determine whether the City, JCS, and Mr. Kloess are subject to suit under § 1983 and (2) then proceed to consider whether a jury could find that the defendants violated Mr. Carter's federally protected rights.
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1. Applicability of§ 1983 The City, JCS, and Mr. Kloess argue that they are not subject to liability under § 1983 because (a) they do not have a policy or custom of depriving traffic offenders of their rights and (b) they did not cause Mr. Carter's injuries. Mr. Kloess additionally argues (c) that he did not act under color of law. And the City and JCS argue (d) that they did not engage in a conspiracy to deprive Mr. Carter of his rights.
(i) Policy/Custom As the Supreme Court held in Monell v. Department of Social Services, 436 U.S. 658 (1978), municipalities are liable under § 1983 for deprivations of rights if they (1) legislatively enact an official policy, (2) "acquiesce in a longstanding practice that constitutes the entity's standard operating procedure," or (3) ratify a delegated policy decision. Hoefling v. City ofMiami, 811 F.3d 1271, 1279 (11th Cir. 2016); see Monell, 436 U.S. at 694. A plaintiff must point to an official or body responsible for the municipal policy, but final responsibility may rest in more than one source. City ofSt. Louis v. Praprotnik, 485 U.S. 112, 126 (1988). Whether an official has policymaking authority depends both on state law and how the officials have acted in this case. McMillian v. Monroe Cty., 520 U.S. 781, 785-86 (1997). Further, a municipality's omissions constitute a policy or custom if they evince "deliberate indifference" to its inhabitants' rights. City ofCanton v. Harris, 489 U.S. 378, 388 (1989). In this Circuit, private entities "acting in the place of a municipality" in carrying out a traditional government function are subject to liability on the same basis as municipalities. Buckner v. Toro, 116 F.3d 450,452 (11th Cir. 1997).
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(a) JCS Mr. Carter has produced enough evidence to find that JCS had an established custom of asking the Municipal Court to revoke probation when it knew that a probationer had not willfully failed to pay fines and fees. To demonstrate a custom, Mr. Carter must point to a "permanent and well settled" course of behavior. Praprotnick, 485 U.S. at 127. Courts in this Circuit routinely reject attempts to find customs in isolated incidents. See, e.g., Wakefield v. City ofPembroke Pines, 269 F. App'x 936, ·940 (11th Cir. 2008) (holding that two instances of excessive force against the same plaintiff did not demonstrate custom). But they have also found customs based on as few as three occurrences. See Young v. City ofAugusta ex rel. DeVaney, 59 F.3d 1160, 1173 (11th Cir. 1995) (holding that plaintiff had produced enough evidence of custom to survive ·summary judgment when three separate jailers ignored her medical complaints). In determining whether a custom exists, the Court also looks to the time frame over which the incidents occurred. See Nunez v. City ofNew York, 735 F. App'x 756, 760 (2d Cir. 2018) And it looks to how similar the incidents are to one another. See Mercado v. City ofOrlando, 407 F.3d 1152, 1162 (11th Cir. 2005). Mr. Carter points to a widespread pattern of unlawful incarceration. The record indicates that JCS asked the Municipal Court to revoke hundreds of probations, see Carter MSJ Evid., Ex. 10, and that the Municipal Court incarcerated offenders without assessing their ability to pay on "many occasions," In re Hayes, slip op. at 3. And a jury could find that JCS filed revocation petitions when it had reason to believe that probationers could not make their payments because JCS kept records of probationers' employment or lack thereof. See Carter Class Evid., Ex. 13. Those recqrds included a log of when probationers received retirement and disability benefits. See id. More than 200 probationers whom JCS knew to be unemployed, disabled, or receiving
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Supplemental Security Income benefits served jail time after the Municipal Court revoked their probation. Compare id. with Carter Class Evid., Ex. 10. These hundreds of revocations followed the same pattern and occurred over less than four years. This case centers around a systemic practice in Montgomery: the unlawful incarceration of indigent defendants for failing to pay trnffic fines. In filing revocation petitions, JCS fed the system. If among a single city's probationers 217 instances of a practice over less than four years would not allow a jury to find that a custom exists, the Court cannot imagine what would.
Ajury could find an established custom on this record. (b) City
"[A] municipality' s failure to correct the constitutionally offensive actions of its employees can rise to the level of a custom or policy if the municipality tacitly authorizes these actions or · displays deliberate indifference towards the misconduct." Griffin v. City ofOpa-locka, 261 F.3d 1295, 1308 (11th Cir. 2001) (quotation marks omitted).
The City argues that § 1983 does not subject it to liability for (a) depriving Mr. Carter of his Bearden rights, (b) depriving Mr. Carter of his right to counsel, and (c) rights violations related to the window procedure. The City is correct about the window procedure and about some elements of Mr. Carter's Bearden claims. But it must allow a jury to determine whether it is liable on the other claims.
(1) Liability for Bearden Violations The City correctly argues that it cannot be held liable for the Municipal Court and JCS's actions just because it funds the court and probation services. Under state law, the City must "provide appropriate facilities and necessary supportive personnel for the municipal court and may provide for probation services, clerks and municipal employees designated as magistrates." Ala.
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Code § 12-14-2. Municipalities may contract for probation and debt collection services. Wilkins v. Dan Haggerty & Assocs., Inc., 672 So. 2d 507, 509-10 (Ala. 1995). Those responsibilities alone do not provide policymaking authority to satisfy Monell. Cf Turquitt v. Jefferson Cty., 137 F.3d 1285, 1289-90 (11th Cir. 1998) (holding that a county's duty under Alabama law to provide jail facilities and fund jail operations does not create Monell liability).
The City-JCS contracts, however, would allow a reasonable jury to conclude that the City had final responsibility for JCS, either because it acquiesced to JCS's standard operating procedures or because it ratified decisions about how to provide probation that it delegated to JCS. See Hoefling, 811 F.3d at 1279. Under the contract, the City set the terms under which JCS provided services. City Evid., Ex. 12 at 2-3. And in addition to any duty it may have had to rescind the contract upon learning of JCS's practices, the City had a contractual right to terminate the agreement each year. Id. at 5. After the City became aware of how JCS funneled indigent prisoners into jail regardless of their ability to pay, its failure to stop those practices constituted acquiesce or ratification of them.
The City argues that only the Municipal Court and its judges made policy that led to Mr. Carter's incarceration. It correctly notes that Municipal Court judges had discretion about how to sentence defendants, whether to assign defendants to JCS, and whether to conduct Bearden hearings. It correctly cites state law that assigns responsibility for supervising Municipal Court judges to the Alabama Supreme Court. But multiple officials can bear final policymaking authority. See Praprotnik, 485 U.S. at 126. The City does not dispute that it had the power to enter and terminate the JCS contract. This case, therefore, is unlike cases where municipal court employees act wholly outside the control of their municipalities. See, e.g., Woodard v. Town of Oakman, 855 F. Supp. 2d 1216, 1232 (N.D. Ala. 2012). Once the City became aware that JCS
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and the Municipal Court systemically violated probationers' rights, it bore policymaking responsibility for the contract's foreseeable consequences until it terminated the contract.
Carter has produced evidence that would allow a reasonable jury to conclude that the City should have known about JCS's practices as early as July 16, 2012 or January 16, 2013 when it received notice of litigation challenging how JCS supervised probation. Carter Evid., Ex. 37; Carter Evid., Ex 38; see Lewis v. City of West Palm Beach, 561 F.3d 1288, 1293 (11th Cir. 2009) (holding that city is on notice if it "is aware that a pattern of constitutional violations exists"). In turn, the City argues that its officials may not have known about the conduct underlying lawsuits against JCS. While the City may be able to prove at trial that it lacked knowledge, a reasonable jury could conclude otherwise based on the Rule 56 record. The City is not entitled to summary judgment on claims arising after July 16, 2012. Mr. Carter, however, has produced no evidence that the City was aware of JCS's practices before July 16, 2012 except for a single email informing the Mayor that the JCS "program" had been successfully implemented. Carter Evid., Ex. 15. And until the City was on notice to how JCS operated, it cannot be held liable for its deliberate failure to intervene to protect Carter's rights. See Canton, 489 U.S. at 389. Therefore, the City is subject to liability for Carter's claims arising on or after July 16, 2012, but not for those before.
(2) Liabilityfor Failure to Provide Adequate Counsel The City attempts to evade liability for failing to provide adequate counsel to Municipal Court defendants. Those attempts are unavailing. The Court first addresses the City's three threshold objections to liability. First, the City argues that the operative complaint fails to allege that Mr. Carter was denied counsel. The complaint alleges that "the City failed to provide adequate counsel for the 'offenders."' Second Am. Compl. 35. And it alleges that the public defenders engaged in a
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systemic practice of not requesting indigency hearings. Id. at 46. The City's forfeiture argument thus fails.
Second, the City argues that the Court may not consider evidence about its failure to provide counsel contained in a declaration (and attached exhibits) filed by Mr. Carter's attorney Alexandria Parrish. Yet Ms. Parrish's declaration lays foundation for the court to consider documents produced in discovery and public court records. The City does not contest the authenticity of those documents, and attorneys may use affidavits to place discovery documents before the Court on motions for summary judgment, see Pace v. Air & Liquid Sys. Corp., 171 F. Supp. 3d 254,272 (S.D.N.Y. 2016). The City effectively seeks to strike the declaration by casting Ms. Parrish as an advocate. See City's Reply Br. 28 (ECF No. 283) (citing Ala. R. Prof. Cond. 3.7). But Alabama ethics rules govern an attorney's ability to represent clients not her ability to testify. If Ms. Parrish's testimony proved necessary at trial, the City could seek to disqualify her but not to exclude her testimony because of her service as Mr. Carter's attorney.
Third, the City also objects generally under Rule 56(c)(2) to Ms. Parish's declaration and exhibits. The City fails explain why the evidence is inadmissible, and, thus, the Court overrules the objection. Cf Campbell v. Shinseki, 546 F. App'x 874, 880 (11th Cir. 2013)
The City fares no better in its substantive objection. The record would allow a jury to conclude that the City was deliberately indifferent to its public defenders' failure to adequately represent Municipal Court defendants. The City received billing records from its public defenders so it knew how few hours they spent in court. Based on the sheer volume of cases in the Municipal Court, a jury could find that the City knew its public defenders systemically failed to provide adequate defenses in violation of the Sixth Amendment. See, e.g., Kloess Dep. 133: 16-18; Parrish Deel. Ex. C at 9 (Mr. Kloess represented sixty-seven clients in three and one-half hours; on the
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day of Mr. Carter's commutation hearing, he would have been able to devote barely three minutes to each client). Accordingly, because a jury could conclude that the City was on notice of the inadequacy of Municipal Court public defense, it could conclude that the City was deliberately indifferent to the Sixth Amendment violations and hold it liable under§ 1983.
(3) Liabilityfor the Window Procedure Mr. Carter has not produced any evidence that that the City was responsible for the Municipal Court's operation of the window procedure. The City's responsibility to provide court facilities does not provide policymaking authority to satisfy Monell. Cf Turquitt, 137 F.3d at 1289-90. And unlike with the JCS contract, Mr. Carter does not point to any authority the City had to stop the window procedure. Therefore, the City is not liable for harms directly related to the window procedure.
(c) Mr. Kloess Mr. Kloess also attempts to invoke Monell' s standards to shield himself from § 1983 liability. See Kloess's Br. 14 (ECF No. 264) (citing Doe v. Claiborne Cty., 103 F.3d 495 (6th Cir. 1996) (applying Monell)). But Monell does not apply to Mr. Kloess because Mr. Carter sued him as an individual. See Brandon v. Holt, 469 U.S. 464, 472-73 (1985). His argument, thus, fails.
(ii) Causation and Moving Force "[A] municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell, 436 U.S. at 691. Rather, the municipality must be the factual and proximate cause of the plaintiffs injury. Smith v. City of Oak Hill, 587 F. App'x 524, 527 (11th Cir. 2014). A plaintiff must demonstrate that a municipality is the "moving force" behind his rights violation: he must show that the municipality is culpable for and caused the violation. Bd. ofCty. Comm 'rs v. Brown, 520 U.S. 397, 404 (1997). If municipal decision makers have notice that a program systemically
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causes rights violations and fails to correct it, they may be held to have culpably caused the violation. Id. at 407-08.
Because the torts Mr. Carter alleges took place in Alabama, the Court looks to Alabama law to define the relevant causation standards. Williams v. Bennett, 689 F.2d 1370, 1389 (11th Cir. 1982). In determining whether factual cause exists, Alabama courts ask whether the plaintiffs injury would have occurred but for the defendant's act or omission. Springer v. Jefferson Cty., 595 So. 2d 1381, 1383 (Ala. 1992) (citing Prosser and Keeton on Torts§ 41 (5th ed. 1984)). For proximate cause, they ask whether the plaintiffs injury must naturally and probably result from the defendant's act or omission. Mobile Gas Serv. Corp. v. Robinson, 20 So. 3d 770, 780 (Ala. 2009). Though a proximate cause may not depend on the intervention of an independent cause, id., more than one act or omission can concurrently cause an injury, Lemley v. Wilson, 178 So. 3d 834, 842 (Ala. 2015). And "a foreseeable intervening [act] does not break the causal relationship between the defendants' actions and the plaintiffs' injuries." Mobile Gas, 20 So. 3d at 780-81 (quoting Ala. Power Co. v. Moore, 899 So.2d 975, 979 (Ala. 2004)) (emphasis and alteration in original).
(a) JCS Taking the facts in the light most favorable to the non-movant, the Court holds that Mr. Carter has produced enough evidence for a jury to find that JCS was the but-for and proximate cause of his injuries. Without JCS's petition, the Municipal Court would not have revoked Mr. Carter's probation. JCS therefore factually caused Mr. Carter's probation revocation. And JCS proximately caused the revocation. JCS's petition naturally resulted in the Municipal Court's decision to revoke Mr. Carter's probation. The Municipal Court intervened in
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the causal chain but did not break it. Because its intervention was foreseeable - indeed the natural consequence of a petition asking for revocation - JCS cannot shift its responsibility for Mr. Carter's injuries onto the Municipal Court. See Springer, 595 So. 2d at 1384. Moreover, given the Municipal Court's established practice of not holding indigency hearings, JCS could have foreseen the Municipal Court's decision to jail Mr. Carter without an indigency hearing. Finally, a jury could find that JCS was culpable for Mr. Carter's injuries because it sought to revoke his probation when it knew or should have known that he was unable to pay.
JCS roots its argument to the contrary in a decision of the District Court for the Northern District ofAlabama. See Ray v. Judicial Corr. Servs., Inc., 270 F. Supp. 3d 1262 (N.D. Ala. 2017). In Ray, the City of Childersburg and its municipal court entered a contract with JCS for probation services. Id. at* 1273-74. That contract was materially identical to the contract between JCS and the City of Montgomery. See id. Despite the factual similarities between the cases, JCS 's citations to Ray do not support its argument. Ray granted summary judgment to JCS on plaintiffs' Bearden claims because it found insufficient support for the claims in the record. See id. at 1299. While Ray notes in dicta that "[a] judicial act generally severs the chain of liability where a judge misapplies the law after another state actor has informed the judge of all the material facts," id. at 1298, it did not reach- much less agree with- JCS's causation arguments. The case provides JCS with no support to escape § 1983 liability here.
(b) City Just as a jury could find that the City was on notice of rights violations for purposes of proximate cause, a jury could find the City liable for Mr. Carter's claims arising on or after July 16, 2012.
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The City can be the moving force behind Mr. Carter's injuries even without an overt act. Rather, the City's choice not to act may constitute deliberate indifference to JCS's customary practices. See Knight ex rel. Kerr v. Miami-Dade Cty., 856 F.3d 795,820 (11th Cir. 2017). Mr. Carter must show that the City rejected an alternative course of action. And he does. The fact that the City failed to terminate its contract with JCS would allow a jury to find a deliberate choice not to act. The City had the power to intervene and it failed to do so.
The City disagrees pointing to Ray v. Judicial Correction Service. No. 2:12-CV-02819RDP, 2017 WL 660842 (N.D. Ala. Feb. 17, 2017). But Ray helps the City no more than JCS. While Ray may present similar facts to this case, Mr. Carter offers different theories of liability. Ray held that Childersburg could not be liable under § 1983 based on their contract. 2017 WL 660842 at *16-17. The Ray court, however, reached that holding because it refused to treat Childersburg as the proximate cause of the plaintiffs' injuries and because it refused to hold Childersburg liable for acts JCS undertook as Childersburg's agent. See id. Ray considered neither a deliberate indifference theory ofliability nor whether Childersburg could have foreseen JCS's unlawful conduct. Accordingly, Ray does not conflict with this decision. And even if it did, one district court has no power to bind another, and the Court does not find Ray's logic persuasive.
While Mr. Carter may proceed to trial against the City on most of the§ 1983 claims based on a theory of deliberate indifference, the City is entitled to summary judgment on Mr. Carter's other claims.
First, Mr. Carter does not contest that the City is entitled to summary judgment on his causes of action alleging violations ofthe Fourth and Eighth Amendments. Accordingly, the Court does not reach the question of whether the City is liable for arrests its police department made pursuant to facially valid warrants.
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Second, while the Court will allow Mr. Carter's claims to proceed under a deliberate indifference theory of liability, the record does not contain evidence to support his argument that the City could have foreseen the unlawful acts of JCS and the Municipal Court when it entered the contract. Neither the contract on its face nor the evidence from City officials indicate that the City contemplated mass Bearden violations before July 2012. Because the City did not proximately cause any harms before it became aware of JCS's practices, Mr. Carter cannot base the City's liability on the contract alone.
(c) Mr. Kloess Mr. Kloess argues that he did not cause Mr. Carter's injuries. His arguments fail. First, Mr. Kloess argues that he could not have prevented Mr. Carter from obtaining an indigency determination because he was not in the courtroom for the hearing. Mr. Kloess's absence, however, is precisely the point. Mr. Carter alleges that Mr. Kloess totally deprived him of adequate counsel. An attorney who is not in the room cannot adequately counsel his client at a hearing. Mr. Kloess need not act affirmatively to violate Mr. Carter's rights, and Mr. Kloess's omission here would permit a jury to hold him liable. Second, Mr. Kloess argues that Mr. Carter cannot show that the Municipal Court would have declared him indigent had Mr. Kloess requested an indigency hearing. But Mr. Carter's injury stems from a deprivation of liberty without due process - the lack of a Bearden hearing injured him. All Mr. Carter must show is that the Municipal Court would have considered his ability to pay if Mr. Kloess had presented the claim. And the record does not foreclose that possibility. See Hayes Dep. 37:7-15.
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As for proximate cause, Mr. Kloess should have foreseen that his total absence from the court and failure to present evidence of indigency would deprive Mr. Carter of his rights to counsel and due process.
Thus, a jury could find that Mr. Kloess factually and proximately caused Mr. Carter's mJunes.
(iii) Under Color ofLaw Mr. Kloess also contends that he cannot be held liable under § 1983 because public defenders are not state actors. Generally, that argument holds true: "a public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding." Polk Cty. v. Dodson, 454 U.S. 312,325 (1981). But a public defender may be a public actor when performing some administrative 'functions. See id.; Powers v. Hamilton Cty. Pub. Def Comm 'n, 501 F.3d 592, 612 (6th Cir. 2007). And legal activities cross the line into administrative functions when they become systemic. A public defender's systemic inaction "carries the imprimatur of administrative approval." See id. at 612-13. Ordinary policies may not subject a public defender to liability under § 1983. When, however, a public defender engages across the board .in a practice that systemically deprives defendants of their constitutional rights, "the adversarial relationship between the State and the Public Defender-upon which the Polk County Court relied heavily in determining that the individual public defender there was not a state actor-has broken down such that the Public Defender is serving the State's _interest in exacting punishment, rather than the interests of its clients, or society's interest in fair judicial proceedings." Id. at 613. Mr. Carter alleges that kind of breakdown: that Mr. Kloess served the City's interest rather than his own as part of an unconstitutional a "pay-or-stay" scheme. Mr. Kloess testified that he
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has requested indigency determinations in the past, but he also testified that he could not name a single defendant for whom he requested such a hearing. See Kloess Dep. 163 :6-11. Whether Mr. Kloess actually sought such hearings is a question of credibility that must go to a jury. See Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012). If a jury chooses not to credit Mr. Kloess's assertion that he has requested indigency determinations, it could conclude that Mr. Kloess systemically deprived defendants of indigency hearings.
Therefore, Mr. Kloess is not entitled to summary judgment on the grounds that he is not a state actor.
(iv) Co_nspiracy The City and JCS argue that Mr. Carter also has not offered enough evidence to allow a reasonable jury to conclude that that JCS and the City engaged in a conspiracy to deprive Mr. Carter of federal protected rights. They prevail on that argument. To prove § 1983 conspiracy, a plaintiff must show both an understanding or agreement between parties to deprive him of his rights and an affirmative act to do so. Rowe v. City ofFort Lauderdale, 279 F.3d 1271, 1283-84 (11th Cir. 2002). While Mr. Carter alleges a conspiracy.at several points in his operative complaint (Second Am. Compl. at 32-33, 36-37, 39, 44, 49, 58, 59, 61, 64, 66-67, 69), he provides no evidence of any agreement between JCS and the City except their contract. And the contract does not commit the parties to any rights violations. Thus, to the extent that Counts One, Two, Nine, and Ten allege a conspiracy between JCS and the City, Mr. Carter cannot prevail.
* * *
Section 1983 requires a plaintiff to prove proximate cause because governments should not be liable for torts that they can neither foresee nor control. But conversely, § 1983 holds
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governments accountable for those deprivations of rights that they can predict and prevent. Section

1983 doctrine curtails municipal liability, but it does not gut it. JCS ran a business premised on

the fact that many traffic offenders in Montgomery could not afford to pay their fines. They

extracted as much cash as they could from probationers - some of whom they knew to be

disabled, unemployed, or dependent on government benefits - and then tossed them back to the

Municipal Court. That court, in tum, routinely jailed traffic offenders without inquiring into their

ability to pay their fines. And if the City knew what was happening and did nothing to stop it, the

City is liable as well. They cannot point the finger at the Municipal Court and feign innocence.

For JCS and the City to walk out ofthe casino professing shock that gambling was occurring while

pocketing millions in winnings beggars belief. Perhaps JCS and the City can convince a jury that

they were powerless to stop and ignorant ofthe Municipal Court's conduct. But the record strongly

suggests that they knew that they were perpetuating a cycle of debt and unlawful imprisonment.

And § 1983 provides a remedy for that kind of misbehavior.

Accordingly, Mr. Carter may proceed against all three defendants for harms stemming

from Bearden violations. And he may proceed against the City and Mr. Kloess for depriving him

He of his Bearden rights and right to adequate counsel.

may not proceed on his claims for

conspiracy or for harms stemming from the window procedure or the JCS-City contract standing

alone.

2. Substantive Rights

Mr. Carter alleges that defendants violated three sets of his substantive rights; the

defendants disagree.

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(i) Bearden Rights Mr. Carter alleges that the City, JCS, and Mr. Kloess caused the Municipal Court to jail him unlawfully for his inability to pay fines and fees. That claim will succeed at this stage. A court violates the Due Process and Equal Protection Clauses if it fails to inquire into whether a probationer has made a bona fide effort to pay a fine before revoking probation or if it fails to consider alternative punishments to imprisonment for an indigent probationer. Bearden, 461 U.S. at 672-73. Requiring an indigent defendant to choose between immediate payment of a fine or a fixed jail term is unconstitutional. Frazier v. JordCfn, 457 F.2d 726, 726 (5th Cir. 1972). Here, the Municipal Court made no inquiry into Mr. Carter's ability to pay. And it sentenced Mr. Carter to jail without regard to his alleged indigency. The Municipal Court' violated Mr. Carter's Bearden rights. If a jury finds that the City, JCS, and Kloess caused the violation, they are liable.
(ii) Failure to Inform Mr. Carter also alleges that that JCS violated his due process rights by failing to inform him of his Bearden rights. That claim fails because JCS owed Mr. Carter no duty to inform him of his procedural rights. Mr. Carter correctly notes that when procedures for redress are not publicly available, a governmental entity must inform a person of those procedures before depriving him of a protected interest. See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 12-14 & n.14 (1978). But he fails to address a major limit to the Memphis Light requirement: where procedures are publicly available, the Constitution does not require the government to inform a person of his remedial rights. See City of West Covina v. Perkins, 525 U.S. 234, 241-42 (1999) ("While Memphis Light demonstrates that notice of the procedures for protecting one's property interests may be required
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when those procedures are arcane and are not set forth in documents accessible to the public, it does not support a general rule that notice of remedies and procedures is required."). Here, the existence of Bearden rights is a matter of public record. Thus, JCS had no duty to inform Mr. Carter of his rights.
(iii)Right to Counsel Mr. Carter alleges that the City and Mr. Kloess deprived him of his right to adequate counsel. The Sixth Amendment requires the state to provide adequate counsel to an indigent defendant in a proceeding that may result in his immediate imprisonment. Alabama v. Shelton, 535 U.S. 654, 662 (2002). Total denial of counsel at a "critical stage" of a criminal proceeding presumptively prejudices the defendant and violates the Sixth Amendment. Golden v. Newsome, 755 F.2d 1478, 1483 (11th Cir. 1985) (citing United States v. Cronic, 466 U.S. 648,659 (1984)). Here, Mr. Carter had a Sixth Amendment right to appointed counsel because his commutation hearing could- and did-lead to his immediate imprisonment. And Mr. Kloess's absence from the courtroom during the hearing totally denied Mr. Carter representation. Therefore, Mr. Kloess deprived Mr. Carter of his Sixth Amendment right to counsel. E. False Imprisonment JCS argues that Mr. Carter's claim for false imprisonment fails as a matter of law because JCS itself did not arrest or imprison him. That argument is unavailing. "False imprisonment consists in the unlawful detention of the person of another for any length of time whereby he is deprived of his personal liberty." Ala. Code§ 6-5-170. A person responsible for instigating a detention may be held liable only if he persuades or influences officials to imprison the victim and if he acts in bad faith. Dolgencorp, Inc. v. Pounders, 912 So.
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2d 523, 528 (Ala. Civ. App. 2005) (citing Restatement (Second) of Torts§ 45A, cmt. C (1965)). Under Alabama law, arrest and imprisonment cannot be false if made pursuant to a lawful warrant. Goodwin v. Barry Miller Chevrolet, Inc., 543 So. 2d 1171, 1176 (Ala. 1989).
Mr. Carter cannot succeed on his claims for false imprisonment that he bases on his being arrested, transported to jail, and detained prior to his commutation hearing. Police officers made those arrests and held Mr. Carter pursuant to facially valid warrants. Alabama law does not treat arrest and imprisonment pursuant to a valid warrant as false. See Goodwin, 543 So. 2d at 1176.
The same cannot be said for Mr. Carter's imprisonment following his commutation hearing. At the commutation hearing, the Municipal Court issued an order revoking Mr. Carter's probation- as JCS had requested- and sentencing Mr. Carter to a jail term. Mr. Carter's posthearing imprisonment was thus not pursuant to a warrant and does not fall within the warrant exception. Accordingly, JCS would be liable if it persuaded or influenced the Municipal Court to jail Mr. Carter in bad faith. Mr. Carter has produced enough evidence for a reasonable jury to conclude that JCS persuaded the Municipal Court to jail him because JCS "request[ed] that the probation of [Carter] be revoked," Carter MSJ Evid., Ex. 10, and because JCS knew (or should have known) that Mr. Carter could not pay his fine and would be jailed if the Municipal Court revoked his probation, see JCS Class Evid., Ex. T (showing Mr. Carter's payment history and reasons for missed payments including obligations to his newborn child). And Mr. Carter has produced enough evidence for a reasonable jury to conclude that JCS acted in bad faith in petitioning the court to revoke probation when it knew that probationer had not willfully failed to pay fines and fees.
JCS is not entitled to summary judgment on Mr. Carter's false imprisonment claim.
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F. Statute of Limitations All of the defendants argue that Mr. Carter's§ 1983 claims are time barred. The statute of limitations for § 1983 actions brought in Alabama is two years from when
the plaintiff"knew or should have known of his injury and its cause." Burt v. Martin, 193 F. App'x 829, 830 (11th Cir. 2006); Ala. Code § 6-2-38(1). The statute of limitations, however, may be extended if the defendant engages in a pattern of unlawful conduct. "The continuing violation doctrine permits a plaintiff to sue on an otherwise time-barred claim when additional violations of the law occur within the statutory period." Robinson v. United States, 327 F. App'x 816,818 (11th Cir. 2007).
Mr. Carter filed suit on August 3, 2015; therefore, he may sue under§ 1983 for injuries that accrued before August 3, 2013. Here, Mr. Carter has offered enough evidence for a reasonable jury to conclude that JCS, the City, and Kloess engaged in a continuous series of violations that occurred before and continued past August 3, 2013.
G. Immunity 1. Quasi-Judicial Immunity
JCS argues that it is entitled to quasi-judicial immunity for all of its actions. The City argues that it is entitled to quasi-judicial immunity for claims arising from Montgomery police actions undertaken pursuant to facially valid warrants.
"Quasi-judicial immunity grants protection from suit to officials who are intimately associated with the judicial phase of the criminal process." Washington v. Rivera, 939 F.3d 1239, 1243 (11th Cir. 2019) (quotation marks omitted).
As the Third, Fifth, Sixth, and Eighth Circuits have concluded, quasi-judicial immunity is not available in official capacity suits. See VanHorn v. Oelschlager, 502 F.3d 775, 779 (8th Cir.
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2007) (collecting cases); see also Kentucky v. Graham, 473 U.S. 159, 167 (1985) (holding that in official capacity suits only defenses available to the entity qua entity are available). While judicial immunity for individual judicial officers flows from deep-rooted tradition, there are not comparable traditions of immunity for municipalities or their equivalent contractors. Cf Owen v. City of Independence, 445 U.S. 622, 637-38 (1980) (comparing lack of qualified immunity tradition for municipalities with tradition of absolute immunity for judges). That distinction also makes sense as a matter of policy. Courts worry that imposing individual liability on government officials may cause them "to act with an excess of caution," Forrester v. White, 484 U.S. 219, 223 (1988), but the same concerns do not exist for governments qua governments especially when a plaintiffmust overcome Mone/l's requirements to proceed, see Kentucky v. Graham, 473 U.S. 159, 166---67 ( 1985).
As they cannot point to a statutory or common law entitlement to quasi-judicial immunity, JCS and the City are amenable to suit.
2. Qualified Immunity JCS and Mr. Kloess argue that they are entitled to qualified immunity from Mr. Carter's suit. Neither is immune. A government official sued in his individual capacity for performing a discretionary function is immune from civil liability unless his actions violated clearly established law. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Once a defendant shows that he acted within his discretionary authority, the plaintiff bears the burden of showing that the relevant law has been clearly established. Leslie v. Hancock Cty. Bd. ofEduc., 720 F.3d 1338, 1345 (11th Cir. 2013). Law is clearly established if a reasonable actor would have "fair warning" that his actions were unconstitutional. Id. (emphasis omitted). A plaintiff may point either to a "materially similar"
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fact-bound precedent or to "a broader, clearly established principle" that is so clear that "every objectively reasonable government official facing the circumstances would know that the official's conduct did violate federal law when the official acted." Id
(i) JCS Under settled law in this Circuit, a private entity performing traditional municipal functions is not entitled to qualified immunity when sued in its official capacity. Swann v. S. Health Partners, Inc., 388 F.3d 834, 83 7 (11th Cir. 2004), abrogated on other grounds by Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010). Just as JCS cannot claim quasi-judicial immunity in an official capacity suit, it cannot claim qualified immunity either.
(ii) Mr. Kloess Mr. Kloess ·argues that he is entitled to qualified immunity because his decision about whether to seek an indigency hearing was a "judgment call." Kloess's Br. 15-16. Mr. Kloess fails to contest that the rights he violated were clearly established. He does not speak to the legality of his actions in the context of qualified immunity until his reply brief. See Kloess's Reply Br. 3-6 (ECF No. 291). And in the reply brief, he expressly "stands on his initial brief' on "whether [he] is entitled to assert qualified immunity. Id at 2. Even if Mr. Kloess's efforts in his reply brief to contest the merits could be read to argue that Mr. Carter's rights were not clearly established, "[a] party normally waives its right to argue issues not raised in its initial brief." McGinnis v. Ingram Equip. Co., 918 F.2d 1491, 1496 (11th Cir. 1990). Moreover, assuming that Mr. Kloess had properly raised the argument, his actions violated Mr. Carter's clearly established rights. A defense attorney may not absent himself from a critical stage in his client's proceedings. See Golden, 755 F.2d at 1483; see also supra Section III.2.D.(iii). Case law has settled that point. See Cronic, 466 U.S. at 654 ("If no actual 'Assistance' 'for' the
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accused's 'defence' is provided, then the constitutional guarantee has been violated."). No reasonable attorney could believe that he adequately represented his client by absenting himself from a hearing at which a court jailed his client. Although no case in this Circuit has held an attorney liable under parallel facts, Mr. Carter need not point to fact-bound case precedent when cases have clearly established the broader right to counsel. See White v. Pauly, 137 S. Ct. 548, 551 (2017); Leslie, 720 F.3d at 1345. And to the extent that Mr. Kloess's reply brief can be read to argue that existing case law has not clearly established a public defender's liability for depriving a defendant of his right to counsel, such an argument misses the point. Qualified immunity analysis asks if a right has been clearly established not if another court has applied the same remedy to vindicate a violation of that right. That distinction accords with qualified immunity's core rationale - preventing public officials from discharging their duties with uridue timidity. The doctrine avoids chilling a public official taking acts that might violate another's rights. When, however, an action will violate another's rights, tort liability should deter a public official from taking that action regardless of whether the official is certain that he can be sued. The immunity is qualified and not absolute precisely because public officials should exercise restraint before knowingly violating a clearly established right.
Mr. Kloess is not entitled to qualified immunity because his actions, if proven, violated clearly established law. 7 See supra Section III.D.2.(iii). IV. CONCLUSION
Based on the foregoing, by separate written order the Court will:
7 Mr. Carter argues that public defenders are not the type of public officials whom qualified immunity shields. The Court need not answer whether a public defender may claim qualified immunity in these circumstances; assuming the doctrine applies, Mr. Kloess's actions violated Mr. Carter's clearly established Sixth Amendment rights.
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• grant the City's motion as to Counts Three and Seven, grant the City's motion as to Counts One, Five, and Nine for all events before July 16, 2012, grant the City's motion as to Counts One and Nine for all claims alleging a conspiracy between the City and JCS and for claims basing liability solely on the JCS-City contract, grant the City's motion as to Count One for all claims related to operation of the magistrates' windows in the Municipal Court, and deny the City's motion as to Counts One, Five, and Nine in all other respects;
• grant CHC's motion; • grant JCS's motion as to Counts Four, Six, Eight, and Twelve, grant JCS's motion
as to Counts Two and Ten for all claims alleging a conspiracy between the City and JCS, grant JCS's motion as to Count Two for all claims alleging that JCS failed to inform Mr. Carter of his rights, grant JCS's motion as to Count Two for all claims alleging that JCS unlawfully charged probation fees, grant JCS's motion as to Count Fourteen for any claims arising from arrest or detention before commutation, and deny JCS's motion as to Counts Two, Six, Ten, and Fourteen in all other respects; and, • deny Mr. Kloess's motion.

Date: _ _1f_:1~/ ~""~Ld

Royce C. Lamberth United States District Judge

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 Case 2:15-cv-00555-RCL-SMD Document 296 Filed 07/17/20 Page 1 of 46

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

ALDARESS CARTER, individually and

)

for a class of similarly situated persons,

)

)

Plaintiff,

)

)

v.

)

)

THE CITY OF MONTGOMERY, et al., )

)

Defendants.

)

Case No. 2:15-cv-555-RCL

ORDER Pursuant to Federal Rule of Civil Procedure 60(a), the Court sua sponte corrects its Memorandum Opinion of July 7, 2020 (ECF No. 293), nuncpro tune, by substituting the attached opinion. This correction replaces the docket number of an order cited on page 17 of the original slip opinion, which erroneously cited ECF No. 207 instead of ECF No. 203. IT IS SO ORDERED.

Date: - -- - - -

oyce C. Lamberth
United States District Court Judge

Case 2:15-cv-00555-RCL-SMD Document 296 Filed 07/17/20 Page 2 of 46

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

ALDARESS CARTER, individually and

)

for a class of similarly situated persons,

)

)

Plaintiff,

)

)

v.

)

)

THE CITY OF MONTGOMERY, et al., )

)

Defendants.

)

Case No. 2:15-cv-555-RCL

CORRECTED MEMORANDUM OPINION For years, the Municipal Court in Montgomery, Alabama engaged in a systemic practice of jailing traffic offenders for failing to pay fines without inquiring into their ability to pay; In carrying out that system, the Municipal Court deprived offenders of their due process and equal protection rights not to be incarcerated for their poverty. Bearden v. Georgia, 461 U.S. 660, 67273 (1983). This case concerns the liability of the City of Montgomery and its contractors for their involvement in this system. The City of Montgomery entered a contract on behalf of itself and its Municipal Court with Judicial Correction Services, Inc. ("JCS"). 1 Under the contract, JCS supervised misdemeanor probation for those on Municipal Court-ordered probation from June 2009 through June 2014. The City also contracted with Branch D. Kloess to serve as a part-time public defender in the Municipal Court.

1 In 2011, CHC Companies, LLC and Correctional Healthcare Companies, Inc. (together "CHC") and JCS engaged in a reverse triangular merger, by which JCS became a wholly owned subsidiary ofCHC.
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Plaintiff Aldaress Carter served probation with JCS when he was unable to pay his traffic tickets. After Mr. Carter missed probation appointments and failed to make payments, JCS petitioned the Municipal Court to revoke his probation. Without assessing his ability to pay, the Municipal Court "commuted" Mr. Carter's fines to jail time and imprisoned him. Mr. Kloess represented Mr. Carter at his commutation hearing but was not physically in the courtroom for the hearing.
Mr. Carter spent four days in the city jail. He earned a $50 credit against his fines for each day of incarceration and was released when his mother borrowed money to pay the balance of his fines.
Mr. Carter sued the City, JCS, its parent company CHC, and Kloess on behalf of himself and a purported class of similarly situated individuals. His operative complaint seeks damages under 42 U.S.C. § 1983 and two state law causes of action.
The City (ECF No. 252), CHC (ECF No. 255), JCS (ECF No. 258), and Mr. Kloess (ECF No. 263) moved for summary judgment against Mr. Carter under Rule 56 of the Federal Rules of Civil Procedure.
Their motions present seven major questions: 1. Does the Rooker-Feldman doctrine deny the Court jurisdiction to hear Mr. Carter's claims? 2. Does Humphrey v. Heck deny Mr. Carter a cause of action under § 1983? 3. Is CHC liable for JCS's actions? 4. Are defendants potentially liable under § 1983? 5. Did Mr. Carter validly state a claim for false imprisonment under Alabama law? 6. Are Mr. Carter's claims time barred?
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7. Are any of the defendants entitled to qualified or quasi-judicial immunity? For the reasons discussed below, the Court holds that:
1. The Rooker-Feldman doctrine denies the Court jurisdiction to hear Mr. Carter's unjust enrichment claim but not his § 1983 and false imprisonment claims;
2. Humphrey v. Heck does not deny Mr. Carter a cause of action under § 1983; 3. CHC is not liable for JCS's actions; 4. Defendants are potentially liable under§ 1983, except that JCS and the City are not
liable for conspiracy, JCS is not liable for failing to inform Mr. Carter of his rights, and the City is not liable for harms arising from the so-called "window procedure" or for harms arising before it was on notice of JCS's practices; 5. Mr. Carter states a valid claim for false imprisonment under Alabama law, but only for imprisonment following his commutation hearing; 6. Mr. Carter's claims are not time barred; and, 7. None of the defendants are entitled to qualified or quasi-judicial immunity. Upon consideration ofthe motions, briefs, statements and counter-statement ofuncontested facts, and evidentiary submissions, as well as all other papers of record, the Court will: • grant the City's motion as to Counts Three and Seven, grant the City's motion as to Counts One, Five, and Nine for all events before July 16, 2012, grant the City's motion as to Counts One and Nine for all claims alleging a conspiracy between the City and JCS and for claims basing liability solely on the JCS-City contract, grant the City's motion as to Count One for all claims related to operation of the magistrates' windows in the Municipal Court, and deny the City's motion as to Counts One, Five, and Nine in all other respects;
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• grant CHC's motion;
• grant JCS's motion as to Counts Four, Six, Eight, and Twelve, grant JCS's motion as to Counts Two and Ten for all claims alleging a conspiracy between the City and JCS, grant JCS's motion as to Count Two for all claims alleging that JCS failed to inform Mr. Carter of his rights, grant JCS's motion as to Count Two for all claims alleging that JCS unlawfully charged probation fees, grant JCS's motion as to Count Fourteen for any claims arising from arrest or detention before commutation, and deny JCS's motion as to Counts Two, Six, Ten, .and Fourteen in all other respects; and,
• deny Mr. Kloess' s motion. A separate order accompanies this memorandum opinion.
I. BACKGROUND
A. Factual Background2 1. Fines and Probation in Montgomery (i) The Municipal Court
The City has a Municipal Court to adjudicate misdemeanors and traffic offenses. Ala. Code §§ 12-12-32, 12-12-51, 12-14-1. The Municipal Court is part of the state judiciary, see Ala.
2 For convenience, the Court uses the following short forms throughout this opinion to cite to evidence in the Rule 56 record. Citations to "City Evid." refer to Evid. Submissions Supp. City's Mot. Sum. J. (ECF No. 253). Citations to "Carter Evid." refer to Evid. Submissions Supp. Pl.'s Opp'n to Mots. Summ. J. (ECF No. 278). Citations to "Cater MSJ Evid." refer to Pl.'s Evid. Submissions Supp. Pl.'s Partial Mots. Summ. J. (ECF No. 73). Citations to "Carter Class Evid." refer to Pl. 's Submission of Evid. Matters Supp. Mot. Class Certification (ECF No. 118). Citations to "Carter CHC Evid" refer to Pl.'s Evid. Submission Opp'n CHC's Mot. Summ. J. (ECF No. 272). Citations to "JCS Evid." refer to Evid. Submission Supp. JCS's Renewed Mot. Summ. J. (ECF No. 262). Citations to "JCS Class Evid." refer to Evid. Submission Supp. JCS's Opp'n to Pl.'s Mot. Class Certification (ECF No. 163). Citations to "CHC Evid." refer to Evid. Submission Supp. CHC's Mot. Summ. J. (ECF No. 257). Citations to Kloess Evid. refer to Evid. Submission Supp. City's [sic] Mot. Summ. J. (ECF No. 265). The Court cites to depositions and declarations without reference to the evidentiary compilation in which they appear; it references docket only in the first citation to a deposition or declaration.
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Const. art. VI, § 145, so the City cannot control proceedings in the Municipal Court, see Ala. Const. art. III,§ 42(c). But the City appoints the judges, Ala. Code§ 12-14-30; the mayor appoints the presiding judge, id., and the mayor may remit fines and costs payable to the City, id. at§ 1214-15. And the City must "provide appropriate facilities and necessary supportive personnel for the municipal court and may provide for probation services, clerks and municipal employees designated as magistrates." Id. at§ 12-14-2. The City must also provide indigent defense in its Municipal Court. Id. at§ 12-14-9. At the same time, the Municipal Court sets its own internal procedures, including those for processing traffic tickets.
During the time JCS operated probation service in Montgomery, the Municipal Court processed traffic tickets in one of two ways. When a person received a traffic ticket, the ticket
a required him to appear in the Municipal Court on given date. See Nixon Dep. 42: 16-23 (Apr.
18, 2014) (ECF No. 73-1) ("2014 Nixon Dep."). If the offense had a pre-set (scheduled) fine, court staff directed the appearing defendant to a magistrate's window. Id. at 45:16-21. The defendant could plead not guilty and receive a hearing before a judge or could plead guilty and pay the fine. Id. at 46:11-47:3; see also Ala. R. Jud. Admin. 20. If the offense did not have a scheduled fine, court staff required the defendant to appear before a judge. 2014 Nixon Dep. 52: 16. Once the defendant pleaded or was found guilty, the Municipal Court imposed a fine.
If a defendant could not afford to pay his fine, the Municipal Court could offer the defendant more time to pay. For small fine~, Municipal Court policy authorized a magistrate to grant a thirty-day extension for fines of up to $250. 2014 Nixon Dep., Ex. 11. For defendants with higher fines or who needed more time to pay, the Municipal Court made payment plans available through JCS probation, id., purportedly under its statutory power to suspend a sentence and place a defendant on probation for up to two years, see Ala. Code § 12-14-13. A magistrate
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could place certain defendants - those who owed less than $1,500 and who were either not already on probation with JCS or in good standing with JCS - on JCS probation pursuant to a general order.3 2014 Nixon Dep., Ex. 11; see also id at 140:13-16. The Municipal Court required defendants who could not pay a fine of more than $1,500 to appear before a judge. Id at Ex. 11; see also id at 151:1-7, 12-23.
(ii) JCS Probation JCS provided for-profit probation services for courts throughout Alabama. Ray Dep. 57:19-21 (ECFNo. 73-3). During the years at issue here, the City contracted with JCS to provide probation to Municipal Court offenders. City Evid., Ex. 11, 12; Carter Evid., Ex. 13 at 2. Their contract ran for an initial term of one year arid automatically renewed 'for subsequent one-year terms unless either party gave notice that it would not renew. City Evid., Ex. 12 at 5. The City's contract with JCS controlled the terms under which JCS could provide probation. For example, it provided that JCS must maintain case files on probationers and specified a maximum staff-to-probationer ratio. Id at 3. The contract, though, did not facially require the Municipal Court to use JCS for probation services. And other than a provision that mandates JCS to "supervise indigent cases when determined by the [Municipal] Court" without charging probation fees, the contract is silent as to indigency determinations. Id at 2. JCS does not charge courts or cities for their probation. Id at 4. Rather, JCS operates on an offender-paid model. Under the City-JCS contract, JCS charged probationers $40 per month in addition to a $10 one-time fee at the onset of probation. Id.
3 The parties refer to magistrate-initiated probation as the window procedure. The window procedure offered no formal opportunity for a determination of the probationer's ability to pay. 2014 Nixon Dep., Ex. 11.
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JCS's services consisted "primarily" of facilitating extended payment plans. 2014 Nixon Dep. 139:2-3. JCS would not petition to revoke probation the first time a probationer missed a payment or an appointment. Ray Dep., Ex. 2 at p. 4.26. Instead, JCS would allow the delinquent probationers to continue on probation - and to continue accruing monthly fees - under more onerous conditions. JCS required probationers who made their monthly payments in full to appear at a JCS office once a month. City Evid., Ex. 12 at 3. For those probationers who could not keep up with monthly payments, however, JCS required them to appear more frequently- up to several times each week. See Carter Dep. 84:15-16 (Sept. 14, 2018) (ECF No. 163-14) ("2018 Carter Dep."); City Evid., Ex. 12 at 3. And when a probationer could not afford to make a payment in full, JCS determined how much of the partial payment to apportion to fines and to probation fees. See Carter Evid., Ex. 28 at 2.
Once placed on probation, a probationer made all payments through JCS. JCS provided the probationers with information about their cases and fines. And JCS instructed probationers when they first reported for probation not to "contact the Municipal Court" because "they will be unable to help you." Carter Evid., Ex. 23.
Over the term of its contract with the City, JCS collected more than $15.5 million in fees. See Carter Evid., Ex. 32. It also collected more than $14.6 million in fines for the City. See id.
(iii)Revocation and Commutation When a probationer could not make payments or missed appointments, JCS would petition the Municipal Court to revoke probation. JCS's standard-form petition did not allege that the probationer willfully failed to pay. Carter MSJ Evid., Ex. 10. And despite JCS's claims that it never asked the Municipal Court to revoke a probation, the standard-form petition "respectfully requests that the probation of the Defendant be revoked and that this Honorable Court issue a
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warrant for the arrest of said defendant, if necessary ...." See, e.g., City Evid., Ex. 23. Once JCS filed a petition, either JCS or the Court would serve the probationer with a notice to appear at an initial revocation hearing. Nixon Dep. 233: 16-23 (Sept. 16, 2019) (ECF No. 278-20) ("2019 Nixon Dep.").
If a probationer appeared at his revocation hearing, the Municipal Court would determine whether to revoke his probation. Hayes Dep. 22:8-16 (ECF No. 73-2). When the Municipal Court revoked a probation, it would "commute" the probationer's fines into a jail term: the offender would "sit out" his fine at the rate of $50 per day. See id. at 9: 16-10:3. If a probationer failed to
appear, the Municipal Court would issue a warrant for his arrest. See Nixon Deel. at ,r 85 (ECF
No. 253-3). Once the police executed that warrant and arrested the probationer, they would bring
him before the Municipal Court for a commutation hearing. See id. at ,r,r 88, 91, "99. Commutation
hearings and revocation hearings proceed in similar ways - the judge determined whether to transform the fine into a jail sentence- except that JCS did not directly participate in commutation hearings. See Hayes Dep. 18:9, 13-14 ("The end result is the same.").
At revocation and commutation hearings, the Municipal Court routinely failed to inquire as to whether a defendant could pay his fines before sentencing him to jail time. In re Hayes, No. 49, slip op. at 2-3 (Ala. Ct. Judiciary Jan. 5, 2017). Though the Alabama court system has created a standard form to allow defendants to show their indigency, the Municipal Court did not use that form. 2014 Nixon Dep. 88:4-12. And the Municipal Court judges did not tell defendants that they could not be jailed if they could not afford to pay their fines. See Hayes Dep. 40:10-14. The Municipal Court's conduct was so egregious that the Alabama Court of the Judiciary suspended Municipal Court Presiding Judge A. Lester Hayes III from the bench for eleven months for failing to conduct indigency hearings and for other ethics violations stemming from the Montgomery
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probation system. In re Hayes, slip op. at 2-7. In addition, the Municipal Court judges agreed in settling a lawsuit challenging its traffic ticket procedures to refrain from incarcerating defendants for inability to pay. See Mitchell v. City of Montgomery, No. 2:14CV186-MHT, 2014 WL 11099432, at *2-3, 5-10 (M.D. Ala. Nov. 17, 2014). They also agreed to train themselves, court staff, and public defenders to protect defendants' rights not to be jailed for inability to pay. Id
Likewise, JCS did not formally assess whether a probationer could afford to pay his fines.
Hamby Deel. at ,r 33 (ECF No. 163-2). But JCS kept records of its probationers' employment
statuses, including when probationers were unemployed or relied on government benefits as their sole source of income. Carter Class Evid., Ex. 13. At least 217 probationers whom JCS listed as unemployed, disabled, or receiving Supplemental Security Income benefits served jail time after the Municipal Court revoked their probation. Compare id (listing probationers' sources of income) with Carter Class Evid., Ex. 10 (listing probationers who served jail terms).
(iv) The City's Knowledge The parties dispute when the City became aware of JCS's allegedly unlawful conduct. Mr. Carter suggests several points at which the City became aware or should have become aware of how JCS operated:
• On May 9, 2009, when Municipal Court Administrator Ken Nixon, who also served in the Mayor's Cabinet, informed the Mayor that the JCS probation program had been "implemented as planned." Carter Evid., Ex. 15 Mr. Nixon reported both to the Presiding Judge of the Municipal Court and the Mayor. 2014 Nixon Dep. 35:11-14. He claims that he only shared and received information with the Mayor; Mr. Nixon testified that the Mayor did not supervise him. See 2019 Nixon Dep. 45:6-11, 46:19-23 (ECFNo. 253-27).
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• On July 16, 2012, when Mr. Nixon received an email from JCS notifying him of a lawsuit challenging JCS's probation operations for the Harpersville Municipal Court. Carter Evid., Ex. 38. The complaint alleged that JCS engaged in many of same the practices in Harpersville and Montgomery including petitioning for probation revocation for indigent probationers. See id.
• On January 16, 2013, when Mr. Nixon received a subpoena from the plaintiffs in Thurman v. Judicial Correction Services for Municipal Court probation orders. Carter Evid., Ex. 38. The Thurman complaint alleged that JCS unlawfully collected probation fees in Montgomery. See Am. Compl. 10-14 (ECF No. 4), Thurman v. Judicial Correction Services, No. 2:12-cv-724-RDP (M.D. Ala. 2012).
In contrast, the City claims not to have been aware ofhow JCS operated until shortly before it terminated its contract with JCS. See City's Reply Br. 19 (ECF No. 283).
The City did not supervise JCS's operations. Strange Dep. 100:1-8 (ECF No. 278-35). (v) Public Defenders
Alabama requires municipalities that operate municipal courts to provide counsel to indigent defendants. Ala. Code § 12-14-9. The City purported to meet that obligation through a pair of contracts - one with Mr. Kloess and one with a small Montgomery law firm. See Second Am. Compl., Ex. 2 (ECF No. 145-2); Kloess Dep. 67:9-14 (ECF No. 265-1). Each public defender worked in the Municipal Court every other day, Kloess Dep. 79:23-80:4, representing every defendant who had been jailed prior to his court appearance, see id. at 104:16-19. The City paid the defenders an hourly rate. Id. at 69:4-6. It received invoices from the defenders every two weeks, listing the number of hours the defenders worked but not the number of clients or cases they handled. Id. at 72: 19-23.
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The defenders handled an enormous caseload. Over the course of 2012, Mr. Kloess
handled 16,436 cases over 127 days in court. Parrish Deel. at ,r 14 (ECF No. 278-1). Many

defendants appeared for multiple cases, so Mr. Kloess represented fewer individuals than cases.

Id.

Although many of Mr. Kloess's clients were poor, he does not provide evidence that he

routinely asked the Municipal Court to consider their inability to pay fees. Mr. Kloess testified

that he has requested indigency determinations for some clients, but he was unable to name a single

client for whom he had requested such a hearing. Kloess Dep. 163: 1-11. He does not remember

ever filing a written motion for an indigency hearing. Id. at 171: 18-21.

2. Mr. Carter

In May 2011, a Montgomery 'police officer arrested Mr: Carter on outstanding warrants for

failure to appear in the Municipal Court on several traffic tickets. 2018 Carter Dep. 68:7-10. Mr.

Carter spent a night injail and then appeared in court. Id. at 70:21-22. He could not afford to pay

his fines, so the judge offered him a choice between further incarceration and JCS probation. Id.

at 72:1-2. Mr. Carter elected to go on probation with JCS. Id. at 73:14-15. The probation order

required Mr. Carter to pay $140 per month. Carter MSJ Evid., Ex. 17 (ECF No. 73-17). Mr.

Carter made his first monthly payment in full but was never again able to pay the full amount due

in any month. 2018 Carter Dep. 118:9-12. Over nineteen months on probation with JCS, Mr.

Carter made a total of $833 in payments. Pl. 's Reply to CHC's Opp'n to Mot. Class Certification,

Ex. 3 at 10-11 (ECF No. 174-3). JCS allocated $460 of those payments to fines and kept the rest

.

.

as probation fees. Id. During those nineteen months Mr. Carter attended sixty-six JCS

appointments and missed fifty-seven. Id. at 8-10. Eventually his payments slowed and, in

November 2012, he missed several meetings and did not make a payment. See id. at 8, 10.

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In December 2012, JCS petitioned the Municipal Court to revoke Mr. Carter's probation for failure to make payments and attend meetings. Carter MSJ Evid., Ex. 10. JCS claims that it gave Mr. Carter notice of the revocation hearing, see Pl.'s Reply to CHC's Opp'n to Mot. Class Certification, Ex. 3 at 2; Mr. Carter claims he never received the notice, 2018 Carter Dep. 125: 1619. Regardless, Mr. Carter did not attend his revocation hearing. City Evid., Ex. 23. He claims that he believed he had completed his probation because a JCS employee told him "You're done Mr. Carter" when he came in to make a payment in late December 2012 or January 2013. See 2018 Carter Dep. 124:2-13. Because Mr. Carter did not appear, the Municipal Court revoked his probation and issued warrants for his arrest. City Evid., Ex. 23.
In January 2014, Mr. Carter was arrested during a traffic stop on ten warrants for failing to appear in court. 2018 Carter Dep. 126:4-6." Seven of the warrants were tied to tickets for which Mr. Carter had been sentenced to JCS probation. Nixon Deel., Ex 5 at 205. Mr. Carter'spent the weekend in jail and then appeared before Judge Hayes. See id. at 205-206.
At the revocation hearing, Mr. Kloess nominally represented Mr. Carter. On the day of the hearing, Mr. Kloess represented sixty-seven individuals over three and one-half hours. Kloess Dep. 133:16-18; Parrish Deel. Ex. C at 9 (ECF No. 278-4). And Mr. Kloess was not in the courtroom at all for Mr. Carter's hearing. Kloess Dep. 132:2-11. Mr. Carter alleges, however, that Mr. Kloess consulted with him briefly and asked him ifhe would "pay or stay." 2018 Carter Dep. 136:4:15. Mr. Carter told Mr. Kloess that he would pay. Id. at 136:17.
But Mr. Carter could not pay his fines at the revocation hearing. His girlfriend brought $120 - all but $20 of Mr. Carter's liquid assets - to the Municipal Court. Id. at 137:11-22; Carter Dep. 352:20-22 (Nov. 7, 2019) (ECF No. 262-3) ("2019 Carter Dep."). Judge Hayes rejected that proffered payment and sent Mr. Carter back to jail. Id. at 138:1-15. Judge Hayes
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never asked Mr. Carter why he had not paid his fines. 2019 Caiier Dep. 373:3-7. If he had

inquired, he would have learned that Mr. Carter could not afford to pay much: when he appeared

before Judge Hayes, he netted $300 per week from his job. 2018 Carter Dep. 221: 10-11.

Municipal Court paperwork indicates that Judge Hayes commuted to jail time the fines

from tickets underlying the seven JCS warrants; he gave Mr. Carter additional time to pay the

tickets underlying the other three warrants. Nixon Deel., Ex 5 at 204-05. Four days after his arrest

(and one day after his commutation), Mr. Carter was released from jail when his mother borrowed

enough money to pay his remaining fines. Id. at 206; 2018 Carter Dep. 138:22-23.

3. The JCS-CHC Merger

In September 2011, CHC and JCS engaged in a reverse triangular merger. Carter MSJ

Evid.; Ex. 21. CHC formed a 'new, wholly owned subsidiary Judicial Merger Sub, Inc., which

merged with JCS. Id. JCS survived the merger with the subsidiary, and, as part of the transaction,

CHC paid cash to acquire all outstanding shares of JCS stock. Id. at 9-11.

While CHC planned to integrate JCS into CHC, that integration never occurred. See

Houston Dep. 35: 16-36:2 (ECF No. 73-16).

B. Procedural History

This action has been pending for nearly five years. Mr. Carter filed this lawsuit in August

2015 against the City and Mr. Kloess. See Compl. (ECF No. 1). He subsequently amended the

complaint, naming JCS and CHC and alleging fourteen causes of action under the Racketeer

Influenced.and Corrupt Organizations Act and § 1983.

All four defendants moved to dismiss the .

complaint. The Court dismissed Mr. Carter's RICO causes of action but allowed his § 1983 claims

to proceed. See Carter v. City ofMontgomery, No. 2:15-CV-555 (RCL), 2017 WL 957540, at *5-

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Case 2:15-cv-00555-RCL-SMD Document 296 Filed 07/17/20 Page 15 of 46

6 (M.D. Ala. Mar. 10, 2017). The Court then granted Mr. Carter's motion to file a second amended

complaint. Order (Aug. 28, 2018) (ECF No. 143); Second Amended Complaint (ECF No. 145).

That filing is the operative complaint for these motions. It initially alleged fifteen causes

of action:

• Count One: denial of due process under § 1983 against the City and Kloess;

• Count Two: denial of due process under § 1983 against JCS and CHC;

• Count Three: violation of the Fourth Amendment under§ 1983 against the City;

• Count Four: violation of the Fourth Amendment under § 1983 against JCS and

CHC;

• Count Five: violation of the Sixth Amendment under§ 1983 against the City;

.

'

• Count Six: violation of the Sixth Amendment under§ 1983 against JCS and CHC;

• Count Seven: violation of the Eighth Amendment under§ 1983 against the City;

• Count Eight: violation of the Eighth Amendment under § 1983 against JCS and

CHC;

• Count Nine: denial of equal protection under § 1983 against the City;

• Count Ten: denial of equal protection under § 1983 against JCS and CHC;

• Count Eleven: money had and received against the City;

• Count Twelve: money had and received against JCS and CHC;

• Count Thirteen: false imprisonment against the City;

• Count Fourteen: false imprisonment against JCS and CHC; and,

• Count Fifteen: declaratory and injunctive relief to invalidate the City-JCS contract

against the City and JCS.

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Second Am. Compl. 28-79. Mr. Carter moved for partial summary judgment on count fifteen (ECF No. 164); the Court denied that motion and ordered the count dismissed for lack of subjectmatter jurisdiction. See Order 15 (Mar. 29, 2019) (ECF No. 203). The City moved for judgment on the pleadings (ECF No. 200) and to dismiss counts eleven and thirteen (ECF No. 148); the Court held that the Rooker-Feldman doctrine barred it from considering Mr. Carter's unjust enrichment claim against the City, Order 15 (Mar. 29, 2019) (ECF No. 203), and that the City is immune from claims for intentional torts, see Carter v. City of Montgomery, No. 2:15-CV-555 (RCL), 2019 WL 1440284, at *5 (M.D. Ala. Mar. 29, 2019). Accordingly, the Court dismissed counts eleven and thirteen. See Order (Mar. 29, 2019) (ECF No. 207). But it also held that Mr. Carter had plausibly alleged that the City was the moving force behind his injuries and denied the City's motion for judgment on the pleadings. Carte'r, 2019 WL 1440284, at *4. JCS has moved for summary judgment once before (ECF No. 183). The Court denied that motion without prejudice, allowing time for further discovery. Order 2 (ECF No. 214). Accordingly, Counts One through Ten, Twelve, and Fourteen are currently before the Court.
Finally, the Court denied without prejudice Mr. Carter's motion for class certification, reserving the question until after it has addressed dispositive motions. Order 1 (Mar. 29, 2019) (ECF No. 204). And so, although the Court notes that the parties have conducted wide-ranging discovery, only Mr. Carter's individual claims are before the Court. II. LEGAL STANDARDS
The Court grants summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. The movant bears the burden of showing its entitlement to summary judgement; the movant, however, ni.ust simply show that the non-movant has not produced enough evidence to meet his burden at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
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In determining whether material facts are in dispute, the Court construes facts and makes inferences in favor of the non-moving party. Scott v. Harris, 550 U.S. 372,379 (2007). "[W]hen conflicts arise between the facts evidenced by the parties, we credit the nonmoving party's version." Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005) (emphasis omitted). Facts, however, are disputed only if a reasonable jury could believe either side of the dispute. See Scott, 550 U.S. at 380. A fact is material if it is necessary to the Court's decision. See United • States v. Gilbert, 920 F.2d 878, 883 (11th Cir. 1991). III. ANALYSIS
A. Rooker-Feldman Doctrine The City and JCS argue that the Rooker-Feldman doctrine deprives the Court of
jurisdiction to adjudicate Mr. Carter's claims. Rooker-Feldman is a narrow jurisdictional doctrine that prohibits federal district courts
from reviewing of state court judgements. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 293 (2005); see also District of Columbia Court ofAppeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). Congress has conferred jurisdiction to review state court judgments only on the Supreme Court. See 28 U.S.C. 1257; see also Exxon Mobil, 544 U.S. at 283-84. Because of that jurisdictional limit, Rooker-Feldman deprives federal courts of jurisdiction over an issue that is "inextricably intertwined" with a state court judgment. Alvarez v. Att'y Gen., 679 F.3d 1257, 1262-63 (11th Cir. 2012). An issue is inextricably intertwined with a state court judgment when the federal claim cannot succeed without "effectively nullify[ing]" the state court judgement or requiring the conclusion that the state court wrongly decided its case. Id. Federal trial courts, however, may review claims that are independent of state judgements, even if those claims have previously been litigated in state courts. Exxon Mobil, 544 U.S. at 293.
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1. Unjust Enrichment Claim JCS argues that the Court lacks jurisdiction to decide Mr. Carter's unjust enrichment claim. The Court previously ruled that the Rooker-Feldman doctrine deprived it of jurisdiction to adjudicate Mr. Carter's unjust enrichment claim against the City. See Order 3-5 (Mar. 29, 2019) (ECF No. 203). For the same reasons, Mr. Carter's unjust enrichment claim against JCS must fail.
2. Section 1983 Claims The City argued in its motion for judgment on the pleadings that the Rooker-Feldman doctrine barred Mr. Carter's § 1983 claims. The Court rejected that argument, holding that "Mr. Carter's [§] 1983 claims do not challenge the merits of the Municipal Court's decisions nor the bases on which those judgments were reached. These claims challenge only the post-judgment probationary program." Carter, 2019 WL 1440284, at *1 n.l. Nevertheless, the City renews its argument here and JCS joins it. Defendants' Rooker-Feldman argument could succeed only if Mr. Carter challenged the Municipal Court's judgment. But Mr. Carter does not. Rather, his claims rest on the judgment. Without that judgment and without the probation order, Mr. Carter would have no claim against the City or JCS. Cf VanderKodde v. Mary Jane M Elliott, P.C., 951 F.3d 397,407 (6th Cir. 2020) (Sutton, J., concurring). Because Mr. Carter does not seek to overturn the Municipal Court's orders, Rooker-Feldman does not deprive the Court ofjurisdiction to decide his § 1983 claims. Thurman v. Judicial Correction Servs., Inc., 760 F. App'x 733 (11th Cir. 2019), which held that federal courts may not adjudicate efforts to void the JCS-City of Montgomery contract and recover probation fees in restitution, id at 737, does not deny the Court jurisdiction. In Thurman, the parties tried to invalidate the Municipal Court's orders, implicating Rooker-Feldman's core concern. Here, the remaining claims assume that the Municipal Court's orders are valid and seek
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damages arising from those orders and the policies they implemented. Carter, 2019 WL 1440284, at *1 n.1. If Mr. Carter won the full relief he seeks, nothing would disturb the validity of his convictions. Therefore, Rooker-Feldman does not deny the Court jurisdiction to hear the bulk of Mr. Carter's § 1983 claims.
To the extent, however, that Mr. Carter seeks through§ 1983 to recover probation fees paid to JCS, the Court lacks jurisdiction to decide those claims for the same reason it may not decide his unjust enrichment claims. Mr. Carter cannot attack his probation order in federal court.
3. False Imprisonment Claim JCS also argues that the Rooker-Feldman doctrine prevents the Court from considering Mr. Carter's false imprisonment claim. That argument fails for the same reason as JCS' s § 1983 argument: Mr. Carter's false imprisonment claim depends on - rather than challenges - the Municipal Court's commutation order. Mr. Carter alleges that JCS harmed him because JCS acted in bad faith and persuaded the Municipal Court to jail him. Granting relief to Mr. Carter would censure JCS for its actions but not disturb the Municipal Court's order. Accordingly, RookerFeldman poses no barrier to the claim. B. Heck v. Humphrey The City and JCS argue that Mr. Carter lacks a cause of action under § 1983 because the underlying state proceedings did not terminate in his favor. A plaintiff lacks a cause of action under § 1983 if a judgment in favor of plaintiff would necessarily imply the invalidity of an otherwise valid state conviction. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Heck does not apply if a plaintiffs success on a claim would not "necessarily imply that the plaintiffs conviction was unlawful." Id. at 487 n.7. And the rule does not apply to procedural claims. Harden v. Pataki, 320 F.3d 1289, 1295 (11th Cir. 2003).
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The City and JCS argue that Mr. Carter cannot bring his§ 1983 claims because he cannot prevail without implying the invalidity of his Municipal Court convictions. That argument fails. Even if (1) Mr. Carter had been adequately informed of his rights and (2) properly represented and (3) the Municipal Court had conducted a Bearden hearing, Mr. Carter could have been found willfully in violation of his obligation to pay the fine and jailed. Moreover, Mr. Carter does not challenge the underlying conviction - his traffic offenses. Rather, he challenges the procedures used to impose probation and jail him. Therefore, Heck does not deny Mr. Carter a cause of action under§ 1983.
JCS also points to Judge Tjoflat's concurring opinion in Teagan v. City ofMcDonough, 949 F.3d 670 (11th Cir.2020). In Teagan, a motorist sued McDonough and directly challenged orders the McDonough municipal court issued to imprison her in violation of her rights under· the Fourth, Sixth, and Fourteenth Amendments. Id. at 674. Judge Tjoflat wrote separately to explain that he would have dismissed the plaintiffs claims under Heck.4 Id. at 684 (Tjoflat, J., concurring). Judge Tjoflat's analysis would not apply to the plaintiffs' claims, which accept, rather than challenge, the Municipal Court's orders.
C. CHC's Liability Generally, when one company buys the assets of another, it does not assume responsibility
for its debts and liabilities. 15 Fletcher Cyclopedia of the Law of Corporations § 7122 (2019). And a stockholder is generally not liable for the actions of a company in which it owns stock. 13 Fletcher Cyc. Corp.§ 6213. But Mr. Carter seeks to hold CHC responsible for JCS's actions.
4 The majority declined to reach the issue, believing that Heck's applicability presented an open and unnecessary question. Teagan, 949 F.3d at 678.
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CHC and JCS have not actually completed a merger. But Mr. Carter argues that CHC is liable for JCS's actions because JCS and CHC de facto merged and because CHC is a mere continuation of JCS. He also argues that JCS and CHC should be held jointly liable as a single employer. Finalfy, he argues that CHC is liable for JCS's actions because it controlled JCS. None of Mr. Carter's attempts to pierce the corporate veil succeeds.5
The Court must first determine which law governs. Alabama's choice-of-law rules govern state law questions. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941). Under Alabama law, the law of the state of injury determines a tortfeasor's liability. Lifestar Response ofAla., Inc. v. Admiral Ins. Co., 17 So. 3d 200, 213 (Ala. 2009). But because CHC is incorporated in Delaware, Delaware law governs whether CHC and JCS have merged. 6 See Ex parte Bentley, 50 So. 3d 1063, 1070 (Ala. 2010) (following internal affairs doctrine).
Under Alabama law, successor liability may be imposed on a purchasing corporation based on (1) express agreement, (2) de facto merger, (3) a fraudulent attempt to escape liability, or (4) "the transferee corporation [being] a mere continuation of the transferor." Asher v. KCS Int'!, Inc., 659 So. 2d 598, 599 (Ala. 1995).
1. De Facto Merger The de facto merger doctrine provides an exception to the general rule that an asset purchaser is not responsible for the asset seller's liabilities. Two companies have de facto merged when they effectively merge without meeting the statutory requirements for a true merger. "[T]he
5 CHC argues that Mr. Carter forfeited his successor liability argument by not including it in the operative complaint. Mr. Carter alleged is his complaint that CHC "appears to be the successor of JCS, having purchased or otherwise acquired it, continuing to do business as JCS and operating the same." Second Am. Comp!. 3. He further alleged that CHC was responsible for all of JCS's actions. See id. at 4. Those allegations suffice to put CHC on notice that Mr. Carter intended to pursue claims against it. See Resnick v. AvMed, Inc., 693 F.3d 1317, 1324 (11th Cir. 2012). 6 The parties briefed Alabama law, which has a more permissive de facto merger doctrine, but the Court would reach the same outcome under Alabama law.
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elements necessary to create a de facto merger under Delaware law are the following: (1) one corporation transfers all of its assets to another corporation; (2) payment is made in stock, issued by the transferee directly to the shareholders of the transferring corporation; and (3) in exchange for their stock in that corporation, the transferee agreeing to assume all the debts and liabilities of the transferor." Xperex Corp. v. Viasystems Techs. Corp., No. CIV.A. 20582-NC, 2004 WL 3053649, at *2 (Del. Ch. July 22, 2004) (citing Drug, Inc. v. Hunt, 168 A. 87, 96 (Del. 1933)).
Mr. Carter cannot show that the JCS-CHC transaction meets the test's second element. CHC paid in cash not stock when it purchased JCS's assets. Carter MSJ Evid., Ex. 13 at 9-11. Therefore, JCS and CHC have not de facto merged.
2. Mere Continuation A purchaser is a mere continuation of a seller if (1) "[t]here was basic continuity of the enterprise of the seller corporation, including, . . . a retention of key personnel, assets, general business operations and even the ... name," (2) the seller ceases ordinary business operations and winds down, (3) the purchaser assumes all liabilities and obligations necessary to continue the seller's operations, and (4) the purchaser holds itself out as "the effective continuation" of the seller. See Asher, 659 So. 2d at 599-600. The second prong requires the seller to dissolve as an entity. Id. at 600. Mr. Carter cannot point to evidence that JCS dissolved. JCS survived the reverse triangular merger and continued to operate. Indeed, Mr. Carter has repeatedly alleged that JCS exists. See, e.g., Second Am. Compl. ,i 8. Indeed, if JCS had dissolved in 2011, it would not be a proper party to this suit because a dissolved corporation may be continued for only three years to prosecute or defend suits. See Del. Code tit. 8, § 278. Because JCS still exists as a corporation, Mr. Carter's mere continuation theory of liability fails.
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3. Single Employer Test A third veil-piercing theory applies in the context of employee-employer disputes. Two nominally distinct entities may be treated as one under the single employer test if they exhibit "(1) interrelation of operations, (2) centralized control oflabor relations, (3) common management, and (4) common ownership or financial control." Lyes v. City ofRiviera Beach, 166 F.3d 1332, 1341 (11th Cir. 1999). The doctrine originated to ensure that companies cannot structure themselves to evade the National Labor Relation Board's jurisdiction by using different entities to artificially diminish their headcounts. Sakrete ofNorthern California, Inc., 137 NLRB 1220, 1223 (1962). Courts apply the test to labor disputes, see, e.g., Int'! Bhd. ofElec. Workers, Local 613 v. Fowler Indus., Inc., 884 F.2d 551, 553 n.3 (11th Cir. 1989), and employment discrimination claims, see, e.g., Llampallas v.. Mini-Circuits, Lab, Inc.,'163 F.3d 1236, 1244 (11th Cir. 1998). But the test has never been applied outside the context of an employee-employer dispute. Ray v. Judicial Correction Servs., Inc., No. 2:12-CV-02819-RDP, 2018 WL 2130408, at *6 & n.8 (N.D. Ala. May 9, 2018). And Mr. Carter offers no reason to extend it. Indeed, none of the policies underlying the rule suggest it should apply: Mr. Carter can point to no adjudicator who would have jurisdiction or substantive rule that would apply if JCS and CHC were a single employer. CHC and JCS are not a single employer for the purposes of this suit.
4. Control Mr. Carter argues that CHC controlled JCS and is therefore liable for JCS's actions. Because Mr. Carter has not explained how control over JCS could subject CHC to liability, the Court will not reach the question of whether CHC controlled JCS. In the portion of Mr. Carter's brief articulating the control theory, he cites neither a single statute nor a single case for a legal proposition. See Pl.'s Response Br. to CHC's Mot. Summ. J. 29-33 (ECF No. 273). The only
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plausible theory he could have offered is that JCS is an alter ego of C:1fC because CHC excessively controls JCS.
To pierce the veil between two corporations based on "excessive control," a plaintiff must show (1) complete control and domination, (2) misuse of that control, and (3) proximate cause. First Health, Inc. v. Blanton, 585 So. 2d 1331, 1335 (Ala. 1991). Fraud or failure to abide by corporate formalities evinces misuse of control. Econ Mktg., Inc. v. Leisure Am. Resorts, Inc., 664 So. 2d 869, 870 (Ala. 1994).
The record lacks evidence showing that CHC misused whatever control it had over JCS. Mr. Carter points only to evidence that could support the first and third prongs of the excessive control test.
Therefore, a jury could riot conclude that JCS was ·an alter ego of CHC.
* * *
Mr. Carter can offer no reason to hold CHC liable for JCS's actions. Therefore, CHC is entitled to summary judgment on all of Mr. Carter's claims against it.
D. Section 1983 Liability Mr. Carter seeks damages against the City, JCS, and Mr. Kloess under 42 U.S.C. § 1983.
That statue provides a cause of action when a person acting under color of state law deprives another of a federally protected right, privilege, or immunity. The defendants seek summary judgment on the·grounds that they are not subject to suit under § 1983 and that they did not violate Mr. Carter's rights.
The Court will (1) first determine whether the City, JCS, and Mr. Kloess are subject to suit under § 1983 and (2) then proceed to consider whether a jury could find that the defendants violated Mr. Carter's federally protected rights.
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1. Applicability of§ 1983 The City, JCS, and Mr. Kloess argue that they are not subject to liability under § 1983 because (a) they do not have a policy or custom of depriving traffic offenders of their rights and (b) they did not cause Mr. Carter's injuries. Mr. Kloess additionally argues (c) that he did not act under color of law. And the City and JCS argue (d) that they did not engage in a conspiracy to deprive Mr. Carter of his rights.
(i) Policy/Custom As the Supreme Court held in Monell v. Department of Social Services, 436 U.S. 658 (1978), municipalities are liable under § 1983 for deprivations of rights if they (1) legislatively enact an official policy, (2) "acquiesce in a longstanding practice that constitutes the entity's standard operating procedure," or (3) ratify a delegated policy decision. Hoefling v. City ofMiami, 811 F.3d 1271, 1279 (11th Cir. 2016); see Monell, 436 U.S. at 694. A plaintiff must point to an official or body responsible for the municipal policy, but final responsibility may rest in more than one source. City ofSt. Louis v. Praprotnik, 485 U.S. 112, 126 (1988). Whether an official has policymaking authority depends both on state law and how the officials have acted in this case. McMillian v. Monroe Cty., 520 U.S. 781, 785-86 (1997). Further, a municipality's omissions constitute a policy or custom if they evince "deliberate indifference" to its inhabitants' rights. City ofCanton v. Harris, 489 U.S. 378,388 (1989). In this Circuit, private entities "acting in the place of a municipality" in carrying out a traditional government function are subject to liability on the same basis as municipalities. Buckner v. Toro, 116 F.3d 450,452 (11th Cir. 1997).
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(a) JCS

Mr. Carter has produced enough evidence to find that JCS had an established custom of

asking the Municipal Court to revoke probation when it knew that a probationer had not willfully

failed to pay fines and fees.

To demonstrate a custom, Mr. Carter must point to a "permanent and well settled" course

of behavior. Praprotnick, 485 U.S. at 127. Courts in this Circuit routinely reject attempts to find

customs in isolated incidents. See, e.g., Wakefield v. City ofPembroke Pines, 269 F. App'x 936,

940 (11th Cir. 2008) (holding that two instances of excessive force against the same plaintiff did

not demonstrate custom). But they have also found customs based on as few as three occurrences.

See Young v. City ofAugusta ex rel. DeVaney, 59 F.3d 1160, 1173 (11th Cir. 1995) (holding that

plaintiff had produced enough evidence of custom to survive summary judgment when three

separate jailers ignored her medical complaints). In determining whether a custom exists, the

Court also looks to the time frame over which the incidents occurred. See Nunez v. City ofNew

York, 735 F. App'x 756, 760 (2d Cir. 2018) And it looks to how similar the incidents are to one

another. See Mercado v. City ofOrlando, 407 F.3d 1152, 1162 (11th Cir. 2005).

Mr. Carter points to a widespread pattern of unlawful incarceration. The record indicates

that JCS asked the Municipal Court to revoke hundreds of probations, see Carter MSJ Evid., Ex.

10, and that the Municipal Court incarcerated offenders without assessing their ability to pay on

"many occasions," In re Hayes, slip op. at 3. And a jury could find that JCS filed revocation

petitions when it had reason to believe that probationers could not make their payments because

.

.

JCS kept records of probationers' employment or lack thereof. See Carter Class Evid., Ex. 13.

Those records included a log of when probationers received retirement and disability benefits. See

id. More than 200 probationers whom JCS knew to be unemployed, disabled, or receiving

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Supplemental Security Income benefits served jail time after the Municipal Court revoked their probation. Compare id. with Carter Class Evid., Ex. 10. These hundreds ofrevocations followed the same pattern and occurred over less than four years. This case centers around a systemic practice in Montgomery: the unlawful incarceration of indigent defendants for failing to pay traffic fines. In filing revocation petitions, JCS fed the system. If among a single city's probationers 217 instances of a practice over less than four years would not allow a jury to find that a custom exists, the Court cannot imagine what would.
A jury could find an established custom on this record. (b) City
"[A] municipality's failure to correct the constitutionally offensive actions of its employees can rise to the level of a custom or policy if the municipality tacitly authorizes these actions or displays deliberate indifference towards the misconduct." Griffin v. City ofOpa-locka, 261 F.3d 1295, 1308 (11th Cir. 2001) (quotation marks omitted).
The City argues that § 1983 does not subject it to liability for (a) depriving Mr. Carter of his Bearden rights, (b) depriving Mr. Carter of his right to counsel, and (c) rights violations related to the window procedure. The City is correct about the window procedure and about some elements of Mr. Carter's Bearden claims. But it must allow a jury to determine whether it is liable on the other claims.
(I) Liability for Bearden Violations The City correctly argues that it cannot be held liable for the Municipal Court and JCS's actions just because it funds the court and probation services. Under state law, the City must "provide appropriate facilities and necessary supportive personnel for the municipal court and may provide for probation services, clerks and municipal employees designated as magistrates." Ala.
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Code§ 12-14-2. Municipalities may contract for probation and debt collection services. Wilkins v. Dan Haggerty & Assocs., Inc., 672 So. 2d 507, 509-10 (Ala. 1995). Those responsibilities alone do not provide policymaking authority to satisfy Monell. Cf Turquitt v. Jefferson Cty., 137 F.3d 1285, 1289-90 (11th Cir. 1998) (holding that a county's duty under Alabama law to provide jail facilities and fund jail operations does not create Monell liability).
The City-JCS contracts, however, would allow a reasonable jury to conclude that the City had final responsibility for JCS, either because it acquiesced to JCS's standard operating procedures or because it ratified decisions about how to provide probation that it delegated to JCS. See Hoefling, 811 F.3d at 1279. Under the contract, the City set the terms under which JCS provided services. City Evid., Ex. 12 at 2-3. And in addition to any duty it may have had to rescind the contract upon learning of JCS's prac.tices, the City had a contractual right to terminate the agreement each year. Id. at 5. After the City became aware of how JCS funneled indigent prisoners into jail regardless of their ability to pay, its failure to stop those practices constituted acquiesce or ratification of them.
The City argues that only the Municipal Court and its judges made policy that led to Mr. Carter's incarceration. It correctly notes that Municipal Court judges had discretion about how to sentence defendants, whether to assign defendants to JCS, and whether to conduct Bearden hearings. It correctly cites state law that assigns responsibility for supervising Municipal Court judges to the Alabama Supreme Court. But multiple officials can bear final policymaking authority. See Praprotnik, 485 U.S. at 126. The City does not dispute that it had the power to enter and terminate the JCS contract. This case, therefore, is unlike cases where municipal court employees act wholly outside the control of their municipalities. See, e.g., Woodard v. Town of Oakman, 855 F. Supp. 2d 1216, 1232 (N.D. Ala. 2012). Once the City became aware that JCS
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and the Municipal Court systemically violated probationers' rights, ·it bore policymaking responsibility for the contract's foreseeable consequences until it terminated the contract.
Carter has produced evidence that would allow a reasonable jury to conclude that the City should have known about JCS's practices as early as July 16, 2012 or January 16, 2013 when it received notice of litigation challenging how JCS supervised probation. Carter Evid., Ex. 37; Carter Evid., Ex 38; S?e Lewis v. City of West Palm Beach, 561 F.3d 1288, 1293 (11th Cir. 2009) (holding that city is on notice if it "is aware that a pattern of constitutional violations exists"). In turn, the City argues that its officials may not have known about the conduct underlying lawsuits against JCS. While the City may be able to prove at trial that it lacked knowledge, a reasonable jury could conclude otherwise based on the Rule 56 record. The City is not entitled to summary judgment on claims arising after July 16, 2012. Mr. Carter, however, has produced no evidence that the City was aware of JCS's practices before July 16, 2012 except for a single email informing the Mayor that the JCS "program" had been successfully implemented. Carter Evid., Ex. 15. And until the City was on notice to how JCS operated, it cannot be held liable for its deliberate failure to intervene to protect Carter's rights. See Canton, 489 U.S. at 389. Therefore, the City is subject to liability for Carter's claims arising on or after July 16, 2012, but not for those before.
(2) Liability for Failure to Provide Adequate Counsel The City attempts to evade liability for failing to provide adequate counsel to Municipal Court defendants. Those attempts are unavailing. The Court first addresses the City's three threshold objections to liability. First, the City argues that the operative complaint fails to allege that Mr. Carter was denied counsel. The complaint alleges that "the City failed to provide adequate counsel for the 'offenders."' Second Am. Compl. 35. And it alleges that the public defenders engaged in a
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systemic practice of not requesting indigency hearings. Id. at 46. The City's forfeiture argument thus fails.
Second, the City argues that the Court may not consider evidence about its failure to provide counsel contained in a declaration (and attached exhibits) filed by Mr. Carter's attorney Alexandria Parrish. Yet Ms. Parrish's declaration lays foundation for the court to consider documents produced in discovery and public court records. The City does not contest the authenticity of those documents, and attorneys may use affidavits to place discovery documents before the Court on motions for summary judgment, see Pace v. Air & Liquid Sys. Corp., 171 F. Supp. 3d 254,272 (S.D.N.Y. 2016). The City effectively seeks to strike the declaration by casting Ms. Parrish as an advocate. See City's Reply Br. 28 (ECF No. 283) (citing Ala. R. Prof. Cond. 3.7). But Alabama ethics rules govern an 'attorney's ability to represent clients not her ability to testify. If Ms. Parrish's testimony proved necessary at trial, the City could seek to disqualify her but not to exclude her testimony because of her service as Mr. Carter's attorney.
Third, the City also objects generally under Rule 56(c)(2) to Ms. Parish's declaration and exhibits. The City fails explain why the evidence is inadmissible, and, thus, the Court overrules the objection. Cf Campbell v. Shinseki, 546 F. App'x 874, 880 (11th Cir. 2013)
The City fares no better in its substantive objection. The record would allow a jury to conclude that the City was deliberately indifferent to its public defenders' failure to adequately represent Municipal Court defendants. The City received billing records from its public defenders so it knew how few hours they spent in court. Based on the sheer volume of cases in the Municipal Court, a jury could find that the City knew its public defenders systemically failed to provide adequate defenses in violation ofthe Sixth Amendment. See, e.g., Kloess Dep. 133: 16-18; Parrish Deel. Ex. C at 9 (Mr. Kloess represented sixty-seven clients in three and one-half hours; on the
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day of Mr. Carter's commutation hearing, he would have been able to devote barely three minutes to each client). Accordingly, because a jury could conclude that the City was on notice of the inadequacy of Municipal Court public defense, it could conclude that the City was deliberately indifferent to the Sixth Amendment violations and hold it liable under § 1983.
(3) Liability for the Window Procedure Mr. Carter has not produced any evidence that that the City was responsible for the Municipal Court's operation of the window procedure. The City's responsibility to provide court facilities does not provide policymaking authority to satisfy Monell. Cf Turquitt, 137 F.3d at 1289-90. And unlike with the JCS contract, Mr. Carter does not point to any authority the City had to stop the window procedure. Therefore, the City is not liable for harms directly related to the window procedure. ·
(c) Mr. Kloess Mr. Kloess also attempts to invoke Monell's standards to shield himself from § 1983 liability. See Kloess's Br. 14 (ECF No. 264)(citing Doe v. Claiborne Cty., 103 F.3d 495 (6th Cir. 1996) (applying Monell)). But Monell does not apply to Mr. Kloess because Mr. Carter sued him as an individual. See Brandon v. Holt, 469 U.S. 464, 472-73 (1985). His argument, thus, fails.
(ii) Causation and Moving Force "[A] municipality cannot be held liable under§ 1983 on a respondeat superior theory." Monell, 436 U.S. at 691. Rather, the municipality must be the factual and proximate cause of the plaintiffs injury. Smith v. City of Oak Hill, 587 F. App'x 524, 527 (11th Cir. 2014). A plaintiff must demonstrate that a municipality is the "moving force" behind his rights violation: he ,must show that the municipality is culpable for and caused the violation. Bd. ofCty. Comm 'rs v. Brown, 520 U.S. 397,404 (1997). If municipal decision makers have notice that a program systemically
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causes rights violations and fails to correct it, they may be held to have culpably caused the violation. Id. at 407-08.
Because the torts Mr. Carter alleges took place in Alabama, the Court looks to Alabama law to define the relevant causation standards. Williams v. Bennett, 689 F.2d 1370, 1389 (11th Cir. 1982). In determining whether factual cause exists, Alabama courts ask whether the plaintiffs injury would have occurred but for the defendant's act or omission. Springer v. Jefferson Cty., 595 So. 2d 1381, 1383 (Ala. 1992) (citing Prosser and Keeton on Torts§ 41 (5th ed. 1984)). For proximate cause, they ask whether the plaintiffs injury must naturally and probably result from the defendant's act or omission. Mobile Gas Serv. Corp. v. Robinson, 20 So. 3d 770, 780 (Ala. 2009). Though a proximate cause may not depend on the intervention of an independent cause, id., more thari one act or omission can concurrently cause an injury, Lemley v. Wilson, 178 So. 3d 834, 842 (Ala. 2015). And "a foreseeable intervening [act] does not break the causal relationship between the defendants' actions and the plaintiffs' injuries." Mobile Gas, 20 So. 3d at 780-81 (quoting.Ala. Power Co. v. Moore, 899 So.2d 975, 979 (Ala. 2004)) (emphasis and alteration in original).
(a) JCS Taking the facts in the light most favorable to the non-movant, the Court holds that Mr. Carter has produced enough evidence for a jury to find that JCS was the but-for and proximate cause of his injuries. Without JCS's petition, the Municipal Court would not have revoked Mr. Carter's probation. JCS therefore factually caused Mr. Carter's probation revocation. And JCS proximately caused the revocation. JCS's petition naturally resulted in the Municipal Court's decision to revoke Mr. Carter' s probation. The Municipal Court intervened in
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the causal chain but did not break it. Because its intervention was foreseeable - indeed the natural consequence of a petition asking for revocation - JCS cannot shift its responsibility for Mr. Carter's injuries onto the Municipal Court. See Springer, 595 So. 2d at 1384. Moreover, given the Municipal Court's established practice of not holding indigency hearings, JCS could have foreseen the Municipal Court's decision to jail Mr. Carter without an indigency hearing. Finally, a jury could find that JCS was culpable for Mr. Carter's injuries because it sought to revoke his probation when it knew or should have known that he was unable to pay.
JCS roots its argument to the contrary in a decision of the District Court for the Northern District ofAlabama. See Ray v. Judicial Corr. Servs., Inc., 270 F. Supp. 3d 1262 (N.D. Ala. 2017). In Ray, the City of Childersburg and its municipal court entered a contract with JCS for probation services. Id. at *1273-74. That contract was·materially identical to the·contract between JCS and the City of Montgomery. See id. Despite the factual similarities between the cases, JCS's citations to Ray do not support its argument. Ray granted summary judgment to JCS on plaintiffs' Bearden claims because it found insufficient support for the claims in the record. See id. at 1299. While Ray notes in dicta that "[a] judicial act generally severs the chain of liability where a judge misapplies the law after another state actor has informed the judge of all the material facts," id. at 1298, it did not reach - much less agree with- JCS's causation arguments. The case provides JCS with no support to escape § 1983 liability here.
(b) City Just as a jury could find that the City was on notice of rights violations for purposes of proximate cause, a jury could find the City liable for Mr. Carter's claims arising on or after July 16, 2012.
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The City can be the moving force behind Mr. Carter's injuries even without an overt act. Rather, the City's choice not to act may constitute deliberate indifference to JCS's customary practices. See Knight ex rel. Kerr v. Miami-Dade Cty., 856 F.3d 795, 820 (11th Cir. 2017). Mr. Carter must show that the City rejected an alternative course of action. And he does. The fact that the City failed to terminate its contract with JCS would allow a jury to find a deliberate choice not to act. The City had the power to intervene and it failed to do so.
The City disagrees pointing to Ray v. Judicial Correction Service. No. 2: 12-CV-02819RDP, 2017 WL 660842 (N.D. Ala. Feb. 17, 2017). But Ray helps the City no more than JCS. While Ray may present similar facts to this case, Mr. Carter offers different theories of liability. Ray held that Childersburg could not be liable under § 1983 based on their contract. 2017 WL 660842 at *16-17. The Ray court, however, reached that holding because it refused to treat Childersburg as the proximate cause of the plaintiffs' injuries and because it refused to hold Childersburg liable for acts JCS undertook as Childersburg' s agent. See id Ray considered neither a deliberate indifference theory of liability nor whether Childersburg could have foreseen JCS's unlawful conduct. Accordingly, Ray does not conflict with this decision. And even if it did, one district court has no power to bind another, and the Court does not find Ray's logic persuasive.
While Mr. Carter may proceed to trial against the City on most of the§ 1983 claims based on a theory of deliberate indifference, the City is entitled to summary judgment on Mr. Carter's other claims.
First, Mr. Carter does not contest that the City is entitled to summary judgment on his causes of action alleging violations ofthe Fourth and Eighth Amendments. Accordingly, the Court does not reach the question of whether the City is liable for arrests its police department made pursuant to facially valid warrants.
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Second, while the Court will allow Mr. Carter's claims to proceed under a deliberate indifference theory of liability, the record does not contain evidence to support his argument that the City could have foreseen the unlawful acts of JCS and the Municipal Court when it entered the contract. Neither the contract on-its face nor the evidence from City officials indicate that the City contemplated mass Bearden violations before July 2012. Because the City did not proximately cause any harms before it became aware of JCS's practices, Mr. Carter cannot base the City's liability on the contract alone.
(c) Mr. Kloess Mr. Kloess argues that he did not cause Mr. Carter's injuries. His arguments fail. First, Mr. Kloess argues that he could not have prevented Mr. Carter from obtaining an indigency determination because he was not in the courtroom for the hearing: Mr. Kloess's absence, however, is precisely the point. Mr. Carter alleges that Mr. Kloess totally deprived him of adequate counsel. An attorney who is not in the room cannot adequately counsel his client at a hearing. Mr. Kloess need not act affirmatively to violate Mr. Carter's rights, and Mr. Kloess's omission here would permit a jury to hold him liable. Second, Mr. Kloess argues that Mr. Carter cannot show that the Municipal Court would have declared him indigent had Mr. Kloess requested an indigency hearing. But Mr. Carter's injury stems from a deprivation of liberty without due process - the lack of a Bearden hearing injured him. All Mr. Carter must show is that the Municipal Court would have considered _his ability to pay if Mr. Kloess had presented the claim. And the record does not foreclose that possibility. See Hayes Dep. 37:7-15.
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As for proximate cause, Mr. Kloess should have foreseen that his total absence from the court and failure to present evidence of indigency would deprive Mr. Carter of his rights to counsel and due process.
Thus, a jury could find that Mr. Kloess factually and proximately caused Mr. Carter's mJunes.
(iii) Under Color ofLaw Mr. Kloess also contends that he cannot be held liable under § 1983 because public defenders are not state actors. Generally, that argument holds true: "a public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding." Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981 ). But a public defender may be a public· actor when performing ·some administrative functions. See id.; Powers v. Hamilton Cty. Pub. Def Comm 'n, 501 F.3d 592, 612 (6th Cir. 2007). And legal activities cross the line into administrative functions when they become systemic. A public defender's systemic inaction "carries the imprimatur of administrative approval." See id. at 612-13. Ordinary policies may not subject a public defender to liability under § 1983. When, however, a public defender engages across the board in a practice that systemically deprives defendants of their constitutional rights, "the adversarial relationship between the State and the Public Defender-upon which the Polk County Court relied heavily in determining that the individual public defender there was not a state actor-has broken down such that the Public Defender is serving the State's interest in exacting punishment, rather than the interests of its clients, or society's interest in fair judicial proceedings." Id. at 613. Mr. Carter alleges that kind of breakdown: that Mr. Kloess served the City's interest rather than his own as part of an unconstitutional a "pay-or-stay" scheme. Mr. Kloess testified that he
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has requested indigency determinations in the past, but he also testified that he could not name a single defendant for whom he requested such a hearing. See Kloess Dep. 163 :6-11. Whether Mr. Kloess actually sought such hearings is a question of credibility that must go to a jury. See Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012). If a jury chooses not to credit Mr. Kloess's assertion that he has requested indigency determinations, it could conclude that Mr. Kloess systemically deprived defendants of indigency hearings.
~herefore, Mr. Kloess is not entitled to summary judgment on the grounds that he is not a state actor.
(iv) Conspiracy The City and JCS argue that Mr. Carter also has not offered enough evidence to allow a reasonable jury to conclude that that JCS and the City engaged in a conspiracy to deprive Mr. Carter of federal protected rights. They prevail on that argument. To prove § 1983 conspiracy, a plaintiff must show both an understanding or agreement between parties to deprive him of his rights and an affirmative act to do so. Rowe v. City ofFort Lauderdale, 279 F.3d 1271, 1283-84 (11th Cir. 2002). While Mr. Carter alleges a conspiracy at several points in his operative complaint (Second Am. Compl. at 32-33, 36-37, 39, 44, 49, 58, 59, 61, 64, 66-67, 69), he provides no evidence of any agreement between JCS and the City except their contract. And the contract does not commit the parties to any rights violations. Thus, to the extent that Counts One, Two, Nine, and Ten allege a conspiracy between JCS and the City, Mr. Carter cannot prevail.
* * *
Section 1983 requires a plaintiff to prove proximate cause because governments should not be liable for torts that they can neither foresee nor control. But conversely, § 1983 holds
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governments accountable for those deprivations ofrights that they can predict and prevent. Section 1983 doctrine curtails municipal liability, but it does not gut it. JCS ran a business premised on the fact that many traffic offenders in Montgomery could not afford to pay their fines. They extracted as much cash as they could from probationers - some of whom they knew to be disabled, unemployed, or dependent on government benefits - and then tossed them back to the Municipal Court. That court, in turn, routinely jailed traffic offenders without inquiring into their ability to pay their fines. And if the City knew what was happening and did nothing to stop it, the City is liable as well. They cannot point the finger at the Municipal Court and feign innocence. For JCS and the City to walk out of the casino professing shock that gambling was occurring while pocketing millions in winnings beggars belief. Perhaps JCS and the City can convince a jury that they were powerless to stop and ignorant ofthe Municipal Court's conduct. But the record strongly suggests that they knew that they were perpetuating a cycle of debt and unlawful imprisonment. And § 1983 provides a remedy for that kind of misbehavior.
Accordingly, Mr. Cai1er may proceed against all three defendants for harms stemming from Bearden violations. And he may proceed against the City and Mr. Kloess for depriving him of his Bearden rights and right to adequate counsel. He may not proceed on his claims for conspiracy or for harms stemming from the window procedure or the JCS-City contract standing alone.
2. Substantive Rights Mr. Carter alleges that defendants violated three sets of his substantive rights; the defendants disagree.
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(i) Bearden Rights Mr. Carter alleges that the City, JCS, and Mr. Kloess caused the Municipal Court to jail him unlawfully for his inability to pay fines and fees. That claim will succeed at this stage. A court violates the Due Process and Equal Protection Clauses if it fails to inquire into whether a probationer has made a bona fide effort to pay a fine before revoking probation or if it fails to consider alternative punishments to imprisonment for an indigent probationer. Bearden, 461 U.S. at 672-73. Requiring an indigent defendant to choose between immediate payment of a fine or a fixed jail term is unconstitutional. Frazier v. Jordan, 457 F.2d 726, 726 (5th Cir. 1972). Here, the Municipal Court made no inquiry into Mr. Carter's ability to pay. And it sentenced Mr. Carter to jail without regard to his alleged indigency. The Municipal Court' violated Mr. Carter's Bearden rights. If a jury finds that the City, JCS, and Kfoess caused the violation; they are liable.
(ii) Failure to Inform Mr. Carter also alleges that that JCS violated his due process rights by failing to inform him of his Bearden rights. That claim fails because JCS owed Mr. Carter no duty to inform him of his procedural rights. Mr. Carter correctly notes that when procedures for redress are not publicly available, a governmental entity must inform a person of those procedures before depriving him of a protected interest. See Memphis Light; Gas & Water Div. v. Craft, 436 U.S. 1, 12-14 & n.14 (1978). But he fails to address a major limit to the Memphis Light requirement: where procedures are publicly available, the Constitution does not require the government to inform a person of his remedial rights. See City of West Covina v. Perkins, 525 U.S. 234, 241-42 (1999) ("While Memphis Light demonstrates that notice of the procedures for protecting one's property interests may be required
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when those procedures are arcane and are not set forth in documents accessible to the public, it does not support a general rule that notice of remedies and procedures is required."). Here, the existence of Bearden rights is a matter of public record. Thus, JCS had no duty to inform Mr. Carter of his rights.
(iii)Right to Counsel Mr. Carter alleges that the City and Mr. Kloess deprived him of his right to adequate counsel. The Sixth Amendment requires the state to provide adequate counsel to an indigent defendant in a proceeding !hat may result in his immediate imprisonment. Alabama v. Shelton, 535 U.S. 654, 662 (2002). Total denial of counsel at a "critical stage" of a criminal proceeding
presumptively prejudices the defendant and violates the Sixth Amendment. Golden v. Newsome,
755 F.2d 1478, 1483 (11th Cir. 1985) (citing United States v. Cronic, 466 U.S. 648,659 (1984)). Here, Mr. Carter had a Sixth Amendment right to appointed counsel because his
commutation hearing could- and did- lead to his immediate imprisonment. And Mr. Kloess's absence from the courtroom during the hearing totally denied Mr. Carter representation. Therefore, Mr. Kloess deprived Mr. Carter of his Sixth Amendment right to counsel.
E. False Imprisonment JCS argues that Mr. Carter's claim for false imprisonment fails as a matter oflaw because
JCS itself did not arrest or imprison him. That argument is unavailing. "False imprisonment consists in the unlawful detention of the person of another for any
length of time whereby he is deprived of his personal liberty." Ala. Code§ 6-5-170. A person responsible for instigating a detention may be held liable only if he persuades or influences officials to imprison the victim and if he acts in bad faith. Dolgencorp, Inc. v. Pounders, 912 So.
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2d 523, 528 (Ala. Civ. App. 2005) (citing Restatement (Second) of Torts § 45A, cmt. C (1965)). Under Alabama law, arrest and imprisonment cannot be false if made pursuant to a lawful warrant. Goodwin v. Barry Miller Chevrolet, Inc., 543 So. 2d 1171, 1176 (Ala. 1989).
Mr. Carter cannot succeed on his claims for false imprisonment that he bases on his being arrested, transported to jail, and detained prior to his commutation hearing. Police officers made those arrests and held Mr. Carter pursuant to facially valid warrants. Alabama law does not treat arrest and imprisonment pursuant to a valid warrant as false. See Goodwin, 543 So. 2d at 1176.
The same cannot be said for Mr. Carter's imprisonment following his commutation hearing. At the commutation hearing, the Municipal Court issued an order revoking Mr. Carter's probation - as JCS had requested- and sentencing Mr. Carter to a jail term. Mr. Carter's posthearing imprisonment was thus not pursuant to a warrant and does not fall within the warrant exception. Accordingly, JCS would be liable if it persuaded or influenced the Municipal Court to jail Mr. Carter in bad faith. Mr. Carter has produced enough evidence for a reasonable jury to conclude that JCS persuaded the Municipal Court to jail him because JCS "request[ed] that the probation of [Carter] be revoked," Carter MSJ Evid., Ex. 10, and because JCS knew (or should have known) that Mr. Carter could not pay his fine and would be jailed if the Municipal Court revoked his probation, see JCS Class Evid., Ex. T (showing Mr. Carter's payment history and reasons for missed payments including obligations to his newborn child). And Mr. Carter has produced enough evidence for a reasonable jury to conclude that JCS acted in bad faith in petitioning the court to revoke probation when it knew that probationer had not willfully failed to pay fines and fees.
JCS is not entitled to summary judgment on Mr. Carter's false imprisonment claim.
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F. Statute of Limitations All of the defendants argue that Mr. Carter's § 1983 claims are time barred. The statute of limitations for § 1983 actions brought in Alabama is two years from when
the plaintiff"knew or should have known of his injury and its cause." Burt v. Martin, 193 F. App'x 829, 830 (11th Cir. 2006); Ala. Code § 6-2-38(1). The statute of limitations, however, may be extended if the defendant engages in a pattern of unlawful conduct. "The continuing violation doctrine permits a plaintiff to sue on an otherwise time-barred claim when additional violations of the law occur within the statutory period." Robinson v. United States, 327 F. App'x 816, 818 (11th Cir. 2007).
Mr. Carter filed suit on August 3, 2015; therefore, he may sue under§ 1983 for injuries that accrued before August 3, 2013. Here, Mr. Carter has offered enough evidence for a reasonable jury to conclude that JCS, the City, and Kloess engaged in a continuous series of violations that occurred before and continued past August 3, 2013.
G. Immunity 1. Quasi-Judicial Immunity
JCS argues that it is entitled to quasi-judicial immunity for all of its actions. The City argues that it is entitled to quasi-judicial immunity for claims arising from Montgomery police actions undertaken pursuant to facially valid warrants.
"Quasi-judicial immunity grants protection from suit to officials who are intimately associated with the judicial phase of the criminal process." Washington v. Rivera, 939 F.3d 1239, 1243 (11th Cir. 2019) (quotation marks omitted).
As the Third, Fifth, Sixth, and Eighth Circuits have concluded, quasi-judicial immunity is not available in official capacity suits. See VanHorn v. Oelschlager, 502 F.3d 775, 779 (8th Cir.
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2007) (collecting cases); see also Kentucky v. Graham, 473 U.S. 159, 167 (1985) (holding that in official capacity suits only defenses available to the entity qua entity are available). While judicial immunity for individual judicial officers flows from deep-rooted tradition, there are not comparable traditions of immunity for municipalities or their equivalent contractors. Cf Owen v. City of Independence, 445 U.S. 622, 637-38 (1980) (comparing lack of qualified immunity tradition for municipalities with tradition of absolute immunity for judges). That distinction also makes sense as a matter of policy. Courts worry that imposing individual liability on government officials may cause them "to act with an excess of caution," Forrester v. White, 484 U.S. 219,223 (1988), but the same concerns do not exist for governments qua governments especially when a plaintiff must overcome Monell's requirements to proceed, see Kentucky v. Graham, 473 U.S. 159, 166-67 (1985).
As they cannot point to a statutory or common law entitlement to quasi-judicial immunity, JCS and the City are amenable to suit.
2. Qualified Immunity JCS and Mr. Kloess argue that they are entitled to qualified immunity from Mr. Carter's suit. Neither is immune. A government official sued in his individual capacity for performing a discretionary function is immune from civil liability unless his actions violated clearly established law. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Once a defendant shows that he acted within his discretionary authority, the plaintiff bears the burden of showing that the relevant law has been clearly established. Leslie v. Hancock Cty. Bd. ofEduc., 720 F.3d 1338, 1345 (11th Cir. 2013). Law is clearly established if a reasonable actor would have "fair warning" that his actions were unconstitutional. Id. (emphasis omitted). A plaintiff may point either to a "materially similar"
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fact-bound precedent or to "a br~ader, clearly established principle" that is so clear that "every objectively reasonable government official facing the circumstances would know that the official's conduct did violate federal law when the official acted." Id.
(i) JCS Under settled law in this Circuit, a private entity performing traditional municipal functions is not entitled to qualified immunity when sued in its official capacity. Swann v. S. Health Partners, Inc., 388 F.3d 834, 837 (11th Cir. 2004), abrogated on other grounds by Randall v. Scott, 610 F.3d 701, 709 (11th Cir.2010). Just as JCS cannot claim quasi-judicial immunity in an official capacity suit, it cannot claim qualified immunity either.
(ii) Mr. Kloess Mr. Kloess argues that he is entitled to 'qualified immunity because his decision about whether to seek an indigency hearing was a "judgment call." Kloess's Br. 15-16. Mr. Kloess fails to contest that the rights he violated were clearly established. He does not speak to the legality of his actions in the context of qualified immunity until his reply brief. See Kloess's Reply Br. 3-6 (ECF No. 291). And in the reply brief, he expressly "stands on his initial brief' on "whether [he] is entitled to assert qualified immunity. Id. at 2. Even if Mr. Kloess's efforts in his reply brief to contest the merits could be read to argue that Mr. Carter's rights were not clearly established, "[a] party normally waives its right to argue issues not raised in its initial brief." McGinnis v. Ingram Equip. Co., 918 F.2d 1491, 1496 (11th Cir. 1990). Moreover, assuming that Mr. Kloess had properly raised the argument, his actions violated Mr. Carter's clearly established rights. A defense attorney may not absent himself from a critical stage in his client's proceedings. See Golden, 755 F.2d at 1483; see also supra Section III.2.D.(iii). Case law has settled that point. See Cronic, 466 U.S. at 654 ("If no actual 'Assistance' 'for' the
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accused's 'defence' is provided, then the constitutional guarantee has been violated."). No reasonable attorney could believe that he adequately represented his client by absenting himself from a hearing at which a court jailed his client. Although no case in this Circuit has held an attorney liable under parallel facts, Mr. Carter need not point to fact-bound case precedent when cases have clearly established the broader right to counsel. See White v. Pauly, 137 S. Ct. 548, 551 (2017); Leslie, 720 F.3d at 1345. And to the extent that Mr. Kloess's reply brief can be read to argue that existing case law has not clearly established a public defender's liability for depriving a defendant ofhis right to counsel, such an argument misses the point. Qualified immunity analysis asks if a right has been clearly established not if another court has applied the same remedy to vindicate a violation of that right. That distinction accords with qualified immunity's core rationale - preventing public officials from discharging their duties with undue timidity. The doctrine avoids chilling a public official taking acts that might violate another's rights. When, however, an action will violate another's rights, tort liability should deter a public official from taking that action regardless of whether the official is certain that he can be sued. The immunity is qualified and not absolute precisely because public officfals should exercise restraint before knowingly violating a clearly established right.
Mr. Kloess is not entitled to qualified immunity because his actions, if proven, violated clearly established law. 7 See supra Section III.D.2.(iii). IV. CONCLUSION
Based on the foregoing, by separate written order the Court will:
7 Mr. Carter argues that public defenders are not the type of public officials whom qualified immunity shields. The Court need not answer whether a public defender may claim qualified immunity in these circumstances; assuming the doctrine applies, Mr. Kloess's actions violated Mr. Carter's clearly established Sixth Amendment rights.
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Case 2:15-cv-00555-RCL-SMD Document 296 Filed 07/17/20 Page 46 of 46

•

grant

the

City's .

motion

as

to

Counts

Three

and

Seven,

grant

t.he

City's

motion

as

to Counts One, Five, and Nine for all events before July 16, 2012, grant the City's

motion as to Counts One and Nine for all claims alleging a conspiracy between the

City and JCS and for claims basing liability solely on the JCS-City contract, grant

the City's motion as to Count One for all claims related to operation of the

magistrates' windows in the Municipal Court, and deny the City's motion as to

Counts One, Five, and Nine in all other respects;

• grant CHC's motion;

• grant JCS's motion as to Counts Four, Six, Eight, and Twelve, grant JCS's motion

as to Counts Two and Ten for all claims alleging a conspiracy between the City and

.

.

.

JCS, grant JCS's motion as to Count Two for all claims alleging that JCS failed to

inform Mr. Carter of his rights, grant JCS's motion as to Count Two for all claims

alleging that JCS unlawfully charged probation fees, grant JCS's motion as to

Count Fourteen for any claims arising from arrest or detention before commutation,

and deny JCS's motion as to Counts Two, Six, Ten, and Fourteen in all other

respects; and,

• deny Mr. Kloess's motion.

Date: - - - - --

~e.~
Royce C. Lamberth
United States District Judge

45