Case 4:10-cv-00327-JLH Document 1 Filed 05/06/10 Page 1 of 10

FILED
us. DISTRICT COURT
EASTERN DISTRICT ARKANSAS

IN THE UNITED STATES DISTRICf:'COURT FOR THE MAY 06 2010

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

JAMES W. e R e

UNITED STATES OF AMERICA,
Plaintiff,
v.
STATE OF ARKANSAS; THE HONORABLE MIKE BEEBE, Governor of the State of Arkansas, in his official capacity only; JOHN M. SELIG, Director of the Arkansas Department of Human Services, in his official capacity only; JAMES C. GREEN, Director of the Arkansas Division of Developmental Disabilities Services, in his official capacity only; and GENE GESSOW, Director of the Arkansas Division of Medical Services, in his official capacity only,
Defendants.

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CIVIL ACTION NO: 4 •1

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CV

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32 7St,

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COMPLAINT FOR VIOLATIONS

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OF THE AMERICANS WITH

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DISABILITIES ACT

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42 U.S.C. §§ 12131-12134

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This case assigned to O' trict J'¥-'l=II'"'-::;"""l....--r+-

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COMPLAINT

The United States alleges, based on information and belief, that the State of Arkansas

("State") discriminates against persons with disabilities in violation of Title II of the Americans

with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12131-1213,4, and its implementing regulations. Specifically, the State segregates hundreds of individuals with developmental

disabilities in institutions that are not the most integrated setting appropriate to their needs, and

fails to provide adequate community supports and services to individuals who are discharged

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from the institutions or who are at risk of institutionalization. Indeed, the State gives

individuals with developmental disabilities the draconian choice of receiving services in

segregated institutions or receiving no services at all. The.alleged discrimination goes to the

heart of the ADA and Congress' intent to eliminate the segregation and isolation of individuals

with disabilities. As Congress stated in the Findings and Purposes of the ADA: "Historically,

society has tended to isolate and segregate individuals with disabilities, and, despite some

improvements, such forms of discrimination against individuals with disabilities continue to be a

serious and pervasive social problem." 42 U.S.C. § 12101(a)(2).

JURISDICTION AND VENUE

1. This Court has jurisdiction over this action under Title II of the ADA, 42 U.S.C.

§§ 12131-12132, and 28 U.S.C. §§ 1331 & 1345. This Court may grant the relief sought in this

action pursuant to 28 U.S.C. §§ 2201 & 2202.

2. Venue is proper in this district pursuant to 28

§ 1391, as a substantial portion of

the acts and omissions giving rise to this action occurred in the Eastern District of Arkansas.

28 U.S.C. § 1391(b).

PARTIES

3. Plaintiff is the United States of America.

4. Defendant, the State of Arkansas, is a "public entity" within the meaning of the ADA,

42 U.S.C. § 12131(1); 28 C.F.R. § 35.104, and is therefore subject to title II of the ADA,

42 U.S.C. § 12131 et seq., and its implementing regulations, 28 C.F.R. Part 35.

5. Defendant Mike Beebe, Governor of the State of Arkansas, is the Chief Executive of the

State and responsible for operation of its executive agencies. Defendant Beebe is sued in his

official capacity as Governor.

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6. Defendant John M. Selig is the Director of the Arkansas Department of Human Services ("DHS"), and responsible for all operations ofDHS. Defendant Selig is sued in his official capacity as Director ofDHS. 7. Defendant James C. Green is the Director of the Arkansas Division of Developmental Disabilities Services ("DDS"), and is responsible for all operations of DDS. Defendant Green is sued in his official capacity as Director of DDS. 8. Defendant Gene Gessow is the Director of the Arkansas Division of Medical Services ("DMS"), and is responsible for all operations ofDMS. Defendant Gessow is sued in his official capacity as Director ofDMS.
FACTS The State's Developmental Disability Care System 9. The State delivers developmental disability services primarily through DHS and DDS. 10. DDS is responsible for the overall coordination of services for people with developmental disabilities in the State of Arkansas. DDS's responsibilities include management of the State's Human Development Centers, home and community based services, and day to day operations of
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the Home and Community-based waiver under the federal Medicaid Waiver Program. 11. DMS overseas the State's Medicaid program. DMS's responsibilities include general administrative authority over, and oversight of, the State's Home and Community-based waiver under the federal Medicaid Waiver Program. 12. DDS and DMS are divisions ofDHS. DHS is the State's executive department responsible for providing health and human services to people in the state of Arkansas, and oversees DDS and DMS.

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13. The State provides institutionalized services to individuals with developmental disabilities in six Human Developmental Centers ("HDCs") located throughout the State. 14. The State receives Medicaid funding from the United States Department of Health and Human Services for its six HDCs. For Medicaid purposes, each HDC is certified to care for individuals as an Intermediate Care Facility for the Mentally Retarded. 15. The HDCs are congregate institutions that segregate individuals with developmental disabilities from the community. The HDC setting discourages its residents from engaging independently in activities of daily living, fosters dependence on institutional supports, and erodes the skills necessary for community living. While confined to the HDCs, residents have limited access to community activities and amenities and limited opportunities to interact with people without disabilities. 16, The State funds community services primarily through its Home and Community-based waiver under the federal Medicaid Waiver Program. The State's Home and Community-based waiver services are delivered through private providers who are approved by DDS.
The Individuals Confined to the Human Development Centers 17. The individuals served by the HDCs are persons with diagnoses of developmental disability ("Residents"). 18. For each ofthese Residents, the impairment signified by their diagnosis substantially limits major life activities. Each Resident is a qualified individual with a disability, as defined in the ADA.

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19. Most, if not all, of the approximately 1,100 Residents confined to the HDCs can handle or benefit from community settings, and therefore can be served successfully in a more integrated setting in the community. 20. The State's treatment professionals agree that hundreds of Residents currently confmed to the HDCs could be served in the community with appropriate supports and services. 21. Many Residents in the HDCs do not object to receiving services in a setting less-restrictive than an HDC. The State has not given many Residents, and/or their family/guardian, the opportunity to make an informed objection to receiving services in a setting less-restrictive than an HDC.
The State's Failure to Transition Individuals Confined to the Human Development Centers to the Most Integrated Setting Appropriate to Their Needs
22. Typically, the State does not meaningfully consider an HDC Resident for a more integrated setting unless the Resident or their family/guardian proactively requests a more integrated setting. 23. Most Residents, and/or their families/guardians, do not proactively request a more integrated setting because the State does not properly educate Residents, and/or Residents' families/guardians, on what community resources are available, or the possible benefits for Residents of community placements. 24. The State does not adequately assess whether HDC Residents could be served in a more integrated setting appropriate to their needs. 25. The State does not properly educate staff at the HDCs on how to appropriately assess a Resident for community placement, what community resources are available, or the possible benefits for Residents of community placements.

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26. HDC staff typically tailor any assessment of a Resident's appropriateness for community placement based upon their limited understanding of what community resources are available (or not available), rather than specifying what supports and services a Resident needs in order to be adequately supported in the community. 27. While confined to the HDCs, Residents do not receive appropriate treatment to support their eventual discharge to a less restrictive setting in the community. 28. Residents who have been confined to the HDCs for many years are not actively reassessed for opportunities to move to a less restrictive setting appropriate to their needs. 29. For the few HDC Residents the State identifies as eligible for a more integrated setting, the State does not develop adequate discharge plans. 30. The State does not collect after-care data sufficient to determine the efficacy of its discharge plans and of the services and supports provided to individuals upon discharge from the HDCs. 31. The State is actively expanding its institutions, at the cost <;>f developing community alternatives to institutionalization. 32. The State fails to properly evaluate individuals with developmental disabilities for a more integrated setting before these individuals become residents of the HDCs. Institutionalizing these individuals fosters their dependence on institutional supports, and erodes the skills necessary for community living.

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The State's Inadequate Community Services 33. The State fails to provide services in the community in sufficient quality, quantity, and geographic diversity to enable individuals with developmental disabilities to be served in the most integrated setting appropriate to their needs. 34. The State has not conducted an adequate assessment of the needs of its developmental disability services system, including, particularly, those services necessary in order to provide services to all HDC Residents in the most integrated settings appropriate to their needs. 35. Individuals with a developmental disability and a history of challenging behaviors face a particularly acute shortage of community service options. 36. Numerous Residents are confined to the HDCs because the services necessary to address their needs in the community are not offered by the State in sufficient quality, quantity, and geographic diversity to serve Residents' needs. 37. The State does not provide appropriate assistance to the HDCs to find commqnity providers that could serve HDC Residents in a more integrated setting. 38. Many individuals are repeatedly re-admitted to the HDCs because of a lack of sufficient supports and services in the community. 39. The State does not provide short-term crisis stabilization services in the community in a sufficient quantity or geographic diversity to serve all qualified individuals who require these services. Many admissions to the HDCs start as respite admissions that become regular admissions. These Residents remain confined to the HDCs because there are insufficient crisis stabilization services in the community to address their short-term emergent needs and to respond to those needs with additional support on an as-needed basis.

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40. Many individuals with developmental disabilities are segregated in the HDCs for no reason other than that they are waiting for funding to become available to support their placement in a Home and Community-based waiver slot under the federal Medicaid Waiver Program. 41. The current wait list for a Home and Community-based waiver slot totals approximately 1,400 people waiting for community services. This wait list moves at an extremely slow pace, with most people waiting several years for funding for community services. Individuals currently at the bottom of the wait list will likely wait more than a decade to receive community services.
VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT 42. The allegations of Paragraphs 1 through 41 are hereby realleged and incorporated by reference. 43. Defendants discriminate against "qualified individual[s] with a disability," within the meaning of the ADA, by administering the State's developmental disability system in a manner that denies hundreds of people with developmental disabilities the opportunity to receive services in the most integrated setting appropriate to their needs. These individuals are qualified to receive services in a more integrated setting and do not oppose receiving services in a more integrated setting. 44. The State's actions as alleged herein constitute discrimination in violation of Title II ofthe ADA, 42 U.S.C. § 12132, and its implementing regulations.
PRAYER FOR RELIEF WHEREFORE, the United States of America prays that the:Court: 45. Enjoin Defendants (1) from administering developmental disability services in a setting that unnecessarily isolates and segregates individuals with disabilities from the community, (2) to

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administer developmental disability services in the most integrated setting appropriate to the needs of the individuals with disabilities; and 46. Order such other appropriate relief as the interests ofjustice require.
Dated: May 5, 2010

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Case 4:10-cv-00327-JLH Document 1 Filed 05/06/10 Page 10 of 10

FOR THE UNITED STATES:

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Respectfully submitted,

'SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division
'"
Y Actmg;C ef Special- itigation Section
BENJ IN. TAYLOE, JR. Special Co sel Special Li Igation Section
LAURA L. COON JACQUELINE K. CUNCANNAN MATTHEW J. DONNELLY Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, D.C. 20530 (202) 514-6255 vincent.herman@usdoj.gov
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 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

UNITED STATES OF AMERICA,

*

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Plaintiff,

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vs.

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STATE OF ARKANSAS; THE

*

HONORABLE MIKE BEEBE, Governor

*

of the State of Arkansas, in his official

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capacity only; JOHN M. SELIG, Director *

of the Arkansas Department of Human

*

Services, in his official capacity only;

*

JAMES C. GREEN, Director of the

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Arkansas Division of Developmental

*

Disabilities Services, in his official capacity *

only; and GENE GASSOW, Director of the *

Arkansas Division of Medical Services, in *

his official capacity only,

*

*

Defendants.

*

No. 4:10-CV-0327 SWW

ORDER

On May 6, 2010, the United States of America filed this action against the State of

Arkansas (the “State”) alleging that the State discriminates against persons with disabilities in

violation of the Americans with Disabilities Act (ADA). Previously, the United States filed a

complaint against the State asserting this same claim (in Count II of the complaint) with respect

to the Conway Human Development Center (CHDC). That case, United States of America v.

State of Arkansas, et al., No. 4:09cv0033 JLH (the “CHDC” action), was assigned to Chief

Judge J. Leon Holmes. By Order entered November 16, 2009, [doc.#25], Judge Holmes

established May 5, 2010, as the deadline for amending pleadings, including the complaint.

On May 5, 2010, the United States, rather than filing a motion to amend the complaint, filed a motion to dismiss Count II of the complaint in the CHDC action, stating that it intended to assert the CHDC ADA allegations in a larger Statewide ADA action. The United States argued that because the Statewide ADA Complaint subsumes the ADA issues in the CHDC action, the most efficient course would be for the Court to dismiss the ADA issues from the CHDC action, without prejudice, and allow the parties to litigate any ADA claims related to CHDC in their more natural place, the Statewide ADA action. In so proceeding, the United States acknowledged that there may be issues concerning duplicative discovery but that it “will make all efforts to avoid duplicative discovery in pursuing the Statewide ADA action.” Although the United States noted that the State objects to the motion to dismiss the CHDC ADA allegations from the CHDC action, the following day (May 6), without a ruling by Judge Holmes on its motion to dismiss, the United States filed its Statewide action and it was assigned to this Court. The Clerk’s Office designated (properly) the Statewide action as a related case to the CHDC action.1
Given that the CHDC ADA allegations are still before Judge Homes in Count II of the CHDC action (no ruling having yet been made on the motion to dismiss), and given that the United States acknowledges there may be issues of duplicative discovery that seemingly should be addressed by the same judge as such issues arise (should Judge Homes approve of the procedural avenue that is being sought by the United States), the Court directs that on or before May 24, 2010, the United States file a pleading addressing why the Statewide action should not be assigned to Judge Holmes as a related case to the CHDC action and/or as a matter of judicial
1 The United States did not file a Notice of Related Case pursuant to Local Rule 40.1 and General Order No. 39.
2

economy.

IT IS SO ORDERED this 13th day of May 2010. /s/Susan Webber Wright UNITED STATES DISTRICT JUDGE

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 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

UNITED STATES OF AMERICA,

*

*

Plaintiff,

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vs.

*

*

*

STATE OF ARKANSAS, et al.,

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Defendants.

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No. 4:10-CV-0327 SWW

ORDER

On May 6, 2010, the United States of America filed an action against the State of

Arkansas (the “State”) alleging that the State discriminates against persons with disabilities in

violation of the Americans with Disabilities Act (ADA). That action, United States v. State of

Arkansas, et al., No. 4:10cv00327 SWW (the “Statewide ADA action”), was assigned to this

Court.

Previously, the United States filed a complaint against the State asserting this same claim

(in Count II of the complaint) with respect to the Conway Human Development Center. That

action, United States of America v. State of Arkansas, et al., No. 4:09cv0033 JLH (the “CHDC

action”), was assigned to Chief Judge J. Leon Holmes.

By Order entered May 14, 2010 [doc.#2], the Court directed that the United States file a

pleading addressing why the Statewide ADA action should not be assigned to Chief Judge

Holmes as a related case to CHDC action and/or as a matter of judicial economy.1 The United

1 Chief Judge Holmes established May 5, 2010, as the deadline for amending pleadings in the CHDC action, including the complaint. On the day the deadline for amending pleadings in the CHDC action expired, the United States, rather than filing a motion to amend the complaint, filed a motion to dismiss Count II of the complaint in the CHDC action, stating that it intended to assert the CHDC ADA allegations in a larger Statewide ADA action. The United States acknowledged that there may be issues concerning duplicative discovery but that it “will make all efforts to avoid duplicative discovery in pursuing the Statewide ADA action.” Although the United States noted that the State objects to the motion to dismiss the CHDC ADA allegations from the CHDC action, on May 6, 2010 (the day following the filing of its motion to dismiss in the CHDC action), the United States,

States has timely filed its pleading in accordance with this Court’s Order, stating that it reads the
local rules as requiring the random selection of the judge.2 The State, in turn, has filed a Notice
of Related Case [doc.#13] in the Statewide ADA action requesting that the Statewide ADA
action and the CHDC action be treated as related cases pursuant to Local Rule 40.1 and General
Order 39, and that the Statewide ADA action be reassigned to Chief Judge Holmes for the sake
of avoiding duplicative discovery and to benefit overall judicial economy.
In light of the Notice of Related Case filed in the Statewide ADA action and the
procedural maneuvering of the United States in the CHDC action and the Statewide ADA action
as set forth in this Court’s May 14th Order (the propriety of which has yet to be resolved), the
Court defers to Chief Judge Holmes for a determination of whether the Statewide ADA action
should be reassigned to his docket as a related case to the CHDC action or otherwise.3
IT IS SO ORDERED this 27th day of May 2010.
/s/Susan Webber Wright UNITED STATES DISTRICT JUDGE
without a ruling by Chief Judge Holmes on its motion to dismiss, filed its Statewide ADA action and it was assigned to this Court. The United States noted on the civil cover sheet filed with the Clerk of Court that the CHDC action was a related case to the Statewide ADA action but it did not file a Notice of Related Case pursuant to Local Rule 40.1 and General Order No. 39.
Given that the CHDC ADA allegations are still before Chief Judge Homes in Count II of the CHDC action (no ruling having yet been made on the motion to dismiss and defendants opposing the United States’ motion), and given that the United States acknowledges there may be issues of duplicative discovery that seemingly should be addressed by the same judge as such issues arise (should Judge Homes approve of the procedural maneuver of the United States), the Court directed that the United States file a pleading addressing why the Statewide ADA action should not be assigned to Chief Judge Holmes as a related case to the CHDC action and/or as a matter of judicial economy.
2 Although the United States argues inter alia that regardless of the motion to dismiss the CHDC ADA allegations in the CHDC action, the Statewide ADA action does not qualify as a refiling of a “voluntary nonsuit” under Local Rule 40.1, certainly the dismissal without prejudice of the CHDC ADA claims so that they could later be refiled would constitute a “voluntary nonsuit” of those claims.
3 The Court directs that the Clerk of Court also file this Order in the CHDC action, United States of America v. State of Arkansas, et al., No. 4:09cv0033 JLH.
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 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

UNITED STATES OF AMERICA

v.

No. 4:10CV00327 JLH

STATE OF ARKANSAS; MIKE BEEBE, Governor of the State of Arkansas, in his official capacity only; JOHN M. SELIG, Director of the Arkansas Dept. of Human Services, in his official capacity only; JAMES C. GREEN, Director of the Arkansas Division of Developmental Disabilities Services, in his official capacity only; and GENE GESSOW, Director of the Arkansas Division of Medical Services, in his official capacity only

PLAINTIFF DEFENDANTS

OPINION AND ORDER This is the second case brought by the Department of Justice on behalf of the United States of America, as plaintiff, against the State of Arkansas, alleging that the State violates the Americans with Disabilities Act in the manner in which it provides services to persons with developmental disabilities. I n the e arlier a ction, the De partment of J ustice a lleged that the State of Ar kansas violates the Fourteenth Amendment to the Constitution of the United States, the Americans with Disabilities Act, 2 U.S.C. §§ 12101-12213, and the Individuals with Disa bilities Education Act, 20 U.S.C. §§ 1400-1482, in the manner in which it provides services to residents of the Conway Human Development Center.1 The ConwayHuman DevelopmentCenter Action was brought by the Department of J ustice pursuant to the Civil Rig hts of Institutionalized Pe rsons Ac t, 42 U.S.C. § 1997a. The present action is broug ht against the State of Arkansas alleg ing that the State discriminates a gainst pe rsons with disa bilities in viola tion of Title I I of the Ame ricans with

1 United States of America v. State of Arkansas, et al., E.D. Ark. No. 4:09CV00033 JLH. The Court will refer to this action as “the Conway Human Development Center Action.”

Disabilities Act, 42 U.S.C. §§ 12131-121342, at sixhuman development centers located throughout
the State. The complaint alleges that the State receives Medicaid funding from the United States
Department of Health and Human Services fo r the six human development centers, which are
certified for Medicaid purposes to care for individuals as intermediate care facilities for the mentally
retarded.3 Unlike the Conway Human Development Center Action, in this case the Department of
Justice does not allege or a rgue tha t it is br inging the a ction pur suant to the Civil Rig hts of
Institutionalized Persons Act.
The State has moved to dismiss thecomplaint, arguing that the Department of Justice has not
fulfilled the procedural requirements stated in the statutes and in the Code of Federal Regulations
as prerequisites for filingsuitunder Title II and that the United Statesdoes not have standingto bring
this action.4
2 Title II prohibits discrimination based on disability in public services furnished by governmental entities. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 589, 119 S. Ct. 2176, 2181, 144 L. Ed. 2d 540 (1999).
3 The complaint in this action does not identify the six human development centers at issue, but the record includes a letter dated December 14, 2009, in which the Department of Justice informed the Governor of Arkansas that the Department of Justice was investigating five human development centers, which were the Alexander Human Development Center, the Arkadelphia Human Development Center, the Booneville Human Development Center, the Jonesboro Human Development Center, and the Southeast Arkansas Human Development Center in Warren, Arkansas. With the addition of the Conway Human Development Center, these were all of the human development centers in the State of Arkansas.
4 The State’s motion is styled a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, but whether the motion should properly be characterized as brought pursuant to Rule 12(c) or Rule 12(b)(6) is an issue that the parties have not addressed and that probably does not materially effect the resolution of the motion. Cf. Ginsburg v. InBev NV/SA, 623 F.3d 1229, 1233 n.3 (8th Cir. 2010).
2

The enforcement provision of Title II is contained in 42 U.S.C. § 12133, which provides:
The remedies, procedures, and rights set forth in section 794a ofTitle 29 shall be the remedies, procedures, and righ ts this subchapter provides to any person alleg ing discrimination on the basis of disability in violation of section 12132 of this title.
Section 794a of Title 29 is the enforcemen t provision of the Re habilitation Act of 1973. 5
That statute provides, in pertinent part:
The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) . .. shall be available to any person aggrieved by any act or failure to act by any recipient of Federal Assistance or Federal Provider of such assistance under section 794 of this title.
Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color,
or national origin on the part of any program or activity funded by federal financial assistance.
42 U.S.C. § 2000d. The enforcement provision of Title VI is found in 42 U.S.C. § 2000d-1, which
provides, in pertinent part:
Each Federal department and agency whichis empowered to extend Federal financial assistance to any program or activity . . . is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability . . . . Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to g rant or continue assistance under such prog ram or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure tocomply with such requirement . . . or (2) by any other means provided by law: Provided, however, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to c omply with the requirement and has determined that compliance cannot be secured by voluntary means.
5 The Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in programs conducted by federal agencies, in federal employment, and in employment by federal contractors. 29 U.S.C. § 794. See McCachren v. Blacklick Valley Sch. Dist., 217 F. Supp. 2d 594, 599-600 (W.D. Pa. 2002), for a good summary of other provisions of the Rehabilitation Act and their enforcement provisions.
3

As this recitation of the statutory provisi ons indicates, the provi sion for enforcem ent of Title II of the ADA incorporates by reference the enforcement provisions of statutes that prohibit discrimination in programs and activities that are federally funded, even though the applicability of Title II is not dependent upon the receipt of federal funds. United States v. City and Cnty. of Denve,r 927 F . Supp. 1396, 1399 (D. Colo. 1996) . “B y in corporating one sec tion after another by reference—sections that mesh only imperfectly—Congress could not have made its intention less clear.” Tyler v. City of Manhattan, 118 F.3d 1400, 1409 (10th Cir. 1997) (Jenkins, J., dissenting).
Termination of federal funds “was envisioned as the primary means of enforcement under Title VI [.]” Nat’l Bl ack Pol ice Ass’n, Inc. v. Vel de, 712 F .2d 569, 575 (D.C . Cir. 1983) . Nevertheless, as 42 U.S.C. § 200d-1 states, enforcement can be accomplished “by any other means provided by law[.]” In City and Cnty. of Denver, the District of Colorado stated:
Courts have interpreted the words “by any other means authorized by law” to mean that a funding ag ency, after finding a violation and determining that voluntary compliance is not forthcoming, could refer a matter to the Department of Justice to enforce the statute’s nondiscrimination requirements in court. City and Cnty. of Denver, 927 F. Supp. at 1400 (citing Nat’l Black Police Ass’n, Inc. v. Velde, 712 F.2d at 575 &n.33; and United States v. Marion Cnty. Sch. Dist,. 625 F.2d 607, 612& n.12 (5th Cir. 1980)). In the Marion Cnty. Sch. Dist. case, the Fifth Circuit held that Congress had intended the language “any other means authoriz ed by law” to include sui ts by the g overnment to enforce contractual assurances. Id. The Fifth Circuit appended to its opinion an agreement by the Marion County School District to complywith Title VI of the Civil Rights Act of 1964, in considerationfor the federal funds that it was to receive. Here, although the Department of Justice has alleged in the complaint that the human development centers atissue receive Medicaidfunding, it does not allege that the Medicaid fundingis conditioned upon compliance with the Americans withDisabilities Act,
4

nor does the Department of Justice argue that it is seeking to enforce any sort of agreement between the State of Arkansas and any federal agency.
The Department of Justice has issued guidelines for the enforcement of Title VI of the Civil Rights Act of 1964. See 28 C.F .R. § 50.3. Those g uidelines make c lear that the primary responsibility for enforcing Title VI lies with the headof the department oragency that administers the program for federal financial assistance. 28 C.F.R. § 50.3(b). The ultimate sanction,according to the Department of Justice guidelines, is to terminate the federal financial assistance. 28 C.F.R. § 50.3(c)(I.A).6 The guidelines recognize that compliance with Title VI may be obtained through court action and state thatthe possibility of court enforcement should be considered in consultation with the Department of Justice. 28 C.F.R. § 50.3(c)(I.B.1). The guidelines are silent on the issue of whether the Department of Justice can initiate litigation to enforce compliance with Title VI apart from the agency that administers the federally funded program issue, but, from a reading of the guidelines as a whol e, i t i s cl ear t hat t he guidelines envision t hat t he agency adm inistering t he federally funded program is the agency that would enforce Title VI, whether by terminating federal funds, by seeking court enforcement, or by other means.
Whether or not the Department of Justice has the authority to commence a court action to enforce the provisions of Title VI apart from the agency that provides the federal funding at issue, for pu rposes of the pr esent c ase the Cour t will a ssume tha t the De partment of J ustice ha s the independent au thority to institute a civil action to enforce the public service provisions of the
6 As noted, the Rehabilitation Act incorporates by reference the enforcement provision in Title VI. The Fifth Circuit has held that the United States has the authority under the Rehabilitation Act to seek enforcement to enforce an agreement by the recipient of federal funds to comply with the Rehabilitation Act. United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039 (5th Cir. 1984).
5

Americans with Disabilities Act. As noted, thepublic service provisions of the ADA donot depend on federal financial assistance as a condition of their applicability. Congress did, however, instruct the Attorney General to promulgate regulations for the enforcement of the ADA, see 42 U.S.C. § 12134, so the Department of Justice is the closest Title II analogue to an agency providing federal funds and therefore charged with enforcing Title VI.
Even so, the State of Arkansas argues that the Department of Justice has not complied with the statutory and regulatory prerequisites to commencing an action in court. As noted, the statute provides that “no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means.” The enforcement regulations for Title II of the ADA are found in 28 C.F .R. pt. 35, s ubpart F . T hose regulations contemplate an administrative process that would include (1) a complaint of discrimination by an individual to an agency with jurisdiction over the subject matter (28 C.F.R. § 35.170); (2) an attempt at informal resolution (28 C.F.R. § 35.172); (3) a formal letter of compliance or noncompliance (Id.); and (4) potentially a referral by the federal agency to the Attorney General for enforcement (28 C.F.R. §§ 35.173 and 35.174).
The administrative process de scribed in 28 C.F .R. § 35.170 et seq ., admittedly was not followed in this case. The Department of Justice argues that it has the authority to enforce the ADA without going through that process, which is designed for the situation in which an individual makes a complaint to a federal agency. Here, no individual has complained of discrimination on the basis of disability, and no agency has made a referral of any kind to the Department of Justice.
6

The Depart ment of J ustice concedes t hat i t i s requ ired t o com ply wi th t he st atutory prerequisites stated in 42 U.S.C. § 2000d-1. The Department of Justice, however, did not make any allegations in its c omplaint to indic ate tha t it ha d c omplied, or a ttempted to c omply, with the prerequisites to suit stated in 42 U.S.C. § 2000d-1. The Department of Justice did not allege that, before filing suit, it advised “the appropriate person or persons of the failure to comply” with the ADA nor that the D epartment of J ustice had “d etermined that compliance cannot be secured by voluntary means.” Neither party has cited authority on the issue of whether these prerequisites to suit must be alleged in the complaint. Rule 8(a) of the Federal Rules of Civil Procedure requires a complaint to include a short and plain statemen t of the grounds for the court’s jurisdiction and a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(1) and (2). Because the Department of Justice is not entitled to seekrelief unless it has advised the “appropriate person or personsof the failure to comply with the requirement and has determined that compliance cannot be securedby voluntary means[,]” it would seemthat Rule 8(a) requires that the complaint include allegations sufficient to indicate that those prerequisites to suit have been met.
Instead of arguing that the complaint includes allegations that the prerequisites to suit have been met, or arguing that Rule 8(a) does not require such allegations for the complaint to state a claim upon which relief may be granted, the Department of J ustice ignores its own pleadin g and argues that, as a factual matter, it has satisfied with the prerequisites to suit.
In support of its argument that, as a factual matter, it has satisfied the statutory prerequisites to suit, the De partment of J ustice ha s a ttached to its br ief the a forementioned letter da ted December 14, 2009, to Governor Mike Beebe; a letter dated April 21, 2004, to former Governor Mike Huckabee; and an exchange of emails between counsel regarding “the complaint paperwork”
7

for a “statewide ADA lawsuit.” nI addition to those documents, the Department of Justice contends
that arguments that it has made in the Conway Human Development Cent er Action satisfy the
statutory prerequisites and that,further, in March 2010 “after touirng two other Human Development
Centers, the United States again gave detailed verbal notification to the State of systematic ADA
violations.”
“When considering a motion for judgment on the pleadings . . . or a motionto dismiss under
Fed. R. Civ. P. 12(b)(6), the courtgenerally must ignore materials outside the pleadings, but it may
consider some materials that are partof the public record or do notcontradict the complaint, as well
as materials that are necessarily embraced by the pleadings.” Porous Media Corp. v. PallCorp., 186
F.3d 1077, 1079 (8th Cir. 1999) (internal quotation marks and citations omitted). The letters to
Governors Huckabee and Beebe do not contradict the complaint and arguably are part of the public
record. In any event, the State has not argued that the Court should disregard them, so they will be
considered.
The letter dated December 14, 2009, to Governor Beebe states:
This is to inf orm y ou tha t the Unite d Sta tes Department of J ustice is commencing a n inve stigation to de termine whether residents of the A lexander Human Development Center (“HDC”), Ar kadelphia Human Development Center, Booneville Human Developm ent Center, J onesboro Human Development Center, and Southeast Arkansas Human Developmen t Center in Alex ander, Arkadelphia, Booneville, Jonesboro, and Warren, Arkansas, respectively, are being served in the most integrated setting appropriate to their n eeds, pursuant to our authority under Title II of theAmericans With Disabilities Act (“ADA”), 42 U.S.C. § 12132. We are also commencing an investigation of conditions of residents’ care and treatment at the Alexander, Arkadelphia, Booneville, Jonesboro, and Southeast Arkansas HDCs pursuant to our authority under the Civil Rights of I nstitutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997.
In conducting the CRIPA investigation, we are obliged to determine whether there are systemic violations of the Constitution or other laws of the United States in the conditions at the Alexander, Arkadelphia, Booneville, Jonesboro, and Southeast
8

Arkansas HDCs. Our investigation will focus on placement of residents in the most integrated se tting a s r equired by the Ame ricans W ith Disa bilities Ac t ( “ADA”), 42 U.S.C. §§ 12132-34, and its implementing regulations, as well as the protection of residents from harm, behavioral treatment and habilitation, medical and nursing care, physical and nutritional management.
We have not reached any conclusions about the subject matter of the investigations. W e believe that you and ot her State officials want to operate the Alexander, A rkadelphia, Booneville, Jo nesboro, a nd So utheast A rkansas H DCs consistent with the requirements of the Constitution and other federal law. During the course of our investigation, we will consider all relevant information, particularly the efforts the State has undertaken to ensure compliance with federal law. We also will offer to provide recommendations on ways to improve conditions at the HDCs, when appropriate. If we conclude that there are not violations of constitutional or other federal rights, we will notify you that we are closing the investigation.
If, on the other hand, we conclude there are such violations, we will provide detailed, wr itten f indings a nd ide ntify the minimum me asures we be lieve a re necessary to r emedy the viola tions. I n a ddition, we will ide ntify a ny f inancial, technical, or other assistance the United States may be able to provide to assist the State in correcting the identified deficiencies. In over 25 years of enforcing the Civil Rights of Institutionalized Persons Act and in over 10 years of enforcing Title II of the ADA, the good faith efforts of State or local jurisdictions working with us have enabled us routinely to resolve our claims without resort to contested litigation.
As the reader can see, this letter does not say that the State has failed to comply with the
ADA at any of the five human development centers mentioned in the letter. Instead, it says that the
Department of Justice is commencing an investigation and, “we have not reached any conclusions
about the subject matter of the investigations.” The letter goes on to say that if the Department of
Justice were to conclude that the law had been violated, it would provide detailed, written findings
and would identify the minimum measures necessary to remedy the violations. So far as the record
shows, the Department of Justice has not provided the detailed written findings as promised in that
letter, n or has it ide ntified me asures ne cessary to r emedy the viola tions. The le tter da ted
December 14, 2009, does not show tha t the Department of J ustice complied with the statutory
prerequisites to filing suit as stated in 42 U.S.C. § 2000d-1.
9

In contrast to the letter of December14, 2009, to Governor Beebe, the letter dated April 21, 2004, to Governor Huckabee, states in the first sentence that t he l etter is written “to report the findings of the Civil Rig hts Division’s inves tigation of conditions at the Conway Human Development Center . . . in Conw ay, Arkansas.” The letter reports those finding s in substantial detail in a span of some fifty pages, and it describes the measures that the Department of Justice deemed necessary to remedy the alleged violations. The letter includes findings regarding Title II of the ADA. Those findings are specific to residents of the Conway Human Development Center. No other human development center is mentioned anywhere in tha t letter. Tha t letter does not constitute notice to the State that the Department of Justice found violations of Title II of the ADA at any human development center other than the Conway Human Development Center.
The final documentation attached to the Depart ment of J ustice’s response consists of an email from Lori Freno, Senior Assistant Attorney General representing the State in this action and in the ConwayHuman DevelopmentCenter Action, to attorneys at the Department of Justice asking for “a copyof the complaint paperwork”regarding the “statewide ADAlawsuit.”7 It is obvious from the email request that some mention of a “statewide ADA lawsuit” had been made in a telephone conversation, but there is no indication that the Department of Justice had advised any person with responsibility for the human development centers ofthe alleged failure to complywith the ADA and determined that compliance cannot be secured byvoluntary means. Noindication is given as to what was said in the telephone convers ation that precipitated Ms. F reno to request a cop y of the “complaint paperwork.”
7 It is not apparent that the email exchange is the sort of record that the Court may consider in ruling on a 12(b)(6) or 12(c) motion, but in this instance the outcome is unchanged.
10

The Department ofJustice makes reference to abrief that it filed insupport of its motion for preliminary injunction on March 10, 2010, in the Conway Human Development Center Action. Needless to say, that brief focuses on the Conway Human Development Center, which is the only facility at issue in the case. Some sentences in the brief make a broader reference, but that brief can hardly be taken as notice that the Department of Justice has investigated five human development centers other than the Conway Human Development Center and f ound that the State vio lates the ADA at all five facilities in the manner in which plaintiff in this case alleges.
Finally, the Departmentof Justice says in itsbrief in opposition to the motion to dismiss, “nI late March 2010, after touring two other Human Development Centers, the Department of Justice again gave detailed verbal notification to the S tate of sy stemic ADA violations.” 8 That cursory statement is the totality of the information provided by the Department of Justice with regard to this alleged verbal notification. There is no evidence or indication as to who made the comments, to whom the comments were made, orwhat the contents of the comments were. The Court cannot find based on this one sentence in a brief that the Department of Justice has complied with the statutory prerequisites for filing suit stated in 42 U.S.C. § 2000d-1.
Nor is there any allegation in the complaint or documentation from the public record that the Department of Justice has attempted to obtain compliance by voluntary means. The Department of Justice argues in its brief that it is not necessary to attempt to obtain voluntary compliance before filing suit becau se the statute requires only that the agency determine that compliance cannot be secured by voluntary means. The Department of J ustice says in its br ief that it de termined that
8 This statement is unsupported by any document or testimony and is not really appropriate for consideration in ruling on a motion made pursuant to Fed. R. Civ. P. 56, 12(b)(6), or 12(c).
11

compliance cannot be obtained byvoluntary means based upon the historyof litigation with the State in the Conway Human DevelopmentCenter Action, in whichefforts were made to obtain voluntary compliance at the Conway Human Development Center between 2004, when the letter was sent to Governor Huckabee, and 2009, when suit was filed.
The Department of Justice’s argument in this case that it need not make an effort to obtain voluntary compliance but only determine that compliance cannot be secured by voluntary means is at odds with its own interpretation of the statute as stated in the guidelines for the enforcement of Title VI. The guidelines issued by the Department of Justice state:
Title VI requires that a concerted effort be made to persuade any noncomplying applicant or recipient voluntarily to comply with TitleVI. Efforts to secure voluntary compliance should be undertaken at the oustet in every noncompliance situation and should be pursued through each stage of enforcement action. 28 C.F.R. § 50.3(c), I.C. Thus, the Departmentof Justice interprets 42 U.S.C. § 2000d-1to require that “a concerted effort” be made to obtain voluntary compliance, not that an agency need merely determine that compliance cannot be secured by voluntary means.
CONCLUSION Because the Department of Justice has not made allegations in the complaint sufficient to indicate that it has complied with the statutory prerequisites to suit, the complaint fails to comply with the requirements of Rule8(a) and therefore should bedismissed without prejudice.9 Moreover, even considering the facts outside the pleadings submitted by the Department of Justice, those facts are insufficient to show that the Department of Justice has complied with the prerequisites to filing suit as stated in 42 U.S.C. § 2000d-1. Accordingly, the complaint is dismissed without prejudice.
9 Accordingly, the Court need not and does not reach the issue of whether the Department of Justice must comply with 28 C.F.R. § 35.170 et seq., before commencing legal action.
12

IT IS SO ORDERED this 24th day of January, 2011. J. LEON HOLMES UNITED STATES DISTRICT JUDGE
13

 
 Case: 4:10-cv-00327-JLH As of:09/14/2014 09:50 AM CDT 1 of 4

U.S. District Court Eastern District of Arkansas (Little Rock) CIVIL DOCKET FOR CASE #: 4:10−cv−00327−JLH

CLOSED,JTK

USA v. Arkansas, State of et al Assigned to: Judge J. Leon Holmes Cause: 42:12131 Americans with Disabilities Act
Plaintiff

Date Filed: 05/06/2010 Date Terminated: 01/24/2011 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: U.S. Government Plaintiff

USA

represented by Benjamin O. Tayloe , Jr. U. S. Department of Justice − Special Litigation Section 950 Pennsylvania Avenue, NW, PHB Washington, DC 20530 202−514−8103 Fax: 202−514−6903 Email: benjamin.tayloe@usdoj.gov ATTORNEY TO BE NOTICED

Jacqueline K. Cuncannan U. S. Department of Justice − Special Litigation Section 950 Pennsylvania Avenue, NW, PHB Washington, DC 20530 202−616−2556 Fax: 202−514−6903 Email: Jacqueline.Cuncannan@usdoj.gov ATTORNEY TO BE NOTICED

Judy C. Preston U. S. Department of Justice − Civil Rights Employment Litigation Section, PHB 950 Pennsylvania Avenue, N.W. Washington, DC 20530 (202) 305−8686 ATTORNEY TO BE NOTICED

Laura L. Coon U. S. Department of Justice − Special Litigation Section 950 Pennsylvania Avenue, NW, PHB Washington, DC 20530 202−514−1089 Fax: 202−514−0212 Email: Laura.Coon@usdoj.gov ATTORNEY TO BE NOTICED

Matthew J. Donnelly U. S. Department of Justice − Civil Rights Employment Litigation Section, PHB 950 Pennsylvania Avenue, N.W. Washington, DC 20530 205−514−6255 Email: matthew.donnelly@usdoj.gov ATTORNEY TO BE NOTICED

Samuel R. Bagenstos U. S. Department of Justice − Civil Rights Employment Litigation Section, PHB

Case: 4:10-cv-00327-JLH As of:09/14/2014 09:50 AM CDT 2 of 4
950 Pennsylvania Avenue, N.W. Washington, DC 20530 205−514−6255 ATTORNEY TO BE NOTICED
Thomas E. Perez U. S. Department of Justice − Civil Rights Employment Litigation Section, PHB 950 Pennsylvania Avenue, N.W. Washington, DC 20530 202−514−6255 ATTORNEY TO BE NOTICED
Vincent P. Herman U. S. Department of Justice − Special Litigation Section 950 Pennsylvania Avenue, NW, PHB Washington, DC 20530 202−305−3318 Fax: 202−514−0212 Email: Vincent.Herman@usdoj.gov ATTORNEY TO BE NOTICED

V. Defendant Arkansas, State of
Defendant Mike Beebe The Honorable, Governor of the State of Arkansas, in his official capacity only
Defendant John M Selig Director of the Arkansas Department of Human Services, in his official capacity only

represented by Sherri L. Robinson UAMS Office of General Counsel 4301 West Markham Street Slot #860 Little Rock, AR 72205−7199 501−686−7694 Fax: 501−686−7736 Email: srobinson3@uams.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon C. Robinson Arkansas Attorney General's Office Catlett−Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201−2610 501−682−2007 Email: brandon.robinson@arkansasag.gov ATTORNEY TO BE NOTICED
represented by Sherri L. Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon C. Robinson (See above for address) ATTORNEY TO BE NOTICED
represented by Sherri L. Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:10-cv-00327-JLH As of:09/14/2014 09:50 AM CDT 3 of 4

Defendant James C Green Director of the Arkansas Division of Developmental Disabilities Services, in his official capacity only
Defendant Gene Gessow Director of the Arkansas Division of Medical Services, in his official capacity only

Brandon C. Robinson (See above for address) ATTORNEY TO BE NOTICED
represented by Sherri L. Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon C. Robinson (See above for address) ATTORNEY TO BE NOTICED
represented by Sherri L. Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon C. Robinson (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/06/2010 05/13/2010
05/18/2010 05/18/2010 05/18/2010 05/18/2010 05/18/2010 05/20/2010 05/20/2010 05/24/2010 05/26/2010 05/26/2010

# Docket Text
1 COMPLAINT filed by USA against All Defendants; Summonses Issued and returned to attorney; Filing fee Waived. (kjp) (Entered: 05/06/2010)
2 ORDER directing that on or before May 24, 2010, the United States file a pleading addressing why the Statewide action should not be assigned to Judge Holmes. Signed by Judge Susan Webber Wright on 5/13/10. (bkp) (Entered: 05/14/2010)
4 SUMMONS Returned Executed by USA. Arkansas, State of served on 5/6/2010. (Donnelly, Matthew) (Entered: 05/18/2010)
5 SUMMONS Returned Executed by USA. Mike Beebe served on 5/6/2010. (Donnelly, Matthew) (Entered: 05/18/2010)
6 SUMMONS Returned Executed by USA. John M Selig served on 5/6/2010. (Donnelly, Matthew) (Entered: 05/18/2010)
7 SUMMONS Returned Executed by USA. James C Green served on 5/6/2010. (Donnelly, Matthew) (Entered: 05/18/2010)
8 SUMMONS Returned Executed by USA. Gene Gessow served on 5/6/2010. (Donnelly, Matthew) (Entered: 05/18/2010)
9 NOTICE of Appearance by Sherri L. Robinson on behalf of All Defendants (Robinson, Sherri) (Entered: 05/20/2010)
10 NOTICE of Appearance by Brandon Carter Robinson on behalf of All Defendants (Robinson, Brandon) (Entered: 05/20/2010)
11 BRIEF filed by USA re 2 Order Regarding Reassignment of Action to Judge J. Leon Holmes (Donnelly, Matthew) (Entered: 05/24/2010)
12 ANSWER to 1 Complaint by Arkansas, State of, Mike Beebe, Gene Gessow, James C Green, John M Selig.(Robinson, Sherri) (Entered: 05/26/2010)
13 NOTICE of Related Case by Arkansas, State of, Mike Beebe, Gene Gessow, James C Green, John M Selig; Case Number 4:09−cv−33 (Robinson, Sherri) (Entered: 05/26/2010)

Case: 4:10-cv-00327-JLH As of:09/14/2014 09:50 AM CDT 4 of 4

05/27/2010
05/27/2010 06/02/2010 08/17/2010 08/20/2010 08/20/2010 08/23/2010
09/07/2010 09/13/2010 09/20/2010 09/21/2010 01/24/2011 01/24/2011

14 ORDER deferring to Chief Judge Holmes for a determination of whether the Statewide ADA action should be reassigned to his docket as a related case to the CHDC action or otherwise; and directing the Clerk to file this Order in the CHDC action, United States of America v. State of Arkansas, et al., No. 4:09−cv−0033 JLH. Signed by Judge Susan Webber Wright on 5/27/10. (bkp) (Entered: 05/27/2010)
16 ORDER REASSIGNING CASE to Chief Judge J. Leon Holmes for all further proceedings 13 . Judge Susan Webber Wright no longer assigned to case. Signed by Chief Judge J. Leon Holmes on 5/27/10. (bfw) (Entered: 05/28/2010)
18 INITIAL SCHEDULING ORDER (DOC): Rule 26(f) Conference to occur by 8/3/2010; Rule 26(f) Report due by 8/17/2010; proposed bench trial date the week of 6/27/2011 in Little Rock. (cdw) (Entered: 06/02/2010)
20 REPORT of Rule 26(f) Planning Meeting by USA. (Donnelly, Matthew) (Entered: 08/17/2010)
21 MOTION for Judgment on the Pleadings by Arkansas, State of, Mike Beebe, Gene Gessow, James C Green, John M Selig (Robinson, Sherri) (Entered: 08/20/2010)
22 BRIEF IN SUPPORT filed by Arkansas, State of, Mike Beebe, Gene Gessow, James C Green, John M Selig re 21 Motion for Judgment on the Pleadings (Robinson, Sherri) (Entered: 08/20/2010)
23 FINAL SCHEDULING ORDER: Bench Trial set for the week of 2/21/2012 at 9:15 AM in Little Rock, Courtroom #4D before Chief Judge J. Leon Holmes; Discovery due by 9/1/2011; Pretrial Disclosure Sheet due by 1/23/2012; Status Report due by 11/7/2011. Signed at the direction of the Court. (cdw) (Entered: 08/23/2010)
25 RESPONSE in Opposition re 21 MOTION for Judgment on the Pleadings filed by USA. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Donnelly, Matthew) (Entered: 09/07/2010)
26 REPLY to Response to Motion re 21 MOTION for Judgment on the Pleadings filed by Arkansas, State of, Mike Beebe, Gene Gessow, James C Green, John M Selig. (Robinson, Sherri) (Entered: 09/13/2010)
27 Unopposed MOTION for Leave to File sur−reply in opposition to Defendants' Motion for Judgment on the Pleadings by USA (Attachments: # 1 Exhibit 1)(Donnelly, Matthew) (Entered: 09/20/2010)
28 ORDER granting USA's 27 Motion for Leave to File Sur−Reply. Signed by Chief Judge J. Leon Holmes on 9/21/10. (vjt) (Entered: 09/21/2010)
30 OPINION AND ORDER dismissing pltf's complaint without prejudice; judgment will be entered accordingly. Signed by Chief Judge J. Leon Holmes on 1/24/11. (vjt) (Entered: 01/25/2011)
31 JUDGMENT pursuant to 30 Opinion and Order entered this date, judgment is hereby entered dismissing this action without prejudice. Signed by Chief Judge J. Leon Holmes on 1/24/11. (vjt) (Entered: 01/25/2011)