Case 2:16-cv-00798-MHT-CSC Document 1 Filed 09/30/16 Page 1 of 16

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

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DEMONTRAY HUNTER, by and through his next friend Rena Hunter; RUSSELL D. SENN, by and through his next friend Irene Senn; TRAVIS S. PARKS, by and through his next friend Catherine Young,
Plaintiffs,
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JAMES V. PERDUE, in his official capacity as Commissioner of the Alabama Department of Mental Health and Mental Retardation,
Defendant.

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Case No. 2 t I(pcAIlCt,

COMPLAINT

I.

INTRODUCTION

1. In this civil action, Plaintiffs Demontray Hunter, Russell Senn, and Travis Parks,

each of whom has severe mental illness and has been found incompetent to stand trial in the

criminal proceedings against him, challenge the Alabama Department of Mental Health and

Mental Retardation's ("Department of Mental Health") continuing failure to provide them the

competency restoration treatment to which they are entitled under federal law.

2. Individuals with severe mental illness who have been deemed incompetent to stand

trial in Alabama, and who are awaiting transfer to a suitable institution for competency restoration

treatment, wait an average of eight months from the date of the order committing them to the

custody of the Department of Mental Health for that purpose to begin receiving appropriate

treatment. During that waiting period, individuals deemed incompetent to stand trial as a result of

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the impact of their mental illness on their fiitictioning languish in county jails that are not equipped to provide the extensive mental health treatment that these individuals need.
1 The failure of the Alabama Department of Mental Health to provide timely competency restoration therapy and treatment to Plaintiffs violates their right to due process under the Fourteenth Amendment and Title II of the Americans with Disabilities Act. This action seeks declaratory and injunctive relief, preliminarily and permanently thereafter, to remedy the irreparable harm suffered by Plaintiffs as a result of the violation of their rights under federal law.
II. JURISDICTION AND VENUE 4. This is a civil action authorized by 42 U .S.C. § 1983 to redress the deprivation
under color of state law of rights, privileges, and immunities guaranteed by federal law. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, because this action arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343(a)(4), because this action seeks to redress the deprivation of Plaintiffs' civil rights and to secure equitable or other relief for the violation of those rights.
5. This Court has jurisdiction over this action for declaratory relief pursuant to 28 U.S.C. § 2201 and Rule 57 of the Federal Rules of Civil Procedure. Injunctive relief is authorized by 28 U.S.C. § 2202,42 U.S.C. §1983, and Rule 65 of the Federal Rules of Civil Procedure.
6. Venue is proper mt is District and Division under 28 U.S.C. § 1391(b)(2) because a substantial part of the events or omissions giving rise to these claims occurred within this District and Division. Defendant Perdue performs his official duties on behalf of the State of Alabama within the Middle District, thus making venue proper therein.
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III. PARTIES 7. Plaintiff DEMONTRAY HUNTER is a twenty-eight year-old U.S. citizen who
resides in Jefferson County, Alabama who has been charged with attempted murder. Mt. Hunter has been found incompetent to stand trial and committed to the custody of the Alabama Department of Mental Health to receive competency restoration care and treatment.
8. Mr. Hunter's current mental state limits his ability to protect his legal interests. A next friend is, therefore, necessary to represent his interests. Mr. Hunter maintains a close relationship with his mother, Rena Hunter, who has advocated for Mr. Hunter's receipt of mental health treatment since he witnessed the murder of his father at age thirteen. Rena Hunter has volunteered to serve as Mr. Hunter's next friend.
9. Plaintiff RUSSELL D. SENN is a fifty-six year-old U.S. citizen and veteran residing in Pike County, Alabama who has been charged with murder. Mr. Semi has been found incompetent to stand trial and has been committed to the custody of the Alabama Department of Mental Health to receive competency restoration care and treatment.
10. Mr. Senn's current mental state limits his ability to protect his legal interests. A next friend is, therefore, necessary to represent his interests. Mr. Semi maintains a close relationship with his mother, Irene Semi, who has been an advocate for his receipt of mental health treatment for many years. Irene Semi has volunteered to serve as Mr. Semi's next friend.
11. Plaintiff TRAVIS S. PARKS is a thirty-seven year-old U.S. citizen residing in Houston County, Alabama who has been charged with third degree burglary. Mr. Parks has been deemed incompetent to stand trial and has been committed to the custody of the Department of Mental Health for competency restoration care and treatment.
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12. Mr. Parks's current mental state limits his ability to protect his legal interests. A next friend is, therefore, necessary to represent his interests. Mr. Parks maintains a close relationship with his mother, Catherine Young, who has been an active advocate for Mr. Parks's receipt of mental health treatment for many years. Catherine Young has volunteered to serve as Mr. Parks's next friend.
13. Defendant JAMES V. PERDUE is the Commissioner of the Alabama Department of Mental Health. As Commissioner of the Department of Mental Health, Defendant Perdue is charged, under Alabama 14w, with directing, supervising, and controlling the Department's provision of mental health care to persons with severe mental illness throughout Alabama. Ala. Code § 22-50-2 (1975); Ala. Admin. Code § 580-1-1-.O1 (commissioners and divisions of department), 5804-1-.03 (persons served by the Department Of Mental Health), 580-1-1-.04 (agency head), 580-1-1-.06 (authority of commissioner), 580-1-1-.08 (agency is under direction, supervision, and control of commissioner). Specifically, Commissioner Perdue has the authority and power to devise and implement the policies, procedures, and practices necessary to ensure that persons committed to the custody of the Department of Mental Health for competency restoration treatment by courts of competent jurisdiction throughout the State of Alabama timely receive the mental health treatment for which they are committed to the custody of the Department of Mental Health through the State of Alabama's only forensic hospital, the Taylor Hardin Secure Medical Facility, or other suitable institution. The Department of Mental Health is the sole state agency in the State of Alabama designated to administer or supervise the provision of competency restoration treatment pursuant to Alabama Rule of Criminal Procedure 11.6. Defendant Perdue, by and through the Alabama Department of Mental Health, utilizes federal and state funds in providing services in a way that he is obligated to ensure compliance with State and federal constitutional
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and statutory protections for individuals who are involuntarily detained in order to receive mental health services. IV..FACTUAL ALLEGATIONS
A. Defendant Perdue, By and Through the Alabama Department of Mental Health, Must Provide Individuals Found Incompetent to Stand Trial Timely Competency Restoration Treatment.
14. Alabama Rule of Criminal Procedure 11.6 specifies the procedure for the deterination and the restoration of competency of individuals with mental illness who are being criminally prosecuted.
15. Where a court holds the competency hearing prescribed in Alabama Rule of Criminal Procedure 11.6(b), and finds that the defendant is incompetent to stand trial but that there is a substantial probability that the defendant will be restored to competency within a reasonable period of time, if the court also finds that. (a) that the defendant's being a large poses a real and present threat of substantial harm to the defendant or others, and (b) that the defendant is mentally ill and if not treated will continue to suffer mental distress and will experience deterioration of the ability to function independently, and (c) that the defendant is unable to make a rational and informed decision whether treatment is desirable, the court "shall order the defendant committed to the custody of the Alabama Department of Mental Health and Mental Retardationfor therapy and treatment, in an institution suitable to receive such persOns, for a period not to exceed six months or until the defendant's earlier restoration to competency[.]" Ala. R. Crim. P. 11 .6(c)(3)(i) (emphasis added).
16. Alabama Rule of Criminal Procedure 11.6(d)(1) requires the court to periodically "review the situation of a defendant" committed pursuant to Rule 11 .6(c)(3)(i). The commitment of an incompetent defendant for restorative treatment shall not exceed six months pursuant to an
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original order. Ala. R. Crim. P. 11.6(d)(1). Commitment of an incompetent defendant for restorative therapy pursuant to an order renewing an original order "shall not exceed one year." Id;
17. Alabama Rule of Procedure 11.6 likewise requires any person responsible for the therapy and treatment of an incapacitated defendant Subject to commitment to report on the defendant's status no less frequently than every ninety-one days. Ala. R. Crim. P. 11.6(f).
18. The time periods for the commitment of an incapacitated defendant for restorative therapy and treatment, as well as the requisite reporting On the defendant's Status, impose a duty on the Alabama Department of Mental Health to provide competency restoration treatment in an appropriate institution within the timeframe specified.
19. Incapacitated criminal defendants have liberty interests in freedom from incarceration and in restorative treatment.
20. Incapacitated criminal defendants who have been committed to the Department of Mental Health for restorative treatment in a suitable institution have liberty interests in receiving appropriate restorative treatment in an institution suitable to provide that restorative treatment.
21. While they are detained in jail, incapacitated criminal defendants do not receive care giving them a realistic opportunity of becoming competent to stand trial.
22. Federal courts have repeatedly recognized that county jails are poorly equipped to provide appropriate mental health care to individuals requiring competency restoration treatment. See, e.g., Trueblood, et al. v. Washington State Department of Social and Health Services, et al., Case No. 2:14-cv-01 178-MJP (W.D. Wash. Apr. 2, 2015) Doc. 131 (Findings of Fact and Conclusions of Law) at ¶j 25-28, affirmed in part and reversed in part, 822 F.3d 1037 (9th Cir.
No

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2016) (on unrelated grounds); Advocacy Or. for the Elderly & Disabled v. La. Dept of Health & Hosps., 731 F. Supp. 2d 603,612-18 (E.D. La. 2010).
23. Under the Due Process Clause of the Fourteenth Amendment, "a person charged by a state with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine Whether there is a substantial probability that he will attain capacity in the foreseeable future." Jackson v. Indiana, 406 U.S. 715, 738 (1972).
24. "At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed." Id.
2:5. The Department of Mental Health has a duty to ensure that persons committed to its custody for purposes of competency restoration therapy and treatment do not languish, for unnecessarily protracted periods, in jails where the minimal care afforded them bears little relationship to the purposes of their detention and the duration of that confinement bears no relationship to their progress towards competency.
26. Notwithstanding Defendant Perdue's duty to provide timely competency restoration treatment to criminal defendants with severe mental illness, by and through the Department of Mental Health, incapacitated defendants often wait eight months or longer before being transferred to Alabama's single forensic treatment facility, the Taylor Hardin Secure Medical Facility. Defendant Perdue recently acknowledged as much: "If you want to put a gun in the hands of the federal government and put a bullet in it, we're doing it." Amy Yurkaiiiri, Long Waits as Gridlock Grips Alabama Mental Health System, AL.c0M (Aug. 17, 2015, 2:21 PM), littp://Mvw.al.com/news/birmingbam/index.ssf/20 16/08/mciital 11[ness part 2.html.
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B. Alabama's County Jails Do Not and Cannot Provide Competency Restoration Treatment to Individuals Deemed Incompetent to Stand Trial.

27. Alabama's county jails are, as the Tuscaloosa County sheriff described them, "the

worst place for someone with a mental illness." B. FULLER TORREY, M.D., ET AL., THE

TREATMENT OF PERSONS WITH MENTAL ILLNESS IN PRISONS AND JAILS: A STATE

SURVEY

27

(2014),

available

at

http://www.treatrnentadvocac y center.org/storage/documents/treatment-behind-bars/treatrnent-

behind-bars.pdf.

28. Alabama's county jails provide or arrange for the provision of minimal mental

health care and treatment, such as medication management. The minimal mental health care

provided by Alabama's county jails is designed to manage inmates' mental illness not restore the

capacity of an incapacitated criminal defendant.

29. Alabama's county jails, for legitimate penalogical reasons, do not permit treating

professionals to use the full array of pharmacological options in their treatment of mentally ill

inmates who require complicated pharmacological cocktails to restore them to competency. For

example, Alabama's county jails, including those in which Plaintiffs are confined, do not provide

narcotics to mentally ill inmates even where doing so would otherwise be medically indicated.

30. Alabama's county jails do not, and cannot, employ the range of full-time clinicians

necessary to provide competency restoration treatment to incapacitated defendants.

31. Alabama's county jails do not, and cannot, provide the therapeutic environment

often necessary to address severe, and complicated, mental illnesses.

32. Individuals with severe mental illness who have been deemed incompetent to stand

trial often engage in disruptive or problematic behaviors in the jail setting that provoke punitive

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responses by county jail officials. These punitive responses to the behavioral manifestations of mental illness often exacerbate the individuals' mental illness.
33. Because individuals with severe mental illness who have been found incompetent to stand trial need extensive mental health treatment unavailable in Alabama's county jails, the mental condition of these individuals often markedly deteriorates during long periods of incarceration in county jails.
34. Alabama's jails often segregate inmates with severe mental illness to ensure necessary order and prevent inmates with severe mental illness from harming themselves or others, or being harmed.
C. Defendant Perdue Has Failed to Arrange for the Provision of Timely Competency Restoration Treatment to Plaintiffs. i. Plaintiff Demontray Hunter
35. Mr. Hunter began exhibiting symptoms of mental illness after he witnessed his brother kill his father at age thirteen. During his incarceration for his present offense, Mr. Hunter was provisionally diagnosed with schizophrenia paranoid type with active psychosis.
36. Mr. Hunter was arrested on May 27, 2015, and charged with attempted murder after allegedly shooting his brother. Mr. Hunter has been incarcerated in the Jefferson County Jail since his arrest
37. A Jefferson County circuit judge found Mr. Hunter incompetent to stand trial on April 14, 2016. The court found that there was a substantial probability that Mr. Hunter could be restored to competency within a reasonable period of time and entered an order committing Mr. Hunter to the custody of the Alabama Department of Mental Health for "such treatment as is

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required for [Mr. Hunter] to attain competency or minimize or abate the risk of harm threatened by [Mr. Hunter's] being at large" on April 14, 2016.
38. The Jefferson County circuit judge's April 14, 2016 order generally continued further criminal proceedings against Mr. Hunter until such time as the court determines that Mr. Hunter has been restored to competency to participate in the criminal proceedings against him.
39. Mr. Hunter is on the waiting list for transfer from the Jefferson County Jail to the Taylor Hardin Secure Medical Facility for competency restoration care and treatment. As of the date of this filing, Mr. Hunter remains incarcerated at the Jefferson County Jail.
40. Mr. Hunter does not take prescribed medication regularly in the Jefferson County Jail, nor does he receive any form of intensive mental health treatment designed to restore him to competency to participate in the criminal proceedings against him.
41. As a result of his mental illness and his inability to receive appropriate mental health care in the Jefferson County Jail, Mr. Hunter has exhibited behaviors that have resulted in his being placed in segregation approximately three times.
42. As a result of Mr. Hunter's inability to receive appropriate mental health treatment in the Jefferson County jail, his mental health has regressed. Mr. Hunter experiences auditory hallucinations and/or delusional thinking, nervousness, paranoia, and insomnia.
ii. Plaintiff Russell Senn 43. Mr. Senn has an extensive history of mental illness, and has been diagnosed with schizoaffective disorder, bipolar type, among others. He has a history of psychiatric institutionalization and outpatient treatment with the Department of Veteran's Affairs. Mr. Senn has struggled with suicidal ideation, as well as compliance with medications.
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44. Mr. Senn was arrested on April 26, 2013, and charged with murder after allegedly shooting his sister following an extended period of sleep deprivation.
45. A Pike County circuit judge found Mr. Senn incompetent to stand trial on February 5, 2016. The court found that there was a substantial probability that Mr. Senn could be restored to competency within a reasonable period of time and entered an order committing Mr. Senn to the custody of the Department of Mental Health for "such, treatment as is required for [Mr. Senn] to attain competency or minimize or abate the risk of harm threatened by [Mr. Sfln's] being at large" on February 5, 2016.
46. The Pike County circuit judge's February 5, 2016 order generally continued further criminal proceedings against Mr. Senn until such time as the court determines that Mr. Senn has been restored to competency to participate in the criminal proceedings against him.
47. Mr. Senn is on the waiting list for transfer from the Houston County Jail to the Taylor Hardin Secure Medical Facility for competency restoration care and treatment. As of the date of filing, Mr. Senn remains incarcerated at the Pike County Jail.
48. While incarcerated at the Pike County Jail, clinicians at the East Alabama Mental Health Center prepared an outpatient treatment plan for Mr. Senn on March 8, 2016, specifically noting "problems" of psychosis and mood disorder, as well as insomnia. The "treatment goals" in Mr. Senn's March 8, 2016 treatment plan do not include competency restoration. Mr. Senn's clinical records reflect that, on June 25, 2016, he was found to be making insufficient progress toward his treatment goals and that he had not been "seen" since his intake appointment on March 8, 2016. While the services specified in Mr. Senn's March 8, 2016 treatment plan include medication management, Mr. Senn does not take prescribed medication in the Pike County Jail.
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49. As a result of Mr. Senn's inability to receive appropriate mental health treatment incarcerated in the Pike County Jail, his mental health has regressed. Mr. Senn continues to suffer from insomnia and experiences anxiety, as well as the symptoms of his diagnosed illnesses.
iii. Plaintiff Travis Parks 50. Mr. Parks has an extensive history of mental illness and has been diagnosed with chronic paranoid schizophrenia with acute exacerbation. He has required extensive in-patient and outpatient mental health treatment throughout the past decade, which has included not, only significant pharmacological treatment and management, but also extensive home- and communitybased services. Mr. Parks has also struggled with taking medication regularly. Mr. Parks has experienced suicidal ideation and attempted to commit suicide in the past. 51. Mr. Parks was arrested on September 14, 2014, and charged with third degree burglary. 52. A Houston County circuit judge found Mr. Parks incompetent to stand trial, and entered an order committing him to the custody of the Department of Mental Health for competency restoration care and treatment on January 21, 2016. The court entered another order committing Mr. Parks to Taylor Hardin Secure Medical Facility on August 29, 2016. As of the date of this filing, Mr. Parks remains incarcerated at the Houston County Jail. 53. Mr. Parks is on the waiting list for transfer from the Houston County Jail to the Taylor Hardin Secure Medical Facility for competency restoration care and treatment. 54. Mr. Parks receives some medication management in the Houston County Jail. Mr. Parks does not receive intensive mental health treatment designed to restore his competency to participate in the criminal proceedings against him.
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55. As a result of his severe mental illness and his inability to receive adequate mental health treatment in the Houston County Jail, Mr. Parks has exhibited problematic behavior while incarcerated that has resulted in his being placed in segregation.
56. As a result of Mr. Parks's inability to receive adequate mental health treatment in the Houston County Jail, his mental health has regressed. Mt. Parks experiences auditory hallucinations, paranoia, mania, anxiety levels that prevent him from eating, and adverse side effects from his medications. V. LEGAL CLAIMS
COUNT I Violation of the Fourteenth Amendment of the United States Constitution
42 U.S.C. § 1983 57. The allegations in Paragraphs 1 through 56 above are incorporated by reference as if fully set forth herein. 58. The Due Process Clause of the Fourteenth Amendment requires that the nature and duration of an individual's involuntary confinement bear a reasonable relation to the purpose for which the individual is committed. 59. Once an individual is found unable to aid and assist in his own defense, the Only lawful purpose for his confinement is to treat his mental illness so as to restore him to competency. 60. An individual found unable to aid and assist in his criminal defense has a constitutional right, to such individualized treatment as will give him a realistic opportunity to be restored to competency. 61. County jails in the State of Alabama do not have the capacity to provide the competency restoration treatment required by the United States Constitution. 62. The Alabama county jails in which Plaintiffs Demontray Hunter, Russell Senn, and Travis Parks are incarcerated do not provide Plaintiffs mental health treatment designed to or
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capable of restoring Plaintiffs to competency to participate in the criminal proceedings against them.
63. Defendant Perdue, by and through the Alabama Department of Mental Health and Mental Retardation, has failed to provide Plaintiffs Demontray Hunter, Russell Senn, and Travis Parks the competency restoration therapy and treatment for which Plaintiffs were committed to the custody of the Department.
64. Acting under color of state law, Defendant Purdue's administration of the Department of Mental Health, specifically, its policies, procedures, and practices in regard to the Department of Mental Health's provision or arrangement for the provision of competency restoration treatment hasdenied Plaintiff Demontray Hunter's, Russell Senn's, and Travis Parks's due process pursuant to the Fourteenth Amendment to the United States Constitution.
65. Unless enjoined: by this Court from continuing to do so, Defendant Perdue will continue to violate and cause the violation of the constitutional rights of Plaintiffs Demontray Hunter, Russell Senn, and Travis Parks to receive mental health treatment designed to restore them to competency.
COUNT 2 Violation of the Americans with Disabilities Act
42 U.S.C. § 12132 etseq. 66. The allegations in Paragraphs 1 through 56 above are incorporated by reference as if fully set forth herein. 67. Plaintiffs Demontray Hunter, Russell Senn, and Travis Parks are qualified disabled persons as defined in the Americans with Disabilities Act, 42 U.S.C. § 12132 et seq. 68. Defendant Perdue, in his direction, supervision, and control of the Alabama )epartrnent of Mental Health and Mental Retardation, specifically, the Department's policies,
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procedures, and practices regarding the provision of mental health treatment designed to restore Plaintiffs to competency, has failed to provide or cause to be provided through the Department of Mental Health reasonable accommodation of the Plaintiffs' disabilities.
69. Unless enjoined by this Court, Defendant Perdue, in his direction, supervision, and control of the Department of Mental Health, will continue to violate and cause the violation of the rights of the Plaintiffs under the Americans with Disabilities Act, 42 U.S.C. § 12132 et seq. VI PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that the Court grant them the following relief:
A. A declaration that Defendant Perdue is denying Plaintiffs Demontray Hunter, Russell Senn, and Travis Parks due process under the Fourteenth Amendment to the United States Constitution;
B. A declaration that Defendant Perdue is violating Plaintiffs Demontray Hunter's, Russell Senn's, and Travis Parks's rights to reasonable accommodation under the Americans with Disabilities Act;
C. The issuance of permanent injunction restraining Defendant Purdue, in his direction, supervision, and control of the Department of Mental Health, from denying Plaintiffs Demontray Hunter, Russell Senn, • and Travis Parks due process, specifically, from denying Plaintiffs appropriate and adequate competency restoration treatment;
D. The issuance of a permanent injunction restraining Defendant Perdue, in his direction, supervision, and control of the Department of Mental Health, from denying Plaintiffs Demontray Hunter, Russell Senn, and Travis Parks reasonable accommodation of their disabilities;
E. An award of Plaintiffs' attorneys' fees and costs; and F. Such other and further relief as the Court may deem just and proper.
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Dated: September 30, 2016

Respectftully submitted,

M,

G dd (ASB-0601 -J98 S)

ALABAMA DISABILITIES ADVOCACY PROGRAM

400 South Union Street, Suite 280

Montgomery, Alabama 36104

Telephone: (334) 240-0994

Facsimile: (334) 240-0996

Email: mggadd@adap.ua.edu

J. Patrick Hackney (ASB697 14H51J) William Van Der Pol, Jr. (ASB-21 12-1 14F) ALABAMA DISABILITIES ADVOCACY PROGRAM 500 Martha Parham West Box 870395 Tuscaloosa, Alabama, 35487-03 95 Telephone: (205) 3484928 Facsimile: (205) 348-3909 Email: jphackneyadap.ua.edu
wvanderpo1jradap.ua.edu

,4?. ( Henry Hank) Sherrod III (ASB-12pO-D63H
HENRY F. SHERROD III, P.C.

119 South Court Street

P. 0. Box 606 Florence, Alabama 35631-0606 Telephone: (256) 764-4141 Facsimile: (877) 684-0802

Email: hank@alcivilrights.com

jc4LJ /

vn7

Randall C. Marshall (AS-3023-A56M) ACLU OF ALABAMA FOUNDATION P.O. Box 6179 Montgomery, AL 36106-0179 Telephone: (334) 420-1741 Facsimile: (334) 269-5666 Email: rmarshallac1ualabarna.org

Attorneys for Plaintiffs

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 Case 2:16-cv-00798-MHT-CSC Document 93 Filed 01/25/18 Page 1 of 82

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

DEMONTRAY HUNTER, et al., )

)

Plaintiffs,

)

)

v.

)

)

LYNN T. BESHEAR, in her

)

official capacity as the )

Commissioner of

)

the Alabama Department of )

Mental Health,

)

)

Defendant.

)

CIVIL ACTION NO. 2:16cv798-MHT (WO)

FINAL SETTLEMENT APPROVAL OPINION AND ORDER The claim presented in this litigation is that the Alabama Department of Mental Health (ADMH) fails to provide timely competency mental-health evaluations and restoration treatments to pretrial detainees. The claim rests on the Due Process Clause of the Fourteenth Amendment, as enforced through 42 U.S.C. § 1983. The plaintiffs are pretrial detainees who have been found incompetent to stand trial and committed to the custody of the ADMH for competency restoration if possible; a pretrial detainee who may be incompetent

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and has been committed for an inpatient mental evaluation; and the Alabama Disabilities Advocacy Program (ADAP), Alabama’s protection and advocacy organization for people with mental illness and disabilities. The defendant is the Commissioner of the ADMH, sued in her official capacity only.
Briefly, plaintiffs claim that the ADMH fails to provide timely competency evaluations and restoration services because demand for those services exceeds the Department’s capacity to provide them through the psychiatric hospitals it operates. They alleged that the pretrial detainees remained incarcerated in a county jail for up to eight months after a court order committing them to the Department for treatment or evaluation. They sought declaratory and injunctive relief. Jurisdiction is proper under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343 (civil rights).
The parties submitted a joint motion for preliminary approval of a settlement. The court granted preliminary approval; provisionally certified a
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putative plaintiff class; required notice to class members and their representatives; entertained objections and comments from the members and their representatives; and held a fairness hearing.
For the reasons that follow, the court will grant final approval of the settlement and the parties’ request to enter a consent decree.
I. DESCRIPTION OF PROPOSED SETTLEMENT The settlement agreement runs some 43 pages. It provides for the following. Timely Provision of Court-Ordered Mental Evaluations and Competency Restoration Treatment: The ADMH is required to provide court-ordered mental evaluations and competency restoration treatment within specified time periods: (1) Mental Evaluations: By 12 months after final approval, the Department must conduct both inpatient and outpatient mental evaluations within 45 calendar days of the date
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of ADMH’s receipt of the circuit court order mandating the evaluation, and the clinician must submit a report with the findings from the evaluation to the circuit court within 45 days of conducting the evaluation. By 24 months after final approval, the time periods are reduced to 30 days. (2) Competency Restoration Therapy and Treatment: By 12 months after final approval, the Department must admit persons found incompetent to stand trial and committed to its custody for treatment into an institution suitable for treatment within 45 days. By 24 months after final approval, the time period is reduced to 30 days. (3) Order of Evaluations and Treatment: As a general rule, the Department will continue to provide services to those persons it is ordered to evaluate or treat based on the date of receipt of the court order. The agreement
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generally prohibits the Department from meeting

the agreement’s time periods by prioritizing,

for admission into a state forensic hospital,

persons who have been found incompetent to

stand trial and ordered to receive treatment

over persons who have been found not guilty by

reason of insanity and ordered to receive

inpatient psychiatric services.

If, in

exceptional circumstances, the Department

‘skips’ persons found not guilty by reason of

insanity to treat persons found incompetent,

the skip will affect the Department’s

compliance rate. The agreement authorizes, but

does not require, the Department to treat

persons earlier than dictated by the date of

receipt of court order (i.e., ‘line jumping’).

(4) Substantial Compliance: The agreement

defines the standard to determine whether the

Department is in ‘substantial compliance’ with

the agreement. By 12 months after final

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approval, the average time period for the provision of inpatient and outpatient mental evaluations and competency restoration treatment must not exceed the applicable time frame by 20 %. For example, for a service that is to be provided within 45 days, the average time period must not exceed 54 days. By 24 months after final approval, the average time period may not exceed the applicable time frame by 12 %. For example, for a service that is to be provided within 30 days, the average time period must not exceed 34 days. This section also defines the treatment of, for the purposes of calculating the Department’s average monthly compliance rate, and establishes a dispute resolution process, concerning individuals who are next in line to receive a service but are ‘skipped’ by the Department because of an obstacle to providing the service at that time.
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Increase in Capacity: The ADMH will increase its

bed capacity to provide court-ordered inpatient mental

evaluations and competency restoration treatment.

Within 24 months after final approval, the Department

must add and operate 101 total new beds: 49 hospital

forensic beds and 52 community forensic beds. Of

those, 44 beds must be operational within 12 months

after final approval (24 hospital forensic beds and 20

community beds). Five of the community forensic beds

must be suitably located for registered sex offenders;

all community forensic beds must be distributed in

group homes throughout the State of no greater than 16

beds.

Training: The Department will offer initial and

periodic training to state circuit court personnel,

county sheriffs, and members of the Alabama State Bar

concerning the procedures for mental evaluations and

competency-restoration treatment.

Monitoring:

ADAP will monitor the ADMH’s

compliance with the consent decree, and will be

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entitled to access relevant documents and to conduct

interviews with staff and persons referenced in the

agreement. ADAP will prepare quarterly reports on the

Department’s

compliance

containing

written

recommendations for any necessary changes, and the

parties will meet and confer to address any reported

deficiencies.

Dispute Resolution Process: The parties are to

meet and confer to resolve any disputes that arise

during the implementation and monitoring periods of the

agreement. If the parties are unable to resolve the

dispute, they will submit disputes to the magistrate

judge, with appeal to the district court.

Termination: The consent decree will terminate

after three years unless either plaintiffs or the

parties jointly request, and the court grants, an

extension.

Amendment: The parties may mutually amend the

agreement in writing signed by the parties and approved

by the court.

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Funding:

The parties acknowledge that

implementation of the agreement is subject to the

availability and receipt of appropriated funds, but the

lack of funding or third-party cooperation does not

preclude the court from entering an order to achieve

compliance. The Department and ADAP agree to make

good-faith efforts to seek all necessary funding.

Attorneys’ Fees: Finally, the Department will pay

plaintiffs’ attorneys $ 275,000 in fees and costs for

services rendered through March 13, 2017. Thereafter,

the Department will pay plaintiffs’ attorneys

additional fees of $ 275 per hour for services rendered

through final approval, and $ 195 per hour for

monitoring services rendered by attorneys (subject to

caps).

II. DISCUSSION Judicial policy favors the settlement of class-action cases. Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984). Nevertheless, the court
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retains an important role in evaluating and approving such settlements, pursuant to multiple provisions of Federal Rule of Civil Procedure 23. First, because the settlement contemplates the certification of a class, the court must determine whether the requirements of subparts (a) and (b) of the rule are met. Second, subpart (e) imposes both procedural and substantive requirements that must be satisfied before the court may approve a settlement that binds absent class members. Third, because the settlement includes an agreed-upon award of attorneys’ fees and costs to plaintiffs’ counsel, the court must determine their suitability for appointment as class counsel pursuant to subpart (g) and the reasonableness of the fee award reasonable pursuant to subpart (h).
A. Class Certification: Rule 23(a) and (b)(2) The court previously granted provisional certification of a settlement class defined to include “All persons who have been, or will be during the
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period that this Agreement remains in effect, charged with a crime, within the meaning of Rule 1.4(b) of the Alabama Rules of Criminal Procedure, in a court of competent jurisdiction in the State of Alabama, and detained in an Alabama city or county jail or Alabama Department of Corrections facility while awaiting a court-ordered Mental Evaluation or court-ordered Competency Restoration Treatment (i) For whom a Circuit Court has determined that reasonable grounds exist for a mental examination into the person’s competency to stand trial under Rule 11 of the Alabama Rules of Criminal Procedure and committed the person to the custody of ADMH under Rule 11.3 of the Alabama Rules of Criminal Procedure by court order for an inpatient evaluation, whether or not the court’s order references any provision of law in so ordering; or (ii) Who is found incompetent to stand trial under Rule 11 of the Alabama Rules of Criminal Procedure and committed to the custody of ADMH under Rule 11.6 of the Alabama Rules of Criminal Procedure by court order for
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Competency Restoration Therapy, whether or not the court’s order references any provision of law in so ordering.” Preliminary Settlement Approval Order (doc. no. 67) at 2-3.
Having considered the parties’ post-settlement brief on this topic, the court now concludes that final certification of this settlement class is appropriate.
In order for any certification motion to succeed, the putative class representatives must show that “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). In addition, a class must clear one of three additional hurdles; because the named plaintiffs in this case seek certification of a Rule 23(b)(2) class, they must also show that “the party opposing the class
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has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). These requirements apply with “equal force” to uncontested certification of a class for purposes only of settlement. Austin v. Hopper, 15 F. Supp. 2d 1210, 1224 (M.D. Ala. 1998) (Thompson, J.).
Class certification also requires an examination of two preliminary hurdles, which will be considered first: standing and ascertainability.
i. Standing “[A]ny analysis of class certification must begin with the issue of standing”; only once the court finds that the named plaintiffs have standing may it consider whether they have “representative capacity, as defined by Rule 23(a), to assert the rights of others.” Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987). To show Article III standing, the named
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plaintiffs must show that they have been injured, that
their injuries are fairly traceable to the defendant's
conduct, and that a judgment in their favor would
likely redress their injuries. See Mulhall v. UNITE
HERE Local 355, 618 F.3d 1279, 1286 (11th Cir. 2010).
The standing inquiry looks for the existence of a
dispute at the beginning of the litigation, that is,
at the time of filing the complaint. See Focus on the
Family v. Pinellas Suncoast Transit Auth., 344 F.3d
1263, 1275 (11th Cir. 2003).
The named pretrial-detainee plaintiffs clearly have
standing to assert the claim in the complaint and now resolved in the settlement agreement.1 Each is a
1. Although several named pretrial-detainee plaintiffs were no longer awaiting admission at the time of the amended complaint and all named pretrial-detainee plaintiffs are no longer awaiting admission at this time--in other words, their claim is now arguably moot--the existence of a current dispute is an aspect of the mootness inquiry, not standing. Further, there is a well-recognized exception to mootness where the class members consist of pretrial detainees. In Gerstein v. Pugh, 420 U.S. 103, 111 n.11 (1975), the Supreme Court concluded that the termination of claims by class representatives, through (continued...)
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pretrial detainee in the custody of the Department, and (allegedly) has been made to wait for admission to an ADMH-facility for a competency examination or competency restoration treatment for periods of time that are so substantial as to violate the Fourteenth Amendment. A judgment in plaintiffs’ favor would have remedied these alleged violations, just as will this consent decree.

the conviction of the pretrial detainees serving as

named plaintiffs, does not moot the claims of the

unnamed class members that were pretrial detainees

awaiting a probable-cause determination. The Court

recognized that “[p]retrial detention is by nature

temporary, and it is most unlikely that any given

individual could have his constitutional claim decided

on appeal before he is either released or convicted.

The individual could nonetheless suffer repeated

deprivations, and it is certain that other persons

similarly situated will be detained under the allegedly

unconstitutional procedures.”

Id.

Under these

circumstances, the ‘capable of repetition, yet evading

review’ exception to mootness applied: any given

pretrial detainee might not remain in custody long

enough for a district judge to certify the class and

the “constant existence” of class members suffering the

deprivation is certain.

Id.; see also Cty. Of

Riverside v. McLaughlin, 500 U.S. 44, 51-52 (1991)

(finding claims of pretrial detainees awaiting

probable-cause determinations not moot even though

(continued...)

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ii. Clearly Defined and Ascertainable Class certification pursuant to Rule 23 has been construed to include an additional, implicit requirement that the class is “adequately defined and clearly ascertainable.” Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012)). However, because Little reached that conclusion in the context of a subpart (b)(3) damages class, there is “serious reason to doubt that the judicially created ascertainability requirement applies to Rule 23(b)(2) [injunctive-relief] classes.” Braggs v. Dunn, 317 F.R.D. 634, 671 (M.D. Ala. 2016) (Thompson, J.). The court need not conclude whether the ascertainability requirement applies here, because even if the requirement did apply, the proposed class definition would satisfy it. The settlement class is limited to persons who have been charged with a crime,
named plaintiffs’ claims had been rendered moot prior to class certification).
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committed to the custody of ADMH for an inpatient mental evaluation or competency restoration treatment, and await evaluations while being detained in an Alabama city or county jail or ADOC facility. Accordingly, the class is ascertainable by reference to the circuit court orders committing criminal detainees to ADMH custody. See Strawser v. Strange, 307 F.R.D. 604, 611 (S.D. Ala. 2015) (Granade, J.) (finding that class is ascertainable where members can be identified by reference to applications for marriage licenses). No further inquiry is required other than the review and application of objective criteria to these public records; this satisfies the ascertainable requirement.
iii. Rule 23(a) 1. Numerosity Rule 23(a)(1)’s requirement of numerosity is satisfied if joinder--the usual method of combining similar claims--would be impracticable. Although there is no strict threshold, classes containing more than 40
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members are generally large enough to warrant certification. See, e.g., Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986); see also William B. Rubenstein, Newberg on Class Actions § 3.12 (5th ed.). “[P]laintiff[s] need not show the precise number of members in the class,” given that the numerosity requirement is “less significant” where “class wide discrimination has been alleged.” Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983).
The parties submitted evidence, in the form of waiting-list records for the ADMH’s Taylor Hardin Secure Medical Facility, indicating that, as of April 27, 2017, there were 32 current class members. See Joint Statement Ex. A (doc. no. 77-1). The parties also represented that they identified two additional current class members, bringing the total number to 34. See Joint Statement (doc. no. 72) at 15.
The number of current class members is supplemented by an additional number of future class members. The
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“fluid nature of a plaintiff class--as in the

prison-litigation context--counsels in favor of

certification of all present and future members.”

Henderson v. Thomas, 289 F.R.D. 506, 510 (M.D. Ala.

2012) (Thompson, J.).

In this case, future class members include hundreds

of people who have already been charged with a crime

and who are awaiting an outpatient mental examination.

Approximately 28 % of persons ordered to receive such

examinations will be found incompetent to stand trial

and committed to the Department’s custody for

competency restoration treatment. See Ex. E, Simpler

Dep. (doc. no. 77-6) at 93:10-21. In addition, some

persons who undergo outpatient examinations can be

expected to be ordered to undergo a more comprehensive

inpatient examination where necessary for a court to

make a final determination as to that person’s

competency.

See Ala. R. Crim. P. 11.3(c)(3)

(authorizing inpatient examinations if the initial

“examiner reports that confinement for evaluation is

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indispensable to a clinically valid diagnosis and report”). Future class members also include those who will later be charged with a crime and ordered to undergo an inpatient mental evaluation or competency-restoration treatment during the pendency of the agreement. The future class members will easily bring the number of total class members to well in excess of 100.
In light of the evidentiary showing that there are at least--and probably quite substantially more than--100 current class members, and in light of precedent making clear that it is appropriate in this context to consider future and as-yet-unidentifiable class members in determining whether joinder is impracticable or indeed impossible, the court finds that the class meets the numerosity requirement of subpart (a)(1) of Rule 23.
2. Commonality Subpart (a)(2) of Rule 23 requires plaintiffs
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seeking class certification to show that “there are questions of law or fact common to the class.” In Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), the Supreme Court explained that class members must have “suffered the same injury. ... [T]his does not mean merely that they have all suffered a violation of the same provision of law. ... [Rather,] [t]heir claims must depend upon a common contention ... [which] must be of such a nature that it is capable of classwide resolution--which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. What matters to class certification ... is not the raising of common ‘questions’--even in droves--but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. at 350 (citation and internal quotation marks omitted). In short, commonality requires a showing that there is “some glue” holding the claims together. Id. at 352.
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Plaintiffs seeking to demonstrate commonality under subpart (a)(2) need not show that common questions “predominate” over individual questions as required under Rule 23(b)(3); indeed, “even a single common question will do,” provided there are not “[d]issimilarities within the proposed class” that “have the potential to impede the generation of common answers.” Wal-Mart, 564 U.S. at 359, 351 (citations and alterations omitted).
The named pretrial detainees have raised a single claim on behalf of the class: whether the ADMH’s failure to provide inpatient mental-health services to the class in a timely manner, combined with the class members’ detention in a jail or prison, violates their rights under the Due Process Clause of the Fourteenth Amendment.
The class members experience the constitutional harm in somewhat divergent ways. Some class members have already been found incompetent and are awaiting inpatient treatment to restore them to competency;
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others are awaiting an inpatient examination to

determine whether they are incompetent.

Moreover,

class members are detained in various city and county

jails spread throughout Alabama, and therefore

experience the harm--the delayed receipt of inpatient

mental-health services--in different settings.

However, the commonality requirement may be satisfied

“even if some factual differences concerning treatment”

are present.

In re Checking Account Overdraft

Litigation, 307 F.R.D. 656, 668 (S.D. Fla. 2015) (King,

J.).

Despite these factual distinctions, a classwide

proceeding would have “generate[d] common answers apt

to drive the resolution of the litigation,” Wal-Mart,

564 U.S. at 350 (citation and internal quotation marks

omitted); principally, the proceeding would have

answered the factual questions of whether the

Department has failed to provide court-ordered

inpatient mental-health services to detainees committed

to its custody for that purpose in a constitutionally

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permissible period of time; and, if so, it would resolve the sole legal question, namely whether that failure violates class members’ due-process rights. Plaintiffs not only alleged in their complaint that this failure violated the Due Process Clause; they presented evidence to show as much in support of their motion for a preliminary injunction. While the court would of course have had to weigh this evidence against any contrary evidence presented by defendant ADMH Commissioner had this case proceeded to a merits adjudication, plaintiffs “affirmatively demonstrate[d] [their] compliance with [] Rule” 23(a)(2). Wal-Mart, 564 U.S. at 350.
The commonality requirement is satisfied.
3. Typicality Although the commonality and typicality inquiries “tend to merge,” the typicality requirement--which is “somewhat of a low hurdle”--focuses on “whether a sufficient nexus exists between the claims of the named
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representatives and those of the class at large.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982). A class representative’s claims are typical if they “arise from the same event or pattern or practice and are based on the same legal theory” as the class claims; they need not be identical. Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1357 (11th Cir. 2009) (citation omitted).
This court has previously found the typicality requirement satisfied where “the named plaintiffs’ legal claim ... is identical to the class’s claim.” Henderson, 289 F.R.D. at 511. Here, too, the named detainee plaintiffs brought the same due-process claim as the class based upon the Department’s failure to provide timely inpatient mental-health services. The claim of both the named plaintiffs and the class are also based on the same legal theory: that the delays in the provision of services provides unjustified punishment in violation of the Due Process Clause. See Disability Law Ctr. v. Utah, No. 2:15-cv-00645-RJS,
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2016 WL 5396681 at *17-18 (D. Utah. Sept. 27, 2016)

(Shelby, J.) (concluding that typicality requirement

was met where the claim of named plaintiffs and class

rested on same theory, “that the substantive due

process right of incompetent defendants requires

injunctive

relief

against

the

allegedly

unconstitutional delays”).

Moreover, the distinctions within the class are

mirrored by the named plaintiffs: the class consists

of both (1) persons already found incompetent and

awaiting treatment, and seven named plaintiffs are in

that circumstance, and (2) persons awaiting an

inpatient competency examination, and one named

plaintiff is in that circumstance.

The court is satisfied that the named

pretrial-detainee plaintiffs, as a group, adequately

represent the particular interests of all class

members.

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4. Adequacy Rule 23(a)(4) requires the court to find that the “representative parties will fairly and adequately protect the interests of the class.” This analysis “encompasses two separate inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action.” Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003) (citation omitted). “Adequate representation is usually presumed in the absence of contrary evidence,” and generally exists for injunctive-relief classes, because there is no monetary pie to be sliced up. Access Now, Inc. v. Ambulatory Surgery Ctr. Grp., Ltd., 197 F.R.D. 522, 528 (S.D. Fla. 2000) (Seitz, J.). Here, although some members of the class are awaiting inpatient admission for different services (either a competency examination or treatment), the representatives include members of both groups. Further, in the usual circumstance, class
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members will be provided admission according to the date of receipt of the court order requiring ADMH to provide the services. Accordingly, there is no reason to think that providing inpatient admission to one member of the class would harm another member of the class (apart from the obvious and unavoidable consequence that one class member was provided admission earlier than another).
The settlement authorizes the ADMH to provide services outside the standard waiting list in several circumstances: it can engage in ‘line jumping’ by providing services for a particular individual earlier than dictated by the waiting list, and it can also ‘skip’ persons because of a “demonstrable and compelling obstacle to the provision of the ordered evaluation or treatment at that time.” Settlement Agreement (doc. no. 60-1) §§ VI.D.iii & VI.E.iv. However, these exceptions do not stand to benefit any particular subset of class members to the detriment of any other. Nor is there evidence that the exceptions
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will inure to the benefit of the class representatives over other class members.
The court concludes that there are no substantial conflicts of interest between the representatives and the class.
Turning now to the second aspect of subpart (a)(4) of Rule 23: “The vigor with which [] named representative[s] and [their] counsel will pursue the class claims is assessed by considering the competency of counsel and the rationale for not pursuing further litigation.” Ass’n for Disabled Ams., Inc., 211 F.R.D. 457, 464 (S.D. Fla. 2002) (Gold, J.) (citing Griffin v. Carlin, 755 F.2d 1516, 1533 (11th Cir. 1985)). The competency of counsel for plaintiffs in this case is reflected in their involvement in a large number of successful class actions vindicating the constitutional or federal statutory rights of classes of persons with mental illness and/or intellectual disabilities, including counsel that specialize in representing
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inmates housed in Alabama county jails. See Joint Statement (doc. no. 72) at 28-30.
Class counsel’s rationale for not pursuing further litigation is equally plain from the fact that, after extensive negotiation and after filing a motion for preliminary injunction, they reached a settlement highly favorable to all members of the class. In this circumstance, “continued litigation would only serve to delay class relief ....” Ass’n for Disabled Ams., 211 F.R.D. at 464.
Rule 23(a)(4) is satisfied.
iv. Rule 23(b)(2) A class satisfies Rule 23(b)(2) where “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2).
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As plaintiffs have repeatedly explained (and indeed offered some evidence to demonstrate) throughout the litigation of this case, the problems of which they complain reflect a systemic failure; the Department’s practice of failing to provide timely inpatient admissions to criminal defendants in Alabama awaiting court-ordered competency examinations and competency treatment affects all members of the class. Moreover, the plaintiffs seek a transformation of that system, such as through increased bed capacity to enable more prompt admissions.
Class certification pursuant to subpart (b)(2) is appropriate.
B. Settlement Approval: Rule 23(e) Before approving a settlement agreement in a class action, “a court has a heavy, independent duty to ensure that the settlement is ‘fair, adequate, and reasonable.’” Laube v. Campbell, 333 F. Supp. 2d 1234, 1238 (M.D. Ala. 2004) (Thompson, J.) (quoting Fed. R.
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Civ. P. 23(e)(2), additional citation omitted). This careful inspection is “essential to ensure adequate representation of class members who have not participated in shaping the settlement.” Fed. R. Civ. P. 23(e) advisory committee note. In the course of this review, the court must determine whether notice to the class was adequate, and must consider the comments made and objections raised by class members (as well as, as in this case where the members may be mentally incompetent, their representatives and others interested in their well-being), and the opinions of class counsel. See Laube, 333 F. Supp. 2d at 1238.
i. Notice to Class Members “The court must ensure that all class members are informed of the agreement[] and have the opportunity to voice their objections.” Laube, 333 F. Supp. 2d at 1240; see also Fed. R. Civ. P. 23(e)(1). The court’s order preliminarily approving the settlement agreement contained specific procedures for
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the parties to give notice of the settlement to the members of the provisionally certified class. The court also approved four separate notice and comment forms: (1) notice to class members; (2) notice to class members’ defense counsel, family members, and legal guardians; (3) notice for publication in Alabama trial courts; and (4) a letter to trial court clerks explaining the notice for publication. Substantively, the two-page notice form included a description of the case, a definition of the class, a list of the primary provisions of the settlement agreement, and an indication that the agreement would release the ADMH Commissioner from any further liability for the claim. Additionally, the notice included contact information for class counsel along with an invitation for those receiving notice to inquire about the settlement, an announcement of the fairness hearing, and instructions for those receiving notice to comment on or object to the settlement. The comment form requested basic contact information, included ample space for a
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description of the objection or comment, and allowed the commenter to indicate whether he or she wished to provide oral testimony. The notice and comment form was sent, along with a copy of the proposed settlement and a self-addressed, stamped envelope, to all putative class members on the waiting list for admission to the Taylor Hardin Secure Medical Facility as of April 27, 2017.
Because of the mental state of the class members--having either been declared incompetent or suspected of being incompetent--the court requested, and the parties proposed, a notice procedure that extended beyond the class members themselves. “[A] court should be even more circumspect about accepting a settlement where ... members of the plaintiff class are not themselves capable of assessing the settlement and voicing their views on whether it is fair, reasonable and adequate, and the court must therefore rely on comments from such secondary sources as public interest groups and organizations.” Dunn v. Dunn, 197 F. Supp.
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3d 1331, 1333 (M.D. Ala. 2016) (Thompson, J.) (quotation marks and citation omitted). Accordingly, the parties also sent a similar notice and comment form, along with the proposed settlement, to counsel of record in the criminal case for each putative class member, again based on the April 27, 2017, waiting list. The notice expressly requested that defense counsel share the notice, settlement, and comment form with family members and known legal guardians of the class members and encourage them to submit objections or comments.
In addition, the parties mailed a three-page notice to the clerk of court for the trial court in each of Alabama’s 67 counties, together with a letter requesting that the clerk post the notice in a central location within the courthouse. The notice encouraged defense counsel, family members, and legal guardians of class members to submit objections or comments. Because of the importance in this case of ensuring that other interested parties beyond the class members were
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aware of the settlement, the court required the parties to conduct spot checks to ensure the notice had been posted, and ideally in a central location in the courthouse. When preliminary results identified a low rate of compliance with the request to post the notice, the parties voluntarily added the additional step of electronically disseminating the notice via the Alabama Criminal Defense Lawyers Association e-mail listserv. By June 2017, the parties confirmed, either by physical observation or by representation of the county clerk, that the notice had been posted in at least 40 county courthouses, and an additional nine county clerks agreed to post the notice after speaking with counsel. See Joint Status Report (doc. no. 68) ¶¶ 3, 5, 7 & Status of Notice Posting, Ex. A (doc. no. 68-1). In addition, the parties provided notice by publication twice in each of five newspapers across the State of Alabama.
The notice and comment form and the agreement was mailed to class members and their criminal defense
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counsel on May 22, 2017, and class members, their representatives, and other interested persons and groups were given until June 26, 2017, to submit comments. Comments received by mail by June 30, 2017, were still docketed. Seven written responses were received: five from putative class members and two from criminal defense counsel of putative class members. See Comments and Objections to Proposed Settlement (doc. no. 69-1). In addition, the parties received two calls from families of potential class members. See Joint Statement (doc. no. 72) at 26.
The court concludes that the extensive measures undertaken by the parties to provide notice of the agreement and invite the feedback of current class members and others were sufficient to satisfy the notice requirement of subpart (e) of Rule 23 of the Federal Rules of Civil Procedure.
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ii. Objections and Comments

The seven written responses raised a number of

issues, some of which were relevant but many of which

were not. The comment portion of one response form was

entirely blank.

Others offered examples of the

extensive delays that plaintiffs allege violate their

constitutional rights, but did not offer any

substantive feedback on the settlement. A detainee

awaiting inpatient admission for a competency

examination indicated that he did not understand the

notice and requested a lawyer; his criminal defense

counsel later submitted a letter indicating that he had

explained the proposed settlement to his client, who

subsequently withdrew the objection. One respondent

stated that he had been waiting nine months for a

second evaluation concerning his mental state at the

time of the offense. He inquired if his constitutional

rights had been infringed by this extensive delay and

noted that he had attempted suicide while detained in a

county jail.

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Only one written response raised a pertinent objection to the settlement. The objection was filed by criminal defense counsel Michael D. Haynes, who represents a putative class member found incompetent in November 2016 based on an initial examination that diagnosed the putative member with psychosis as a consequence of schizophrenia. Haynes’s client was ordered to receive competency restoration treatment and committed to ADMH’s custody in January 2017, but as of June 2017 was still awaiting admission so that treatment could begin. The objection indicated that the putative class member has lost over 30 pounds during his incarceration; moreover, in the months after he was found incompetent but awaiting treatment to begin, he became violent, hit his head against the wall, ate his own feces, and refused to take medication. See Haynes Objection (doc. no. 69-1) at 5. Haynes objected to the settlement’s failure to provide any immediate relief for clients such as his: “While the proposed settlement may address concerns in 24
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months, it does nothing to address the injustices that are occurring right now not only for my client, but for others who need immediate attention.” Id.
Subsequent to the objection, Haynes’s client was transferred to Taylor Hardin and began to receive competency restoration treatment. Accordingly, as to that putative class member, the agreement’s phased-in provisions--which do not require the Department to meet certain deadlines for admission until 12 and 24 months after final approval--do not pose an ongoing problem. Nonetheless, Haynes’s objection required the court to focus on the issue of immediate relief under the agreement for individuals committed to ADMH’s custody but not yet transferred to one of its facilities, some of whom may have a serious mental illness but are detained in a jail with little to no mental-health treatment. The court will address that issue in greater depth in a subsequent section of this opinion.
The court has carefully considered the comments and objections filed by class members and their
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representatives.

Although they reflect existing

problems with delays in providing inpatient competency

examinations and treatment, none calls into serious

question the fairness or adequacy of the settlement

agreement.

iii. View of the Parties

The parties contend that the settlement agreement

is “fair, reasonable, and adequate.” Fed. R. Civ. P.

23(e)(2). They contend that the settlement avoids the

necessity of complex and time-consuming litigation over

plaintiffs’

claim

while

plaintiffs’

conditions--incarceration in a city or county jail

without adequate mental health treatment--requires

time-sensitive relief. Further litigation to resolve

the claim would require the resolution of numerous

disputed factual issues and extended expert discovery

and briefing. By agreeing to the settlement, they

avoided not only a trial, but also the possibility of

appellate review, all while class members continued to

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languish in jails before receiving examinations or treatment. In light of the circumstances of class members, the parties contend that delayed relief would be detrimental to the class members. The parties also contend that that delay would be unwarranted in light of the plaintiffs’ probability of success on the merits, as demonstrated in their preliminary injunction brief.
The parties acknowledge that they reached a settlement at a relatively early stage of the litigation--approximately six months after the initial complaint and three months after the filing of an amended complaint and motion for preliminary injunction--but nonetheless engaged in extensive, substantive discovery before concluding the agreement. The parties served five requests for production, eight third-party subpoenas for records, produced approximately 3,500 pages of documents, served more than 300 interrogatories, and conducted one deposition. See Joint Statement (doc. no. 72) at 32. In addition,
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the settlement agreement was not reached abruptly: the parties appeared before the magistrate judge on ten separate occasions over a two-month period for “vigorous, adversarial, court-supervised negotiations.” Id. at 33. The parties represent that, during the negotiations, each side made “difficult concessions,” but did so while being represented by vigorous advocates. Id. Plaintiffs were represented by three separate legal organizations (ADAP, the ACLU, and outside counsel), and defendant ADMH Commissioner was represented by counsel from the Department as well as outside counsel. Id. at 34.
Finally, the parties argue that the systemic relief provided in the settlement is commensurate with the recovery that would be available to the named plaintiffs and class members if successful at trial. The plaintiffs initially sought both injunctive and declaratory relief; although the settlement does not provide for declaratory relief, the parties argue that the settlement provides the equivalent of the
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injunctive relief that the plaintiffs could have received in the event of a favorable judgment.
iv. Court’s Assessment The court must also assess for itself, based on the evidence and argument presented by the parties and by class members who submitted comments and objections, whether the settlement is fair, adequate, and reasonable. “Relevant factors include the stage in the proceedings; the plaintiffs’ likelihood of success at trial; the complexity, expense, and likely duration of the lawsuit; and the range of possible recovery.” Laube, 333 F. Supp. 2d at 1246. As to the substantive provisions of the agreement, the court finds that they represent a favorable result for the plaintiff class. The plaintiffs in this case challenged the ADMH’s failure to provide timely admissions for state criminal defendants subject to competency examinations or treatment at a systemic level. They argued that the Department’s practice was
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a blatant constitutional violation because it subjected pretrial detainees to punishment in violation of the due process clause under Bell v. Wolfish, 441 U.S. 520 (1979), and they cited several courts across the country that have found similar practices infringed pretrial detainees’ due-process rights.
The settlement agreement essentially gives the class all of the remedies plaintiffs sought at the outset of this litigation. Notably, even if plaintiffs had proceeded to and prevailed at trial on their claim, the parties would have still been confronted with the task of fashioning a remedial plan. Any such plan would likely have closely resembled that contained in the settlement agreement currently before the court. Moreover, because such systemic changes are involved (for example, the creation and operation of new facility space and the hiring of new staff), it would not have been feasible to order significantly more rapid compliance than is contemplated in the settlement
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agreement. If anything, settlement means that change will come more quickly.
During and shortly following the preliminary approval hearing and again at the fairness hearing, the court expressed significant concerns regarding several particular provisions of the settlement agreement, as well as concerns about the impact of the settlement on particular populations. However, after considerable discussion and briefing, the parties have resolved these issues to the satisfaction of the court by entering into binding stipulations.
1. Immediate Relief Defense counsel Michael D. Haynes, who represents a putative class member, submitted a pertinent objection regarding immediate relief under the agreement for individuals such as his client who are committed to ADMH’s custody but not yet transferred to one of its facilities. Some of these individuals suffer from serious mental illness and are unable to receive mental
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health treatment at these facilities. Haynes’s

objection raises two distinct but related issues: (1)

what immediate relief is available under the settlement

agreement for individuals in emergency need of

treatment; and (2) whether such relief is available

prior to the 12- and 24-month phase-in provisions of

the agreement.

The court raised these issues with the parties at

the fairness hearing on August 3, 2017, including the

ancillary problem of identifying prisoners in need of

emergency treatment.

The parties subsequently

conferred and submitted a second stipulated

modification of the agreement addressing this issue.

See Second Stipulation (doc. no. 89).

The stipulation provides that the ADMH Commissioner

shall annually designate an ADMH official “to receive

notice from current and future class members’ criminal

defense counsel and/or Alabama circuit court judges

that a class member needs emergency treatment.” Id. ¶

1(b). Upon receipt of such notice, the ADMH Designee

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will communicate that notice to ADAP within 48 hours and will determine if that individual is a class member. If the individual is a class member, the ADMH Designee will arrange for a clinical professional to visit the class member to conduct an in-person assessment within four days of the ADMH Designee’s receipt of notice regarding the class member. If the clinical professional determines the class member needs emergency treatment, the ADMH Designee will communicate this determination to ADAP, and the ADMH Commissioner shall arrange for early admission (a ‘line jump’) within seven calendar days of the in-person assessment.
The stipulation further provides that the parties will work with officials of the Alabama State Bar to annually disseminate notice to members of the Alabama State Bar about this process and identifying the ADMH Designee, and will also independently provide such notice annually to trial judges in each Alabama county. Id. ¶ 1(a). Finally, the stipulation establishes a protocol for responding to class members who may be
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suicidal, which requires the ADMH Designee to communicate notice of such individuals to ADAP within 24 hours, and, if the individual is a class member, to notify the sheriff of the county and officials of the jail or ADOC facility where the individual is incarcerated. Id. ¶ 1(c).
The court is satisfied that the above protocols for immediate identification and treatment of individuals in urgent need of care, which are to take effect upon settlement approval and are not subject to the phase-in requirements elsewhere in the settlement, adequately address Haynes’s objection and the court’s concerns on this issue.
2. Funding In Section XII of the agreement, titled “Funding,” the parties expressly acknowledge the importance of funding to the implementation of the settlement, including funding dependent on the Alabama Legislature, which is not a party to this lawsuit. In particular,
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the parties agreed “that implementation of the terms of this Agreement and any plan necessary to effectuate its terms are subject to the availability and receipt of appropriated funds.” Settlement Agreement (doc. no. 60-1) § XII.1. The parties also acknowledged “that additional funding and the cooperation of third parties is necessary to the ADMH Commissioner’s full performance in accordance with the terms of this Agreement,” but then provided that the lack of funding does not prevent the court from entering a subsequent order to achieve compliance. Id. Sec. XII.2. The parties are to make “all possible good faith efforts to seek all necessary funding,” but can approach the court for assistance if they disagree about whether sufficient funding is available to implement the agreement. Id. Sec. XII.3.
Almost immediately, these provisions garnered the court’s concern. Having approved countless consent decrees, the court is not accustomed to these types of
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provisions.2 More fundamentally, the rights guaranteed under the United States Constitution, as enforced by the orders of the federal courts, are not subject to the whims of a state body. See Cooper v. Aaron, 358 U.S. 1, 18 (1958) (“If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” (quoting United States v. Peters, 5 Cranch 115, 136 (1809) (Marshall, C.J.))). As applied in Cooper, that principle meant that an allegedly

2. Nor are such provisions included in factually

analogous consent decrees in cases cited by the

parties.

For example, another recent settlement

concerning delays in competency restoration treatment

recognized that the defendants’ performance was

dependent on circumstances beyond their control, but

expressly excluded funding from the legislature as such

a circumstance. See Proposed Settlement Agreement

¶ 23(b), Disability Law Ctr. v. Utah, No.

2:15-cv-00645-RJS (D. Utah June 12, 2017) (doc. no.

85-1) (“The failure or refusal of the Utah Legislature

to adequately fund Defendants’ operations, programs, or

the Plan shall not be considered a Departmental Special

Circumstance for purposes of this Settlement

Agreement.”).

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“serious financial burden” placed on the school

district by desegregation could not preclude

enforcement of a constitutionally-required decree. Id.

at 13.

Thus, were the settlement to condition

implementation on the availability of funding

authorized by the state legislature, it would provide

substantially less relief to the plaintiffs than they

would be eligible to obtain had they succeeded at

proving a due-process violation at trial.

Similarly, it is well-established that inadequate

funding does not preclude a court from holding state

officers liable for constitutional violations.3 Braggs

v. Dunn, 257 F. Supp. 3d 1171, 1266-67 (M.D. Ala. 2017)

(Thompson, J.). In Edelman v. Jordan, 415 U.S. 651,

668 (1974), the Supreme Court noted that the Eleventh

Amendment did not bar suits that had “fiscal

3. No issue concerning the doctrine of Ex parte Young, 209 U.S. 123 (1908), has been raised in the course of approving this settlement. But as the defendant is a state official, the availability of relief on the merits, were this case to proceed to (continued...)
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consequences to state treasuries” that “were the necessary result of compliance with decrees which by their terms were prospective in nature.” The Court in Edelman also observed that having to spend more money from the state treasury because the State needs to conform its conduct to the court order is an “ancillary effect” that is “a permissible and often an inevitable consequence of the principle announced in Ex parte Young[, 209 U.S. 123 (1908)].” Id. at 668. In fact, rather than precluding relief, courts have found inadequate funding to be a basis for finding constitutional violations. See, e.g., Wellman v. Faulkner, 715 F.2d 269, 273 (7th Cir. 1983) (noting that “woefully inadequate” salary for psychiatric personnel contributes to Eighth Amendment finding).
Having raised these concerns with the parties, they modified the settlement with a stipulation that the funding provisions “serve neither as a condition
trial, would depend on the availability of prospective relief against her pursuant to the doctrine.
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precedent to performance nor a basis for excusing the Parties’ performance obligations under the Settlement Agreement.” Stipulation (doc. no. 84) ¶ 3. The provisions instead merely reflect an acknowledgment of the “practical reality” of the annual legislative appropriation process. Id. With that understanding, the settlement, as modified by stipulation, resolves the court’s concern.
3. Remedies In preparation of the settlement agreement for approval, the court asked the parties to address whether the remedial provisions of the settlement agreement are consistent with the court’s remedial authority under Federal Rule of Civil Procedure 60(b), Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1982), and relevant Eleventh Circuit law, including whether the relief available in the event of noncompliance is limited to contempt proceedings, see Reynolds v. McInnes, 338 F.3d 1201, 1208 (11th Cir.
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2003). The parties responded to the court’s concern in

a joint statement, concluding that the remedial

provisions of the agreement as written are consistent

with prevailing law. See Joint Statement in Support of

Proposed Settlement (doc. no. 72).

Federal Rule of Civil Procedure 60(b) and Rufo

place certain limits on the ability of courts to modify

and grant relief from existing judgments. Rule 60(b)

empowers courts to grant parties relief from a final

judgment or order on the basis of enumerated grounds

including but not limited to mistake, newly discovered

evidence, the judgment having been satisfied or

discharged, and “any other reason that justifies

relief.” Fed. R. Civ. P. Rule 60(b). Under Rufo, “a

party seeking modification of a consent decree bears

the burden of establishing that a significant change in

circumstances

warrants

revision,”

and

that

“[o]rdinarily ... modification should not be granted

where a party relies upon events that actually were

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anticipated at the time it entered into a decree.” 502 U.S. at 383-84.
Apart from issues of modification, the Eleventh Circuit has held that consent decrees must be enforced through the trial court’s contempt power, as properly invoked through contempt proceedings. McInnes, 338 F.3d at 1208. However, where all parties seek to enforce a consent decree using a procedure other than contempt proceedings, the contemporaneous objection rule bars the parties from later objecting to a ruling on the basis that contempt proceedings were not used. Id. at 1209-12.
Here there are four remedial provisions of the settlement that raise potential concerns. First, the agreement provides for a “dispute resolution process” under which the parties must meet and confer in good faith to resolve issues that plaintiffs raise as to ADMH’s compliance. Settlement Agreement (doc. no. 60-1) § VIII. “In the event that the Parties are unable to resolve any issue(s) after attempting to do so in good
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faith, they shall submit their dispute to the magistrate judge assigned to the case or to the district court in the event no magistrate judge is assigned. Both parties shall have the right to appeal any magistrate judge’s decision to the district court for review.” Id.
Second, the agreement provides that, “If Plaintiffs believe that the ADMH Commissioner has not achieved Substantial Compliance with the timelines ... specified in Section VI.1.E. above for at least nine consecutive (9) months preceding the end date of the Agreement, Plaintiffs shall file a motion to extend jurisdiction and monitoring with the Court....” Id. § X.2. The court is then to determine “after an evidentiary hearing” whether the ADMH Commissioner has achieved substantial compliance, as defined in the agreement. Id.
Third, the agreement provides that, “Three months prior to the end of the term of the Agreement, if the Parties agree that the ADMH Commissioner has not
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achieved Substantial compliance, the Parties may agree in writing to extend the term of the Agreement for a specified period, and by joint motion, seek the Court’s approval of their agreed-upon extension without an evidentiary hearing to determine compliance.” Id. § X.3.
Fourth, the agreement provides that, “If the term of Agreement is extended pursuant to Subsection X.2 above, Plaintiffs may seek additional extensions of the term of this Agreement by demonstrating that the ADMH Commissioner cannot demonstrate Substantial Compliance with the timelines ... specified in Section VI.1 for at least nine (9) consecutive months preceding any scheduled expiration or termination of the Agreement.” Id. § X.4.
The parties contend, and the court agrees, that none of the agreement’s remedial provisions implicates the court’s remedial authority under either Rule 60(b) or Rufo, since they do not entail modifications of the agreement. See Joint Statement In Support of Proposed
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Settlement (doc. no. 72) at 35-36. Rather, these sections involve the monitoring and enforcement of existing obligations, as well as potential time extensions of the agreement. Notably, Section X.1 of the agreement states, “The Parties agree that the term of this Agreement shall be three (3) years from the date of Final Approval by the Court, subject to the provisions below.” Settlement Agreement (doc. no. 601) § X.1 (emphasis added). As this language clearly indicates--and indeed as may have been clear even without this express language--any extensions of the agreement ordered pursuant to the terms of the agreement are not “modifications,” but rather the operation of the agreement pursuant to its existing terms. Therefore none of the agreement’s provisions implicate either Rule 60(b) or Rufo.
With regard to McInnes, The parties submit that the first remedial provision, Section VIII, does not implicate the court’s enforcement power because it “simply impose[s] a process for resolving conflicts
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that is designed to be efficient and cost-effective.” Joint Statement In Support of Proposed Settlement (doc. no. 72) at 35. The court understands the parties’ desire for a conflict-resolution mechanism that is more efficient and cost-effective than returning to litigate before a district court, but is not as certain that the issues addressed in McInnes are not implicated by the agreement. This issue is therefore left open, with a caution to the parties that any ultimate invocation of this court’s enforcement power under the agreement may need to be made, as the Eleventh Circuit has instructed, through the mechanism of contempt proceedings.
4. Impact on Non-Class Members The agreement has provisions affecting two groups of people who are not class members: persons found not guilty by reason of insanity and awaiting inpatient treatment by ADMH (“NGRIs”) and persons ordered to receive outpatient mental examinations. The court
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raised the concern that notice of the agreement was not provided to these groups, who, although not class members, are impacted by it. The court also raised the concern that ADAP, as both class counsel and counsel for members of these groups, could have a conflict. Based upon the representations made during the fairness hearing and the provisions in the settlement designed to guard against unfavorable treatment, the court concludes that the settlement does not prejudice these two groups of non-parties.
NGRIs: The settlement generally requires the Department not to skip the admission of NGRIs in favor of pretrial detainees awaiting a competency examination or treatment. See Settlement Agreement (doc. no. 60-1) § VI.1.D.ii. The settlement acknowledges, however, that in “exceptional circumstances” the Department may need to skip the admission of an NGRI who is next in line to receive services in favor of a person ordered to receive a competency examination or treatment. Id. At the fairness hearing, class counsel suggested that
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legitimate justifications for a ‘skip’ could include a medical issue or a delay in transferring the person into an ADMH facility.
The settlement guards against illegitimate ‘skips,’ which could theoretically have the effect of increasing ADMH’s rate of compliance under the agreement to the detriment of NGRIs, in two ways. First, the settlement requires ADMH to begin to provide services to the ‘skipped’ NGRI within 60 days; if that deadline is not met, the skipped NGRI will be included in the calculation of the average monthly compliance rate, unless ADMH provides “good grounds” for why the individual should not be included. Id.; § VI.1.E.iv. (Ordinarily, because NGRIs are not class members, their wait time is not included in the Department’s average monthly compliance rate.) Plaintiffs’ counsel may use the dispute resolution process in Section VIII to challenge the existence of ‘good grounds’ for excluding an NGRI who has been skipped for more than 60 days from ADMH’s compliance rate. Second, the settlement requires
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ADMH to provide notice to class counsel within ten days

of a ‘skip,’ which must include a written explanation

of the justification for that particular NGRI not

receiving services based on chronological order. Id.;

§ VI.1.E.iv.

Plaintiffs’ counsel may use the

dispute-resolution process in Section VIII to challenge

the exclusion of a skipped NGRI from ADMH’s compliance

rate, even prior to the end of the 60-day period, on

the ground that there is not a legitimate basis for the

skip.

The court also raised the issue of a possible

conflict on the part of ADAP as it decides whether to

challenge the delayed treatment of an NGRI in favor of

a class member, because ADAP serves as counsel for both

class members and NGRIs under state law. Counsel for

ADAP represented at the fairness hearing that it would

make arrangements to appoint an alternative lawyer for

an NGRI if a conflict of interest ripened, and that

through its work it has developed a network of

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attorneys to whom it refers clients and who may be
willing to take on such a case.
Persons Ordered to Receive Outpatient Competency
Examinations: Although persons ordered to receive an
outpatient competency examination by ADMH are not class
members, did not receive notice of the settlement, and
were not a focus of the amended complaint, the
settlement also has provisions applicable to them;
principally, the settlement requires ADMH to conduct
outpatient examinations within certain time periods.4
4. According to the procedural rules governing competency examinations, all court-ordered mental examinations for competency should be performed on an outpatient basis “where feasible.” This suggests that the number of persons ordered to receive outpatient examinations (who are not class members) is much larger than the number of persons ordered to receive inpatient examinations (who are class members). The circuit court should order an inpatient exam only if: “(1) the defendant cannot be examined on an out-patient basis; (2) examination in an out-patient setting is unavailable; or (3) the appointed examiner reports that confinement for evaluation is indispensable to a clinically valid diagnosis and report.” Ala. R. Crim. P. 11.3(b). Thus, the restrictions on use of inpatient examinations ensure that defendants are not subjected to commitment “unless a less restrictive alternative (such as local out-patient services of a community (continued...)
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However, at the fairness hearing in this matter, the
parties agreed that persons ordered to receive
outpatient competency examinations are not bound by the
terms of the settlement except to the extent that they
seek to enforce or obtain the benefits of the
settlement; that is, they could sue ADMH or Taylor
Hardin for additional relief beyond the terms of this
settlement, and would not be prejudiced by it.
With these protections in place, the court
concludes that the settlement does not prejudice
non-party NGRIs and persons ordered to receive an outpatient competency examination.5
mental health center) is unavailable.” Ala. R. Crim. P. 11.3 comm. cmts. See, e.g., Gamble v. State, 791 So. 2d 409, 420 (Ala. Crim. App. 2000) (describing State’s motion to amend trial court order to request out-patient examination, which could be scheduled “almost immediately,” because inpatient examination would have required several months delay).
5. While the parties contend that this litigation is not covered by the Prison Litigation Reform Act (PLRA), the court has some concerns, for the PLRA applies to “any civil action with respect to prison conditions,” 18 U.S.C. § 3626(a)(1), where “prison” means “any Federal, State or local facility that (continued...)
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5. Female Class Members
During the fairness hearing, the parties were
unable to describe the status of female class members
or their particular experience on a waiting list for
admission for the purposes of a competency examination
or treatment. Further, while the settlement provided
that new bed spaces would be built at Taylor Hardin
(the facility for men), it did not provide for any new
incarcerates or detains juveniles or adults accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law,” id. § 3626(g)(2) (emphasis added). Nevertheless, this issue need not be resolved for the court believes that the settlement meets the PLRA’s three central requirements: that “relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” Id. § 3626(a)(1). True, the settlement does mention certain third parties, but this is to assure, expressly, that the settlement’s impact on those parties is limited as to them and not detrimental to them. In other words, the settlement is narrowly tailored in that it attempts to limit any unintended impact on others. Moreover, the court has considered “any adverse impact on public safety or the operation of a criminal system caused by the relief,” id., and finds no such adverse impact--in fact, the relief provided is likely to contribute positively to the efficient operation of the criminal (continued...)
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bed spaces at Bryce Hospital (the facility for women).

Accordingly, the court became concerned that the

parties had not adequately considered the impact of the

settlement agreement on women.

Subsequently, the parties reported on the

experience of women awaiting admission into Bryce

Hospital. While there are no current female class

members, 17 women have had to wait for admission into

Bryce Hospital since January 1, 2017, for either a

competency examination or treatment.

See Second

Stipulation (doc. no. 89) ¶ 2. However, unlike the

male prisoners such as named plaintiffs, who wait on

average six to eight months for admission, women have

had to wait on average seven days from ADMH’s receipt

of a court order, with no wait longer than ten days.

Id. It appears that, at least in 2017, the waiting

times for females into Bryce Hospital are far shorter

than even the 30 days required by the settlement

justice system, by ensuring timely transfer of inmates for competency evaluation and restoration.
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agreement. The parties agreed that all provisions of the settlement apply with equal force to male and female class members. Further, the parties represented that, although the increased bed capacity under the settlement would be dedicated entirely to Taylor Hardin, that would indirectly lead to additional space at Bryce Hospital because, in addition to serving women, Bryce Hospital also receives overflow placements from Taylor Hardin.
While the court applauds ADMH’s current ability to admit female class members in relatively short order, the court notes that the dramatically lower wait times for women at the time of approval could skew the measurement of ADMH’s substantial compliance with the time periods for admission. In other words, buoyed by the short wait times for women, ADMH could achieve substantial compliance despite delays persisting for men well in excess of the required 30- and 45-day time periods. Of course, the fact that there are relatively few female compared to male class members, and that
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female class members are on the waiting list only intermittently (there were no women on the waiting list as of early August 2017), should keep that effect to a minimum. Nonetheless, the court recommends that, over the course of its monitorship, ADAP should monitor the delays specific to male and female class members to ensure that shorter delays in admission are achieved for both groups of class members.
C. Class Counsel and Fees: Rule 23(g) and (h) i. Rule 23(g)
Subpart (g) of Rule 23 requires the court to appoint (and also to assess the suitability of plaintiffs’ counsel to serve as) class counsel. The rule requires the court to consider “(i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable
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law; and (iv) the resources that counsel will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A). The court must conclude that class counsel will “fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(4).
Lawyers affiliated with ADAP, Henry (Hank) F. Sherrod III, P.C., and the ACLU of Alabama Foundation, Inc., have represented named plaintiffs in litigating and negotiating the settlement of this case, and seek appointment as class counsel. The record in this case as well as affidavits submitted by plaintiffs’ counsel reflect that these attorneys have substantial experience in litigating class actions and in the complex substantive areas of both prisoner- and disability-rights law.
These lawyers have also devoted a significant amount of time and energy to identifying and developing the claim and evidence in this case. They identified plaintiffs, investigated their allegations, drafted a lengthy complaint, appeared at numerous court hearings
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and conferences, participated in days of mediation, and responded to questions raised by the court and comments made by class members regarding the settlement agreement.
Finally, the court cannot identify--and neither defendants nor the prisoners who have commented on the settlement agreement have suggested--any reason to believe that these attorneys have not fairly and adequately represented the interests of the class, or will not do so in the future.
The court therefore concludes that plaintiffs’ counsel should be appointed class counsel.
ii. Rule 23(h) Subpart (h) of Rule 23 requires that, when class counsel seek fees and costs “that are authorized by law or by the parties’ agreement,” they must move for those fees and provide notice to the class. Fed. R. Civ. P. 23(h)(1). Class members (and also defendants, absent a settlement) must be given notice and an opportunity to
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object, and the court must find that the award sought is reasonable. Fed. R. Civ. P. 23(h)(2), (h)(3).
The settlement agreement provides that defendants will pay plaintiffs’ counsel $ 275,000 for all fees and expenses incurred up to March 13, 2017, $275 per hour plus reasonable expenses incurred on and after March 14 until final settlement approval, as well as additional fees (subject to caps) of $ 195.00 per hour for attorneys and $65 for paralegals, law clerks, and members of ADAP’s monitoring unit for monitoring services. For litigation arising out of the consent decree, plaintiffs’ counsel will be entitled to fees (again, subject to caps) only if the court finds that their services were necessary and that they attempted to resolve the issue informally.
Because this provision was included in the settlement agreement, class members received notice of it. None of the comments received objected to the fee provision. For the reasons that follow, the court
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concludes that the fees contemplated by the settlement agreement are appropriate.
Even when both parties agree to an award, the court has an independent responsibility to assess its reasonableness, in order to guard against the risk that class counsel might agree to enter into a settlement less favorable to their clients in exchange for inappropriately high fees. See Piambino v. Bailey, 610 F.2d 1306, 1328 (5th Cir. 1980).6 The court uses the lodestar method, multiplying the number of hours reasonably expended by a reasonable hourly rate, see Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988), and then considering whether an upward or downward adjustment is warranted in light of
6. The Eleventh Circuit Court of Appeals has adopted as precedent all decisions of the former Fifth Circuit Court of Appeals rendered prior to October 1, 1981. See Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
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the factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).7
In support of the attorney fees provision of the
settlement agreement, the parties have jointly
represented that plaintiffs’ counsel incurred
approximately $ 374,000 in fees litigating this case as
of March 13; the agreed award of $ 275,000 would cover
approximately 74 % of that figure. Evidence submitted
by plaintiffs shows that this rate of adjustment from
the lodestar figure is consistent with or below the
adjustments deemed reasonable in other civil-rights
cases in Alabama.
7. These factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
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In addition, plaintiffs’ counsel request $ 275 per hour plus reasonable expenses incurred for the period March 14 until final settlement approval, as well as additional fees (subject to caps) of $ 195.00 per hour for attorneys and $ 65 for paralegals, law clerks, and members of ADAP’s monitoring unit for monitoring services. Evidence submitted by plaintiffs shows that this rate is consistent with or below rates deemed reasonable in other civil rights cases in Alabama. The court also finds the parties’ joint statement that plaintiffs’ counsel expended 783.4 hours as of March 13 to be entirely convincing, given the court’s own knowledge of the amount of time numerous attorneys have spent in court and in mediation. Based on these findings, the lodestar figure amounts to the $ 374,062.50 provided for in the settlement agreement, of which the parties have negotiated a reduction to $ 275,000.
After considering the Johnson factors, the court finds that no further downward adjustment of the
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lodestar figure is warranted. This litigation, which has been ongoing since September 2016, is large in scope; it concerns both prisoners subject to examination for their competency to stand trial as well as those subject to competency-restoration therapy, and it sought and achieved a settlement that mandates a significant transformation in the way that the Department treats such prisoners. The range of complex legal and factual questions presented by the plaintiffs’ claim, and the amount of time plaintiffs’ attorneys spent in gathering evidence and preparing the complaint, and in negotiating and securing approval of the settlement agreement over several conferences before the magistrate judge, warrant the sizeable fee award. Moreover, the court is convinced that the experienced attorneys who litigated this case, and who took it on without any guarantee of compensation, would have been entitled to a higher hourly rate had they litigated a contested fee motion.
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III. CONCLUSION

This settlement reflects the ADMH’s commitment to

making manifest the rights of prisoners in its custody

who are in need of competency determinations and

restoration treatment; it represents the shouldering of

significant responsibility, and presents an equally

significant opportunity, by delineating a years-long

process of ensuring compliance with the dictates of

federal law.

The court understands the ADMH’s

investment in this process to be genuine, and commends

it for it.

The court also recognizes the important role played

by detainees in need of mental-health evaluation and

treatment in bringing this litigation, and commends

both the named plaintiffs and the detainees and others

who submitted comments for their advocacy on behalf

both of themselves and of others.

Finally, the court expresses its appreciation to

United States Magistrate Judge Charles S. Coody for his

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extensive efforts in helping the parties to reach this settlement agreement.

* * *

In accordance with the foregoing opinion, it is

ORDERED as follows:

(1) An injunctive-relief settlement class is

certified under Federal Rule of Civil Procedure

23(a) and (b)(2), defined as “All persons who

have been, or will be during the period that

this Agreement remains in effect, charged with

a crime, within the meaning of Rule 1.4(b) of

the Alabama Rules of Criminal Procedure, in a

court of competent jurisdiction in the State of

Alabama, and detained in an Alabama city or

county jail or Alabama Department of

Corrections facility while awaiting a

court-ordered

Mental

Evaluation

or

court-ordered Competency Restoration Treatment

(i) For whom a Circuit Court has determined

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that reasonable grounds exist for a mental examination into the person’s competency to stand trial under Rule 11 of the Alabama Rules of Criminal Procedure and committed the person to the custody of [Alabama Department of Mental Health (ADMH)] under Rule 11.3 of the Alabama Rules of Criminal Procedure by court order for an inpatient evaluation, whether or not the court’s order references any provision of law in so ordering; or (ii) Who is found incompetent to stand trial under Rule 11 of the Alabama Rules of Criminal Procedure and committed to the custody of ADMH under Rule 11.6 of the Alabama Rules of Criminal Procedure by court order for Competency Restoration Therapy, whether or not the court’s order references any provision of law in so ordering.” (2) The Alabama Disabilities Advocacy Program, Henry (Hank) F. Sherrod III, P.C., and the ACLU
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of Alabama Foundation are appointed as class counsel to represent the settlement class under Federal Rule of Civil Procedure 23(g). (3) The parties’ settlement agreement (doc. no. 60-1), as amended, is approved, subject to the above constructions of Sections VIII, X.2, and X.4. (4) The objections to the settlement agreement (doc. no. 69-1) are overruled. (5) The parties’ stipulated modifications (doc. nos. 84 and 89) are adopted. (6) The settlement agreement, as modified by the stipulations, is entered as a separate consent decree. Defendant Lynn T. Beshear, in her official capacity as the Commissioner of the Alabama Department of Mental Health, is to commence compliance with its terms. (7) The settlement agreement’s provisions regarding attorneys’ fees are approved. Plaintiffs’ counsel are instructed to submit a motion for
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attorneys’ fees within 14 days of this order,in accordance with Federal Rule of Civil Procedure 54(d)(2). (8) The parties are to meet and confer and submit to the court by no later than February 15, 2018, a plan for providing notice to class members of the entry of this consent decree and for ensuring that class members have access during the pendency of the consent decree to both it and this opinion. In particular, this notice must describe in lay terms, understandable to a person of limited education, the rights set out in the decree. The clerk of the court is DIRECTED to enter this document on the civil docket as a final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.
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This case is closed. DONE, this the 25th day of January, 2018.
/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE
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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

DEMONTRAY HUNTER, by and through his next friend, Rena Hunter; RUSSELL D. SENN, by and through his next friend, Irene Senn; TRAVIS S. PARKS, by and through his next friend, Catherine Young; VANDARIUS S. DARNELL, by and through his next friend, Bambi Darnell; FRANK WHITE, JR., by and through his next friend, Linda White; MARCUS JACKSON, by and through his next friend Michael P. Hanle; TIMOTHY D. MOUNT, by and through his next friend, Dorothy Sullivan; HENRY P. MCGHEE, by and through his next friend, Barbara Hardy, individually and on behalf of all others similarly situated; and the ALABAMA DISABILITIES ADVOCACY PROGRAM,
Plaintiffs,
v.

CASE NO. 2:16-cv-00798-MHT-CSC
CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF
(WO)

LYNN BESHEAR, in her official capacity as Commissioner of the Alabama Department of Mental Health,

Defendant.

CONSENT DECREE I. INTRODUCTION
1. On September 30, 2016, three of the individually-named Plaintiffs filed the abovestyled action (the “Lawsuit”) against Defendant James V. Perdue, in his official capacity as Commissioner of the Alabama Department of Mental Health (“the ADMH Commissioner”), challenging the AMDH Commissioner’s failure to comply with the Due Process Clause of the Fourteenth Amendment to the United States Constitution with respect to his alleged failure to

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provide court-ordered Mental Evaluations and Competency Restoration Treatment to Plaintiffs. Commissioner Lynn Beshear was substituted as Defendant in July 2017.
2. On December 23, 2016, the eight individually-named Plaintiffs and Plaintiff Alabama Disabilities Advocacy Program (“ADAP”) (collectively, “Plaintiffs”), filed their First Amended Complaint against the ADMH Commissioner in his official capacity challenging his alleged failure to comply with the Due Process Clause of the Fourteenth Amendment to the United States Constitution with respect to his provision of court-ordered Inpatient Mental Evaluations and Competency Restoration Treatment to the individually-named Plaintiffs and the putative class of similarly situated persons represented by the individually-named Plaintiffs, and Plaintiff ADAP’s constituents (whose claims it is asserting as a Plaintiff in this action).
3. The individually-named Plaintiffs, on behalf of themselves and all others similarly situated, Plaintiff ADAP, and the ADMH Commissioner engaged in mediation designed to resolve the claims asserted in the Lawsuit. The Parties believe that they have reached a resolution of the claims asserted in the Lawsuit and that, in order to avoid protracted, costly and uncertain litigation, it is in their respective best interests to resolve the issues to be tried in the Lawsuit.
4. Accordingly, the Parties, by and through their respective counsel, jointly stipulate and agree to the following provisions to resolve the Lawsuit. II. PARTIES, PURPOSE, AND INTENT
1. Plaintiffs are suing Defendant Beshear in her official capacity as Commissioner of ADMH, the state agency charged under Alabama law and by relevant state circuit court orders with the provision of Outpatient and Inpatient Mental Evaluations to those suspected of being Incompetent to Stand Trial and Competency Restoration Treatment to persons found Incompetent to Stand Trial in Alabama.
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2. The individually-named Plaintiffs and putative class members in the Lawsuit have been or are currently, and may in the future be incarcerated in an Alabama city or county jail awaiting receipt of court-ordered Outpatient Mental Evaluations, Inpatient Mental Evaluations, or Competency Restoration Treatment to be provided by or on behalf of the ADMH Commissioner.
3. Plaintiff ADAP is the duly authorized disabilities protection and advocacy agency in the State of Alabama under the nation’s federally-funded protection and advocacy system. Cf. Doe v. Stincer, 175 F. 3d 879, 883 (11th Cir. 1999); Alabama Disabilities Advocacy Program v. J.S. Tarwater Developmental Center, 97 F. 3d 492, 495 (11th Cir. 1996), aff’g 894 F. Supp. 424, 426-27 (M.D. Ala. 1995); Dunn v. Dunn, Case No. 2:14-cv-00601-MHT-TFM, 2016 U.S. Dist. LEXIS 166251 (Nov. 25, 2016); Alabama Disabilities Advocacy Program v. SafetyNet Youthcare, Inc., 65 F. Supp. 3d 1312, 1321-22 (S.D. Ala. 2014), on reconsideration in another part, 2015 U.S. Dist. LEXIS 16343 (S.D. Ala. Feb. 22, 2015); Alabama Disabilities Advocacy Program v. Wood, 584 F. Supp. 2d 1314, 1315 (M.D. Ala. 2008).
4. The individually-named Plaintiffs, the Class, as defined herein, and Plaintiff ADAP are collectively referred to herein as “Plaintiffs.”
5. The Plaintiffs and Defendant Beshear are collectively referred to herein as the “Parties.”
6. The purposes of this Settlement Agreement (the “Agreement”) are to (1) specify certain administrative and procedural changes to the provision of Outpatient Mental Evaluations, Inpatient Mental Evaluations and Competency Restoration Treatment by the ADMH Commissioner to ensure compliance with constitutional requirements for same; (2) to outline a plan for the implementation of such changes; and (3) to settle and resolve all claims that were or were required to have been asserted in the Lawsuit.
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7. The Parties stipulate that nothing in this Agreement will be used for any purpose outside of the above-captioned action or against the ADMH Commissioner in any other litigation that has been or may be filed against him. Nothing in this Agreement will be construed to require the ADMH Commissioner to do more than what is specified in the Agreement or otherwise required by the United States Constitution, federal law, or Alabama law including, but not limited to, Rule 11 of the Alabama Rules of Criminal Procedure, with respect to the provision of courtordered Mental Evaluations and Competency Restoration Treatment to persons charged with a criminal offense in Alabama.
8. Nothing in this Agreement shall be construed as an admission of liability by the ADMH Commissioner. To the contrary, the ADMH Commissioner denies every material allegation of the Complaint, as amended, as specifically set forth in his Answers to the Complaint and First Amended Complaint.
9. The Parties believe that this Agreement is fair, reasonable, and adequate to protect the interests of all Parties concerning the issues addressed herein. The Parties jointly file this Agreement with the Court and ask the Court to issue an order approving this Agreement as final. The Parties believe that compliance with this Agreement by the ADMH Commissioner will meet the ADMH Commissioner’s obligations under United States Constitution with respect to the timelines of mental evaluations and competency restoration treatment. In the event that this Agreement is not approved by the Court such that it settles and resolves, on a class basis and, with respect to Plaintiff ADAP, all claims asserted in the Lawsuit, the Parties retain all of their presettlement litigation rights and defenses, including the individually-named Plaintiffs’ right to seek class certification and Plaintiff ADAP’s right to seek a ruling certifying its standing for all purposes relevant to the litigation of the Lawsuit and all defenses of the Commissioner, including mootness
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of the Plaintiffs’ claims, standing of each Plaintiff, objections to certification of any class and

others. Additionally, the Parties shall return to the status quo ante in the Lawsuit as if the Parties

had not entered into this Agreement. Any discussions, offers, or negotiations associated with this

Agreement will not be discoverable or offered into evidence or used in the Lawsuit or any other

action or proceeding for any purpose, without prejudice to the individually-named Plaintiffs’ right

to seek class certification and Defendant Beshear’s right to oppose class certification. In such

event, all Parties will stand in the same position as if the Agreement had not been negotiated, made

or filed with the Court.

III. STIPULATION REGARDING CLASS ACTION FOR PURPOSES OF SETTLEMENT

1. For purposes of defining the class of persons intended to benefit from the Parties’

Agreement, the ADMH Commissioner stipulates to the class of persons under Fed. R. Civ. P.

23(b)(2) to whom the administrative, structural, and procedural changes specified in Section VI

below apply as follows:

a. All persons who have been, or will be during the period that this Agreement

remains in effect, charged with a crime, within the meaning of Rule 1.4(b) of the Alabama Rules

of Criminal Procedure, in a court of competent jurisdiction in the State of Alabama, and detained

in an Alabama city or county jail or Alabama Department of Corrections facility while awaiting a

court-ordered Mental Evaluation or court-ordered Competency Restoration Treatment;

i.

For whom a Circuit Court has determined that reasonable grounds

exist for a mental examination into the person’s competency to stand trial under Rule 11 of the

Alabama Rules of Criminal Procedure and committed the person to the custody of ADMH under

Rule 11.3 of the Alabama Rules of Criminal Procedure by court order for an inpatient evaluation,

whether or not the court’s order references any provision of law in so ordering; or 5

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ii.

Who is found incompetent to stand trial under Rule 11 of the

Alabama Rules of Criminal Procedure and committed to the custody of ADMH under Rule 11.6

of the Alabama Rules of Criminal Procedure by court order for Competency Restoration Therapy,

whether or not the court’s order references any provision of law in so ordering.

IV. STIPULATION REGARDING STANDING FOR PURPOSES OF SETTLEMENT

1. For purposes of this Agreement only, the ADMH Commissioner does not contest that

Plaintiff ADAP has standing in the Lawsuit to assert due process claims on behalf of persons

within the State of Alabama with a mental illness and/or intellectual disability who have been

charged with a criminal offense, ordered to receive an Outpatient Mental Evaluation, Inpatient

Mental Evaluation, or Competency Restoration Treatment, and who await the provision of that

treatment in an Alabama city or county jail or an Alabama Department of Corrections facility.

V. DEFINITIONS

1. “ADMH Commissioner” means Defendant Lynn Beshear, acting in his official

capacity as Commissioner of the Alabama Department of Mental Health, together with his

successors, in his administration and supervision of the Alabama Department of Mental Health.

2. “Agreement” means this Settlement Agreement and any eventual Consent Decree

entered by the Court that results, refers, or relates to the terms and conditions of this Settlement

Agreement.

3. “Alabama Department of Mental Health” or “ADMH” means the state agency

charged with providing Outpatient Mental Evaluations, Inpatient Mental Evaluations, and

Competency Restoration Treatment to the persons defined in Sections III and IV above pursuant

to relevant Alabama circuit court orders, Alabama Rule of Criminal Procedure 11, and, generally,

Alabama Code Section 22-50-2.

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4. “Calendar Days” means all days, except where the last day of any relevant time period falls on a federal holiday observed by the United States District Court for the Middle District of Alabama, and then the next day that is not a Sunday.
5. “Competency Restoration Treatment” means psychiatric therapy, treatment, medication, and/or education designed to restore a criminal defendant found incompetent to stand trial to competency as defined in Alabama Rule of Criminal Procedure 11.1, that is ordered by an Alabama circuit court pursuant to Alabama Rule of Criminal Procedure 11.6 or other applicable legal provision.
6. “Final Approval” means approval of this Settlement Agreement by the Court by a final and appealable order.
7. “Hospital Forensic Bed” means a duly licensed and certified bed in a state psychiatric hospital or contracted bed in an inpatient hospital or hospital-like setting. These beds may be provided through a contract between ADMH and a third-party provider, such as a Community Mental Health Center or designated Mental Health Center as provided by Ala. Code §§ 15-16-61(5), 22-51-1, et seq., 22-56-5 and 22-52-90(1).
8. “Community Forensic Bed” means a duly licensed and certified bed in a community setting with up to sixteen (16) beds where the community service is managed and delivered by ADMH or by a community mental health provider through a contract with ADMH. A Community Forensic Bed may not be located on the grounds of any existing state hospital.
9. “Incarcerated Person” means a person who has been arrested and charged with a criminal offense in a court of competent jurisdiction in Alabama who is incarcerated in an Alabama city or county jail or an Alabama Department of Corrections facility.
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10. “Incompetent to Stand Trial” means a finding by an Alabama Circuit Court or other court of competent jurisdiction that the individual found incompetent is unable to assist in the preparation of his or her defense as defined in Alabama Rule of Criminal Procedure 11.1 or comparable statute.
11. “Inpatient Mental Evaluation” means a mental evaluation conducted within a state psychiatric hospital or comparable hospital-like facility into which the person being evaluated has been admitted for that purpose, and that is conducted by competent and adequately trained clinical personnel, including at a Community Mental Health Center.
12. “Licensure and Certification Standards” means those standards for the construction and operation of facilities that provide mental health care to persons in the State of Alabama which are set forth in the Alabama Administrative Code Section 580, et seq. or designated mental health facility by ADMH.
13. “Outpatient Mental Evaluation” means a mental evaluation conducted within the confines of a city or county jail or an Alabama Department of Corrections facility or within a therapeutic setting not requiring the admission and retention of the person being evaluated, and that is conducted by competent and adequately trained clinical personnel, in accordance with applicable professional standards.
14. “Registered Sex Offender” means an individual convicted of an offense, which under Alabama law requires his or her registration in the Sex Offender Registry. An individual charged with an offense that, if convicted, would be required to register as a sex offender is not a Registered Sex Offender for purposes of this Agreement.
15. “Substantial Compliance” means adhering to any plans or methods implemented by the ADMH Commissioner so as to comply with the terms of this Agreement. Isolated, acute,
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non-substantive or immaterial deviations from the terms of this Agreement or from any plans or

methods implemented by the ADMH Commissioner so as to comply with the terms of this

Agreement will not prevent a finding of Substantial Compliance, provided that the ADMH

Commissioner can demonstrate that he has: (A) implemented a system or systems (i) for assuring

compliance, and (ii) for taking corrective measures in response to instances of non-compliance;

and (B) instituted policies, practices, and resources that are capable of durable and sustained

compliance. For purposes of the termination of this Agreement as provided in Section X below,

however, Substantial Compliance requires that the ADMH Commissioner provide court-ordered

Outpatient and Inpatient Mental Evaluations and Competency Restoration Treatment within the

time frames specified in Sections VI.1.A through VI.1.E based on an average monthly compliance

rate defined below in Section VI.

VI. SUBSTANTIVE PROVISIONS

1. Timely Provision of Court-Ordered Mental Evaluations and Competency

Restoration Treatment. The ADMH Commissioner, by and through ADMH, will provide court-

ordered Mental Evaluations and Competency Restoration Treatment within the time periods

specified in Subsections VI.1.A through VI.1.E below.

A. Outpatient Mental Evaluations of Incarcerated Persons.

i.

By twelve (12) months after Final Approval of this Agreement,

Outpatient Mental Evaluations of persons who are incarcerated at the time that a court orders that

they be evaluated shall be conducted within forty-five (45) calendar days of the date of ADMH’s

receipt of the order for such evaluation by the circuit court issuing such order, subject to the

protocol for the ADMH Commissioner’s obtaining such order set forth in Appendix A. The

clinician performing such Outpatient Mental Evaluation shall submit a report containing the

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findings of any such evaluation to the relevant circuit court within forty-five (45) calendar days of

conducting such Outpatient Mental Evaluation.

ii.

By twenty-four (24) months after Final Approval of this Agreement,

Outpatient Mental Evaluations of persons who are incarcerated at the time that a court orders that

they be evaluated shall be conducted within thirty (30) calendar days of the date ADMH’s of

receipt of the order for such evaluation by the circuit court issuing such order, subject to the

protocol for the ADMH Commissioner’s obtaining such order set forth in Appendix A. The

clinician performing such Outpatient Mental Evaluation shall submit a report containing the

findings of any such evaluation to the relevant circuit court within thirty (30) calendar days of

conducting such Outpatient Mental Evaluation.

B. Inpatient Mental Evaluations of Incarcerated Persons.

i. By twelve (12) months after Final Approval of this Agreement,

Inpatient Mental Evaluations of persons who are incarcerated at the time that a court orders that

they be evaluated shall be conducted within forty-five (45) calendar days of the date of receipt of

the order for such evaluation by the circuit court issuing such order, subject to the protocol for the

ADMH Commissioner’s obtaining such order set forth in Appendix A. The clinician performing

such Inpatient Mental Evaluation shall submit a report containing the findings of any such

evaluation to the relevant circuit court within forty-five (45) calendar days of conducting such

Inpatient Mental Evaluation.

ii. By twenty-four (24) months after Final Approval of this Agreement,

Inpatient Mental Evaluations of persons who are incarcerated at the time that a court orders that

they be evaluated shall be conducted within thirty (30) calendar days of the date of receipt of the

order for such evaluation by the circuit court issuing such order, subject to the protocol for the

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ADMH Commissioner’s obtaining such order set forth in Appendix A. The clinician performing such Inpatient Mental Evaluation shall submit a report containing the findings of any such evaluation to the relevant circuit court within thirty (30) calendar days of conducting such Inpatient Mental Evaluation.
C. Competency Restoration Therapy and Treatment for Incarcerated Persons. i. By twelve (12) months after Final Approval of this Agreement,
persons who are incarcerated at the time that they are found Incompetent to Stand Trial and committed to the custody of ADMH for Competency Restoration Treatment shall be admitted into an institution suitable for the provision of Competency Restoration Treatment within forty-five (45) calendar days of the date of the receipt of the order committing them to the custody of ADMH for restorative treatment, subject to the protocol for the ADMH Commissioner’s obtaining such order set forth in Appendix A.
ii. By twenty-four (24) months after Final Approval of this Agreement, persons who are incarcerated at the time that they are found incompetent to stand trial and committed to the custody of ADMH for Competency Restoration Treatment shall be admitted into an institution suitable for the provision of Competency Restoration Treatment within thirty (30) calendar days of the date of receipt of the order committing them to the custody of ADMH for restorative treatment, subject to the protocol for the ADMH Commissioner’s obtaining such order set forth in Appendix A.
D. Incarcerated Persons to be Evaluated and Treated According to Date of Order Receipt in the Absence of Exigent Circumstances. i. Incarcerated persons whom ADMH has been ordered to evaluate or
treat shall be provided services based on the date of receipt of any court order, subject to the protocol for the ADMH Commissioner’s obtaining such order set forth in Appendix A.
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ii. The ADMH Commissioner may not satisfy the time periods specified in Subsections B and C above by prioritizing, for purposes of admission into a state forensic hospital, persons who have been found Incompetent to Stand Trial and ordered to receive Competency Restoration Treatment over persons who have been found not guilty by reason of insanity and ordered to receive inpatient psychiatric services. The Parties acknowledge that in exceptional circumstances the ADMH Commissioner may need to “skip” persons found not guilty by reason of insanity (“NGRI”) to provide services to a person awaiting a court-ordered Inpatient Mental Evaluation or Competency Restoration Treatment. The Parties acknowledge that each “skip” affects the Commissioner’s monthly compliance rate. The Parties agree that the procedure in Subsection VI.1.E.iv below applies to individuals found NGRI who are “skipped” in favor of the ADMH Commissioner’s provision of services to a person found Incompetent to Stand Trial, even though persons found NGRI ordinarily do not count in the calculation of the monthly compliance rate. Where a person found NGRI is “skipped” to provide services to a person deemed Incompetent to Stand Trial, the ADMH Commissioner shall have sixty (60) days to provide services to the “skipped” individual; if at the end of 60 days the ADMH Commissioner has not yet begun providing services to the person skipped, that person shall be included in the calculation of the average monthly compliance rate beginning on Day 61.
iii. The ADMH Commissioner may provide services to persons ordered to receive a Mental Evaluation or Competency Restoration Treatment outside of the order dictated by the date the ADMH Commissioner receives their respective court order, specifically, by providing services to particular individual earlier than would be dictated by the date of ADMH’s receipt of the court order for their evaluation or treatment (i.e., “line jumping”) or, where a demonstrable and compelling obstacle to providing services to a particular individual on the date
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that would be dictated by date of the ADMH Commissioner’s receipt of the court order for their evaluation or treatment requires the ADMH Commissioner to provide services later than that date (i.e., “skipping”), subject to the provisions set forth in Subsection E, and the calculation of Substantial Compliance with respect to persons provided court-ordered Mental Evaluations or Competency Restoration Treatment out of order shall be made in accordance with the provisions of Subsection E.
E. Substantial Compliance with Timelines for Incarcerated Persons. i. By twelve (12) months after Final Approval of this Agreement, for
persons incarcerated in the State of Alabama, the Substantial Compliance standard means that the ADMH Commissioner is in Substantial Compliance if, for each month, the average time period for the ADMH Commissioner’s provision of Outpatient Mental Evaluations, Inpatient Mental Evaluations, and Competency Restoration Treatment does not exceed the applicable timeline by 20%, counting only whole days. Thus, the ADMH Commissioner is in Substantial Compliance for each deadline as follows: 30 days (36 days), 45 days (54 days), 60 days (72 days), and 90 days (108 days).
ii. By twenty-four (24) months after Final Approval of this Agreement, for persons incarcerated in the State of Alabama, the Substantial Compliance standard means that the ADMH Commissioner is in Substantial Compliance if, for each month, the average time period for the ADMH Commissioner’s provision of Outpatient Mental Evaluations, Inpatient Mental Evaluations, and Competency Restoration Treatment does not exceed the applicable timeline by 12%, counting only whole days. Thus, the ADMH Commissioner is in Substantial Compliance for each deadline as follows: 30 days (34 days), 45 days (50 days), 60 days (67 days), and 90 days (101 days).
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iii. If the ADMH Commissioner provides an Outpatient Mental Evaluation, Inpatient Mental Evaluation, or Competency Restoration Treatment to an individual prior to the date that would otherwise be dictated by the date that the ADMH Commissioner receives the court order directing same, the ADMH Commissioner’s provision of services to that individual (i.e., the “line jumper”) shall not be included in the calculation of the ADMH Commissioner’s monthly average for purposes of calculating Substantial Compliance.
iv. If the ADMH Commissioner fails to provide an Outpatient Mental Evaluation, Inpatient Mental Evaluation, or Competency Restoration Treatment to an individual or individuals in a jail or an Alabama Department of Corrections facility when he or she reaches the first position on the waiting list for services ordered by the date of the ADMH Commissioner’s receipt of the relevant order for same, based on a demonstrable and compelling obstacle to the provision of the ordered evaluation or treatment at that time, and instead, “skips” that person, that individual will not be counted for the purpose of calculating Substantial Compliance for a period of up to sixty (60) calendar days beyond the date of the skip. If the ADMH Commissioner “skips” an individual or individuals ordered to receive a Mental Evaluation or Competency Restoration Treatment, the ADMH Commissioner shall notify Plaintiffs’ counsel, in writing, within ten (10) days of a “skip” that it has “skipped” that individual or individuals and describe the obstacle to the ADMH Commissioner’s provision of the court-ordered service at the time that individual or for those individuals that reached the first position on the waiting list. If, upon receipt of the ADMH Commissioner’s written explanation of a particular “skip,” Plaintiffs’ counsel disputes the existence of a demonstrable and compelling basis for the “skip,” Plaintiffs’ counsel may challenge the exclusion of the “skipped” person(s) from the calculation of the monthly compliance rate in accordance with the dispute resolution procedures in Section VIII of this Agreement. Not less
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than five (5) days prior to the end of the sixty (60) day grace period, the ADMH Commissioner shall advise Plaintiffs’ counsel, in writing, of (1) the reason(s) why the skipped individual or individuals has or have not yet been provided the court-ordered Mental Evaluation or Competency Restoration Treatment, and (2) any reason(s) why that person or persons should not be included in the calculation of the ADMH Commissioner’s monthly compliance rate beginning on day sixtyone (61). Upon Plaintiffs’ counsel’s receipt of the ADMH Commissioner’s written explanation of the continued deferral of the provision of the court-ordered evaluation or treatment to the “skipped” individual, the Parties shall meet and confer in good faith to resolve the issue of whether good grounds exist to justify the continued exclusion of the “skipped” individual from the calculation of the ADMH Commissioner’s monthly compliance rate. In the event that the Parties agree that the skipped individual(s) should not be counted in the ADMH Commissioner’s monthly compliance rate, the ADMH Commissioner shall provide periodic updates regarding the status of the skipped individual(s) on a timeline agreed upon by the Parties. In the event that the Parties are unable, after good faith discussions, to resolve the issue of whether the skipped individual(s) should be included in the ADMH Commissioner’s monthly compliance rate, they shall submit the matter for resolution by the Court in accordance with the dispute resolution procedures set forth in Section VIII of this Agreement. If the ADMH Commissioner fails to provide Plaintiffs’ counsel the written notice regarding any “skipped” individual(s) as specified above, that individual shall be included in the calculation of the ADMH Commissioner’s monthly compliance rate on day sixty-one (61), and for purposes of this calculation, day 61 shall be treated as one day past the applicable deadline with subsequent days being the corresponding number of days past the deadline (i.e., day 62 is two days past the deadline, day 63 is three days past the deadline, and so on until the person or persons is or are provided the relevant court-ordered service).
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v. Substantial Compliance will be determined on a monthly basis by the ADMH Commissioner in a monthly spreadsheet(s) and this spreadsheet should be provided to ADAP by the fifteenth calendar day of the month following the period covered by the monthly report. ADAP may request additional documentation necessary to the interpretation and verification of the spreadsheet data.
vi. If, after their review of the ADMH Commissioner’s monthly spreadsheet(s), Plaintiffs assert or contend that the ADMH Commissioner is not in Substantial Compliance with this Agreement, Plaintiffs must articulate, in detail and in writing, the basis or bases for their assertions or contentions. The writing detailing Plaintiffs’ assertions or contentions of non-compliance, and the factual basis or bases for the same, must be delivered to the ADMH Commissioner within fourteen (14) calendar days of Plaintiffs’ review of the monthly spreadsheet(s).
F. Stipulation of Parties Regarding Calculation of Applicable Times i. Upon approval of the proposed Settlement Agreement, the Defendant
shall have 12 months to come into Substantial Compliance, as defined by Section V.15, with the timeframes set forth in Sections VI.A.i, VI.B.i, VI.C.i, and shall have 24 months to come into Substantial Compliance, as defined in Section V.15, with the timeframes set forth in Section VI.A.ii, VI.B.ii, and VI.C.ii. Pursuant to Section VII, the Monitor will begin monitoring in the fourth month following approval and will calculate the ADMH Commissioner’s monthly compliance rate, in months 4-12, based upon the applicable 45 day timeframe, and then in months 13-24, based on the applicable 30 day timeframe.
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ii. The method of calculating the ADMH Commissioner’s average monthly

compliance rate pursuant to Section V.15, excluding “jumpers” pursuant to Section VI.D.iii or

Section VI.E.iii, will be as follows:

a. Outpatient mental evaluations. For each individual evaluated, the ADMH

Commissioner will calculate the number of days between the date that the ADMH Commissioner

received the order and the date that the outpatient mental evaluation was conducted. Then add

together the total number of days and divide by the total number of persons evaluated on an

outpatient basis.

b.

Submission of reports of outpatient mental evaluations. For each

report submitted, the ADMH Commissioner will calculate the number of days between the date

that the evaluation was conducted and the date that the report regarding the evaluation was

submitted to the circuit court. Then add together the total number of days and divide by the number

of reports submitted to circuit courts.

c. Inpatient mental evaluations. For each individual admitted for an inpatient

evaluation, the ADMH Commissioner will calculate the number of days between the date that the

ADMH Commissioner received the order and the date the inpatient evaluation was conducted.

Then the ADMH Commissioner will add together the total number of days and divide by the

number of inpatient evaluations conducted.

d. Submission of reports of inpatient mental evaluations. For each report

submitted, the ADMH Commissioner will calculate the number of days between the date that the

evaluation was conducted and the date that the report regarding the evaluation was submitted to

the circuit court. Then add together the total number of days and divide by the number of reports

submitted to circuit courts.

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e. Competency restoration treatment. For each individual admitted for competency restoration treatment, the ADMH Commissioner will calculate the number of days between the date that the ADMH Commissioner received the order and the date that the individual was admitted for competency restoration treatment. Then the ADMH Commissioner will add together the total number of days and divide by the number of persons admitted for competency restoration treatment.
f. The calculation for “skippers,” shall be made pursuant to Section VI.E.iv. g. Once the ADMH Commissioner calculates the average monthly rate of providing mental evaluations and competency restoration treatment, Substantial Compliance will be determined by whether the rate exceeds the relevant timeframes in Sections VI.A, VI.B, and VI.C. h. Provisions for emergency treatment of class members are set forth in Section XV below. 2. Increase in Capacity to Timely Provide Court-Ordered Mental Evaluations and Competency Restoration Treatment. A. Hospital Forensic Beds. The ADMH Commissioner, by and through ADMH and/or its contractors and/or other lawful providers, will add and operate, consistent with existing licensure and certification standards, hospital forensic beds for the provision of courtordered Inpatient Mental Evaluations and Competency Restoration Treatment as follows:
i. Twenty-four (24) hospital forensic beds will be added and operational by twelve (12) months after Final Approval of this Agreement.
ii. Not fewer than twenty-five (25) additional hospital forensic beds will be added and operational by twenty-four (24) months after Final Approval of this Agreement.
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iii. If the ADMH Commissioner determines that he or she can sustain

Substantial Compliance as defined in Section VI.1.E with fewer operational Hospital Forensic

Beds, the ADMH Commissioner may cease operating those beds that are not necessary to sustain

the ADMH Commissioner’s Substantial Compliance with the terms of this Agreement.

B. Community Forensic Beds. The ADMH Commissioner, by and through

ADMH and/or its contractors and/or other lawful providers, will operate, or arrange for the

operation of, fifty-two (52) community forensic beds consistent with existing licensure and

certification standards, in group homes of no greater than 16 beds distributed throughout the state.

i. Twenty (20) community forensic beds shall be added and

operational by twelve (12) months after Final Approval of this Agreement.

ii. A minimum of five (5) of the Community Forensic Beds added and

operationalized by twelve (12) months after Final Approval of this Agreement shall be located

where a Registered Sex Offender may be housed, and these 5 beds shall be used only to house

Registered Sex Offenders unless there are fewer than 5 Registered Sex Offenders in need of a

community forensic placement. These beds should be integrated within the beds associated with

the preceding paragraph.

iii. Thirty-two (32) additional community forensic beds will be added

and operational by twenty-four (24) months after Final Approval of this Agreement.

3.

Training to Relevant State Personnel. The ADMH Commissioner, by

and through ADMH, will offer initial and periodic training concerning the provisions of Alabama

law and requirements of the Fourteenth Amendment to the United States Constitution with regard

to persons ordered to receive Outpatient Mental Evaluations, Inpatient Mental Evaluations, and

Competency Restoration Treatment to Alabama state circuit court personnel, county sheriffs, and

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members of the Alabama State Bar regarding the procedures for the ADMH Commissioner’s provision of Outpatient Mental Evaluations, Inpatient Mental Evaluations, and Competency Restoration Treatment to criminal defendants.
A. Court Personnel and Sheriffs. By twelve (12) months after Final Approval of this Agreement, the ADMH Commissioner, by and through ADMH, shall offer training to the circuit court personnel and sheriffs for each of Alabama’s 67 counties regarding its obligation to provide timely Mental Evaluations and Competency Restoration Treatment to persons ordered to receive same in Alabama and the cooperation needed from court personnel and sheriffs in order for the ADMH Commissioner to meet the timelines specified in Sections VI.1.A through VI.1.E above.
B. Attorneys Representing Persons Affected by ADMH-Connected Orders. By twelve (12) months after Final Approval of this Agreement, the ADMH Commissioner shall distribute to each Alabama circuit court a publication, whose content is mutually agreed upon by the ADMH Commissioner and the undersigned counsel for Plaintiffs, for dissemination to attorneys representing persons ordered to receive Outpatient Mental Evaluations, Inpatient Mental Evaluations, or Competency Restoration Treatment.
C. Members of the Alabama Bar. i. By twelve (12) months after Final Approval of this Agreement, the ADMH Commissioner shall distribute a letter or email to all members of the Alabama State Bar enclosing the publication specified in Section VI.3.B. above, to ensure that all attorneys representing persons ordered to receive Outpatient Mental Evaluations, Inpatient Mental Evaluations, and Competency Restoration Treatment are aware of the relevant time periods for the provision of same. ADMH shall also make reasonable efforts to have the publication (or its substance) distributed to the
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criminal defense bar and prosecutors through electronic mail listservs (i.e., Alabama Criminal Defense Lawyers).
ii. Beginning in calendar year 2017, and continuing for two years thereafter, the ADMH Commissioner shall offer annual training to members of the Alabama State Bar regarding the timelines governing the provision of court-ordered Outpatient Mental Evaluations, Inpatient Mental Evaluations, and Competency Restoration Treatment and its duty to comply with the same. VII. MONITORING
1. The Parties agree that monitoring of the ADMH Commissioner’s compliance, by and through ADMH, with the terms of this Agreement is necessary and that ADAP will serve as the monitor.
2. ADAP shall perform the monitoring provided for in this Agreement in accordance with the protocol set forth in Appendix B hereto.
3. The Parties agree that monitoring of the ADMH Commissioner’s compliance, by and through ADMH, will be conducted by ADAP who will be recognized as the monitor in this case. ADAP will ensure that any monitoring activities undertaken by ADAP pursuant to its statutory access authority during the term of this Agreement (and any extension thereof) are separated from its monitoring activities under this Agreement, and shall not seek reimbursement under this Agreement for any monitoring activities undertaken pursuant to its statutory access authority. ADMH will allow ADAP, during its monitoring role, to have access to facilities, documents, staff, procedures, logs, records, and other similar information sources in order to ensure compliance. ADAP will further have access to persons in ADMH-operated facilities or facilities operated by ADMH-contractors who are ADAP’s clients, persons who are members of
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the certified class, or persons otherwise referred to in this Settlement Agreement. ADAP agrees to provide reasonable notice to ADMH facilities or staff before seeking said access in order to minimize disruptions to normal ADMH facility operations. ADAP will have its normal access to other persons in ADMH custody not involved in this Lawsuit under authority granted them by federal law as the protection and advocacy agency in Alabama. Nothing in this Settlement Agreement is intended to expand or restrict ADAP’s existing access under federal law. ADAP will not charge monitoring fees for persons not covered by the terms of this Agreement. ADMH will assist to the extent possible if necessary to facilitate ADAP’s reasonable access to persons held in the physical custody of county jails and resolve any challenges to ADAP’s access to persons held in the physical custody of county jails. ADAP understands and agrees that access to county jails is not within the control of the Defendant or ADMH. The inability of ADAP to access persons held in county jail will not constitute a breach of this Agreement by ADMH.
4. ADAP agrees to be bound by any Protective or Court Orders entered in this case to protect the confidentiality of inmate records and sensitive security information.
5. ADAP will prepare a written report on ADMH’s efforts to meet the requirements of this Agreement and any plan to effectuate the terms of this Agreement at least quarterly. Each report will indicate all areas in which the ADMH Commissioner is, or is not, in Substantial Compliance. Such report will be provided to ADMH and all counsel of record. If ADAP believes that the ADMH Commissioner is not in Substantial Compliance with the terms and provisions of this Agreement and/or any plan to effectuate its terms, ADAP will provide written recommendations for actions that it believes necessary to achieve Substantial Compliance with the terms of the provision or provisions. The ADMH Commissioner, by and through ADMH, will investigate the allegations and respond in writing with its comments, objections, or remedial action
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plan(s) through its counsel within thirty (30) calendar days after receipt of the notification. The Parties will meet and confer in good faith to attempt to address deficiencies identified by ADAP.
6. In the event that Plaintiffs’ counsel or the monitor discovers an exigent issue involving non-compliance, Plaintiffs’ counsel or the monitor shall notify counsel for the ADMH Commissioner of same, in a writing designating the issue as exigent, without having to provide a complete report as to all areas in which the ADMH Commissioner is, or is not, in Substantial Compliance as specified in Section VII.5 above within ten (10) calendar days of the monitor’s discovery of such exigent issue. The ADMH Commissioner, by and through ADMH, will investigate the allegations and respond in writing with its comments, objections, or remedial action plan(s) through its counsel within fourteen (14) calendar days after receipt of the notification. The Parties will meet and confer in good faith to attempt to address deficiencies identified by ADAP.
7. Monitoring will continue for a period that begins ninety (90) days after Final Approval of this Agreement and runs through the termination of the Agreement and the Court’s jurisdiction over same, subject to the provisions of Section X below. The monitor shall not begin calculating the ADMH Commissioner’s monthly compliance rate for ninety (90) days following Final Approval of this Agreement. VIII. DISPUTE RESOLUTION PROCESS
1. During the implementation and monitoring periods of this Agreement (see Sections VI and VII, above), if Plaintiffs’ counsel or the monitor believe that ADMH is not complying with some aspect of the Agreement, they will notify counsel for the Defendant ADMH Commissioner, as described in Sections VII.5 and VII.6 above. Defendant ADMH Commissioner, by and through ADMH, will respond as specified in Sections VII.5 and VII.6
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above. Thereafter the Parties will meet and confer in good faith to resolve the issue as specified in Section VII.5 and VII.6 above.
2. In the event that the Parties are unable to resolve any issue(s) after attempting to do so in good faith, they shall submit their dispute to the magistrate judge assigned to the case or to the district court in the event no magistrate judge is assigned. Both parties shall have the right to appeal any magistrate judge’s decision to the district court for review.
3. The award of any attorneys’ fees to Plaintiffs in connection with any motion filed after engagement in the Dispute Resolution Process shall be governed by the provisions of Section XIII.5. IX. RESERVATION OF JURISDICTION AND ENFORCEMENT
1. The Parties consent to the reservation and exercise of jurisdiction by the Court over disputes between the Parties and among the Parties arising out of this Agreement.
2. The Court will retain jurisdiction to enforce the terms of this Agreement, upon Final Approval, until the Agreement is terminated.
3. This Agreement may be enforced only by the Parties hereto and those intended to receive the Mental Evaluations and Competency Restoration Treatment provided for herein as specified in Sections III and IV above. Nothing contained in this Agreement is intended or will be construed to evidence an intention to confer any right or remedy upon any person other than the persons specified in this Section. X. TERMINATION
1. The Parties agree that the term of this Agreement shall be three (3) years from the date of Final Approval by the Court, subject to the provisions below.
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2. If Plaintiffs believe that the ADMH Commissioner has not achieved Substantial Compliance with the timelines for the provision of Outpatient Mental Evaluations, Inpatient Mental Evaluations, and Competency Restoration Treatment specified in Section VI.1.E above for at least the nine consecutive (9) months preceding the end date of the Agreement, Plaintiffs shall file a motion to extend jurisdiction and monitoring with the Court at least four (4) months prior to the end date of the Agreement. Upon the filing of a motion to extend jurisdiction and monitoring, the determination of whether the ADMH Commissioner has achieved Substantial Compliance as defined in Section VI.1.E shall be made by the Court after an evidentiary hearing. If the Court finds that the ADMH Commissioner has not achieved Substantial Compliance as defined in Section VI.1.E for at least the nine consecutive (9) months preceding the hearing on the extension of its jurisdiction and monitoring, the Court may retain jurisdiction for a period of time determined by the Court to ensure the ADMH Commissioner achieves Substantial Compliance. If the Court determines that ADMH has achieved Substantial Compliance as defined in Section VI.1.E, the Court may terminate jurisdiction and monitoring on the end date of the Agreement. If the ADMH Commissioner has not achieved Substantial Compliance as defined in Section VI.1.E, the ADMH Commissioner may, at any time following the end of the three (3) year term, petition the Court for termination of the Agreement and the Court’s jurisdiction based on the status of the law at the time of such petition. In the event that the ADMH Commissioner seeks to terminate the Agreement and the Court’s jurisdiction, the ADMH Commissioner shall bear the burden of proof to demonstrate that termination is appropriate and Plaintiffs shall have the right to respond to same prior to any determination by the Court that any such termination sought by the ADMH Commissioner is appropriate.
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3. Three months prior to the end of the term of the Agreement, if the Parties agree that the ADMH Commissioner has not achieved Substantial Compliance, the Parties may agree in writing to extend the term of the Agreement for a specified period, and by joint motion, seek the Court’s approval of their agreed-upon extension without an evidentiary hearing to determine compliance. During the extension period agreed upon by the Parties, the terms of the Agreement shall remain fully in effect and the parties will jointly request that the Court retain jurisdiction over the above-styled action.
4. If the term of Agreement is extended pursuant to Subsection X.2 above, Plaintiffs may seek additional extensions of the term of this Agreement by demonstrating that the ADMH Commissioner cannot demonstrate Substantial Compliance with the timelines for the provision of Outpatient Mental Evaluations, Inpatient Mental Evaluations, and Competency Restoration Treatment specified in Section VI.1 above for at least nine (9) consecutive months preceding any scheduled expiration or termination of the Agreement.
5. If the term of the Agreement is extended pursuant to Subsection X.2 above, the Court may order an additional term of monitoring commensurate with the period of time that the Court’s jurisdiction is extended. If the monitoring period is extended, ADAP shall remain the monitor, and the hourly rate for additional monitoring and the total amount billable for such additional monitoring shall be the rates specified in Section XIII below, unless the Court determines that lower hourly rates and a lower annual cap is appropriate. XI. AMENDMENTS
1. By mutual agreement, the Parties may change terms of this Agreement, including but not limited to the timelines for taking specific actions, provided that such modifications are memorialized in writing, signed by the Parties or through their counsel, and approved by the Court.
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XII. FUNDING

1. The Parties acknowledge that implementation of the terms of this Agreement

and any plan necessary to effectuate its terms are subject to the availability and receipt of

appropriated funds.

2. The Parties further acknowledge that additional funding and the cooperation of

third parties is necessary to the ADMH Commissioner’s full performance in accordance with the

terms of this Agreement, and that the lack of funding or third party cooperation does not preclude

the Court from entering an Order to achieve compliance with this Agreement, and with other

applicable law, provided that the ADMH Commissioner reserves the right to assert that the lack

of funding and/or third party cooperation should be taken into account in any remedial order.

3. The ADMH Commissioner and ADAP agree to make all possible good faith efforts

to seek all necessary funding to implement the terms of this Agreement, except that ADAP shall

not be required to lobby in contravention of the federal prohibition on lobbying efforts by ADAP.

In the event that the Parties are unable to agree as to whether there is sufficient funding to

implement this Agreement, the Parties will meet and confer, and if necessary, consult with the

Court. In the event that the Parties remain unable to agree, either party may seek the assistance of

the Court.

4.

The Parties stipulate that Section XII’s provisions serve neither as a condition

precedent to performance nor a basis for excusing the Parties’ performance obligations under the

Settlement Agreement. Section XII.1’s acknowledgement that “implementation . . .[is] subject to

the availability and receipt of appropriated funds” does not create a condition precedent to

implementation, but acknowledges instead the practical reality that the ADMH Commissioner, in

her administration of ADMH, is subject to an annual legislative appropriation process. Section

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XII.2’s acknowledgement that “additional funding and the cooperation of third parties is necessary to the ADMH Commissioner’s full performance in accordance with the terms of the Agreement” likewise does not function as a condition precedent to the ADMH Commissioner’s performance nor excuse her nonperformance, as made explicit in the further acknowledgement that “lack of funding or third party cooperation does not preclude the Court from entering an Order to achieve compliance with this Agreement. XIII. ATTORNEYS’ FEES AND EXPENSES
1. The ADMH Commissioner, by and through ADMH, agrees to pay attorneys’ fees and associated costs to Plaintiffs’ counsel in the amount of $275,000 for services rendered through March 13, 2017. From March 14, 2017, until Final Approval of this Agreement by the Court, the ADMH Commissioner, by and through ADMH, agrees to pay attorneys’ fees to Plaintiffs’ counsel in the amount of $275 per hour plus reasonable expenses. This payment shall be made to Henry F. Sherrod, III, P.C. The Plaintiffs’ counsel shall be paid one-half (1/2) of said attorneys’ fees within sixty (60) days of Final Approval of this Agreement by the Court. The balance shall be paid within sixty (60) days of the beginning of the 2019 Fiscal Year.
2. Plaintiffs’ counsel agree that they will not seek nor petition the Court for an award of attorneys’ fees and expenses for monitoring services greater than the following amounts. For purposes of describing the periods hereinafter, the time commences 90 days following the execution and Final Approval of this settlement by the Court. The fees amounts for monitoring services will be capped at, and shall not exceed, a total of the following amounts:
A. Year One (which runs from the date that monitoring begins): $48,000.00. B. Year Two (which runs from the date that monitoring begins): $48,000.00. C. Year Three (which runs from the date that monitoring begins): $48,000.00.
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D. Additional periods of monitoring due to extension of the Agreement: $48,000 annually, unless a lower amount is Ordered by the Court or agreed to by the Parties.
3. Plaintiffs’ counsel will provide itemized hours expended with detailed time entries to the ADMH Commissioner, in writing, on a quarterly basis.
4. The ADMH Commissioner, by and through ADMH, agrees to pay an hourly rate of $195.00 for services rendered by attorneys and $65.00 per hour for paralegals, law clerks, and members of ADAP’s monitoring unit in the monitoring process. The Parties will meet and confer and attempt to agree upon payment for monitoring services rendered. In the event that the Parties are unable to agree upon the reasonable number of hours expended, either party may seek the assistance of the Court if the Parties remain unable to agree.
5. The annual caps and hourly rates described herein do not apply to (a) Plaintiffs’ motions to enforce the terms of this Agreement, and (b) Plaintiffs’ opposition to any motions filed by the ADMH Commissioner arising out of this Agreement. No fees and expenses will be awarded to Plaintiffs’ counsel for such motions or oppositions unless the Court finds: (a) that the motion or opposition was necessary to enforce the terms of the Agreement; and (b) that Plaintiffs attempted to resolve the matter and or narrow the issues as much as possible by meeting and conferring with the ADMH Commissioner, taking full opportunity of recourse to the mediation process before presenting the issues to the Court. XIV. ADDITIONAL PROVISIONS
1. The ADMH Commissioner waives the right to contest the enforceability of this Agreement by persons who have been charged with a crime in Alabama and ordered to receive an Outpatient Mental Evaluation as provided in Section VI.1.A. The Plaintiffs waive the right to contest, following Final Approval of the Agreement, the Constitutionality of this Agreement, any
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of its terms, and the validity of this Agreement. Any person who is not part of settlement class who attempts to enforce this Agreement shall be deemed to be bound by this Agreement.
2. This Agreement constitutes the entire agreement between the Parties as to all claims contained herein. This Agreement supersedes all prior agreements, whether written, oral, or implied. Each party represents that it has full legal authority to enter into and execute this Agreement.
3. This Agreement completely resolves all claims in this Lawsuit that were brought or were required to have been brought in this Lawsuit with regard to the settlement class or any other beneficiary of this Agreement.
4. Unless expressly identified in this Agreement, the Parties do not intend for this Agreement to confer any benefit on any third party.
5. This Agreement may not be altered or amended, except in writing signed by all Parties or their representatives or by a Court order.
6. Nothing in this Agreement shall be construed to require the ADMH Commissioner or ADMH to disobey or violate any order of any court or any state or federal law in any way, subject to the Supremacy Clause of the United States Constitution.
7. This Agreement will be binding on all successors, employees, agents, and all others working on behalf of Plaintiffs and Defendant Lynn Beshear. XV. IDENTIFICATION AND EMERGENCY TREATMENT OF CLASS MEMBERS
1. Identification and Emergency Treatment of Class Members. The Parties will implement the following process for identifying and treating class members who need emergency treatment prior to their admission into a facility operated by the Alabama Department of Mental Health (“ADMH”):
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a. Notice to Relevant Persons. The Parties, during the term of the proposed Settlement Agreement, and ADMH thereafter, will work with officials of the Alabama State Bar, with whom they have already begun conferring, to disseminate, on an annual basis, notice to members of the Alabama State Bar, which substantially comports with Appendix C hereto. The notice will be disseminated in a manner agreed to in cooperation with the Alabama State Bar, or alternatively, the Alabama Administrative Office of Courts, which may include publication. During the term of the proposed Settlement Agreement, the Parties, and ADMH thereafter, will also disseminate a notice to the circuit court judge in each Alabama county, on an annual basis, designating the ADMH official responsible for initiating the process of identifying and arranging emergency treatment for persons awaiting inpatient mental evaluations and/or competency restoration treatment prior to their admission into a facility operated by ADMH for that purpose, which will substantially comport with Appendix D hereto.
b. Procedure for Identifying Class Members in Need of Emergency Treatment. The ADMH Commissioner shall designate, annually, an ADMH official (the “ADMH Designee”) to receive notice from current and future class members’ criminal defense counsel and/or Alabama circuit court judges that a class member needs emergency treatment. Upon receipt of any such notice by the ADMH Designee, the ADMH Designee will provide notice of his or her receipt of notice to the Monitor, the Alabama Disabilities Advocacy Program (“ADAP”), within forty-eight (48) hours of receiving same during the term of the Settlement Agreement (ECF No. 60-1). Notification of the Monitor for this purpose may be made to the same individual designated according to Section III.1 of Appendix B (Monitoring Protocol) of the Settlement Agreement. Upon receiving notice from criminal defense counsel and/or an Alabama circuit court judge (or an agent acting on behalf of an Alabama circuit court judge) that an incarcerated criminal defendant
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needs emergency psychiatric treatment, the ADMH Designee will first confirm that the individual is a class member to whom the ADMH Commissioner has a duty to provide care. If the individual concerning whom the ADMH Designee receives notice of a need for emergency treatment is not a class member, the Monitor shall transmit the notice to the Alabama Disabilities Advocacy Program operating as the State’s protection and advocacy agency for prospective advocacy. If the individual concerning whom the ADMH Designee receives notice of a need for emergency treatment is a class member, the ADMH Designee will arrange for a clinical professional to visit the class member in person to conduct an assessment of the class member’s need for emergency treatment within four (4) business days of the ADMH Designee’s receipt of notice of the need for emergency treatment. If, in the clinical professional’s judgment, the class member needs emergency treatment, the ADMH Commissioner shall arrange for the provision of emergency treatment to the class member or the class member’s early admission into an ADMH operated facility for purposes of receiving the court-ordered inpatient mental evaluation or competency restoration treatment (i.e., a “line jump” pursuant to Section VI.D.iii of the proposed Settlement Agreement) within seven calendar days of the clinical professional’s in-person visit with the class member. The ADMH Designee will advise the Monitor of the clinical professional’s determination whether the class member needs emergency treatment and any arrangements for such treatment within forty-eight (48) hours of the professional’s in-person visit with the class member during the term of the Settlement Agreement. If after the ADMH Designee receives notice from a class member’s defense counsel or a circuit court judge the Sheriff of the county and/or officials of the jail or Alabama Department of Corrections Facility in which the class member is incarcerated refuses ADMH officials, the ADMH-designated clinical professional, or the Monitor access to the class member, then within twenty-four (24) hours of the denial of access the ADMH
32

Case 2:16-cv-00798-MHT-CSC Document 94 Filed 01/25/18 Page 33 of 34
Designee will notify the Monitor of same and all Parties will meet and confer as to the appropriate motion to be filed with the Circuit Court for access to the class member. In the event of a dispute between the ADMH officials evaluating the class member for emergency treatment or a potential “line jump” and the Monitor concerning the need for same, the Monitor shall submit the dispute for formal resolution in accordance with the provisions for dispute resolution in Section VIII of the proposed Settlement Agreement.
c. Procedure for Responding to Class Members Who May Be Suicidal. Upon receipt of notice by the ADMH Designee that an incarcerated criminal defendant needs emergency treatment because he or she is believed to be suicidal, the ADMH Designee shall forward notice of same to the Monitor within twenty-four (24) hours of receipt, unless such notice is received on a Saturday or Sunday, in which case the ADMH Designee shall have until close of business the following Monday to forward the notice to the Monitor. Upon receipt of such notice, if the individual identified in the notice is a class member, the Monitor shall immediately notify the Sheriff of the county and officials of the jail or ADOC facility in which the individual is incarcerated that the individual is believed to be at risk of suicide. If the individual identified in the notice is not a class member, the Monitor shall transmit the notice to the State’s protection and advocacy agency for prospective advocacy. XVI. EFFECT OF SETTLEMENT AGREEMENT ON FEMALE CLASS MEMBERS
1. All provisions of the Settlement Agreement apply with equal force to male and female class members, including all timeframes for the provision of court-ordered inpatient mental evaluations and competency restoration treatment, Settlement Agreement, Section VI.1.A, VI.1.B, and VI.1.C, training to relevant state personnel, Settlement Agreement, Section VI.3, and monitoring, Settlement Agreement, Section VII, Appendix B (Monitoring protocol including
33

Case 2:16-cv-00798-MHT-CSC Document 94 Filed 01/25/18 Page 34 of 34
documents provided for monitoring include waiting lists for Taylor Hardin Secure Medical Facility and Bryce Hospital). The provisions of the Settlement Agreement related to the addition of forensic hospital and community beds likewise apply with equal force to female and male members of the settlement class, as the additional capacity required by the Settlement Agreement must be allocated so as to ensure that the timeframes for provision of court-ordered services to female class members are achieved.
2. As of August 7, 2017, there were no female class members on the waiting list for admission to Bryce Hospital for court-ordered inpatient mental evaluations or competency restoration treatment. The total number of female class members who have been ordered to receive an inpatient mental evaluation, and who awaited admission to Bryce Hospital for some period of time, since January 1, 2017 is 9. The total number of female class members who have been found incompetent to stand trial and ordered to receive competency restoration treatment, and who awaited admission to Bryce Hospital for some period of time, since January 1, 2017 is 8. The average number of days following ADMH’s receipt of a circuit court order directing its provision of an inpatient mental evaluation or competency restoration treatment to a female class member has been 7 days, with the longest wait since January 1, 2017 being 10 days.
Dated, this the 25th day of January, 2018. /s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
34

 
 Case: 2:16-cv-798 As of: 05/21/2020 09:22 AM CDT 1 of 23
CLOSED,MHT−ClerkD
U.S. District Court Alabama Middle District (Montgomery) CIVIL DOCKET FOR CASE #: 2:16−cv−00798−MHT−CSC

Hunter et al v. Beshear Assigned to: Honorable Judge Myron H. Thompson Referred to: Honorable Judge Charles S. Coody Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 09/30/2016 Date Terminated: 01/25/2018 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Demontray Hunter by and through his next friend Rena Hunter

represented by Henry F. Sherrod , III Henry F. Sherrod III, PC 119 S. Court Street Florence, AL 35630 256−764−4141 Fax: 877−684−0802 Email: hank@alcivilrights.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney Alabama Disabilities Advocacy Program P. O. Box 870395 Tuscaloosa, AL 35487 205−348−4928 Fax: 205−348−3909 Email: jphackney@adap.ua.edu TERMINATED: 01/31/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martha Geron Gadd AARP Foundation 601 E Street NW Washington, DC 20049 786−972−4324 Email: mgerongadd@icloud.com TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall Charles Marshall ACLU of Alabama Foundation, Inc. P.O. Box 6179 Montgomery, AL 36106−0179 334−420−1741 Fax: 334−269−5666 Email: rmarshall@aclualabama.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Van Der Pol , Jr. Alabama Disabilities Advocacy Program (ADAP) Box 870395 Tuscaloosa, AL 36587 205−348−4928 Fax: 205−348−3909 Email: wvanderpoljr@adap.ua.edu LEAD ATTORNEY

Case: 2:16-cv-798 As of: 05/21/2020 09:22 AM CDT 2 of 23

ATTORNEY TO BE NOTICED

Larry Gene Canada Alabama Disabilities Advocacy Program Box 870395 Tuscaloosa, AL 35487−0395 205−348−4928 Fax: 205−348−3909 Email: lcanada@adap.ua.edu ATTORNEY TO BE NOTICED

Lonnie Jason Williams Alabama Disabilities Advocacy Program Box 870395 Tuscaloosa, AL 35487−0395 205−348−4928 Fax: 205−348−3909 Email: lwilliams@adap.ua.edu ATTORNEY TO BE NOTICED

Shandra Monterastelli Alabama Disabilities Advocacy Program Box 870395 Tuscaloosa, AL 35487 205−348−4436 Fax: 205−348−3909 Email: smonterastelli@adap.ua.edu ATTORNEY TO BE NOTICED

Plaintiff
Russell D. Senn by and through his next friend Irene Senn

represented by Henry F. Sherrod , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 01/31/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martha Geron Gadd (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall Charles Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Van Der Pol , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Larry Gene Canada (See above for address) ATTORNEY TO BE NOTICED

Lonnie Jason Williams (See above for address) ATTORNEY TO BE NOTICED

Case: 2:16-cv-798 As of: 05/21/2020 09:22 AM CDT 3 of 23

Plaintiff Travis S. Parks by and through his next friend Catherine Young
Plaintiff Vandarius S. Darnell by and through his next friend, Bambi Darnell

Shandra Monterastelli (See above for address) ATTORNEY TO BE NOTICED
represented by Henry F. Sherrod , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Patrick Hackney (See above for address) TERMINATED: 01/31/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martha Geron Gadd (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Charles Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Van Der Pol , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Larry Gene Canada (See above for address) ATTORNEY TO BE NOTICED
Lonnie Jason Williams (See above for address) ATTORNEY TO BE NOTICED
Shandra Monterastelli (See above for address) ATTORNEY TO BE NOTICED
represented by Henry F. Sherrod , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Patrick Hackney (See above for address) TERMINATED: 01/31/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martha Geron Gadd (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Charles Marshall

Case: 2:16-cv-798 As of: 05/21/2020 09:22 AM CDT 4 of 23

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

William Van Der Pol , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Larry Gene Canada (See above for address) ATTORNEY TO BE NOTICED

Lonnie Jason Williams (See above for address) ATTORNEY TO BE NOTICED

Shandra Monterastelli (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Frank White, Jr. by and through his next friend, Linda White

represented by Henry F. Sherrod , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 01/31/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martha Geron Gadd (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall Charles Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Van Der Pol , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Larry Gene Canada (See above for address) ATTORNEY TO BE NOTICED

Lonnie Jason Williams (See above for address) ATTORNEY TO BE NOTICED

Shandra Monterastelli (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Marcus Jackson by and through his next friend Michael P.

represented by Henry F. Sherrod , III (See above for address)

Case: 2:16-cv-798 As of: 05/21/2020 09:22 AM CDT 5 of 23

Hanle

LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 01/31/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martha Geron Gadd (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall Charles Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Van Der Pol , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Larry Gene Canada (See above for address) ATTORNEY TO BE NOTICED

Lonnie Jason Williams (See above for address) ATTORNEY TO BE NOTICED

Shandra Monterastelli (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Timothy D. Mount by and through his next friend, Dorothy Sullivan

represented by Henry F. Sherrod , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Patrick Hackney (See above for address) TERMINATED: 01/31/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martha Geron Gadd (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall Charles Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Van Der Pol , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:16-cv-798 As of: 05/21/2020 09:22 AM CDT 6 of 23

Plaintiff Henry P. McGhee by and through his next friend, Barbara Hardy, individually and on behalf of all others similarly situated
Plaintiff Alabama Disabilities Advocacy Program

Larry Gene Canada (See above for address) ATTORNEY TO BE NOTICED
Lonnie Jason Williams (See above for address) ATTORNEY TO BE NOTICED
Shandra Monterastelli (See above for address) ATTORNEY TO BE NOTICED
represented by Henry F. Sherrod , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Patrick Hackney (See above for address) TERMINATED: 01/31/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martha Geron Gadd (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Charles Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Van Der Pol , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Larry Gene Canada (See above for address) ATTORNEY TO BE NOTICED
Lonnie Jason Williams (See above for address) ATTORNEY TO BE NOTICED
Shandra Monterastelli (See above for address) ATTORNEY TO BE NOTICED
represented by James Patrick Hackney (See above for address) TERMINATED: 01/31/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martha Geron Gadd (See above for address) TERMINATED: 09/16/2019 LEAD ATTORNEY

Case: 2:16-cv-798 As of: 05/21/2020 09:22 AM CDT 7 of 23
ATTORNEY TO BE NOTICED
William Van Der Pol , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Larry Gene Canada (See above for address) ATTORNEY TO BE NOTICED
Lonnie Jason Williams (See above for address) ATTORNEY TO BE NOTICED
Shandra Monterastelli (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
James V. Perdue in his official capacity as Commissioner of the Alabama Deptartment of Mental Health and Mental Retardation TERMINATED: 07/20/2017

represented by Ashley Lane Nichols Alabama Dept. of Mental Health 100 North Union Street; Suite 536 RSA Union Bldg. Montgomery, AL 36130 334−242−3023 Fax: 334−242−0924 Email: ashley.nichols@mh.alabama.gov TERMINATED: 07/20/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian James Malcom Waller Landsen Dortch & Davis, LLP 1901 Sixth Avenue North Suite 1400 Birmingham, AL 35203 205−226−5706 Email: brian.malcom@wallerlaw.com TERMINATED: 04/06/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward Cary Hixon Alabama Department of Mental Health P O Box 301410 Montgomery, AL 36130 334−242−3057 Fax: 334−242−0924 Email: eddie.hixon@mh.alabama.gov TERMINATED: 07/20/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Larry Brittain Childs Waller Lansden Dortch & Davis LLP 1901 6th Avenue North, Ste. 1400 Birmingham, AL 35203 205−226−5701 Fax: 205−214−8787 Email: larry.childs@wallerlaw.com TERMINATED: 04/06/2017

Case: 2:16-cv-798 As of: 05/21/2020 09:22 AM CDT 8 of 23

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Skipper Jones Alabama Department of Mental Health 1651 Ruby Tyler Parkway Tuscaloosa, AL 35404 205−507−8169 Email: nancy.jones@bryce.mh.alabama.gov TERMINATED: 07/20/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Bailey Klinner Alabama Department of Mental Health P O Box 301410 Montgomery, AL 36130 334−242−3038 Fax: 334−242−0924 Email: tommy.klinner@mh.alabama.gov TERMINATED: 07/20/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Lynn T. Beshear in her official capacity as Commissioner of the Alabama Department of Mental Health

represented by Ashley Lane Nichols (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward Cary Hixon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Skipper Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Bailey Klinner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/30/2016
09/30/2016 09/30/2016 10/14/2016 10/19/2016

# Docket Text
1 COMPLAINT against James V. Perdue ( Filing fee $ 400.00 receipt number 4602042615.), filed by Demontray Hunter, Travis S. Parks, Russell D. Senn. (Attachments: # 1 Filing Fee Receipt)(kh, ) (Entered: 10/12/2016)
2 Corporate/Conflict Disclosure Statement by Demontray Hunter, Travis S. Parks, Russell D. Senn. (kh, ) (Entered: 10/12/2016)
3 Summons Issued as to James V. Perdue and return to counsel for personal service. (kh, ) (Entered: 10/12/2016)
4 SUMMONS Returned Executed; James V. Perdue (c/o Thomas Klinner) served on 9/30/2016. (Entered: 10/14/2016)
5 MOTION for Extension of Time to File Response/Reply by James V. Perdue. (Klinner, Thomas) (Entered: 10/19/2016)

Case: 2:16-cv-798 As of: 05/21/2020 09:22 AM CDT 9 of 23

10/19/2016
10/19/2016 11/02/2016 11/04/2016 11/04/2016 11/07/2016 11/07/2016
11/07/2016 11/18/2016 11/18/2016
11/18/2016 11/18/2016 11/23/2016 11/29/2016 11/29/2016 11/30/2016 11/30/2016
11/30/2016 11/30/2016

6 TEXT ORDER granting 5 Motion for Extension of Time to File Response/Reply and resetting the deadline for filing a response to the complaint until November 4, 2016. Signed by Honorable Judge Myron H. Thompson on 10/19/2016. (no pdf document attached this entry)(kh, ) (Entered: 10/19/2016)
7 Corporate/Conflict Disclosure Statement by James V. Perdue. (Klinner, Thomas) (Entered: 10/19/2016)
8 NOTICE of Appearance by Lonnie Jason Williams on behalf of All Plaintiffs (Williams, Lonnie) (Entered: 11/02/2016)
9 MOTION to Dismiss Count 2 of the Plaintiff's Complaint by James V. Perdue. (Klinner, Thomas) (Entered: 11/04/2016)
10 Defendant's ANSWER to 1 Complaint Count 1 by James V. Perdue.(Klinner, Thomas) (Entered: 11/04/2016)
***Attorney Ashley Lane Nichols,Nancy Skipper Jones for James V. Perdue added. pursuant to the 10 answer (kh, ) (Entered: 11/07/2016)
11 ORDERED that the Rule 26(f) report containing the discovery plan shall be filed as soon as practicable but not later than November 28, 2016, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 11/7/2016. (kh, ) (Entered: 11/07/2016)
12 GENERAL BRIEFING ORDER setting out the briefing schedule on dispositive motions. Signed by Honorable Judge Myron H. Thompson on 11/7/2016. (kh, ) (Entered: 11/07/2016)
13 MOTION for Extension of Time to File Response/Reply as to 9 MOTION to Dismiss Count 2 of the Plaintiff's Complaint by Demontray Hunter, Travis S. Parks, Russell D. Senn. (Gadd, Martha) (Entered: 11/18/2016)
14 TEXT ORDER granting 13 MOTION for Extension of Time to File Response/Reply as to 9 MOTION to Dismiss Count 2 of the Plaintiff's Complaint; Responses due by 12/9/2016. Signed by Honorable Judge Myron H. Thompson on 11/18/2016. (no pdf document attached to this entry)(kh, ) (Entered: 11/18/2016)
15 REPORT of Rule 26(f) Planning Meeting. (Gadd, Martha) (Entered: 11/18/2016)
16 Joint MOTION for Hearing re 15 Report of Rule 26(f) Planning Meeting, 11 Order, Set Deadlines by Demontray Hunter, Travis S. Parks, Russell D. Senn. (Gadd, Martha) (Entered: 11/18/2016)
Set Hearings: Telephone Conference set for 11/29/2016 11:00 AM telephone before Honorable Judge Myron H. Thompson. (ag, ) (Entered: 11/23/2016)
17 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 11/29/2016 (PDF available for court use only). (Recording Time 11:08 − 11:27.) (ag, ) (Entered: 11/29/2016)
18 Unopposed MOTION for an Enlargement of Time to Exchange Initial Disclosures re 15 Report of Rule 26(f) Planning Meeting by Demontray Hunter, Travis S. Parks, Russell D. Senn. (Gadd, Martha) (Entered: 11/29/2016)
19 ORDERED that the motion for hearing (doc. no. 16 ) is denied as moot. The hearing has already been held. Signed by Honorable Judge Myron H. Thompson on 11/30/2016. (kh, ) (Entered: 11/30/2016)
20 ORDERED as follows: (1) The plaintiffs are allowed leave to file an amended complaint by no later than December 23, 2016. (2) The defendant's motion to dismiss (doc. no. 9 ) is denied with leave to renew. Signed by Honorable Judge Myron H. Thompson on 11/30/2016. (kh, ) (Entered: 11/30/2016)
21 ORDERED that each side in this case is allowed 20 depositions. Signed by Honorable Judge Myron H. Thompson on 11/30/2016. (kh, ) (Entered: 11/30/2016)
22 UNIFORM SCHEDULING ORDER: Trial and Pretrial Dates. An on−therecord pretrial conference is scheduled for July 20, 2017, at 10:00 a.m., in Montgomery, Alabama. This cause is set for trial during the term of court commencing on August

Case: 2:16-cv-798 As of: 05/21/2020 09:22 AM CDT 10 of 23

11/30/2016 12/21/2016 12/21/2016 12/23/2016 12/23/2016 12/23/2016 12/23/2016 12/23/2016
12/23/2016 01/09/2017

21, 2017, at 10:00 a.m., in Montgomery, Alabama. Dispositive Motions due by 4/21/2017; Mediation Notice due by 3/31/2017; Amended Pleadings due by 2/14/2017. Discovery due by 3/24/2017, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 11/30/2016. (furn: calendar, AG)(kh, ) (Entered: 11/30/2016)
23 TEXT ORDER granting 18 MOTION for Extension of Deadline re 15 Report of Rule 26(f) Planning Meeting. Signed by Honorable Judge Myron H. Thompson on 11/30/2016. (no pdf document attached to this entry)(kh, ) (kh, ). (Entered: 11/30/2016)
24 MOTION to Seal Certain Exhibits to Declarations by Demontray Hunter, Travis S. Parks, Russell D. Senn. (Gadd, Martha) (Entered: 12/21/2016)
25 TEXT ORDER granting 24 MOTION to Seal Certain Exhibits to Declarations. Signed by Honorable Judge Myron H. Thompson on 12/21/2016.(no pdf document attached to this order)(kh, ) (Entered: 12/21/2016)
26 AMENDED COMPLAINT First Amended Complaint against All Defendants, filed by Demontray Hunter, Travis S. Parks, Russell D. Senn.(Gadd, Martha) (Entered: 12/23/2016)
27 MOTION for Preliminary Injunction by Demontray Hunter, Travis S. Parks, Russell D. Senn, Vandarius S. Darnell, Frank White, Jr., Marcus Jackson, Timothy D. Mount, Henry P. McGhee, Alabama Disabilities Advocacy Program(Gadd, Martha) Modified on 6/19/2019 to add additional filers (alm, ). (Entered: 12/23/2016)
28 MEMORANDUM of Law in Support re 27 MOTION for Preliminary Injunction filed by Demontray Hunter, Travis S. Parks, Russell D. Senn, Vandarius S. Darnell, Frank White, Jr., Marcus Jackson, Timothy D. Mount, Henry P. McGhee, Alabama Disabilities Advocacy Program (Gadd, Martha) Modified on 6/19/2019 to add additional filers (alm, ) (Entered: 12/23/2016)
29 (DECLARATION of Joel Dvoskin) AFFIDAVIT re 28 MEMORANDUM of Law, 27 MOTION for Preliminary Injunction by Demontray Hunter, Travis S. Parks, Russell D. Senn. (Gadd, Martha) (Entered: 12/23/2016)
30 (DECLARATION of M. Geron Gadd) AFFIDAVIT re 28 MEMORANDUM of Law, 27 MOTION for Preliminary Injunction by Demontray Hunter, Travis S. Parks, Russell D. Senn, Vandarius S. Darnell, Frank White, Jr., Marcus Jackson, Timothy D. Mount, Henry P. McGhee, Alabama Disabilities Advocacy Program (Attachments: # 1 Exhibit Gadd Decl. (12.23.16), Ex. 1, # 2 Exhibit Gadd Decl. (12.23.16), Ex. 2, # 3 Exhibit Gadd Decl. (12.23.16), Ex. 3, # 4 Exhibit Gadd Decl. (12.23.16), Ex. 4, # 5 Exhibit Gadd Decl. (12.23.16), Ex. 5, # 6 Exhibit Gadd Decl. (12.23.16), Ex. 6, # 7 Exhibit Gadd Decl. (12.23.16), Ex. 7, # 8 Exhibit Gadd Decl. (12.23.16), Ex. 8, # 9 Exhibit Gadd Decl. (12.23.16), Ex. 9, # 10 Exhibit Gadd Decl. (12.23.16), Ex. 10, # 11 Exhibit Gadd Decl. (12.23.16), Ex. 11, # 12 Exhibit Gadd Decl. (12.23.16), Ex. 12, # 13 Exhibit Gadd Decl. (12.23.16), Ex. 13, # 14 Exhibit Gadd Decl. (12.23.16), Ex. 14, # 15 Exhibit Gadd Decl. (12.23.16), Ex. 15, # 16 Exhibit Gadd Decl. (12.23.16), Ex. 16, # 17 Exhibit Gadd Decl. (12.23.16), Ex. 17, # 18 Exhibit Gadd Decl. (12.23.16), Ex. 18, # 19 Exhibit Gadd Decl. (12.23.16), Ex. 19, # 20 Exhibit Gadd Decl. (12.23.16), Ex. 20, # 21 Exhibit Gadd Decl. (12.23.16), Ex. 21, # 22 Exhibit Gadd Decl. (12.23.16), Ex. 22, # 23 Exhibit Gadd Decl. (12.23.16), Ex. 23, # 24 Exhibit Gadd Decl. (12.23.16), Ex. 24, # 25 Exhibit Gadd Decl. (12.23.16), Ex. 25, # 26 Exhibit Gadd Decl. (12.23.16), Ex. 26, # 27 Exhibit Gadd Decl. (12.23.16), Ex. 27)(Gadd, Martha) Modified on 6/19/2019 to add additional filers (alm, ) (Entered: 12/23/2016)
31 NOTICE of Filing Exhibits to Declaration Under Seal by Demontray Hunter, Travis S. Parks, Russell D. Senn, Vandarius S. Darnell, Frank White, Jr., Marcus Jackson, Timothy D. Mount, Henry P. McGhee, Alabama Disabilities Advocacy Program re 30 Declaration (Gadd, Martha) (Additional attachment(s) added on 12/28/2016: # 1 Sealed Exhibit 3, # 2 Sealed Exhibit 6, # 3 Sealed Exhibit 7, # 4 Sealed Exhibit 8, # 5 Sealed Exhibit 20) (qc/djy, ). Modified on 6/19/2019 to add additional filers (alm, ). (Entered: 12/23/2016)
32 TEXT ORDER: Telephone Conference set for 1/12/2017 at 07:30 AM by telephone before Honorable Judge Myron H. Thompson. Entered by Honorable Judge Myron H.

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01/10/2017 01/11/2017 01/11/2017 01/12/2017 01/12/2017 01/12/2017
01/12/2017
01/12/2017
01/12/2017 01/13/2017
01/13/2017 01/17/2017
01/17/2017 01/18/2017

Thompson on 1/9/17. (war, )(NO PDF ATTACHED) (Entered: 01/09/2017)
33 Defendant's ANSWER to Complaint First Amended Complaint by James V. Perdue.(Klinner, Thomas) (Entered: 01/10/2017)
34 NOTICE of Appearance by Brian James Malcom on behalf of James V. Perdue (Malcom, Brian) (Entered: 01/11/2017)
35 NOTICE of Appearance by Larry Brittain Childs on behalf of James V. Perdue (Childs, Larry) (Entered: 01/11/2017)
***Attorney Edward Cary Hixon for James V. Perdue added pursuant to the 33 answer. (kh, ) (Entered: 01/12/2017)
36 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 1/12/2017 (PDF available for court use only). (Recording Time FTR: 7:36 AM − 7:50 AM.) (war, ) (Entered: 01/12/2017)
37 ORDERED that the deadlines for responding to discovery are shortened with regard to the class−certification and preliminary−injunction issues. The parties are to attempt to reach agreement on shortened deadlines. If the parties cannot agree, they should ask the magistrate judge to set the deadlines. Signed by Honorable Judge Myron H. Thompson on 1/12/2017. (kh, ) (Entered: 01/12/2017)
38 ORDER: Based on the representations made on the record on January 12, 2017, it is ORDERED that: (1) The uniform scheduling order (doc. no. 22 ) is modified only to the extent that plaintiffs are allowed until February 1, 2017, to file a motion for class certification. (2) Defendant is allowed until February 15, 2017, to file a response. (3) Plaintiffs are allowed until February 22, 2017, to file a reply. (4) The motion for class certification is under submission as of February 22, 2017. Signed by Honorable Judge Myron H. Thompson on 1/12/2017. (kh, ) (Entered: 01/12/2017)
39 ORDERED as follows: (1) The motion for preliminary injunction (doc. no. 27 ) is set for an evidentiary hearing on March 2, 2017, at 10:00 a.m., in Courtroom 2FMJ of the Frank M. Johnson Jr. United States Courthouse Complex, One Church Street, Montgomery, Alabama. (2) The plaintiffs are to file an updated preliminary−injunction brief, if needed, and any additional evidentiary materials by February 10, 2017. (3) The defendant is to file his brief and evidentiary materials by February 24, 2017. Signed by Honorable Judge Myron H. Thompson on 1/12/2017. (furn: calendar, AG)(kh, ) (Entered: 01/12/2017)
Set Hearings: Final Pretrial Conference set for 7/20/2017, 10:00 AM, in Montgomery, Alabama before Honorable Judge Myron H. Thompson pursuant to the 22 Uniform Scheduling Order. (furn: calendar) (no pdf document attached to this entry) (kh, ) (Entered: 01/12/2017)
40 ORDERED that this matter be and hereby set for a conference to discuss the scheduling of mediation on 1/17/2017, at 10:00 AM by telephone conference before Honorable Judge Charles S. Coody; The dft shall set up the telephone conference. Signed by Honorable Judge Charles S. Coody on 1/13/2017. (furn: calendar, ws) (wcl, ) (Entered: 01/13/2017)
41 (STRICKEN PURSUANT TO LOCAL RULES RE: NON−FILING OF CIVIL DISCOVERY) NOTICE by James V. Perdue of Service of Discovery Requests (Malcom, Brian) Modified on 1/19/2017 (wcl, ). (Entered: 01/13/2017)
42 ORDERED that this matter be and is hereby set for a mediation conference on January 26, 2017. The court will meet with the plaintiffs at 9:00 a.m. and will meet with the defendant at 10:30 a.m. in chambers, Suite 401−B, United States Courthouse, One Church Street, Montgomery, Alabama, as further set out. Signed by Honorable Judge Charles S. Coody on 1/17/2017. (furn: WS, Calendar)(kh, ) (Entered: 01/17/2017)
Minute Entry for proceedings held before Honorable Judge Charles S. Coody: Settlement Conference held on 1/17/2017 ( NO PDF attached). (ws ) (Entered: 02/01/2017)
43 (STRICKEN PURSUANT TO LOCAL RULES RE: NON−FILING OF CIVIL DISCOVERY) NOTICE by Alabama Disabilities Advocacy Program, Vandarius S.

Case: 2:16-cv-798 As of: 05/21/2020 09:22 AM CDT 12 of 23

01/18/2017 01/19/2017 01/20/2017 01/23/2017 01/26/2017
01/26/2017 01/27/2017 01/31/2017 01/31/2017 02/01/2017
02/01/2017 02/06/2017
02/15/2017

Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr of Service of Plaintiffs' Third Request for Production (Gadd, Martha) Modified on 1/19/2017 (wcl, ). (Entered: 01/18/2017)
44 (STRICKEN PURSUANT TO LOCAL RULES RE: NON−FILING OF CIVIL DISCOVERY) NOTICE by James V. Perdue of Service (Malcom, Brian) Modified on 1/19/2017 (wcl, ). (Entered: 01/18/2017)
45 NOTICE of Non−Compliance re 41 , 43 & 44 Notices of Service of Discovery, which are hereby STRICKEN pursuant to the Local Rules regarding non−filing of civil discovery. (wcl, ) (Entered: 01/19/2017)
46 MOTION for Protective Order by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr. (Gadd, Martha) (Entered: 01/20/2017)
47 ORDERED that the motion for a protective order (doc. # 46 ) be and is herebyGRANTED, as further set out in order. Signed by Honorable Judge Charles S. Coody on 1/23/2017. (kh, ) (Entered: 01/23/2017)
48 ORDERED as follows: (1) that the mediation conference be and hereby CONTINUED to February 1, 2017, at 10:00 a.m. in the chambers of the undersigned, United States Courthouse Complex, Suite 401−B, One Church Street, Montgomery, Alabama. (2) that all deadlines related to the motion for preliminary injunction and class certification be and are hereby EXTENDED by twenty−eight (28) days. (3) that discovery be and is hereby STAYED generally Signed by Honorable Judge Charles S. Coody on 1/26/2017. (furn: calendar, WS)(kh, ) Modified on 1/26/2017 to clarify the docket text.(kh, ). (Entered: 01/26/2017)
Minute Entry for proceedings held before Honorable Judge Charles S. Coody: Settlement Conference held on 1/26/2017 ( NO PDF Attached). (ws, ) (Entered: 02/01/2017)
Set Hearings: Mediation Conference set for 2/1/2017, 10:00 AM, in chambers, before Honorable Judge Charles S. Coody. Hearing was genitally set in the courtroom in error. Hearing will take place in chambers pursuant to 48 order (no pdf document attached to this entry)(kh, ) (Entered: 01/27/2017)
49 MOTION for Leave to File Under Seal by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr. (kh, ) (Entered: 01/31/2017)
51 TEXT ORDER granting 49 Motion for Leave to File Under Seal. Signed by Honorable Judge Myron H. Thompson on 1/31/2017. (no pdf document attached to this entry)(kh, ) (Entered: 01/31/2017)
53 ORDERED that the mediation conference be and hereby CONTINUED to February 13, 2017, at 1:00 p.m. in the chambers of the undersigned, United States Courthouse Complex, Suite 401−B, One Church Street, Montgomery, Alabama. Signed by Honorable Judge Charles S. Coody on 2/1/2017. (furn: ws, calendar)(term: Mediation Conference Set for 02/01/2017 @ 10:00 AM)(kh, ) (Entered: 02/01/2017)
Minute Entry for proceedings held before Honorable Judge Charles S. Coody: Mediation Conference held on 2/1/2017 ( NO PDF attached). (ws, ) (Entered: 03/03/2017)
54 ORDERED that the mediation conference presently set for February 13, 2017 be andhereby CONTINUED to February 15, 2017, at 10:00 a.m. in the chambers of theundersigned, United States Courthouse Complex, Suite 401−B, One Church Street,Montgomery, Alabama. Signed by Honorable Judge Charles S. Coody on 2/6/2017. (furn: WS, Calendar)(kh, ) (Entered: 02/06/2017)
Minute Entry for proceedings held before Honorable Judge Charles S. Coody: Mediation Conference held on 2/15/2017 (NO PDF attached). (ws, ) (Entered: 03/03/2017)

Case: 2:16-cv-798 As of: 05/21/2020 09:22 AM CDT 13 of 23

02/16/2017
02/22/2017 02/22/2017 03/02/2017 03/06/2017 03/07/2017 03/13/2017 03/20/2017 03/24/2017 03/30/2017 04/04/2017 04/04/2017 04/04/2017
04/04/2017 04/04/2017 04/06/2017

55 ORDERED that the evidentiary hearing set on March 2, 2017, and deadlines associated with that hearing and class certification, are CONTINUED generally. If the mediation efforts of the parties are not successful, the court will expeditiously set new deadlines and a hearing date. It is further ORDERED that not later than 3:00 p.m. on February 22, 2017, the parties shall provide to the undersigned by telephone call the status of their negotiations. Signed by Honorable Judge Charles S. Coody on 2/16/2017. (furn: calendar)(kh, ) (Entered: 02/16/2017)
56 ORDERED that all deadlines be and are hereby CONTINUED generally. Signed by Honorable Judge Charles S. Coody on 2/22/2017. (kh, ) (Entered: 02/22/2017)
Minute Entry for proceedings held before Honorable Judge Charles S. Coody: Mediation Conference held on 2/22/2017 ( NO PDF attached). (ws, ) (Entered: 03/03/2017)
Minute Entry for proceedings held before Honorable Judge Charles S. Coody: Settlement Conference held on 3/2/2017 (NO PDF attached). (ws, ) (Entered: 04/03/2017)
Minute Entry for proceedings held before Honorable Judge Charles S. Coody: Settlement Conference held on 3/6/2017 (NO PDF attached). (ws, ) (Entered: 04/03/2017)
57 ORDERED that the mediation conference be and hereby set for March 13, 2017, at 10:00 a.m. in the chambers of the undersigned, United States Courthouse Complex, Suite 401−B, One Church Street, Montgomery, Alabama. Signed by Honorable Judge Charles S. Coody on 3/7/22017. (furn: WS, Calendar)(kh, ) (Entered: 03/07/2017)
Minute Entry for proceedings held before Honorable Judge Charles S. Coody: Settlement Conference held on 3/13/2017 ( NO PDF attached). (ws, ) (Entered: 04/03/2017)
Minute Entry for proceedings held before Honorable Judge Charles S. Coody: Settlement Conference held on 3/20/2017 (NO PDF attached). (ws ) (Entered: 04/03/2017)
Minute Entry for proceedings held before Honorable Judge Charles S. Coody: Settlement Conference held on 3/24/2017 (NO PDF attached) (ws, ) (Entered: 04/03/2017)
Minute Entry for proceedings held before Honorable Judge Charles S. Coody: Settlement Conference held on 3/30/2017 (NO PDF attached). (ws, ) (Entered: 04/03/2017)
58 MOTION to Withdraw as Attorney by James V. Perdue. (Malcom, Brian) (Entered: 04/04/2017)
59 MOTION to Withdraw as Attorney by James V. Perdue. (Childs, Larry) (Entered: 04/04/2017)
60 Joint MOTION for Settlement Preliminary Approval and Scheduling Conference by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr. (Attachments: # 1 Exhibit Executed Settlement Agreement)(Gadd, Martha) (Entered: 04/04/2017)
61 Joint MOTION to Seal Exhibit by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr. (Gadd, Martha) (Entered: 04/04/2017)
Minute Entry for proceedings held before Honorable Judge Charles S. Coody: Mediation Conference held on 4/4/2017 (No PDF attached). (ws, ) (Entered: 05/08/2017)
62 TEXT ORDER granting 61 Joint Motion to Seal Exhibit. Signed by Honorable Judge Myron H. Thompson on 4/6/2017. (no pdf document attached to this entry)(kh, ) (Entered: 04/06/2017)

Case: 2:16-cv-798 As of: 05/21/2020 09:22 AM CDT 14 of 23

04/06/2017 04/06/2017 04/10/2017 04/13/2017 04/21/2017
04/27/2017
05/09/2017

63 TEXT ORDER granting 58 Motion to Withdraw as Attorney. ; granting 59 Motion to Withdraw as Attorney. Signed by Honorable Judge Myron H. Thompson on 4/6/2017. (no pdf document attached to this entry)(kh, ) (Entered: 04/06/2017)
*** Attorney Larry Brittain Childs and Brian James Malcom terminated pursuant to the 63 text order. (kh, ) (Entered: 04/06/2017)
Set Hearings: Telephone Conference set for 4/13/2017 02:45 PM by telephone before Honorable Judge Myron H. Thompson. (ag, ) (Entered: 04/10/2017)
64 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 4/13/2017 (PDF available for court use only). (Recording Time 2:49 − 3:36.) (ag, ) (Main Document 64 replaced on 4/13/2017) (ag, ). (Main Document 64 replaced on 4/13/2017) (ag, ). (Entered: 04/13/2017)
65 ORDERED as follows: (1) By 4/28/2017, the parties are to submit their proposed order to grant preliminary approval to their proposed settlement agreement, as further set out in order; (2) By 5/12/2017, the court will issue an order concerning the parties' motion for preliminary approval of their proposed settlement agreement, as further set out in order; (3) By 5/26/2017, the parties are to provide notice of the proposed settlement agreement; (4) By no later than 7/7/2017, the parties are to file pre−hearing briefs, as further set out in order; (5) A fairness hearing is set for 10:00 AM on 8/3/2017, in Courtroom 2FMJ of the Frank M. Johnson Jr. United States Courthouse Complex, One Church Street, Montgomery, Alabama. At this hearing, counsel for both parties must be prepared to respond to the objections raised and comments made by class members and their representatives, as well as to the court's concerns as outlined above; (6) The court will determine, after receiving objections and comments from class members and their representatives, from which of them, if any, it intends to hear oral testimony; (a) By no later than 7/13/2017, the court will inform the parties which class members or their representatives, if any, will testify, and which dates during the week of 7/24/2017, the court will hear testimony; (b) By no later than 7/20/2017, the parties are to file a schedule for the testimony of class members and their representatives. Signed by Honorable Judge Myron H. Thompson on 4/21/2017. (furn: calendar, ag) (wcl, ) (Entered: 04/21/2017)
66 Response to Order re 65 Order, Set Hearings,,,,,,,,,,,, 60 Joint MOTION for Settlement Preliminary Approval and Scheduling Conference Joint Proposal for Notice and Comment Regarding Proposed Settlement by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr. (Attachments: # 1 Exhibit Proposed Notice to Class Members, # 2 Exhibit Proposed Notice to Defense Counsel, Family Members, and Legal Guardians, # 3 Exhibit Proposed Notice for Posting and Publication, # 4 Exhibit Letter to Circuit Clerks Re: Proposed Notice)(Gadd, Martha) (Entered: 04/27/2017)
67 PRELIMINARY SETTLEMENT APPROVAL ORDER: It is therefore ORDERED that the joint motion for preliminary approval (doc. no. 60 ) is granted as follows: (1) The proposed settlement agreement (doc. no. 60 −1) is preliminarily approved, with final approval subject to a hearing and to review by the court of any objections to or comments about its terms submitted by class members and other interested persons, and to the court's resolution of certain outstanding issues set for briefing in the scheduling order (doc. no. 65 ). (2) Pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2), an injunctive−relief settlement class is provisionally certified, defined as "All persons who have been, or will be during the period that this Agreement remains in effect, charged with a crime, within the meaning of Rule 1.4(b) of the Alabama Rules of Criminal Procedure, in a court of competent jurisdiction in the State of Alabama, and detained in an Alabama city or county jail or Alabama Department of Corrections facility while awaiting a court−ordered Mental Evaluation or court−ordered Competency Restoration Treatment, as further set out. (3) The Alabama Disabilities Advocacy Program, Henry (Hank) F. Sherrod III, P.C., and the ACLU of Alabama Foundation are appointed as class counsel to represent the Settlement Class under Federal Rule of Civil Procedure 23(g). (4) By May 26, 2017, the parties are to provide notice of the proposed settlement agreement to members of the Settlement Class and criminal defense counsel of Settlement Class members (and, through defense counsel, to family members and legal guardians) and to the clerks of court for Alabama's circuit courts for public posting; the parties shall also provide notice by

Case: 2:16-cv-798 As of: 05/21/2020 09:22 AM CDT 15 of 23

06/06/2017
06/30/2017 07/05/2017 07/05/2017 07/07/2017
07/07/2017

publication; and each form of notice shall be provided as outlined in the Parties' Joint Proposal for Notice and Comment Regarding Proposed Settlement (doc. no. 66 ). The parties are to collect comments from Settlement Class members and their defense counsel, family members, and legal guardians as further outlined in the Parties' Joint Proposal by the submission deadline of June 26, 2017. The Parties Joint Proposal meets all due process and other legal requirements. (5) The court supplements the Parties' Joint Proposal (doc. no. 66 ) as follows: Within two weeks of sending a copy of the "Notice of Proposed Class Action Settlement" to the clerks of court for Alabama's circuit courts (doc. no. 66 −3), the parties are to conduct spot checks of at minimum 15 courthouses, either directly or through reports of non−party counsel, to ensure the Notice has been posted in a central location, and thereafter to conduct follow−up remediation as necessary. After conducting the spot checks, the parties should file a status report with the results and, if necessary, plans for remediation. (6) Under the scheduling order (doc. no. 65 ), a fairness hearing is set for August 3, 2017, at 10:00 a.m., in Courtroom 2FMJ of the Frank M. Johnson Jr. United States Courthouse Complex, One Church Street, Montgomery Alabama, to determine whether the proposed settlement of this class action on the terms and conditions, as further set out. (7) Any member of the Settlement Class may enter an appearance on his or her own behalf in this action, but need not do so. Settlement Class members who do not enter an appearance will be represented by class counsel. Alternately, any member of the Settlement Class, as well as defense counsel, family members and legal guardians of Settlement Class members, may provide written comments to the court regarding the fairness of the settlement by completing the "Response to Proposed Class Action Settlement" form attached to this order as Exhibit A. All comments by members of the Settlement Class, defense counsel, family members and legal guardians of Settlement Class members regarding the fairness of the proposed settlement using the form attached as Exhibit A shall be mailed to the Alabama Disabilities Advocacy Program ("ADAP") at 400 South Union Street, Suite 280, Montgomery, Alabama 36104. Comments must be postmarked no later than June 26, 2017, to be considered. All comments received by ADAP at the foregoing address will be consolidated and filed with the court. A member of the Settlement Class who desires to comment, but who fails to comply with the above objection procedure and timeline, shall be deemed to have not objected and the objection shall not be heard or considered by the court. Signed by Honorable Judge Myron H. Thompson on 5/9/2017. (Attachments: # 1 Exhibit A) (furn: calendar, ag)(kh, ) (Entered: 05/09/2017)
68 JOINT STATUS REPORT Regarding Notice of Proposed Settlement by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr., James V. Perdue. (Attachments: # 1 Exhibit Status of Notice Posting in County Courthouses)(Gadd, Martha) Modified on 6/7/2017 to add as also filed on behalf of the dft (wcl, ). (Entered: 06/06/2017)
69 NOTICE OF FILING COMMENTS AND OBJECTIONS TO PROPOSED SETTLEMENT AGREEMENT by Alabama Disabilities Advocacy Program (Attachments: # 1 Comments mailed to ADAP)(kh, ) (Entered: 06/30/2017)
70 MOTION to Seal Motion for Leave to File Exhibits Under Seal by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr. (Gadd, Martha) (Entered: 07/05/2017)
71 TEXT ORDER granting 70 Motion to Seal. Signed by Honorable Judge Myron H. Thompson on 7/5/2017. (no pdf document attached to this entry)(kh, ) (Entered: 07/05/2017)
72 BRIEF/MEMORANDUM in Support Joint Statement in Support of Proposed Settlement Agreement filed by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr. (Attachments: # 1 Exhibit Disability Law Center v. Utah (10th Cir. 2016), # 2 Exhibit Resume of Randall C. Marshall)(Gadd, Martha) (Entered: 07/07/2017)
73 AFFIDAVIT re 72 BRIEF/MEMORANDUM in Support, Declaration of M. Geron Gadd by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray

Case: 2:16-cv-798 As of: 05/21/2020 09:22 AM CDT 16 of 23

07/07/2017 07/07/2017 07/10/2017
07/10/2017 07/12/2017 07/13/2017 07/17/2017 07/18/2017
07/19/2017 07/19/2017 07/20/2017

Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr. (Gadd, Martha) (Additional attachment(s) added on 7/10/2017: # 1 Signature and Certificate of Service Pages) (wcl, ). (Entered: 07/07/2017)
74 AFFIDAVIT re 73 Affidavit, Declaration of William Van Der Pol, Jr. by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr. (Gadd, Martha) (Additional attachment(s) added on 7/10/2017: # 1 Signature and Certificate of Service Pages) (wcl, ). (Entered: 07/07/2017)
77 NOTICE OF FILING EXHIBITS TO JOINT STATEMENT IN SUPPORT OF PROPOSED SETTLEMENT AGREEMENT UNDER SEAL by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr (Attachments: # 1 Exhibit A, # 2 Exhibit B − Part 1, # 3 Exhibit B − Part 2, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit H)(kh, ) (Entered: 07/10/2017)
75 (STRICKEN AS A CLERICAL ERROR − ENTERED IN WRONG CIVIL ACTION) RULE 26(f) ORDER: it is ORDERED that the Rule 26(f) report containing the discovery plan shall be filed as soon as practicable, as further set out in order; Rule 26 Meeting Report due by 7/31/2017; counsel for the parties are DIRECTED to complete the appropriate attached form so that the form is received by the Clerk of Court on or before 7/31/2017; Do NOT electronically file the consent form or reassignment form into the record. Signed by Honorable Judge Terry F. Moorer on 7/10/2017. (wcl, ) (Main Document 75 replaced on 7/10/2017) (wcl, ). Modified on 7/10/2017 (wcl, ). (Entered: 07/10/2017)
76 NOTICE of ERROR re 75 Rule 26(f) Order which is hereby STRICKEN as a clerical error − The order was entered in the wrong civil action. (wcl, ) (Entered: 07/10/2017)
78 Joint MOTION For Transport of Plaintiffs to Attend Fairness Hearing by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr and James V. Perdue. (Gadd, Martha) Modified on 7/13/2017 to add on behalf of the defendant (kh, ). (Entered: 07/12/2017)
Set Hearings: Telephone Conference set for 7/17/2017 03:15 PM by telephone before Honorable Judge Myron H. Thompson. (ag, ) (Entered: 07/13/2017)
79 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 7/17/2017 (PDF available for court use only). (Recording Time 3:19 − 4:08.) (ag, ) (Entered: 07/17/2017)
80 ORDER REGARDING PROPOSED SETTLEMENT AGREEMENT: Based on the representations made on the record on July 17, 2017, it is ORDERED that, no later than July 24, 2017, the parties are to file: (1) A stipulation modifying XII(1) of the proposed settlement agreement (doc. no. 60 −1); and (2) A joint statement as to the parties' understanding of the effective date and method of calculating the time periods required in § VI(A), (B), and (C) of the proposed settlement agreement (doc. no. 60 −1). It is also ORDERED that, because no class members or their representatives who have filed objections to the proposed settlement agreement have also indicated a desire to testify, the court will not hear testimony from class members or their representatives. Signed by Honorable Judge Myron H. Thompson on 7/18/2017. (kh, ) (Entered: 07/18/2017)
81 ORDERED that the 78 motion to transport be and is hereby DENIED. If the plaintiffs' counsel can arrange for video conferencing, the court will consider a request for video conferencing as an alternative. Signed by Honorable Judge Charles S. Coody on 7/19/2017. (kh, ) (Entered: 07/19/2017)
82 NOTICE by James V. Perdue of Substitution of Party Under FED.R.CIV.P. 25(d) (Klinner, Thomas) (Entered: 07/19/2017)
83 ORDER: Pursuant to the notice of substitution of party (doc. no. 82 ), it is ORDERED that Lynn T. Beshear, in her official capacity as Commissioner of the Alabama Department of Mental Health, is substituted for James V. Perdue as the

Case: 2:16-cv-798 As of: 05/21/2020 09:22 AM CDT 17 of 23

07/20/2017 08/01/2017 08/01/2017
08/03/2017 08/07/2017
08/17/2017 09/06/2017 09/08/2017 09/27/2017 01/25/2018

defendant in this case. Signed by Honorable Judge Myron H. Thompson on 7/20/2017. (kh, ) (Entered: 07/20/2017)
84 Stipulation of the Parties re 80 Order by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr and Lynn T. Beshear. (Gadd, Martha) Modified on 7/21/2017 to add as filed on behalf of the defendant (kh, ). (Entered: 07/20/2017)
85 MOTION re 78 Joint MOTION For Transport of Plaintiffs to Attend Fairness Hearing, 81 Order on Motion for Miscellaneous Relief, Motion for Miscellaneous Relief by Demontray Hunter, Russell D. Senn. (Gadd, Martha) Modified on 8/1/2017 to add as filed on behalf of the additional plaintiffs and defendant (kh, ). (Entered: 08/01/2017)
86 ORDERED that the motion for miscellaneous relief (doc. # 85 ) be and is hereby GRANTED. The Alabama Department of Mental Health be and is hereby DIRECTED to produce plaintiffs Demontray Hunter and Russell Senn at Taylor Hardin Secure Medical Facility at 10:00 a.m. on August 3, 2017 to attend the fairness hearing by video conferencing. Signed by Honorable Judge Charles S. Coody on 8/1/2017. (furn:ws)(kh, ) Modified on 8/1/2017 to reflect The ADOC is NOT transporting these defendants so they do not need a copy nor do the Marshals). (kh, ). (Entered: 08/01/2017)
87 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Fairness Hearing held on 8/3/2017 (PDF available for court use only). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 08/03/2017)
88 ORDER: Based on the representations made in open court on the record on August 3, 2017, it is ORDERED that the parties are to submit, on or before August 17, 2017, the following: (1) The formal process for identifying and treating class members who need emergency treatment prior to their admission into a facility operated by the Alabama Department of Mental Health (ADMH), including (a) the process for providing notice to relevant parties, on an ongoing basis, of the availability of such formal process; (b) the steps that ADMH and/or the monitor will take following the receipt of notice that a class member may require emergency treatment; and (c) exactly how class members are then to obtain emergency treatment or earlier admission, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 8/7/2017. (kh, ) (Entered: 08/07/2017)
89 STIPULATION re 88 Order,,, Second Stipulation of the Parties by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr., Lynn T. Beshear (Attachments: # 1 Appendix Appendix A (Form of Notice to ASB Members), # 2 Appendix Appendix B (Form of Notice to Circuit Courts))(Gadd, Martha) Modified on 8/17/2017 to add as filed on behalf of additional parties (kh, ). (Entered: 08/17/2017)
90 NOTICE by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr re 69 Notice (Other) Notice of Filing Additional Comment Regarding Proposed Settlement Agreement (Attachments: # 1 Exhibit Comment from Marcus Richardson dated Aug. 16, 2017)(Gadd, Martha) (Entered: 09/06/2017)
91 NOTICE by Lynn T. Beshear Defendant's Response to Additional Comments (Klinner, Thomas) (Entered: 09/08/2017)
92 ORDERED that the motion for preliminary injunction (doc. no. 27 ) is denied as moot. Signed by Honorable Judge Myron H. Thompson on 9/27/2017.(kh, ) (Entered: 09/27/2017)
93 FINAL SETTLEMENT APPROVAL OPINION AND ORDER: It is ORDERED as follows. (1) An injunctive−relief settlement class is certified under FRCP 23(a) and (b)(2), as further set out in the opinion and order. (2) The Alabama Disabilities Advocaty Program, Henry (Hank) F. Sherrod, III, P.C., and the

Case: 2:16-cv-798 As of: 05/21/2020 09:22 AM CDT 18 of 23

01/25/2018 01/29/2018
02/02/2018 02/02/2018 02/12/2018
02/13/2018 02/13/2018

ACLU of Alabama Foundation are appointed as class counsel to represent the settlement class under FRCP 23(g). (3) The parties' settlement agreement (doc. No. 60 −1), as amended, is approved, subject to the above constructions of Sections VIII, X.2, and X.4. (4) The objections to the settlement agreement (doc. No. 69 −1) are overruled. (5) The parties' stipulated modifications (doc. nos. 84 and 89 ) are adopted. (6) The settlement agreement, as modified by the stipulations, is entered as a separate consent decree. Defendant Lynn T. Beshear, in her official capacity as the Commissioner of the Alabama Department of Mental Health, is to commence compliance with its terms. (7) The settlement agreements provisions regarding attorneys fees are approved. Plaintiffscounsel are instructed to submit a motion for attorneys' fees within 14 days of this order, in accordance with FRCP 54(d)(2). (8) The parties are to meet and confer and submit to the court by no later than 2/15/2018, a plan for providing notice to class members of the entry of this consent decree and for ensuring that class members have access during the pendency of the consent decree to both it and this opinion. In particular, this notice must describe in lay terms, understandable to a person of limited education, the rights set out in the decree. The clerk of the court is DIRECTED to enter this document on the civil docket as a final judgment pursuant to FRCP 58. This case is closed. Signed by Honorable Judge Myron H. Thompson on 1/25/2018. (Attachments: # 1 Civil Appeals Checklist)(dmn, ) (Entered: 01/25/2018)
94 CONSENT DECREE as further set out in the decree. Signed by Honorable Judge Myron H. Thompson on 1/25/2018. (Attachments: # 1 Appendix A, # 2 Appendix B, Monitoring Protocol # 3 Appendix C, Form of Annual Notice to Members of Alabama State Bar, # 4 Appendix D, Form of Annual Notice to Alabama Circuit Court Judges)(dmn, ) (Entered: 01/25/2018)
95 ORDER: It is ORDERED as follows: (1) On January 25, 2021, the parties are to file a joint report on whether the consent decree (doc. no. 94 ) should be terminated and this case dismissed pursuant to paragraph X in the consent decree (doc. no. 94 ). (2) On January 25, 2019, and, again, on January 27, 2020, the parties are to file a joint report on the status of compliance with the consent decree (doc. No. 94 ). Signed by Honorable Judge Myron H. Thompson on 1/29/2018. (dmn, ) (Entered: 01/29/2018)
96 MOTION for Attorney Fees and Non−Taxable Expenses by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr. (Gadd, Martha) (Entered: 02/02/2018)
97 BILL OF COSTS by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr. (Gadd, Martha) (Entered: 02/02/2018)
98 ORDER: Because the court has already approved attorneys' fees in the amount of $275,000, see Hunter v. Beshear, No. 2:16cv798−MHT, 2018 WL 564856 at *2, *20 (M.D. Ala. Jan. 25, 2018) (Thompson, J.), it is ORDERED as follows: (1) The Motion for Attorneys' Fees and Non−Taxable Expenses is granted as to the amount of $275,000. (2) The plaintiffs shall recover from defendant thesum of $ 275,000. (3) The motion for attorneys fees and non−taxableexpenses (doc. no. 96 ) remains pending as to the additional amount of $67,986.00. Signed by Honorable Judge Myron H. Thompson on 2/12/2018. (dmn, ) (Entered: 02/12/2018)
99 ORDER REFERRING MOTION: It is ORDERED that, pursuant to 28 U.S.C. 636(b)(3), plaintiffs motion for attorneys fees and non−taxable expenses (doc. no. 96 ) is referred to the United States Magistrate Judge for consideration and disposition or recommendation as may be appropriate. Signed by Honorable Judge Myron H. Thompson on 2/13/2018. (dmn, ) (Entered: 02/13/2018)
100 ORDER that this matter be and hereby set for a Status Conference on 2/20/2018 at 01:30 PM by telephone before Honorable Judge Charles S. Coody. This proceeding shall be conducted by telephone conference. Theplaintiffs shall set up the telephone conference. Signed by Honorable Judge Charles S. Coody on 2/13/2018. Copies furnished to calendar group, WS. (dmn, ) (Entered: 02/13/2018)

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02/15/2018
02/20/2018 02/27/2018 03/19/2018
03/19/2018
03/29/2018
08/14/2018 11/13/2018 11/19/2018 11/26/2018 11/26/2018 11/26/2018 01/24/2019

101 PLAN FOR NOTICE OF ENTRY OF CONSENT DECREE filed in response to 93 Memorandum Opinion and Order, by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr. (Attachments: # 1 Exhibit Notice of Entry of Consent Decree)(Gadd, Martha) Modified on 2/15/2018 to clean up text. (dmn, ) (Entered: 02/15/2018)
102 ORDER Setting Hearing on Motion re 96 MOTION for Attorney Fees and Non−Taxable Expenses: Mediation Conference set for 3/20/2018, at 10:30 AM in chambers, before Honorable Judge Charles S. Coody, as further set out in order. Signed by Honorable Judge Charles S. Coody on 2/20/2018. (furn: calendar, ws) (wcl, ) (Entered: 02/20/2018)
103 ORDER APPROVING CONSENT DECREE NOTICE PLAN: It is ORDERED that the parties' 101 plan for notice of entry of consent decree and document providing such notice (doc. no. 101 −1) are approved. Signed by Honorable Judge Myron H. Thompson on 2/27/2018. (wcl, ) (Entered: 02/27/2018)
104 JOINT STATEMENT OF THE PARTIES regarding Plaintiffs' 96 Motion for Attorneys' Fees and Non−Taxable Expenses by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr., Lynn T. Beshear. (Gadd, Martha) Modified on 3/19/2018 to create link to Doc. 96 and include additional filers. (dmn, ) (Entered: 03/19/2018)
105 ORDER: On 3/19/2018, the parties notified the court that they had reached an amicable settlement of the remaining fee issues. See Doc. 104 . Accordingly, for good cause, it is ORDERED that the mediation conference presently set for 3/20/2018 be and is hereby CANCELED. Signed by Honorable Judge Charles S. Coody on 3/19/2018. Copies furnished to calendar group, WS.(dmn, ) (Entered: 03/19/2018)
106 NOTICE of Compliance with Plan for Providing Notice of Entry of Consent Decree by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr, Lynn T. Beshear re 101 Response to Order, 103 Order. (Gadd, Martha) Modified on 3/29/2018 to add as also filed on behalf of the dft and to clarify the docket text (wcl, ). (Entered: 03/29/2018)
107 NOTICE by Alabama Disabilities Advocacy Program re 94 Order, Notice of Submission of Monitoring Report (Gadd, Martha) (Entered: 08/14/2018)
108 NOTICE by Alabama Disabilities Advocacy Program re 94 Order, Notice of Submission of Monitoring Report (Gadd, Martha) (Entered: 11/13/2018)
109 NOTICE by Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr re 105 Order Cancelling Deadline, 96 MOTION for Attorney Fees and Non−Taxable Expenses Notice of Mootness of Motion for Attorneys' Fees and Non−Taxable Expenses (Gadd, Martha) (Entered: 11/19/2018)
110 ORDER that the referral 99 Order is dissolved. Signed by Honorable Judge Myron H. Thompson on 11/26/2018. (dmn, ) (Entered: 11/26/2018)
Motion No Longer Referred pursuant to 110 Order: 96 MOTION for Attorney Fees and Non−Taxable Expenses. (dmn, ) (NO PDF) (Entered: 11/26/2018)
111 ORDER: As the court has been informed that the motion is moot, see Notice (doc. no. 109 ), it is ORDERED that plaintiffs' motion for attorneys' fees and non−taxable expenses (doc. no. 96 ) is denied as moot. Signed by Honorable Judge Myron H. Thompson on 11/26/2018. (dmn, ) (Entered: 11/26/2018)
112 Joint MOTION for Leave to File Exhibits Under Seal to their Joint Report on the Status of Compliance with Consent Decree by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr., Lynn T. Beshear. (Gadd, Martha) Modified on 1/24/2019 to include additional filer. (dmn, ) (Entered: 01/24/2019)

Case: 2:16-cv-798 As of: 05/21/2020 09:22 AM CDT 20 of 23

01/24/2019 01/25/2019 01/25/2019 01/25/2019
01/27/2019 02/05/2019 02/13/2019 02/13/2019
02/14/2019 04/01/2019 04/03/2019 04/04/2019

113 TEXT ORDER granting 112 Joint Motion for Leave to File Exhibits Under Seal to their Joint Report on the Status of Compliance with Consent Decree. Signed by Honorable Judge Myron H. Thompson on 1/24/2019. (dmn, ) (NO PDF) (Entered: 01/24/2019)
114 NOTICE of Appearance by Shandra Monterastelli on behalf of All Plaintiffs (Monterastelli, Shandra) (Entered: 01/25/2019)
115 NOTICE by Alabama Disabilities Advocacy Program re 94 Order, Notice of Submission of Monitoring Report (Gadd, Martha) (Entered: 01/25/2019)
116 JOINT STATUS REPORT of Compliance with the Consent Decree by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr., Lynn T. Beshear. (Gadd, Martha) Modified on 1/28/2019 to add as also filed on behalf of the dft and to clarify the docket text (wcl, ). (Additional attachment(s) added on 1/29/2019 to attach the SEALED PDF documents for Exhibits A, B and C: # 1 Exhibit A (FILED UNDER SEAL), # 2 Exhibit B (FILED UNDER SEAL), # 3 Exhibit C (FILED UNDER SEAL)) (wcl, ). Modified on 1/29/2019 (wcl, ). (Entered: 01/25/2019)
117 NOTICE OF FILING Exhibits Under Seal re 116 Joint Report on Status of Compliance with Consent Decree, by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr. (Attachments: # 1 Exhibit A (FILED UNDER SEAL), # 2 Exhibit B (FILED UNDER SEAL), # 3 Exhibit C (FILED UNDER SEAL)) (wcl, ) (Entered: 01/29/2019)
118 TEXT ORDER re 116 Joint Status Report setting an on−the−record Conference by telephone for 2/12/2019 at 3:30 PM before Honorable Judge Myron H. Thompson. Parties are reminded to call chambers at 334−954−3650 when all participating are on the line. Signed by Honorable Judge Myron H. Thompson on 2/5/2019. Furnished to calendar, AG. (dmn, ) (NO PDF) (Entered: 02/05/2019)
119 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 2/13/2019 (PDF available for court use only). (Recording Time 4:01 − 4:24.) (ag, ) (Main Document 119 replaced on 4/3/2019) (ag, ). (Entered: 02/13/2019)
120 ORDER: Based on the representations made on the record on 2/12/2019, it is ORDERED as follows: (1) By noon on 4/1/2019, the parties are to file a joint status report regarding defendant Lynn T. Beshear's current non−compliance with the 94 Consent Decree. (2) By noon on 2/14/2019, the parties are to file a joint statement as to what the joint status report should contain. (3) Another on−the−record Status Conference is set for 4/3/2019 at 10:00 AM before Honorable Judge Myron H. Thompson. The clerk of the court is to arrange for the conference to be conducted by telephone. Signed by Honorable Judge Myron H. Thompson on 2/13/2019. Furnished calendar, AG.(dmn, ) (Entered: 02/13/2019)
121 JOINT STATEMENT ON CONTENT OF STATUS REPORT by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr. (Gadd, Martha) Modified on 2/26/2019 to clean up text. (dmn, ) (Entered: 02/14/2019)
122 JOINT STATUS REPORT on Non−Compliance with Consent Decree by Lynn T. Beshear, Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr. (Gadd, Martha) Modified on 4/1/2019 to add as also filed on behalf of the Dft (alm, ). (Entered: 04/01/2019)
123 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 4/3/2019 (PDF available for court use only). (Recording Time 10:14 − 10:38.) (ag, ) (Main Document 123 replaced on 4/3/2019) (ag, ). (Entered: 04/03/2019)
124 (Proposed Order on Status of Noncompliance) MOTION for Order re 122 Joint Status Report, 123 Telephone Conference by Alabama Disabilities Advocacy Program, Lynn

Case: 2:16-cv-798 As of: 05/21/2020 09:22 AM CDT 21 of 23

04/12/2019 05/09/2019 05/09/2019 05/10/2019
08/09/2019 08/29/2019
08/29/2019 08/30/2019 08/30/2019 08/30/2019
09/15/2019

T. Beshear, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russel D. Senn, Frank White, Jr. (Gadd, Martha) Modified on 4/4/2019 to clarify the docket text & to add as also filed on behalf of Plf Senn & Dft Beshear (alm, ). (Entered: 04/04/2019)
125 ORDER ON JOINT REMEDIAL PLAN FOR NONCOMPLIANCE WITH CONSENT DECREE: it is ORDERED that the parties' 124 proposed order is adopted as an order of the court, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 4/12/2019. (alm, ) (Entered: 04/12/2019)
126 Joint MOTION to Extend Deadlines in Schedule for Preparation and Implementation of Remedial Plan re 125 Order by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr. (Gadd, Martha) Modified on 5/10/2019 to add as also filed on behalf of the Dft (alm, ). (Entered: 05/09/2019)
127 NOTICE of Submission of Monitoring Report by Alabama Disabilities Advocacy Program re 93 Final Settlement Approval Opinion and Order, 94 Consent Decree (Gadd, Martha) (Entered: 05/09/2019)
128 ORDER EXTENDING DEADLINES IN JOINT REMEDIAL PLAN FOR NONCOMPLIANCE WITH CONSENT DECREE: It is ORDERED that: 1) The 126 joint motion to extend deadlines is granted; 2) The 125 order on the joint remedial plan for noncompliance with consent decree is amended only to the extent that schedule for preparation and implementation of the remedial plan in section I is reset as follows, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 5/10/2019. (alm, ) (Entered: 05/10/2019)
129 NOTICE of Submission of Monitoring Report filed by Alabama Disabilities Advocacy Program re 94 Order, 93 Final Settlement Approval Opinion and Order (Monterastelli, Shandra) (Entered: 08/09/2019)
130 Joint MOTION to Extend Deadlines in Schedule for Preparation and Implementation of Joint Remedial Plan by Alabama Disabilities Advocacy Program, Lynn T. Beshear, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr.. (Van Der Pol, William) Modified on 8/29/2019 to add as also filed on behalf of Plfs Hunter, Senn, Parks, Darnell, White Jr., Jackson, Mount, McGhee, & Dft Beshear (alm, ). (Entered: 08/29/2019)
131 ORDERED that the parties file, by noon on August 30, 2019, a joint statement as to what each new deadline would be if the court were to grant the motion to extend deadlines in schedule for preparation and implementation of joint remedial plan (doc. no. 130 ). Signed by Honorable Judge Myron H. Thompson on 8/29/2019. (kh, ) (Entered: 08/29/2019)
132 NOTICE of Appearance by Larry Canada on behalf of All Plaintiffs (Canada, Larry) (Entered: 08/30/2019)
133 (Joint Proposed Schedule) Response to Order re 131 Order, by Alabama Disabilities Advocacy Program, Lynn T. Beshear, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr.. (Van Der Pol, William) Modified on 8/30/2019 to clarify the docket text & to add as also filed on behalf of Plfs Hunter, Senn, Parks, Darnell, White Jr., Jackson, Mount, McGhee, & Dft Beshear (alm, ). (Entered: 08/30/2019)
134 ORDER EXTENDING DEADLINES IN JOINT REMEDIAL PLAN FOR NONCOMPLIANCE WITH CONSENT DECREE: It is ORDERED that: 1) The 130 joint motion to extend deadlines is granted; 2) The 125 order on the joint remedial plan for noncompliance with consent decree is amended only to the extent that schedule for preparation and implementation of the remedial plan in section I is reset as follows, in accordance with the 133 joint proposed schedule, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 8/30/2019. (alm, ) (Entered: 08/30/2019)
135 MOTION for M. Geron Gadd to Withdraw as Counsel by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry

Case: 2:16-cv-798 As of: 05/21/2020 09:22 AM CDT 22 of 23

09/16/2019 09/16/2019 10/31/2019
11/04/2019
12/05/2019 01/17/2020 01/17/2020 01/22/2020 01/22/2020 01/22/2020
01/23/2020

P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr. (Gadd, Martha) (Entered: 09/15/2019)
136 TEXT ORDER granting 135 Motion for M. Geron Gadd to Withdraw as Counsel. Signed by Honorable Judge Myron H. Thompson on 9/16/2019. (No PDF attached to this entry) (amf, ) (Entered: 09/16/2019)
***PURSUANT TO THE COURT'S TEXT ORDER (DOC. 136) − Attorney Martha Geron Gadd terminated. (No PDF attached to this entry) (amf, ) (Entered: 09/16/2019)
137 (JOINT Plan to Remediate Defendant's NonCompliance With Consent Decree) STIPULATION by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Van Der Pol, William) Modified on 10/31/2019 to clarify the docket text to add as also filed on behalf of Plfs Hunter, Senn, Parks, Darnell, White, Jr., Jackson, Mount, & McGhee (amf, ). (Entered: 10/31/2019)
138 ORDER: it is ORDERED as follows: 1) The parties' 137 stipulation is approved and is adopted in full as the order of the court, and the parties are to comply with the provisions in said stipulation; 2) The parties' request to extend the time for court supervision and monitoring by one year, as contained in the 137 stipulation, is granted in full, with, among other things, court supervision and monitoring extended to 1/28/2022; The schedule of monitoring periods will be as follows, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 11/4/2019. (amf, ) (Entered: 11/04/2019)
139 NOTICE by Alabama Disabilities Advocacy Program re 94 Order, 93 Memorandum Opinion and Order,,,,,,, Notice of Submission of Monitoring Report (Monterastelli, Shandra) (Entered: 12/05/2019)
140 Joint MOTION for Leave to File Exhibits Under Seal to their Joint Report on the Status of Compliance with Consent Decree by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr., Lynn T. Beshear. (Monterastelli, Shandra) Modified on 1/17/2020 to add the dft as a filer and to clarify the docket text (wcl, ). (Entered: 01/17/2020)
141 TEXT ORDER granting 140 Joint MOTION for Leave to File Exhibits Under Seal to their Joint Report on the Status of Compliance with Consent Decree. Signed by Honorable Judge Myron H. Thompson on 1/17/2020. (No pdf attached to this entry) (wcl, ) (Entered: 01/17/2020)
142 JOINT REPORT on Status of Compliance with Consent Decree by Alabama Disabilities Advocacy Program, Lynn T. Beshear, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr. (amf, ) (Entered: 01/22/2020)
143 NOTICE of Filing Exhibits re 142 Joint Report, by Alabama Disabilities Advocacy Program, Lynn T. Beshear, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks, Russell D. Senn, Frank White, Jr.. (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)(amf, ) (Entered: 01/22/2020)
144 (STRICKEN PURSUANT TO THE 145 NOTICE OF ERROR) (NOTICE of Filing Exhibits)STATUS REPORT on Compliance with Consent Decree by Alabama Disabilities Advocacy Program, Vandarius S. Darnell, Demontray Hunter, Marcus Jackson, Henry P. McGhee, Timothy D. Mount, Travis S. Parks. (Attachments: # 1 Supplement, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit)(Monterastelli, Shandra) Modified on 1/23/2020 to clarify the docket text (amf, ). (Entered: 01/22/2020)
145 NOTICE of Error re 144 Notice of Filing Exhibits, which is hereby STRICKEN as an erroneous duplicate docket entry; This document has already been conventionally filed by counsel at docket entry 143 . (amf, ) (Entered: 01/23/2020)

Case: 2:16-cv-798 As of: 05/21/2020 09:22 AM CDT 23 of 23

01/23/2020 01/23/2020 02/05/2020 02/06/2020
02/14/2020
02/18/2020 02/24/2020 04/09/2020 05/11/2020

146 OPINION AND ORDER: it is ORDERED that, to discuss the parties' progress and the apparent barriers to compliance, an in−person status conference is set for 2/5/2020, at 10:00 AM, in Courtroom 2FMJ. Signed by Honorable Judge Myron H. Thompson on 1/23/2020. (Furnished: Calendar & AG) (amf, ) (Entered: 01/23/2020)
Set Hearing for Calendar Purposes, pursuant to the Court's 146 Order: In−person status conference set for 2/5/2020, at 10:00 AM, in Courtroom 2FMJ before Honorable Judge Myron H. Thompson. (No PDF attached to this entry) (Entered: 01/23/2020)
147 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Status Conference held on 2/5/2020 (PDF available for court use only). (Court Reporter Patricia Starkie.) (ag, ) (Main Document 147 replaced on 2/5/2020) (ag, ). (Entered: 02/05/2020)
148 ORDER setting on−the−record in−person Status Conferences at 10:00 a.m., in Courtroom 2FMJ of the Frank M. Johnson Jr. United States Courthouse Complex, One Church Street, Montgomery, Alabama, on the following dates: (1) August 21, 2020; (2) February 22, 2021; and (3) August 30, 2021. Signed by Honorable Judge Myron H. Thompson on 2/6/2020. (furn: calendar, ag)(wcl, ) (Entered: 02/06/2020)
149 Joint MOTION (Request) to Modify Consent Decree by Lynn T. Beshear, Frank White, Jr., Russell D. Senn, Travis S. Parks, Timothy D. Mount, Henry P. McGhee, Marcus Jackson, Demontray Hunter, Vandarius S. Darnell, Alabama Disabilities Advocacy Program (Klinner, Thomas) (Main Document 149 replaced on 2/18/2020 to attach a corrected PDF document to reflect the proper filing date on the signature page & on the certificate of service.) (amf, ). Modified on 2/18/2020 to add as also filed on behalf of the Plfs (amf, ). (Entered: 02/14/2020)
150 NOTICE of Correction re 149 Joint MOTION (Request) to Modify Consent Decree, to attach a corrected PDF document to reflect the proper filing date on the signature page & on the certificate of service. (Attachments: # 1 Main PDF to Document 149 )(amf, ) (Entered: 02/18/2020)
151 ORDER ON MODIFICATIONS TO CONSENT DECREE: it is ORDERED that the parties' 149 joint motion to modify the consent decree is granted; the modifications set forth in the 149 motion are adopted as an order of the court; and the parties are to comply with the provisions of the modifications. Signed by Honorable Judge Myron H. Thompson on 2/24/2020. (amf, ) (Entered: 02/24/2020)
152 NOTICE of Submission of Monitoring Report by Alabama Disabilities Advocacy Program re 93 Final Settlement Approval Opinion and Order, 94 Consent Decree. (Monterastelli, Shandra) (Entered: 04/09/2020)
153 NOTICE of Submission of Monitoring Report by Alabama Disabilities Advocacy Program re 93 Final Settlement Approval Opinion and Order, 94 Consent Decree (Monterastelli, Shandra) (Entered: 05/11/2020)

 
 Case 2:16-cv-00798-MHT-CSC Document 26 Filed 12/23/16 Page 1 of 39

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

DEMONTRAY HUNTER, by and through his next friend, Rena Hunter; RUSSELL D. SENN, by and through his next friend, Irene Senn; TRAVIS S. PARKS, by and through his next friend, Catherine Young; VANDARIUS S. DARNELL, by and through his next friend, Bambi Darnell; FRANK WHITE, JR., by and through his next friend, Linda White; MARCUS JACKSON, by and through his next friend Michael P. Hanle; TIMOTHY D. MOUNT, by and through his next friend, Dorothy Sullivan; HENRY P. MCGHEE, by and through his next friend, Barbara Hardy, individually and on behalf of all others similarly situated; and the ALABAMA DISABILITIES ADVOCACY PROGRAM,
Plaintiffs,

CASE NO. 2:16-cv-00798-MHT-CSC
CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF

v.

JAMES V. PERDUE, in his official capacity as Commissioner of the Alabama Department of Mental Health,

Defendant.

FIRST AMENDED COMPLAINT I. NATURE OF THE ACTION
1. In this civil action, Plaintiffs Demontray Hunter, Russell S. Senn, Travis S. Parks, Vandarius S. Darnell, Frank White, Jr., Marcus Jackson, Timothy D. Mount and Henry P. McGhee, individually and on behalf of all others similarly situated, together with the Alabama Disabilities Advocacy Program, challenge the Alabama Department of Mental Health’s (“ADMH”) continuing failure to timely provide court-ordered inpatient mental evaluations used

Case 2:16-cv-00798-MHT-CSC Document 26 Filed 12/23/16 Page 2 of 39
to determine competency to stand trial and competency restoration treatment (together, “Competency Services”) to persons committed to its custody for that purpose in violation of federal law.
2. In Alabama, individuals with mental illness and/or intellectual disabilities who have been charged with criminal offenses but who are suspected of being incompetent or have been deemed incompetent to stand trial are committed to the custody of ADMH, which is charged under state law with providing them Competency Services. Individuals awaiting Competency services in Alabama wait between six and eight months for transfer from county jails to a state psychiatric hospital for Competency Services. This protracted waiting period results from the limited capacity of the two psychiatric hospitals in which ADMH provides Competency Services, Taylor Hardin Secure Medical Facility (“Taylor Hardin”) and Bryce Hospital (“Bryce”). The waiting list for admission into Taylor Hardin has, in recent months, had nearly 60 individuals awaiting admission for inpatient psychiatric services. While that list includes persons awaiting evaluations, competency restoration treatment, and psychiatric treatment following an adjudication of not guilty by reason of insanity and referral from the Alabama Department of Corrections, individuals awaiting mental evaluations and competency restoration treatment wait alongside others to gain admission into Taylor Hardin for court-ordered services. The waiting list for admission into Bryce includes persons seeking intensive inpatient psychiatric services as the result of civil commitments and other referrals, and as such persons awaiting Competency Services at Bryce likewise await admission for unduly long periods of time.
2

Case 2:16-cv-00798-MHT-CSC Document 26 Filed 12/23/16 Page 3 of 39

3.

While awaiting admission into Taylor Hardin and Bryce for Competency

Services, individuals suspected of being incompetent and those found incompetent to stand trial

languish in county jails that are, without exception, woefully ill-equipped to care for individuals

with mental illness and intellectual disabilities. These individuals are among the most vulnerable

members of their communities. While none of the individuals awaiting Competency Services has

been convicted of a crime, their experiences in jail are punishing. Individuals with severe mental

illness often struggle to adjust to a penal environment and are often placed in segregation when,

due to their mental illness, they are unable to conform to the rules and procedures of the county

jails. Others are placed in protective custody to minimize the risk of victimization. In both

instances, isolation frequently exacerbates mental illness and leads to decompensation. Even

when individuals awaiting Competency Services are not segregated, the necessarily punitive

environment of a jail precludes them from obtaining the individual psychiatric care, therapy, or

educational measures that they need. After long waits in jails without individualized, intensive

mental health care, incompetent defendants frequently become more difficult to restore to

competency. Even where restoring an individual to competency remains possible, it can take

longer and require more intensive interventions.

4.

ADMH may not, consistent with established constitutional standards, continue to

warehouse individuals awaiting court-ordered Competency Services in county jails. ADMH’s

failure to timely provide Competency Services to the individual Plaintiffs and putative class

members violates their right to due process under the Fourteenth Amendment to the United States

Constitution. This class action seeks declaratory and injunctive relief, preliminarily and

permanently thereafter, to remedy the irreparable harm suffered by the individual Plaintiffs and

putative class members as a result of the violation of their rights under federal law.

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II. JURISDICTION AND VENUE 5. This is a civil action authorized by 42 U.S.C. § 1983 to redress the deprivation
under color of state law of rights, privileges, and immunities guaranteed by federal law. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, because this action arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343(a)(4), because this action seeks to redress the deprivation of the civil rights of the individual Plaintiffs and the Plaintiff class and to secure equitable or other relief for the violation of those rights.
6. This Court has jurisdiction over this action for declaratory relief pursuant to 28 U.S.C. § 2201 and Rule 57 of the Federal Rules of Civil Procedure. Injunctive relief is authorized by 28 U.S.C. § 2202, 42 U.S.C. § 1983, and Rule 65 of the Federal Rules of Civil Procedure.
7. Venue is proper in this District and Division under 28 U.S.C. § 1391(b)(2) because a substantial part of the events or omissions giving rise to these claims occurred within this District and Division. Defendant Perdue performs his official duties on behalf of the State of Alabama within the Middle District, thus making venue proper therein. III. PARTIES
A. Individual Plaintiffs 8. Plaintiff DEMONTRAY HUNTER is a twenty-eight-year-old U.S. citizen who resides in Jefferson County, Alabama who has been charged with attempted murder. Mr. Hunter has been found incompetent to stand trial and committed to the custody of ADMH to receive competency restoration therapy and treatment. 9. Mr. Hunter’s current mental state limits his ability to protect his legal interests. A next friend is, therefore, necessary to represent his interests. Mr. Hunter maintains a close relationship with his mother, Rena Hunter, who has advocated for Mr. Hunter’s receipt of mental
4

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health treatment since he witnessed the murder of his father at age thirteen. Rena Hunter has volunteered to serve as Mr. Hunter’s next friend.
10. Plaintiff RUSSELL D. SENN is a fifty-six-year-old U.S. citizen and veteran residing in Pike County, Alabama who has been charged with murder. Mr. Senn has been found incompetent to stand trial and has been committed to the custody of ADMH to receive competency restoration therapy and treatment.
11. Mr. Senn’s current mental state limits his ability to protect his legal interests. A next friend is, therefore, necessary to represent his interests. Mr. Senn maintains a close relationship with his mother, Irene Senn, who has been an advocate for his receipt of mental health treatment for many years. Irene Senn has volunteered to serve as Mr. Senn’s next friend.
12. Plaintiff TRAVIS S. PARKS is a thirty-seven-year-old U.S. citizen residing in Houston County, Alabama who has been charged with third degree burglary. Mr. Parks has been deemed incompetent to stand trial and has been committed to the custody of ADMH for competency restoration therapy and treatment.
13. Mr. Parks’s current mental state limits his ability to protect his legal interests. A next friend is, therefore, necessary to represent his interests. Mr. Parks maintains a close relationship with his mother, Catherine Young, who has been an active advocate for Mr. Parks’s receipt of mental health treatment for many years. Catherine Young has volunteered to serve as Mr. Parks’s next friend.
14. Plaintiff VANDARIUS S. DARNELL is a thirty-five-year-old U.S. citizen residing in Walker County, Alabama who has been charged with attempted murder. Mr. Darnell has been found incompetent to stand trial and has been committed to the custody of ADMH for competency restoration therapy and treatment.
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15. Mr. Darnell’s current mental state limits his ability to protect his legal interests. A next friend is, therefore, necessary to represent his interests. Mr. Darnell maintains a close relationship with his sister-in-law, Bambi Darnell, who actively advocates for Mr. Darnell’s receipt of mental health care. Bambi Darnell has volunteered to serve as Mr. Darnell’s next friend in this action.
16. Plaintiff FRANK WHITE, JR. is a forty-year-old U.S. citizen residing in Talladega County, Alabama who has been charged with making a terroristic threat. Mr. White has been found incompetent to stand trial and has been committed to the custody of ADMH to receive competency restoration therapy and treatment.
17. Mr. White’s current mental state limits his ability to protect his legal interests. A next friend is, therefore, necessary to represent his interests. Mr. White maintains a close relationship with his aunt, Linda White, who has advocated for his receipt of mental health care for a number of years and at one point served as Mr. White’s legal guardian. Linda White has volunteered to serve as Mr. White’s next friend in this action.
18. Plaintiff MARCUS JACKSON is a twenty-eight-year-old U.S. citizen residing in Jefferson County, Alabama who has been charged with breaking and entering a vehicle and burglary. Mr. Jackson has been found incompetent to stand trial and has been committed to the custody of ADMH to receive competency restoration therapy and treatment.
19. Mr. Jackson’s current mental state limits his ability to protect his legal interests. A next friend is, therefore, necessary to represent his interests. Mr. Jackson maintains some relationship with his parents, but feels that he has disappointed them and does not want to impose upon them the burden of prosecuting this lawsuit. Michael Hanle, an experienced criminal
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defense attorney based in Birmingham, Alabama has volunteered to serve as Mr. Jackson’s next friend in this action.
20. Plaintiff TIMOTHY D. MOUNT is a twenty-eight-year old U.S. citizen residing in Montgomery County, Alabama who has been charged with first degree kidnapping and attempted sexual abuse of a child. Mr. Darnell has been found incompetent to stand trial and has been committed to the custody of ADMH for competency restoration treatment.
21. Mr. Mount’s mental state limits his ability to protect his legal interests. A next friend is, therefore, necessary to represent his interests. Mr. Mount maintains an extremely close relationship with his aunt, Dorothy Sullivan, with whom he resides, who was awarded temporary legal custody of Mr. Mount in response to a Department of Human Resources placement in 2005, and who continues to advocate for his needs in Individual and Family Support Council Service Plan meetings and elsewhere. Mrs. Sullivan has volunteered to serve as Mr. Mount’s next friend in this action.
22. Plaintiff HENRY P. MCGHEE is a twenty-five-year-old U.S. citizen residing in Tuscaloosa County, Alabama who has been charged with murder and theft of property. The Circuit Court of Tuscaloosa County has determined that there are reasonable grounds to suspect that Mr. McGhee is incompetent to stand trial and has ordered that Mr. McGhee be provided an inpatient mental evaluation by ADMH.
23. Mr. McGhee’s current mental state limits his ability to protect his legal interests. A next friend is, therefore, necessary to represent his interests. Mr. McGhee maintains a close relationship with his grandmother, Barbara Hardy, who has provided him care and support and advocated for his interests in other context. Ms. Hardy has volunteered to serve as Mr. McGhee’s next friend in this action.
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B. Associational Plaintiff 24. Plaintiff ALABAMA DISABILITIES ADVOCACY PROGRAM (“ADAP”) is Alabama’s designated protection and advocacy organization under the Protection and Advocacy for Persons with Mental Illness Act of 1986 (the “PAIMI Act”), 42 U.S.C. §§ 10801 et seq., and the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (the “PADD Act”), 42 U.S.C. § 15041 et seq. See Doe v. Stincer, 175 F. 3d 879, 883 (11th Cir. 1999); Alabama Disabilities Advocacy Program v. J.S. Tarwater Developmental Center, 97 F. 3d 492, 495 (11th Cir. 1996), aff’g 894 F. Supp. 424, 426-27 (M.D. Ala. 1995) (Thompson, J.); Dunn v. Dunn, Case No. 2:14-cv-00601-MHT-TFM, 2016 U.S. Dist. LEXIS 166251 (Nov. 25, 2016); Alabama Disabilities Advocacy Program v. SafetyNet Youthcare, Inc., 65 F. Supp. 3d 1312, 1321-22 (S.D. Ala. 2014), on reconsideration in another part, 2015 U.S. Dist. LEXIS 16343 (S.D. Ala. Feb. 22, 2015); Alabama Disabilities Advocacy Program v. Wood, 584 F. Supp. 2d 1314, 1315 (M.D. Ala. 2008). 25. ADAP is authorized to pursue legal remedies involving system-wide change on behalf of identifiable groups of similarly situated individuals with mental illness, including individuals awaiting inpatient competency evaluations and those awaiting competency restoration treatment in Alabama county jails, pursuant to the PAIMI Act. 42 U.S.C. § 10801 et seq. ADAP is likewise authorized by the PADD Act and its implementing regulations to protect people with developmental disabilities, including intellectual disabilities, from abuse and neglect, including by means of litigation and other forms of advocacy to remedy abuse and/or neglect or other rights violations. See 45 42 U.S.C. §§ 15041 et seq.; C.F.R. § 1386.21; 45 C.F.R. § 1386.24. 26. ADAP is pursuing this action to protect and advocate for the rights and interests of persons with mental illness and/or intellectual disabilities who have been criminally charged
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and are awaiting inpatient Competency Services in Alabama county jails. Each of these individuals has standing to assert claims against Commissioner Perdue under the Fourteenth Amendment to the U.S. Constitution for timely Competency Services in an appropriate setting.
27. Each individual with mental illness and/or intellectual disability awaiting Competency Services in an Alabama county jail faces imminent serious harms, including, among others: deterioration of their respective mental condition while incarcerated without individualized treatment; the deterioration of their behavioral functioning and/or ability to safely navigate their surroundings; the risk that competency restoration will be more difficult, if not impossible, as a result of the intensification of mental illness while incarcerated without individualized psychiatric care; and indefinite incarceration under the punitive conditions of county jails despite the fact that they have not been convicted of a crime and, in most instances, their cases have been continued pending their receipt of Competency Services.
28. Through this action, ADAP seeks to fulfill one of its central organizational mandates: to advocate for institutionalized persons with disabilities.
29. In this action, ADAP asserts the due process claims of its constituents with mental illness and intellectual disabilities who have been criminally charged, suspected of being incompetent and committed to ADMH custody for inpatient mental evaluations or found incompetent and committed to ADMH custody for competency restoration treatment, and are still awaiting these Competency Services in county jails. Insofar as ADAP’s claims are largely coextensive with those of the named Plaintiffs and putative class members, ADAP’s and the named Plaintiffs’ factual allegations are jointly set forth below.
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C. Defendant Perdue 30. Defendant JAMES V. PERDUE is the Commissioner of the Alabama Department of Mental Health. Commissioner Perdue is sued in his official capacity as Commissioner of ADMH. 31. As ADMH Commissioner, Defendant Perdue is charged, under Alabama law, with directing, supervising, and controlling ADMH’s provision of mental health care to persons with severe mental illness throughout Alabama. Ala. Code § 22-50-2 (1975); Ala. Admin. Code §§ 580-1-1-.01 (commissioners and divisions of department), 580-1-1-.03 (persons served by the Department of Mental Health), 580-1-1-.04 (agency head), 580-1-1-.06 (authority of commissioner), 580-1-1-.08 (agency is under direction, supervision, and control of commissioner). 32. Commissioner Perdue is likewise charged with directing, supervising, and controlling ADMH’s provision of services to persons with intellectual disabilities throughout the state. Ala. Code § 22-50-2 (1975); Ala. Admin. Code §§ 580-1-1-.01 (commissioners and divisions of department), 580-1-1-.03 (persons served by the Department of Mental Health), 5801-1-.04 (agency head), 580-1-1-.06 (authority of commissioner), 580-1-1-.08 (agency is under direction, supervision, and control of commissioner). 33. ADMH is the sole state agency in the State of Alabama designated to administer or supervise the provision of inpatient competency evaluations and restorative treatment pursuant to Alabama Rules of Criminal Procedure 11.3 and 11.6, respectively. 34. Commissioner Perdue has the authority and power to devise and implement the policies, procedures, and practices necessary to ensure that persons committed to the custody of
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ADMH for Competency Services by courts of competent jurisdiction throughout the State of Alabama timely receive those services in an appropriate institution.
35. Defendant Perdue, by and through ADMH, utilizes federal and state funds in providing services in a way that he is obligated to ensure compliance with state and federal constitutional and statutory protections for individuals who are involuntarily detained in order to receive mental health services. IV. CLASS ALLEGATIONS
36. Pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure, Plaintiffs Demontray Hunter, Russell Senn, Travis Parks, Vandarius Darnell, Frank White, Marcus Jackson, Timothy Mount, and Henry McGhee (hereinafter, the “Named Plaintiffs”), bring this action on behalf of themselves and all other persons (the “Plaintiff Class”) who have been, or will be in the future, charged with a crime in the State of Alabama, suspected of being incompetent and committed to the custody of ADMH for an inpatient mental evaluation or found incompetent to stand trial and committed to the custody of ADMH for competency restoration therapy and treatment, and detained in an Alabama county jail while awaiting the court-ordered mental evaluation or competency restoration treatment.
37. The Plaintiff Class is so numerous that joinder of all members in this action is impracticable.
38. In addition to the class members currently held in Alabama county jails, the class consists of an unknown number of future criminal defendants who will be committed to the custody of ADMH for an inpatient Competency Services.
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39. The exact number of inmates currently in the class is not known to the Named Plaintiffs with certainty. On information and belief, the number of existing class members fluctuates monthly, but is believed to consist of approximately 36 individuals.
40. The number of current class members in county jails can be determined through appropriate discovery.
41. The number of future class members who will await Competency Services in county jails is not presently determinable, but it is capable of determination by concrete, fixed rules.
42. Absent class members lack the knowledge, as well as the financial and other resources, to maintain individual actions and/or to remedy systemic due process violations on their own.
43. The Named Plaintiffs’ claims are typical of the claims of the Plaintiff Class in that they have been, or will be, suspected or determined to be incompetent to stand trial; have been or will be committed to the custody of ADMH in order to receive an inpatient mental evaluation or competency restoration treatment; and are awaiting or will await an inpatient competency evaluation or restorative treatment in an Alabama county jail.
44. The Named Plaintiffs and all members of the Plaintiff Class have suffered, or will suffer in the future, similar harms arising from Defendant Perdue’s actions and inactions, by and through ADMH, with regard to the prompt provision of timely Competency Services to criminal defendants in Alabama.
45. There are questions of law common to the Plaintiff Class, including, inter alia: a. Whether Defendant Perdue’s failure to admit individuals with mental
illness and/or intellectual disabilities into Taylor Hardin and Bryce for Competency Services
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within a reasonable period of time violates the Fourteenth Amendment to the United States Constitution;
b. Whether the Named Plaintiffs and other members of the Plaintiff Class are entitled to the declaratory and injunctive relief requested herein;
c. Whether the Named Plaintiffs and other members of the Plaintiff Class are entitled to an award of reasonable attorneys’ fees and costs of this suit.
46. There are also questions of fact common to the Plaintiff Class, including, inter alia: Whether Defendant Perdue, by and through ADMH, has failed to provide Competency Services to the Named Plaintiffs and other class members within a reasonable period of time.
47. The Named Plaintiffs fairly and adequately represent the interests of all class members.
48. The Named Plaintiffs have a clearly defined controversy with Defendant Perdue which dictates that they will fully and vigorously prosecute this action. At stake for these Named Plaintiffs is their timely receipt of the inpatient competency evaluations or competency restoration treatment that will determine whether, and when, they can proceed to trial. The interests of the Named Plaintiffs and the Plaintiff Class are identical.
49. The Named Plaintiffs are represented by attorneys experienced in federal class action litigation and disability law.
50. The Named Plaintiffs seek relief that will inure to the benefit of the Plaintiff Class as a whole.
51. The Named Plaintiffs seek certification of a class pursuant to Rule 23(b)(2) on the grounds that Defendant Perdue’s creation and implementation of ADMH’s policies, practices, and procedures for the provision of Competency Services to criminal defendants in Alabama, and
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his administration of the ADMH-operated psychiatric hospitals in which criminal defendants receive Competency Services, fails to timely provide the Named Plaintiffs and the Plaintiff Class Competency Services in violation of the Due Process Clause of the Fourteenth Amendment, thereby making declaratory and injunctive relief appropriate with respect to the Plaintiff Class as a whole.
52. The injuries asserted by the Named Plaintiffs in this action are capable of repetition while evading review.
53. The injuries asserted by the Named Plaintiffs in this action are also transitory harms for which obtaining judicial review is difficult.
54. There is a continuing and substantial public interest in these matters, justifying declaratory and injunctive relief in favor of the Class Plaintiffs and the Plaintiff Class.
55. A class action is the best available method for adjudication of these legal issues because individual litigation of these claims would be impracticable, and individual litigation would be unduly burdensome to the courts. Furthermore, this action may be maintained as a class action because questions of law and fact common to the class predominate over the questions affecting only individual class members, and individual litigation would increase the likelihood of inconsistent or contradictory judgments. A class action presents fewer management difficulties and provides the benefits of a single adjudication, economy of scale, and comprehensive supervision by a single court.
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V. FACTUAL ALLEGATIONS A. Defendant Perdue, By and Through ADMH, Must Provide Individuals Found Incompetent to Stand Trial Timely Competency Services in an Appropriate Setting. 56. Alabama Rule of Criminal Procedure 11 governs circuit courts’ commitment of
a criminal defendant to ADMH custody for Competency Services. 57. Rule 11.3(b) authorizes the court to order that a defendant be examined in a state
institution and to commit the defendant to ADMH “for a reasonable period of time necessary to conduct the examination.” Ala. R. Crim. P. 11.3(b). Rule 11.3(b) expressly prohibits a court from committing a defendant for inpatient evaluation “for a time longer than that reasonably necessary to conduct the examination.”
58. Rule 11.6 specifies the procedure for the restoration of an incapacitated defendant’s competency, both where there is a likelihood that the defendant will be restored to competency within a reasonable period of time and where there is not. Where the court holds the prescribed competency hearing and finds that the defendant is incompetent but that there is a substantial probability that the defendant will become competent within a reasonable period of time, if the court also finds that the defendant’s being a large poses a threat of substantial harm to the defendant or others, that the defendant is mentally ill and absent treatment will continue to deteriorate, and the defendant is unable to make a rational decision whether treatment is desirable, the court “shall order the defendant committed to the custody of [ADMH] for therapy and treatment, in an institution suitable to receive such persons, for a period not to exceed six months or until the defendant’s earlier restoration to competency[.]” Ala. R. Crim. P. 11.6(c)(3)(i) (emphasis added).
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59. Where a court holds the prescribed competency hearing and finds that the defendant is incompetent to stand trial and there is no substantial probability that the defendant will become competent within a reasonable period of time, if the court also finds that the defendant’s “being at large poses a [] threat of substantial harm to the defendant or others,” that the “defendant is mentally ill or has a mental defect,” absent treatment the defendant will continue to deteriorate, and is “unable to make a rational and informed decision as to whether treatment is desirable,” the court “shall order the defendant committed to the custody of [ADMH] for a period not to exceed six months or until the defendant’s earlier restoration to competency.” Ala. R. Crim. P. 11.6(c)(2)(1). Where the court later finds that, “as a result of an ongoing supervised regimen of medical treatment or therapy, the risk of harm threatened by the defendant’s being at large has been sufficiently minimized,” the court “shall order the defendant released on conditions” that are “necessary to ensure the defendant continues to receive treatment.” Ala. R. Crim. P. 11.6(c)(2)(i), 11.6(d)(4).
60. Where a court finds a defendant incompetent to stand trial and that the defendant’s being at large does not pose a risk of substantial harm to the defendant or others, if the defendant is not likely to become competent within a reasonable period of time, the court shall dismiss the charges against the defendant without prejudice and release the defendant. See Ala. R. Crim. P. 11.6(c)(2)(iii) (emphasis added). If the defendant is likely to become competent within a reasonable period of time, the court shall release the defendant upon conditions necessary to ensure the defendant’s receipt of therapy and treatment design to restore the defendant’s competency. See Ala. R. Crim. P. 11.6(c)(3)(ii) (emphasis added).
61. When a defendant has been deemed incompetent and committed to ADMH custody based on the threat of harm the defendant’s being at large poses to the defendant or others,
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and, after providing intensive treatment to the defendant, “it is the opinion of treating clinicians that the defendant . . . no longer poses a threat of harm,” ADMH shall file a notice of release from commitment with the court. Ala. R. Crim. P. 11.6(d)(2). The court then must hold a hearing on whether the risk of harm has been minimized such that the defendant may be released from an inpatient facility on appropriate conditions. Ala. R. Crim. P. 11.6(g).
62. Rule 11.6 also provides for periodic review of the defendant’s condition following the commitment to determine whether continued inpatient treatment is necessary or the defendant can be released to outpatient treatment under appropriate conditions. Ala. R. Crim. P. 11.6(d), (g). The commitment of an incompetent defendant for restorative treatment shall not exceed six months pursuant to an original order; that order may be renewed for no more than one year. Ala. R. Crim. P. 11.6(d)(1). Alabama Rule of Procedure 11.6 requires any person responsible for the therapy and treatment of an incapacitated defendant subject to commitment to report on the defendant’s status no less frequently than every ninety-one days. Ala. R. Crim. P. 11.6(f).
63. The Named Plaintiffs – who are suspected of being incompetent or have been found incompetent to stand trial and have not, therefore, been convicted of a crime – have liberty interests in being free from incarceration. Jackson v. Indiana, 406 U.S. 715 (1972); Bell v. Wolfish, 441 U.S. 520 (1979); Youngberg v. Romeo, 457 U.S. 307 (1982).
64. The Named Plaintiffs, who are suspected of being incompetent or have been found incompetent to stand trial, also have liberty interests in receiving the mental evaluations and competency restoration treatment ordered by the circuit courts in their respective criminal cases. See, e.g., Jackson, 406 U.S. 715; Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1120-21 (9th Circuit 2003); Trueblood v. Wash. Dep’t of Soc. & Health Servs., 101 F. Supp. 1010, 1020 (W.D. Wash. Apr. 2, 2015).
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65. The Due Process Clause of the Fourteenth Amendment protects those committed to ADMH custody for Competency Services from indefinite detention in jails without necessary, individualized psychiatric services.
[A] person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued confinement must be justified by progress toward that goal. . . . Due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed. Jackson, 406 U.S. at 738. 66. Defendant Perdue has a duty to ensure that persons committed to ADMH’s custody for purposes of competency restoration therapy and treatment do not languish, for unnecessarily protracted periods, in jails where the minimal care afforded them bears little relationship to the purposes of their detention and the duration of that confinement bears no relationship to their progress towards competency. B. Defendant Perdue Is Not Timely Providing Competency Services to
Individuals, Including the Named Plaintiffs, Ordered to Receive Them. 67. Notwithstanding Defendant Perdue’s duty to timely provide, by and through ADMH, Competency Services to individuals committed to ADMH custody for that purpose, these individuals commonly wait between six and eight months before being transferred to Taylor Hardin or Bryce for inpatient care. Defendant Perdue recently acknowledged as much: “If you want to put a gun in the hands of the federal government and put a bullet in it, we’re doing it.” Amy Yurkanin, Long Waits as Gridlock Grips Alabama Mental Health System, AL.COM (Aug.
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17,

2015,

2:21

PM),

http://www.al.com/news/birmingham/index.ssf/2016/08/mental_illness_part_2.html.

68. ADMH fails to timely provide Competency Services to criminal defendants

because demand for those services exceeds ADMH’s capacity to provide them through the

psychiatric hospitals it operates.

69. ADMH operates three psychiatric hospitals, Taylor Hardin, Bryce, and the Mary

Starke Harper Center (a geriatric psychiatric hospital).

70. ADMH only provides Competency Services in Taylor Hardin and Bryce.

71. ADMH does not provide Competency Services in or through another placement.

72. Taylor Hardin is ADMH’s only forensic facility, and its capacity is 115. Taylor

Hardin only serves male patients.

73. ADMH maintains a waiting list for admission into Taylor Hardin for inpatient

psychiatric services, which is updated weekly.

74. On information and belief, the number of persons on the waiting list for admission

into Taylor Hardin has varied, throughout 2016, from 45 to 52 persons, approximately 70% of

whom are awaiting Competency Services.

75. The waiting list for admission into Taylor Hardin includes, among others: (1)

persons who have been criminally charged and are awaiting inpatient mental evaluations; (2)

persons who have been criminally charged, found incompetent to stand trial, and are awaiting

competency restoration treatment; (3) persons who have been criminally charged, adjudicated not

guilty by reason of insanity, and are awaiting intensive psychiatric treatment; and (4) persons who

have been criminally charged, convicted, and reached the end of their term of imprisonment, and

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require inpatient psychiatric treatment (often transferring directly from an Alabama Department of Corrections facility).
76. The waiting list for admission into Taylor Hardin is ordered by the date of Taylor Hardin officials’ receipt of each person’s referral for services, without regard to the type of services sought, criticality or acuity, or priority. As a result, persons awaiting Competency Services may comprise only a portion of the total number of persons on the waiting list, but their total wait time is determined by their position on the wait list as a whole (subject to any out of order admissions).
77. Each individual’s wait time for admission into Taylor Hardin is also subject to “out of order” admissions, namely the admission of persons not following the strict ordering of the waiting list.
78. Officials at Taylor Hardin do not sort the waiting list by the seriousness of the offenses charged, nor is the waiting list (and with it admissions) sorted by the potential punishment faced by persons awaiting inpatient services. Officials at Taylor Hardin likewise do not triage or sort by the acuity of the mental illness and the current manifestations thereof of persons on the waiting list (as such, they do not admit those with more urgent needs ahead of those who are comparatively stable).
79. ADMH also provides Competency Services to patients of Bryce. Bryce has a capacity of 268, and serves both men and women. All females awaiting Competency Services in jails must wait for admission into Bryce.
80. Officials at Bryce maintain a waiting list for admission that, in recent months, has included up to 60 persons.
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81. The waiting list for admission into Bryce includes not only those committed to

ADMH custody for Competency Services but also includes persons who have been civilly

committed and others requiring intensive inpatient treatment.

C. Alabama’s County Jails Do Not and Cannot Provide Competency Services.

82. Federal courts have repeatedly recognized that county jails are poorly equipped to

provide appropriate mental health care to individuals requiring competency restoration treatment.

See, e.g., Oregon Advocacy Center v. Mink, 322 F. 3d 1101, 1121-22 (9th Cir. 2003); Lynch v.

Baxley, 744 F. 2d 1452 (11th Cir. 1984) (civil committees held in county jails); Disability Law

Center v. Utah, Case No. 2:15-cv-00645-RJS, 2016 U.S. Dist. LEXIS 47420, *29-31 (D. Utah

Apr. 7, 2016); Trueblood, et al. v. Washington State Department of Social and Health Services,

et al., 101 F. Supp. 3d 1010 (W.D. Wash. 2015); Advocacy Ctr. for the Elderly & Disabled v. La.

Dep’t of Health & Hosps., 731 F. Supp. 2d 603, 612-18 (E.D. La. 2010); Terry ex rel. Terry v.

Hill, 232 F. sup. 2d 934 (E.D. Ark. 2002).

83. Alabama’s legal officials have similarly recognized that jails are poor settings for

persons with severe mental illness. See Atty. Gen. Op. 87-00018 (Oct. 16, 1986), available at

http://www.ago.state.al.us/opinions/pdf/8700018.pdf.

84. Alabama’s county jails are, as the Tuscaloosa County sheriff described them, “the

worst place for someone with a mental illness.” E. FULLER TORREY, M.D., ET AL., THE

TREATMENT OF PERSONS WITH MENTAL ILLNESS IN PRISONS AND JAILS: A STATE

SURVEY

27

(2014),

available

at

http://www.treatmentadvocacycenter.org/storage/documents/treatment-behind-bars/treatment-

behind-bars.pdf.

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85. At most, Alabama’s county jails provide or arrange for the provision of minimal mental health care for persons with mental illness and intellectual disabilities. They do not provide care that would give them a realistic opportunity to become competent to stand trial.
86. The minimal mental health care provided in Alabama’s county jails is designed to stabilize rather than treat inmates’ mental illness and is commonly limited to psychotropic medications managed by a medical doctor rather than a psychiatrist. In counties with smaller inmate populations, jails rarely employ a full-time physician, instead relying on contract clinical staff who visit at certain intervals.
87. Alabama’s county jails do not employ the range of clinicians employed by psychiatric hospitals for the provision of Competency Services. Only in larger metropolitan areas with larger inmate populations do inmates even have their medications managed by a psychiatrist.
88. Treating professionals in county jails do not utilize the full array of pharmacological options in their treatment of mentally ill inmates. Rather, these professionals, with few exceptions, utilize low-cost drugs on an approved list of the contractor that employs them (i.e., Southern Health Partners, Quality Correctional Health Care, and Advanced Correctional Healthcare). Treating professionals in county jails do not use the complicated pharmacological cocktails needed to restore mentally ill inmates to competency. Moreover, except in rare circumstances, county jails do not forcibly medicate inmates who refuse to take prescribed medications in jail.
89. Alabama’s county jails do not provide the therapeutic environment often necessary to address severe, and complicated, mental illnesses. Even where inmates with mental illness and/or intellectual disability are housed in clustered cellblocks, they do not receive psychotherapy
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or other services that would promote a therapeutic environment conducive to Competency Services.
90. Individuals with mental illness and/or intellectual disabilities often engage in disruptive or problematic behaviors in the jail setting, including conflicts with other inmates, that provoke disciplinary responses by jail officials. Such disciplinary measures often include segregation.
91. These punitive responses to the behavioral manifestations of jail inmates’ mental illness, including isolation, can exacerbate individuals’ mental illness.
92. Jails often respond to the suicidal ideation and/or suicide attempts of inmates with isolation and observation by correctional officers. Emergency care for inmates in crisis is often provided, in the first instance, by jail officials who may limited mental health training.
93. Jails may place individuals with mental illness and/or intellectual disabilities in isolation for safety purposes, particularly where they are a threat to themselves or others or pose a risk to the safety of other inmates, but isolation can lead to the deterioration of the mental condition of mentally ill and/or intellectually disabled inmates.
94. Alabama county jails rarely provide therapy or individualized services to persons with intellectual disabilities. Even where such therapy is provided, it is not intended to restore the competency of inmates who have been found incompetent.
D. Defendant Perdue Has Failed to Ensure the Timely Provision of Competency Services to the Named Plaintiffs. i. Plaintiff Demontray Hunter
95. Mr. Hunter began exhibiting symptoms of mental illness after he witnessed his brother kill his father at age thirteen. During his incarceration for his present offense, Mr. Hunter was provisionally diagnosed with schizophrenia paranoid type with active psychosis.
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96. Mr. Hunter was arrested on May 27, 2015, and charged with attempted murder after allegedly shooting his brother. Mr. Hunter was incarcerated in the Jefferson County Jail from the time of his arrest until December 7, 2016, at which time he was transferred to Taylor Hardin.
97. A Jefferson County circuit judge found Mr. Hunter incompetent to stand trial on April 14, 2016. The court found that there was a substantial probability that Mr. Hunter could be restored to competency within a reasonable period of time and entered an order committing Mr. Hunter to the custody of the Alabama Department of Mental Health for “such treatment as is required for [Mr. Hunter] to attain competency or minimize or abate the risk of harm threatened by [Mr. Hunter’s] being at large” on April 14, 2016.
98. The Jefferson County circuit judge’s April 14, 2016 order generally continued further criminal proceedings against Mr. Hunter until such time as the court determines that Mr. Hunter has been restored to competency to participate in the criminal proceedings against him.
99. Mr. Hunter was on the waiting list for admission into Taylor Hardin for competency restoration care and treatment. Mr. Hunter was transferred from the Jefferson County Jail to Taylor Hardin over two months after this action was originally filed.
100. Mr. Hunter did not take prescribed medication regularly in the Jefferson County Jail, nor did he receive any form of intensive mental health treatment, including psychotherapy, designed to restore him to competency to participate in the criminal proceedings against him.
101. As a result of his mental illness and his inability to receive appropriate mental health care in the Jefferson County Jail, Mr. Hunter exhibited behaviors that have resulted in his being placed in segregation approximately three times. He has also been housed with other inmates with mental illness in clustered cellblocks.
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102. As a result of Mr. Hunter’s inability to receive intensive mental health treatment in the Jefferson County Jail, his mental health regressed. Mr. Hunter experienced auditory hallucinations and/or delusional thinking, nervousness, paranoia, and insomnia.
ii. Plaintiff Russell Senn 103. Mr. Senn has an extensive history of mental illness, and has been diagnosed with schizoaffective disorder, bipolar type, among others. He has a history of psychiatric institutionalization and outpatient treatment with the Department of Veteran’s Affairs. Mr. Senn has struggled with suicidal ideation, as well as compliance with medications. 104. Mr. Senn was arrested on April 26, 2013, and charged with murder after allegedly shooting his sister following an extended period of sleep deprivation. 105. A Pike County circuit judge found Mr. Senn incompetent to stand trial on February 5, 2016. The court found that there was a substantial probability that Mr. Senn could be restored to competency within a reasonable period of time and entered an order committing Mr. Senn to the custody of the Department of Mental Health for “such treatment as is required for [Mr. Senn] to attain competency or minimize or abate the risk of harm threatened by [Mr. Senn’s] being at large” on February 5, 2016. 106. The Pike County circuit judge’s February 5, 2016 order generally continued further criminal proceedings against Mr. Senn until such time as the court determines that Mr. Senn has been restored to competency to participate in the criminal proceedings against him. 107. Mr. Senn was on the waiting list for admission into Taylor Hardin for competency restoration care and treatment from February 9, 2016 until the last week of October 2016, at which time he was transferred to Taylor Hardin.
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108. While incarcerated at the Pike County Jail, clinicians at the East Alabama Mental Health Center prepared an outpatient treatment plan for Mr. Senn on March 8, 2016, specifically noting “problems” of psychosis and mood disorder, as well as insomnia. The “treatment goals” in Mr. Senn’s March 8, 2016 treatment plan do not include competency restoration. Mr. Senn’s clinical records reflect that, on June 25, 2016, he was found to be making insufficient progress toward his treatment goals and that he had not been “seen” since his intake appointment on March 8, 2016. While the services specified in Mr. Senn’s March 8, 2016 treatment plan include medication management, Mr. Senn does not take prescribed medication in the Pike County Jail.
109. As a result of Mr. Senn’s inability to receive intensive mental health treatment while incarcerated in the Pike County Jail, his mental health regressed. Mr. Senn suffered from insomnia and anxiety, as well as the symptoms of his diagnosed illnesses, throughout the period of time he was incarcerated in the Pike County Jail awaiting competency restoration treatment.
iii. Plaintiff Travis Parks 110. Mr. Parks has an extensive history of mental illness and has been diagnosed with chronic paranoid schizophrenia with acute exacerbation. He has required extensive in-patient and out-patient mental health treatment throughout the past decade, which has included not only significant pharmacological treatment and management, but also extensive home- and community-based services. Mr. Parks has also struggled with taking medication regularly. Mr. Parks has experienced suicidal ideation and attempted to commit suicide in the past. 111. Mr. Parks was arrested on September 14, 2014, and charged with third degree burglary. 112. A Houston County circuit judge found Mr. Parks incompetent to stand trial, and entered an order committing him to the custody of the Department of Mental Health for
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competency restoration care and treatment on January 21, 2016. The court entered another order committing Mr. Parks to Taylor Hardin Secure Medical Facility on August 29, 2016. As of the date of this filing, Mr. Parks remains incarcerated at the Houston County Jail.
113. Mr. Parks was on the waiting list for admission into Taylor Hardin for competency restoration care and treatment from January 25, 2016 until he was transferred to Taylor Hardin approximately two-and-a-half weeks after this action was originally filed.
114. Mr. Parks received some medication management in the Houston County Jail. Mr. Parks did not receive intensive mental health treatment, including psychotherapy, designed to restore his competency to participate in the criminal proceedings against him.
115. As a result of his severe mental illness and his inability to receive intensive mental health treatment in the Houston County Jail, Mr. Parks exhibited problematic behavior while incarcerated that resulted in his being placed in segregation and losing his visitation privileges.
116. As a result of Mr. Parks’s inability to receive intensive mental health treatment in the Houston County Jail, his mental health regressed. Mr. Parks experienced auditory hallucinations, paranoia, mania, anxiety levels that prevented him from eating, and adverse side effects from his medications.
iv. Plaintiff Vandarius S. Darnell 117. Plaintiff Vandarius Darnell has an extensive history of mental illness necessitating both outpatient treatment and psychiatric hospitalizations. Mr. Darnell has been diagnosed with catatonic schizophrenia, bipolar disorder, schizoaffective disorder, with significant mania, among other conditions.
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118. Mr. Darnell was arrested on April 12, 2013, and charged with attempted murder and first degree assault. Mr. Darnell has been incarcerated in the Walker County Jail since his arrest.
119. A Walker County circuit judge found Mr. Darnell incompetent to stand trial on August 9, 2016. The court found that there was a substantial probability that Mr. Darnell could be restored to competency within a reasonable period of time and entered an order committing Mr. Darnell to the custody of ADMH on August 9, 2016.
120. Mr. Darnell is on the waiting list for admission into Taylor Hardin for competency restoration care and treatment. As of the date of this filing, Mr. Darnell remains incarcerated at the Walker County Jail.
121. Mr. Darnell has been prescribed medication in the Walker County Jail, but not two of the significant medications that he took regularly prior to his arrest and incarceration. Mr. Darnell has not always taken his prescribed medication while in the Walker County Jail. When not taking his medications, he experiences mania, paranoia, delusions, auditory and visual hallucinations, and does not sleep. Mr. Darnell does not receive any form of intensive mental health treatment, including psychotherapy, designed to restore him to competency to participate in the criminal proceedings against him in the Walker County Jail.
122. As a result of his mental illness and his inability to receive intensive mental health care in the Walker County Jail, Mr. Darnell has engaged in behavior, including altercations with other inmates, that has prompted his placement in segregation on several occasions.
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v. Plaintiff Frank White, Jr. 123. Plaintiff Frank White, Jr. began exhibiting symptoms of mental illness in his late teens. He has been diagnosed with schizophrenia, fetal alcohol syndrome, and an intellectual disability. Mr. White required extensive outpatient services and several hospitalizations. 124. Mr. White was arrested on July 20, 2015, and charged with making a terrorist threat and first degree criminal mischief. Mr. White has been incarcerated in the Talladega County Jail since his arrest. 125. A Talladega County circuit judge found Mr. White incompetent to stand trial on August 19, 2016. The court found that there was a substantial probability that Mr. White could be restored to competency within a reasonable period of time and entered an order committing Mr. White to the custody of ADMH for “such treatment as is required for [Mr. White] to attain competency or minimize or abate the risk of harm threatened by [Mr. White’s] being at large” on August 19, 2016. 126. The Talladega County circuit judge’s August 19, 2016 order generally continued further criminal proceedings against Mr. White until such time as the court determines that Mr. White has been restored to competency to participate in the criminal proceedings against him. 127. Mr. White is on the waiting list for admission into Taylor Hardin for competency restoration care and treatment. As of the date of this filing, Mr. White remains incarcerated at the Talladega County Jail. 128. Mr. White has generally takes his prescribed medication in the Talladega County Jail, but does he receive any form of intensive mental health treatment, including psychotherapy, designed to restore him to competency to participate in the criminal proceedings against him.
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129. As a result of his mental illness and his inability to receive intensive mental health care in the Talladega County Jail, Mr. White has exhibited behaviors, including conflicts with other inmates, that have resulted in his being placed in protective custody at the Talladega County Jail.
vi. Plaintiff Marcus Jackson 130. Plaintiff Marcus Jackson has a history of significant mental illness. He has been diagnosed with bipolar disorder, schizoaffective disorder, and narcolepsy and required outpatient mental health treatment for extended periods of time prior to his arrest. Mr. Jackson required extensive outpatient treatment prior to his arrest. 131. Mr. Jackson was arrested on January 8, 2016 and charged with breaking and entering a vehicle and first degree burglary. Mr. Jackson has been incarcerated in the Jefferson County Jail since his arrest. 132. A Jefferson County circuit judge found Mr. Jackson incompetent to stand trial on July 19, 2016. The court found that there was a substantial probability that Mr. Jackson could be restored to competency within a reasonable period of time and entered an order committing Mr. Jackson to the custody of ADMH for “such treatment as is required for [Mr. Jackson] to attain competency or minimize or abate the risk of harm threatened by [Mr. Jackson] being at large” on July 19, 2016. 133. The Jefferson County circuit judge’s July 19, 2016 order generally continued further criminal proceedings against Mr. Jackson until such time as the court determines that Mr. Jackson has been restored to competency to participate in the criminal proceedings against him.
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134. Mr. Jackson is on the waiting list for admission into Taylor Hardin for competency restoration care and treatment. As of the date of this filing, Mr. Jackson remains incarcerated at the Jefferson County Jail.
135. Mr. Jackson takes prescribed medication regularly in the Jefferson County Jail, but does he receive any form of intensive mental health treatment, including psychotherapy, designed to restore him to competency to participate in the criminal proceedings against him.
136. Mr. Jackson has been placed in isolation on at least one occasion after he reported suicidal thoughts to jail officials. He was physically attacked and injured by another inmate, and since that encounter, Mr. Jackson has been housed in a cell block with other persons with mental illness.
137. Mr. Jackson is fearful of others and has difficulty in social exchanges, including encounters with other inmates.
vii. Plaintiff Timothy Mount 138. Plaintiff Timothy Mount developed an intellectual disability after being involved in an automobile accident when he was nine months old. Mr. Mount received special education services throughout his childhood and youth and has continued to receive some disability-related services since he reached adulthood. Mr. Mount also has been diagnosed with depression, seizure disorder, and cerebral palsy. 139. Mr. Mount was arrested on February 18, 2016 and charged first degree kidnapping and attempted sexual abuse of a child. Mr. Mount was released on bond from February 19, 2016 through July 8, 2016, the date of his competency hearing. Mr. Mount has been incarcerated in the Montgomery County Jail since that time.
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140. A Montgomery County circuit judge found Mr. Mount incompetent to stand trial on July 8, 2016. The court found that there was no substantial probability that Mr. Mount could be restored to competency within a reasonable period of time and entered an order committing Mr. Mount to the custody of ADMH for “such treatment as is required for [Mr. Mount] to attain competency or minimize or abate the risk of harm threatened by [Mr. Mount] being at large” on July 8, 2016.
141. The Montgomery County circuit judge’s July 19, 2016 order generally continued further criminal proceedings against Mr. Mount until such time as the court determines that Mr. Mount has been restored to competency to participate in the criminal proceedings against him.
142. Mr. Mount is on the waiting list for admission into Taylor Hardin for competency restoration care and treatment. As of the date of this filing, Mr. Mount remains incarcerated at the Montgomery County Jail.
143. Mr. Mount has spent at least a portion of his time in isolation and, on information and belief, is currently in solitary confinement. He does not recall meeting with any clinician in the Montgomery County Jail.
viii. Plaintiff Henry McGhee 144. Mr. McGhee was arrested on April 20, 2015 and charged with murder and theft of property. Mr. McGhee has been incarcerated in the Tuscaloosa County Jail since his arrest. 145. The Tuscaloosa County Circuit Court order a mental examination of Mr. McGhee on September 25, 2015. A forensic evaluation was filed with the court on June 21, 2016. 146. Further evaluation was ordered on June 27, 2016. A second evaluation was filed on June 22, 2016.
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147. Thereafter the Tuscaloosa County Circuit Court ordered further inpatient evaluation, and committed Mr. McGhee to ADMH’s custody for that purpose.
148. Mr. McGhee is on the waiting list for admission into Taylor Hardin for an inpatient mental evaluation.
149. Mr. McGhee has been on suicide watch several times during his incarceration in the Tuscaloosa County Jail, and has tried to hurt himself on several occasions.
150. Mr. McGhee has also been placed in segregation on several occasions during his incarceration in the Tuscaloosa County Jail.
151. Mr. McGhee has spent approximately four of the nine months he has been incarcerated in the Tuscaloosa County Jail on suicide watch or in segregation.
152. Mr. McGhee becomes confused easily and experiences paranoia. Both his confusion and his paranoia have worsened during the time that he has been incarcerated in the Tuscaloosa County Jail.
VI. LEGAL CLAIM COUNT I
Violation of the Fourteenth Amendment of the United States Constitution 42 U.S.C. § 1983
153. The allegations in Paragraphs 1 through 152 above are incorporated by reference as if fully set forth herein.
154. The Due Process Clause of the Fourteenth Amendment requires that the nature and duration of an individual’s involuntary confinement for inpatient Competency Services bear a reasonable relation to the purpose of that confinement.
155. Once an individual is suspected of being incompetent to stand trial and committed to the custody of ADMH for purposes of an inpatient mental evaluation, the only lawful purpose for his or her continued confinement is to receive that evaluation.
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156. Once an individual is found incompetent to stand trial and committed to the custody of ADMH for competency restoration treatment, the only lawful purpose for his or her continued confinement is the provision of competency restoration treatment.
157. An individual suspected of being incompetent to stand trial and committed to the custody of ADMH for an inpatient mental evaluation has a right not to be incarcerated absent a lawful conviction.
158. An individual found incompetent to stand trial and committed to the custody of ADMH for restorative treatment has a constitutional right not to be incarcerated absent a lawful conviction.
159. An individual suspected of being incompetent to stand trial and committed to the custody of ADMH for an inpatient mental evaluation has a constitutional right to receive that evaluation so that his or her competency, or lack thereof, can be timely established.
160. An individual found incompetent to stand trial has a constitutional right to timely receive such individualized treatment as will give him or her a realistic opportunity to be restored to competency.
161. County jails in the State of Alabama do not have the capacity to provide the inpatient mental evaluations or competency restoration treatment for which persons are committed to ADMH’s custody under Alabama Rules of Criminal Procedure 11.3 and 11.6.
162. The Alabama county jails in which Plaintiffs Demontray Hunter, Russell Senn, and Travis Parks were incarcerated did not provide them mental health treatment designed to or capable of restoring their competency to participate in their respective criminal proceedings.
163. The Alabama county jails in which Plaintiffs Vandarius Darnell, Frank White, Jr., Marcus Jackson, and Timothy Mount are incarcerated do not provide Plaintiffs mental health
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treatment designed to or capable of restoring Plaintiffs to competency to participate in their respective criminal proceedings.
164. The Alabama county jail in which Plaintiff Henry McGhee is incarcerated has not, and cannot, provide him with an inpatient mental evaluation upon which the circuit court may determine his competency to stand trial in the criminal proceedings against him.
165. Defendant Perdue, by and through ADMH, has failed to provide Plaintiffs Demontray Hunter, Russell Senn, Travis Parks, Vandarius Darnell, Frank White, Jr., Marcus Jackson, and Timothy Mount the competency restoration therapy and treatment for which they were committed to the custody of ADMH.
166. Defendant Perdue, by and through ADMH, has failed to provide Plaintiff Henry McGhee the court-ordered mental health evaluation for which the circuit court committed him to the custody of ADMH.
167. Defendant Perdue, by and through ADMH, and acting under color of state law, has failed to timely provide competency restoration treatment to Plaintiffs Demontray Hunter, Russell Senn, Travis Parks, Vandarius Darnell, Frank White, and Timothy Mount, and all others similarly situated, in violation of the Fourteenth Amendment to the United States Constitution.
168. Defendant Perdue, by and through ADMH, and acting under color of state law, has failed to provide timely inpatient mental evaluations to Plaintiff Henry McGhee, and all others similarly situated, in violation of the Fourteenth Amendment to the United States Constitution.
169. Unless enjoined by this Court from continuing to do so, Defendant Perdue, by and through ADMH, will continue to violate and cause the violation of the constitutional rights of Plaintiffs Demontray Hunter, Russell Senn, Travis Parks, Vandarius Darnell, Frank White,
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Marcus Jackson, and Timothy Mount, and all others similarly situated, to timely receive mental health treatment designed to restore them to competency.
170. Unless enjoined by this Court from continuing to do so, Defendant Perdue, by and through ADMH, will continue to violate and cause the violation of the constitutional rights of Plaintiff Henry McGhee, and all others similarly situated, to timely receive the court-ordered inpatient mental evaluations necessary to determine his competency to stand trial. VII. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs Demontray Hunter, Russell Senn, Travis Parks, Vandarius Darnell, Frank White, Timothy Mount, and Henry McGhee respectfully request that the Court grant them the following relief:
A. Certify this case as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure;
B. Issue a declaratory judgment that Defendant Perdue, by and through ADMH, has denied Named Plaintiffs Demontray Hunter, Russell Senn, Travis Parks, Vandarius Darnell, Frank White, Marcus Jackson, Timothy Mount, and Henry McGhee, and all present class members, due process under the Fourteenth Amendment to the United States Constitution by failing to provide them timely Competency Services in an appropriate therapeutic setting;
C. Issue a preliminary and permanent injunction restraining Defendant Purdue, in his direction, supervision, and control of ADMH, from denying Named Plaintiffs Demontray Hunter, Russell Senn, Travis Parks, Vandarius Darnell, Frank White, Jr., Marcus Jackson, Timothy Mount and Henry McGhee, and all other present and future class members, their due process right to timely, appropriate and adequate Competency Services in an appropriate therapeutic environment;
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D. Require Defendant Perdue to provide sufficient information on a quarterly basis

to allow the Named Plaintiffs and the Court to monitor compliance with the Court’s injunction

and with the requirements of due process relative to the provision of timely Competency Services

to present and future class members in Alabama;

E. Award Plaintiffs their attorneys’ fees and costs; and

F. Grant Plaintiffs such other and further relief as the Court may deem just and

proper.

Dated: December 23, 2016

Respectfully submitted,

/s/ M. Geron Gadd ______________________________ M. Geron Gadd (ASB-0601-J98S) ALABAMA DISABILITIES ADVOCACY PROGRAM 400 South Union Street, Suite 280 Montgomery, Alabama 36104 Telephone: (334) 240-0994 Facsimile: (334) 240-0996 Email: mggadd@adap.ua.edu

J. Patrick Hackney (ASB-6971-H51J) William Van Der Pol, Jr. (ASB-2112-114F) Lonnie J. Williams (ASB-2866-I35W) ALABAMA DISABILITIES ADVOCACY PROGRAM 500 Martha Parham West Box 870395 Tuscaloosa, Alabama 35487-0395 Telephone: (205) 348-4928 Facsimile: (205) 348-3909 Email: jphackney@adap.ua.edu
wvanderpoljr@adap.ua.edu lwilliams@adap.ua.edu

/s/ Henry F. (Hank) Sherrod_________________ Henry F. (Hank) Sherrod III (ASB-1200-D63H) HENRY F. SHERROD III, P.C. 119 South Court Street P. O. Box 606 Florence, Alabama 35631-0606 Telephone: (256) 764-4141 Facsimile: (877) 684-0802

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Case 2:16-cv-00798-MHT-CSC Document 26 Filed 12/23/16 Page 38 of 39 Email: hank@alcivilrights.com /s/ Randall C. Marshal _____________________________ Randall C. Marshall (ASB-3023-A56M) ACLU OF ALABAMA FOUNDATION P.O. Box 6179 Montgomery, AL 36106-0179 Telephone: (334) 420-1741 Facsimile: (334) 269-5666 Email: rmarshall@aclualabama.org Attorneys for Named Plaintiffs Demontray Hunter, Russell Senn, Travis Parks, Vandarius Darnell, Frank White, Jr., Marcus Jackson, Timothy Mount, and Henry McGhee
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CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I have caused a copy of the foregoing to be served

on the individuals named below by filing with the Clerk of Court using the EC/CMF system which

will automatically send notification by electronic mail to same, this 23rd day of December, 2016.

M. Geron Gadd Alabama Disabilities Advocacy Program 400 South Union Street, Suite 280 Montgomery, Alabama 36104 mggadd@adap.ua.edu
J. Patrick Hackney William Van Der Pol, Jr. Lonnie Williams Alabama Disabilities Advocacy Program 500 Martha Parham West Box 870395 Tuscaloosa, AL 35487-0395 jphackney@adap.ua.edu wvanderpoljr@adap.ua.edu lwilliams@adap.ua.edu

Thomas B. Klinner Edward C. Hixson Ashley L. Nichols Nancy S. Jones Alabama Department of Mental Health RSA Union Building 100 North Union Street Montgomery, Alabama 36104 Tommy.Klinner@mh.alabama.gov Eddie.Hixson@mh.alabama.gov Ashley.Nichols@mh.alabama.gov Nancy.Jones@mh.alabma.gov

Henry F. (Hank) Sherrod III Henry F. Sherrod III, P.C. 119 South Court Street Florence, AL 35630 hank@alcivilrights.com

Randall C. Marshall ACLU of Alabama Foundation P.O. Box 6179 Montgomery, AL 36106-0179 rmarshall@aclualabama.org

/s/ M. Geron Gadd M. Geron Gadd (ASB-0602-J98S) Attorney for Plaintiffs

39

 
 Case 2:16-cv-00798-MHT-CSC Document 67 Filed 05/09/17 Page 1 of 9

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

DEMONTRAY HUNTER, et al., )

)

Plaintiffs,

)

)

v.

)

)

JAMES V. PERDUE, in his

)

official capacity as the )

Commissioner of the

)

Alabama Department of

)

Mental Health,

)

)

Defendant.

)

CIVIL ACTION NO. 2:16cv798-MHT (WO)

PRELIMINARY SETTLEMENT APPROVAL ORDER Pursuant to Federal Rule of Civil Procedure 23(e), the parties jointly move the court (1) to grant preliminary approval to their proposed settlement agreement of this litigation (doc. no. 60-1) and (2) to approve the following: the form of notice to class members of the proposed settlement agreement (doc. no. 66-1); the form of notice to class members’ defense counsel, family members, and legal guardians (doc. no. 66-2); the form of notice to be posted in Alabama circuit courts (doc. no. 66-3) and the letter to

Case 2:16-cv-00798-MHT-CSC Document 67 Filed 05/09/17 Page 2 of 9
circuit clerks requesting the posting of that notice (doc. no. 66-4); and the process for distributing these documents and collecting comments, as further set out below. Based on the entire record before the court, the court finds as follows:
First, the court finds that the proposed settlement agreement should be preliminarily approved, that notice should be provided to interested parties, and that a fairness hearing should be conducted.
The court further finds it appropriate to provisionally certify a Rule 23(b)(2) injunctive-relief settlement class (the “Settlement Class”) composed of “All persons who have been, or will be during the period that this Agreement remains in effect, charged with a crime, within the meaning of Rule 1.4(b) of the Alabama Rules of Criminal Procedure, in a court of competent jurisdiction in the State of Alabama, and detained in an Alabama city or county jail or Alabama Department of Corrections facility while awaiting a court-ordered Mental Evaluation or court-ordered Competency Restoration Treatment; (a) for whom a Circuit Court has
2

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determined that reasonable grounds exist for a mental

examination into the person’s competency to stand trial

under Rule 11 of the Alabama Rules of Criminal Procedure

and committed the person to the custody of the Alabama

Department of Mental Health (“ADMH”) under Rule 11.3 of

the Alabama Rules of Criminal Procedure by court order

for an inpatient evaluation, whether or not the court’s

order references any provision of law in so ordering; or

(b) who is found incompetent to stand trial under Rule

11 of the Alabama Rules of Criminal Procedure and

committed to the custody of ADMH under Rule 11.6 of the

Alabama Rules of Criminal Procedure by court order for

Competency Restoration Therapy, whether or not the

court’s order references any provision of law in so

ordering.” For reasons to be articulated in a final

decision regarding whether to approve the settlement,

the court preliminarily finds that the settlement class

meets the requirements of Rule 23(a)--numerosity,

commonality,

typicality,

and

adequacy

of

representation--as well as the requirement of Rule

23(b)(2) that the issues involved “apply generally to

3

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the class,” such that “relief is appropriate respecting

the class as a whole.” The court preliminarily finds

that plaintiffs’ counsel in this case can capably serve

as and should be appointed class counsel, based on the

factors outlined in Rule 23(g).

Finally, the court finds that the notice and

comment forms attached as exhibits to the Parties’

Joint Proposal for Notice and Comment Regarding

Proposed Settlement (doc. no. 66), and the process for

distributing and collecting these outlined in that

document,

constitute

sufficient

notice

of,

and--together with the fairness hearing described

below--opportunity to be heard on, the proposed

settlement agreement, as is required by due process and

Rule 23(e).

It is therefore ORDERED that the joint motion for

preliminary approval (doc. no. 60) is granted as

follows:

(1) The proposed settlement agreement (doc. no.

60-1) is preliminarily approved, with final approval

subject to a hearing and to review by the court of any

4

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objections to or comments about its terms submitted by class members and other interested persons, and to the court’s resolution of certain outstanding issues set for briefing in the scheduling order (doc. no. 65).
(2) Pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2), an injunctive-relief settlement class is provisionally certified, defined as “All persons who have been, or will be during the period that this Agreement remains in effect, charged with a crime, within the meaning of Rule 1.4(b) of the Alabama Rules of Criminal Procedure, in a court of competent jurisdiction in the State of Alabama, and detained in an Alabama city or county jail or Alabama Department of Corrections facility while awaiting a court-ordered Mental Evaluation or court-ordered Competency Restoration Treatment; (a) for whom a Circuit Court has determined that reasonable grounds exist for a mental examination into the person’s competency to stand trial under Rule 11 of the Alabama Rules of Criminal Procedure and committed the person to the custody of the Alabama Department of Mental Health (“ADMH”) under Rule 11.3 of
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the Alabama Rules of Criminal Procedure by court order for an inpatient evaluation, whether or not the court’s order references any provision of law in so ordering; or (b) who is found incompetent to stand trial under Rule 11 of the Alabama Rules of Criminal Procedure and committed to the custody of ADMH under Rule 11.6 of the Alabama Rules of Criminal Procedure by court order for Competency Restoration Therapy, whether or not the court’s order references any provision of law in so ordering.”
(3) The Alabama Disabilities Advocacy Program, Henry (Hank) F. Sherrod III, P.C., and the ACLU of Alabama Foundation are appointed as class counsel to represent the Settlement Class under Federal Rule of Civil Procedure 23(g).
(4) By May 26, 2017, the parties are to provide notice of the proposed settlement agreement to members of the Settlement Class and criminal defense counsel of Settlement Class members (and, through defense counsel, to family members and legal guardians) and to the clerks of court for Alabama’s circuit courts for public
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posting; the parties shall also provide notice by publication; and each form of notice shall be provided as outlined in the Parties’ Joint Proposal for Notice and Comment Regarding Proposed Settlement (doc. no. 66). The parties are to collect comments from Settlement Class members and their defense counsel, family members, and legal guardians as further outlined in the Parties’ Joint Proposal by the submission deadline of June 26, 2017. The Parties’ Joint Proposal meets all due process and other legal requirements.
(5) The court supplements the Parties’ Joint Proposal (doc. no. 66) as follows: Within two weeks of sending a copy of the “Notice of Proposed Class Action Settlement” to the clerks of court for Alabama’s circuit courts (doc. no. 66-3), the parties are to conduct spot checks of at minimum 15 courthouses, either directly or through reports of non-party counsel, to ensure the Notice has been posted in a central location, and thereafter to conduct follow-up remediation as necessary. After conducting the spot checks, the parties should file a status report with
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the results and, if necessary, plans for remediation. (6) Under the scheduling order (doc. no. 65), a
fairness hearing is set for August 3, 2017, at 10:00 a.m., in Courtroom 2FMJ of the Frank M. Johnson Jr. United States Courthouse Complex, One Church Street, Montgomery Alabama, to determine whether the proposed settlement of this class action on the terms and conditions provided for in the settlement agreement is fair, reasonable, and should be finally approved by the Court. The hearing may be continued from time to time without further notice.
(7) Any member of the Settlement Class may enter an appearance on his or her own behalf in this action, but need not do so. Settlement Class members who do not enter an appearance will be represented by class counsel. Alternately, any member of the Settlement Class, as well as defense counsel, family members and legal guardians of Settlement Class members, may provide written comments to the court regarding the fairness of the settlement by completing the “Response
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to Proposed Class Action Settlement” form attached to this order as Exhibit A. All comments by members of the Settlement Class, defense counsel, family members and legal guardians of Settlement Class members regarding the fairness of the proposed settlement using the form attached as Exhibit A shall be mailed to the Alabama Disabilities Advocacy Program (“ADAP”) at 400 South Union Street, Suite 280, Montgomery, Alabama 36104. Comments must be postmarked no later than June 26, 2017, to be considered. All comments received by ADAP at the foregoing address will be consolidated and filed with the court. A member of the Settlement Class who desires to comment, but who fails to comply with the above objection procedure and timeline, shall be deemed to have not objected and the objection shall not be heard or considered by the court.
DONE, this the 9th day of May, 2017. /s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

 
 Case 2:16-cv-00798-MHT-CSC Document 137 Filed 10/31/19 Page 1 of 16

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

DEMONTRAY HUNTER, by and through his next friend, Rena Hunter; RUSSELL D. SENN, by and through his next friend, Irene Senn; TRAVIS S. PARKS, by and through his next friend, Catherine Young; VANDARIUS S. DARNELL, by and through his next friend, Bambi Darnell; FRANK WHITE, JR., by and through his next friend, Linda White; MARCUS JACKSON, by and through his next friend Michael P. Hanle; TIMOTHY D. MOUNT, by and through his next friend, Dorothy Sullivan; HENRY P. MCGHEE, by and through his next friend, Barbara Hardy, individually and on behalf of all others similarly situated; and the ALABAMA DISABILITIES ADVOCACY PROGRAM,
Plaintiffs,

CASE NO. 2:16-cv-00798-MHT-CSC
CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF

v.

LYNN T. BESHEAR, in her official capacity as Commissioner of the Alabama Department of Mental Health,

Defendant.

JOINT PLAN TO REMEDIATE DEFENDANT’S NONCOMPLIANCE WITH CONSENT DECREE I. INTRODUCTION 1. On January 25, 2019, the parties submitted a Joint Status Report (ECF No. 116) detailing the extent and nature of the Defendant’s noncompliance with the Consent Decree (ECF No. 94). On February 13, 2019, the parties had a telephone conference with Judge Thompson, wherein the status of the Defendant’s noncompliance was discussed, and it was suggested by the Court that the parties attempt to remediate noncompliance in lieu of filing for contempt (ECF Nos.
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119, 120). The parties filed a further Joint Status Report on April 1, 2019 (ECF No. 122), and subsequently submitted a proposed order on the status of noncompliance (ECF No. 124), which provided for the engagement of a compliance consultant and the development of a remedial plan thereafter. The Court adopted the joint proposed order on April 12, 2019 (ECF No. 125).
2. The Consultant prepared two reports, dated July 16, 2019 and July 31, 2019. In the first report, the Consultant identified many barriers to compliance. In the second report, the Consultant proposed various evidence-based recommendations to correct deficiencies identified by the Consultant, and to eliminate barriers to compliance.
3. The Court ordered Defendant to prepare a remedial plan for Plaintiffs, and that plan was submitted on August 21, 2019. Plaintiffs reviewed that plan and determined that Defendant had made a good faith attempt to formulate a plan reasonably designed which, if implemented could lead to compliance. However, the plan lacked certain particularized details, lacked some crucial requirements, and was sufficiently vague in some instances such that plaintiffs could not accept the same.
4. The Parties requested, and the Court approved, an extension to allow the parties to explore the possibility of submitting a joint remediation plan. The parties have negotiated in good faith, and now present the following plan which the parties believe provides Defendant a viable path to reach compliance.
II. JOINT PLAN A. OFFICE OF FORENSIC MENTAL HEALTH SERVICES (“OFMHS”) i. Hiring and Duties of the Director of the OFMHS 1. On or before January 1, 2020, ADMH shall create the Office of Forensic Mental
Health Services (“OFMHS”).
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a. The OFMHS shall be led by an individual (hereafter Director) who directly reports to the Associate Commissioner for Mental Health and Substance Abuse (“ACMH”).
i. Any person appointed to this position shall possess the following general attributes:
1. Education and practical experience in a leadership position involving the provision of mental health care and the interaction of such care with the judicial system.
2. The minimum educational requirement shall be a Masterslevel degree and five (5) years’ relevant experience, or a M.D., D.O, Ph.D., or J.D. and four (4) years’ relevant experience and the announcement will be consistent with the Mental Health exempt classification and pay structure.
b. The OFMHS shall additionally be staffed by personnel who support the needs of the office. At a minimum, the initial staff shall consist of:
i. Data Analyst(s): one or more individuals assigned to collect, gather, store, and analyze data covering at least the following topics contained in the “Duties of the Director of OFMHS” section below, as described in paragraphs 4, 5, 6, 8, 10, and 11 below. The Data Analyst Department will also collect, gather, store, and analyze the following data:
1. A list, provided at the end of every month, of each individual admitted into Taylor Hardin and/or Hillcrest and/or Bryce and/or other facilities as contemplated in Section B(i)(3) of this plan, with the following information clearly delineated:
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a. The specific reason for that individual’s admission (inpatient eval or CRT)
b. The date that the individual was ordered to Taylor Hardin/Hillcrest/Bryce
c. The date that the individual was actually admitted to Taylor Hardin/Hillcrest/Bryce
2. Notification, as outlined in the Consent Decree, of each and every individual who receives services outside of the dateof-receipt order specified in the Consent Decree, to contain the specific reason for the skip (must be a “compelling obstacle” to providing that person with services when they reach the front of the line, as specified in the Consent Decree). Such notification must be provided with the monthly monitoring data. a. If ADMH does not freely provide same, then ADAP, in its role as Monitor, reserves the right to request the above information for each individual receiving services outside of the date-of-receipt order specified in the Consent Decree. b. If ADMH continues to provide services out of order without providing the above-described notice to ADAP for each and every individual who receives services outside of the date-of-receipt order specified
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in the Consent Decree, then ADAP, in its role as class counsel, reserves the right to address this ongoing issue in accordance with the procedures laid out in Section VIII of the Consent Decree and/or meet and confer. 3. A list, provided at the end of every quarter , of any education completed in accordance with the Consent Decree. Materials used for any seminars, trainings, conferences, or other educational outreach related to Hunter should be provided along with the list. 4. A list, provided at the end of every month, of the class member census at Taylor Hardin/Hillcrest/Bryce or any other facility describe in Paragraph B (3), clearly delineating the following information: a. The date of each individual class member’s admission into Taylor Hardin/Hillcrest/Bryce or any other facility described in paragraph B (3) b. Each individual class member’s legal status 5. Notification, as outlined in the Consent Decree, of each and every class member who is referred for treatment under the Emergency Treatment Protocol. Such notice should be provided within the timeframes specified by the Consent Decree, and should include the following information:
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a. The name and location of the individual being referred (to be provided within 48 hours of ADMH’s receipt of notice of same)
b. Notification of the clinical professional’s determination whether the individual needs emergency treatment (to be provided within 48 hours of the clinical professional’s visit with the individual)
c. If the individual is determined to be suicidal, then notice of same (to be provided within 24 hours of ADMH’s receipt of notice of same, or by the close of business the following Monday, if ADMH receives notice on a Saturday or Sunday).
ii. Peer Reviewer: One or more individuals assigned to provide CFE training and ongoing continued education. Defendant agrees to transmit to Plaintiffs, within 30 days of the approval of this plan, proof that an education plan in CFE training is provided and ongoing.
2. The Director of the OFMHS shall have the following duties and responsibilities: a. Operational control of all forensic evaluation services in the facilities
through facility staff. b. Responsibility for overseeing the training of forensic evaluators; c. Responsibility for overseeing a certification process for forensic evaluators
in addition to any specific required statutory or regulatory requirements;
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d. Oversee the liaisons to jails and other local correctional facilities to ensure the proper flow of information to/from the jails to/from ADMH for the purposes of streamlining admissions, ensuring continuity of care, as well as coordination of logistical issues such as transportation, and adequate and appropriate space for evaluations;
i. Defendant agrees to develop a plan for ongoing assessment of needed resources to ensure compliance with the terms of the Consent Decree.
e. Oversee the liaisons to relevant state courts and relevant state court personnel to increase efficiency of forensic evaluation systems to avoid delays due to problems such as missing, incomplete, or ambiguous orders, gathering of necessary records, expediting competency hearings, and problem solving complex emergency admissions;
i. Defendant agrees to transmit to Plaintiffs, within 30 days of the approval of this plan, as new policies are created, the internal policies and procedures applicable to this process, as well as a written directive for moving this responsibility under forensic control.
f. Coordination of forensic services for class members treated in hospitals inside of the direct continuum of care of ADMH, geared particularly towards the individualized needs of patients under the unique circumstances of their legal status;
g. Oversight of the forensic data collection and analysis systems, as well as dissemination of important data points or trends to allow ADMH to better plan for the future;
h. Communication and coordination around continued development, and implementation of community based forensic services and programs;
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i. Communication and coordination around continued development with other ADMH staff, and community mental health providers, to aid in the integration of forensic services with the larger mental health systems;
j. Coordination of alternative forensic services for class members with significant cognitive impairments;
k. Evaluation of need for additional personnel in the OFMHS; l. Serve as part of the team created by ADMH to assess the need for additional mental health personnel, beds, and additional resources as necessary to ensure compliance with the terms of the Consent Decree; m. Perform additional duties and responsibilities as from time to time are necessary to effectuate the requirements of a working system-wide forensic care system. 3. The Director of the OFMHS shall begin immediately to implement the systems, training, and oversight upon appointment. Since the required elements are so expansive, the parties acknowledge that ADMH cannot implement every system immediately. The Director shall prioritize those tasks which are deemed most crucial and most directly impact the current barriers to compliance with the Consent Decree. The Director will use his/her best efforts to implement all elements of the required duties within nine (9) months of the effective date of the Plan. Plaintiffs reserve the right to file appropriate notices, under Section VIII of the final Consent Decree, if Plaintiffs believe that ADMH is not making sufficient progress in addressing critical goals within the nine (9) month period.
ii. Duties of Staff Assigned to Data Collection in OFMHS 1. Within 120 days of the effective date of this plan, sufficient staff shall be assigned to the OFMHS to collect, store and analyze, at a minimum, the following types of data:
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a. Relevant data concerning the wait list of class members awaiting a forensic evaluation, including their location, date of request, type of evaluation requested, any outstanding documents necessary for admission or evaluation;
i. The above data will be collected via spreadsheets attached as Exhibits A, B, and C.
b. Relevant data concerning the following lengths of time for class members: i. Time class members spend awaiting completion of reports; ii. Period of placement at Taylor Hardin Secure Medical Facility
(“THSMF”), Bryce Hospital, or other private contracted hospitals, for competency evaluation; c. Other relevant data as identified by the Director. iii. Annual Evaluation of Staffing Needs for the OFMHS
1. At least annually the Associate Commissioner of MHSA shall analyze and assess the need to add additional staff to the OFMHS.
2. Not later than 30 days after the analysis, the Associate Commissioner of MHSA, in writing, shall prepare a request for additional staff (if appropriate), identifying the exact personnel needed.
B. MENTAL HEALTH STAFFING ADMH acknowledges that a lack of psychologist staffing impacts treatment and required assessments which, in turn, adversely impacts length of stay and quality of care because of a lack of adequate staff to prepare necessary evaluations of risk and competency and because actual care necessary for competency restoration is negatively impacted. ADMH also has significant vacancies in psychiatrists, nursing, psychologists , and forensic technicians.
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i. Immediate Actions ADMH shall implement immediately the following actions:
1. ADMH shall increase compensation for psychiatrists by 10%, to take effect on or before October 16, 2019. ADMH shall reallocate each current Psychologist at its mental illness facilities to the next level classification effective October 16, 2019, or the date in which the incumbent can meet the minimum qualifications of the new classification. ADMH shall explore the need for an increase in compensation for direct care staff vacancies at THSMF/Bryce;
2. ADMH shall pursue a collaborative agreement between ADMH and the University of Alabama, Department of Psychology, to access an increased group of student trainees who may assist clinicians, where appropriate as a short term stopgap measure;
3. ADMH or its designee shall investigate access to additional licensed and certified hospital beds in an inpatient hospital or hospital-like setting. These beds may be provided through a contract between ADMH and a third-party provider, such as a Community Mental Health Center or designated Mental Health Center as provided by Ala. Code §§15-16-61(5), 22-51-1, et seq., 2256-5 and 22-2-90(1), and/or other JCO or CMS accredited facilities willing to house, assess, and treat class members.
4. ADMH or its designee shall investigate and hire qualified forensic evaluators to perform outpatient evaluations for competency;
iv. Appropriate Use of Students 1. ADMH may use qualified students to supplement permanent staff. The purpose is to provide a training opportunity for qualified students, and to allow a short-term way for THSMF to supplement staff in positions which are currently vacant. ADMH may not use students as a permanent solution to lack of appropriate staff.
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2. THSMF will adhere to existing internal policies regarding the use of students to supplement permanent staff.
3. Defendant agrees to transmit to Plaintiffs, within 30 days of the approval of this plan, the internal policies and procedures applicable to the use of students to supplement permanent staff.
C. ALTERNATIVES TO PLACEMENT AT THSMF i. Immediate
1. ADMH shall implement the OCRP program in Jefferson County contemplated in their proposed plan, for low level offenders with low risk factors. ADMH shall use best efforts to persuade the relevant state court(s) to not unduly limit access to the program for patients based on index crime, or risk of dangerousness, as the Circuit Court allows. ADMH shall provide Plaintiff’s counsel any objective criteria utilized by the referring clinical staff, or the court, in referring and approving placement. During the period of Court Supervision, ADMH shall report quarterly on the number of referrals, and results of such referrals and plaintiffs’ counsel. The OCRP program should be functional in Jefferson County by six months following the date of this agreement.
ii. Six Months 1. ADMH shall explore the possibility of expanding the Jefferson County OCRP to additional counties. Class counsel recommends that ADMH explore expanding to counties within other large metropolitan areas, such as Montgomery, Mobile, and Huntsville. ADMH shall provide quarterly information on the status of attempts to expand the program to the Court and Plaintiffs’ counsel.
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2. ADMH shall initiate a study of alternate placement of class members sent for

restoration services who, based on cognitive deficits (e.g., a diagnosis of intellectual disability),

are unlikely to be restored to competency.

iii. One Year

1. ADMH shall have located appropriate alternate placements of class members sent

for restoration services who, based on cognitive deficits (e.g., a diagnosis of intellectual disability),

are unlikely to be restored to competency, and should be referring all such patients to those

alternative placements.

D. EDUCATION OF STAKEHOLDERS

1.

ADMH has already completed training under the Consent Decree and is in

substantial compliance. Training programs are already in the hands of relevant state court Judges

and slide shows have been presented. Although, ADMH shall continue in good faith in the

scheduling of continuing education.

2.

ADMH shall continue in good faith in the scheduling of continuing

education.

E. ACCESS TO ADMH LEGAL STAFF FOR STEP DOWNS IN COMMUNITY

1.

Upon a request by a Community Mental Health Center that the Center

currently houses a patient placed in their custody by a state Court under Criminal Rule 11 who no

longer needs the level of care currently provided, but could be safely housed in a less restrictive

setting, ADMH may make available an attorney to petition the relevant state court of appropriate

jurisdiction for a Modification of Conditions to allow the patient to be housed in a less restrictive

environment.

F. EXTENSION OF COURT SUPERVISION AND MONITORING

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1. In light of the fact that many of the provisions of this plan are expected to occur at such a point that the efficacy of the changes cannot be assessed within the current time parameters of the Consent Decree, the parties jointly request that Court Supervision and Monitoring be extended at this time by a period of one (1) year, until January 28, 2022. The amended Monitoring schedule will be as follows:
i. Monitoring Periods: 1. February 1, 2021 – April 30, 2021 (report due May 7, 2021) 2. May 1, 2021 – July 31, 2021 (report due August 6, 2021) 3. August 1, 2021 – October 31, 2021 (report due November 5, 2021) 4. November 1, 2021 – January 28, 2022 (final report due February 4, 2022)
2. Class counsel reserves the right to petition the Court to extend Monitoring and Court Supervision beyond the above dates if full compliance is not attained by January 28, 2022, and Defendant may ask for release earlier if in full compliance. The proposed amendments to the Monitoring schedule do not change any other Monitoring-related deadlines currently in effect.
3. During the additional year, ADMH agrees to pay ADAP, as Monitor, the sum of $48,000, at a rate of $195.00 per hour for actual time expended.
G. PAYMENT OF ATTORNEY’S FEES The parties have endeavored to create a joint plan to correct ADMH’s self-admitted failures to comply with the Consent Decree in this case. In negotiating a joint plan, the parties have avoided the more costly need to litigate this matter, and spared precious judicial resources. ADMH agrees
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to pay counsel for the plaintiffs $195 per hour with a cap of $40,000 in full satisfaction of services
performed in litigating ADMH’s non-compliance with the terms of the Consent Decree up to the
date of the approval of this agreement. ADMH shall pay such sum within one hundred eighty
(180) days of the effective date of this plan.
Dated: October 31, 2019
Respectfully submitted,
/s/ William Van Der Pol, Jr.
William Van Der Pol, Jr. (ASB-2112-114F) Shandra N. Monterastelli (ASB-1016-N00Q) Lonnie J. Williams (ASB-2866-I35W) ALABAMA DISABILITIES ADVOCACY PROGRAM 500 Martha Parham West Box 870395 Tuscaloosa, AL 35487-0395 Telephone: (205) 348-4928 Facsimile: (205) 348-3909 Email: wvanderpoljr@adap.ua.edu
smonterastelli@adap.ua.edu lwilliams@adap.ua.edu
Attorneys for Plaintiffs Demontray Hunter, Russell D. Senn, and Travis S. Parks, Vandarius S. Darnell, Frank White, Jr., Marcus Jackson, Timothy D. Mount, and Henry P. McGhee and Plaintiff Alabama Disabilities Advocacy Program
Henry F. (Hank) Sherrod III (ASB-1200-D63H) HENRY F. SHERROD III, P.C. 119 South Court Street Florence, AL 35630 Telephone: (256) 764-4141 Facsimile: (877) 864-0802 Email: hank@alcivilrights.com
Randall C. Marshall (ASB-3023-A56M) ACLU OF ALABAMA FOUNDATION P.O. Box 6179 Montgomery, AL 36106-0179 Telephone: (334) 420-1741
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Facsimile: (334) 269-5666 rmarshall@aclualabama.org
Attorneys for Plaintiffs Demontray Hunter, Russell D. Senn, and Travis S. Parks, Vandarius S. Darnell, Frank White, Jr., Marcus Jackson, Timothy D. Mount, and Henry P. McGhee
/s/ Thomas B. Klinner
Thomas B. Klinner Edward C. Hixon Ashley L. Nichols Nancy S. Jones ALABAMA DEPARTMENT OF MENTAL HEALTH RSA Union Building 100 North Union Street Montgomery, Alabama 36104 Tommy.Klinner@mh.alabama.gov Eddie.Hixon@mh.alabama.gov Ashley.Nichols@mh.alabama.gov Nancy.Jones@mh.alabma.gov
Attorneys for Defendant Lynn T. Beshear
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I have caused a true and correct copy of the foregoing to be served on the counsel of record listed below by filing same with the Clerk of Court via the CM/ECF system this 31th day of October, 2019.
/s/William Van Der Pol, Jr.
Shandra N. Monterastelli Lonnie J. Williams Alabama Disabilities Advocacy Program 500 Martha Parham West Box 870395 Tuscaloosa, AL 35487-0395 wvanderpoljr@adap.ua.edu smonterastelli@adap.ua.edu lwilliams@adap.ua.edu
Thomas B. Klinner Edward C. Hixon
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Ashley L. Nichols Nancy S. Jones Alabama Department of Mental Health RSA Union Building 100 North Union Street Montgomery, Alabama 36104 Tommy.Klinner@mh.alabama.gov Eddie.Hixon@mh.alabama.gov Ashley.Nichols@mh.alabama.gov Nancy.Jones@mh.alabma.gov
Henry F. (Hank) Sherrod III Henry F. Sherrod III, P.C. 119 South Court Street Florence, AL 35630 hank@alcivilrights.com
Randall C. Marshall ACLU of Alabama Foundation P.O. Box 6179 Montgomery, AL 36106-0179 rmarshall@aclualabama.org

/s/ William Van Der Pol, Jr. William Van Der Pol, Jr. (ASB-2112-114F) Counsel for Plaintiffs

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 Case 2:16-cv-00798-MHT-CSC Document 149 Filed 02/14/20 Page 1 of 5

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

DEMONTRAY HUNTER, by and through his next friend, Rena Hunter; RUSSELL D. SENN, by and through his next friend, Irene Senn; TRAVIS S. PARKS, by and through his next friend, Catherine Young; VANDARIUS S. DARNELL, by and through his next friend, Bambi Darnell; FRANK WHITE, JR., by and through his next friend, Linda White; MARCUS JACKSON, by and through his next friend Michael P. Hanle; TIMOTHY D. MOUNT, by and through his next friend, Dorothy Sullivan; HENRY P. MCGHEE, by and through his next friend, Barbara Hardy, individually and on behalf of all others similarly situated; and the ALABAMA DISABILITIES ADVOCACY PROGRAM,
Plaintiffs,

CASE NO. 2:16-cv-00798-MHT-CSC
CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF

v.

LYNN T. BESHEAR, in her official capacity as Commissioner of the Alabama Department of Mental Health,

Defendant.

JOINT REQUEST TO MODIFY CONSENT DECREE On February 5, 2020, the Parties appeared before the Court at a Status Hearing for the purposes of assessing Defendant’s compliance with the Consent Decree issued by the Court, and subsequently modified by the Parties. The Parties have recently modified the Consent Decree (Doc. 137), adding additional modifications designed to bring Defendant into compliance. While Defendants remain non-compliant with the terms of the Consent Decree, Defendant has been making some modest improvements in ensuring compliance with the timelines. Additionally,

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some of the modifications contained in the Modified Consent Decree had only recently been operative such that it is unlikely that Defendant would have had time to meaningfully address noncompliance. The Court noted that the Plaintiffs, in the Joint Status Report (Doc. 142), had identified certain data deficiencies which were impacting a fulsome analysis of the extent of noncompliance pertaining to the reason why certain patients were not evaluated in the order in which they should have been seen. The Parties were requested to meet and confer about a resolution of this matter. The Parties met and agreed upon a modification to address this issue, which the Court requested the Parties to memorialize in writing. Accordingly, the Parties jointly request the Court to Modify the Consent Decree to add the following items:
1: On a monthly basis, the Defendants shall add to the Outpatient Waiting List already provided as part of the Monitoring data two additional data fields containing: a) the County of commitment; and b) a narrative explanation for any person whose evaluation or admission was taken out of numerical order. This new requirement begins in March, 2020.
2: Defendants shall create and provide to ADAP a detailed plan to ensure that Counties which do not contain a congregation of inmates requiring an outpatient evaluation are not indefinitely skipped in favor of Counties containing several inmates. Defendant has expressed a desire to evaluate all of the inmates in a given locale at one time, even if that means that some inmates who have been awaiting an evaluation for a longer period of time are not seen as a method to most expeditiously use valuable resources. However, Defendant may not ignore Counties where few inmates are present indefinitely. The purposes of the plan is to balance the benefit of doing all of the evaluation in a given County contemporaneously, even if that results in evaluations being taken out of order, against the need to ensure that all inmates receive timely evaluations.
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The parties agree that the calculation of days to complete an evaluation shall be based

upon the actual days required to evaluate the person, even if evaluated out of order, if the

Defendant provides a narrative as to why the evaluations were performed out of order, and the

narrative indicates that the primary reason was logistical efficiency or other good faith reasons.

Defendants shall provide this plan to ADAP by no later than 90 days following the approval of

this order.

3: Defendant shall notify the Court as soon as the position of Director of Forensic Mental

Health Services has been filled.

Dated: February 14, 2020

Respectfully submitted,

/s/ Shandra N. Monterastelli Shandra N. Monterastelli (ASB-1016-N00Q) William Van Der Pol, Jr. (ASB-2112-114F) Larry G. Canada (ASB-3153-N73L) Lonnie J. Williams (ASB-2866-I35W) ALABAMA DISABILITIES ADVOCACY PROGRAM 500 Martha Parham West Box 870395 Tuscaloosa, AL 35487-0395 Telephone: (205) 348-4928 Facsimile: (205) 348-3909 Email: smonterastelli@adap.ua.edu
wvanderpoljr@adap.ua.edu lcanada@adap.ua.edu lwilliams@adap.ua.edu

Attorneys for Plaintiffs Demontray Hunter, Russell D. Senn, and Travis S. Parks, Vandarius S. Darnell, Frank White, Jr., Marcus Jackson, Timothy D. Mount, and Henry P. McGhee and Plaintiff Alabama Disabilities Advocacy Program

Henry F. (Hank) Sherrod III (ASB-1200-D63H) HENRY F. SHERROD III, P.C. 119 South Court Street Florence, AL 35630 Telephone: (256) 764-4141 Facsimile: (877) 864-0802

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Case 2:16-cv-00798-MHT-CSC Document 149 Filed 02/14/20 Page 4 of 5
Email: hank@alcivilrights.com Randall C. Marshall (ASB-3023-A56M) ACLU OF ALABAMA FOUNDATION P.O. Box 6179 Montgomery, AL 36106-0179 Telephone: (334) 420-1741 Facsimile: (334) 269-5666 rmarshall@aclualabama.org Attorneys for Plaintiffs Demontray Hunter, Russell D. Senn, and Travis S. Parks, Vandarius S. Darnell, Frank White, Jr., Marcus Jackson, Timothy D. Mount, and Henry P. McGhee /s/ Thomas B. Klinner Thomas B. Klinner Edward C. Hixon Ashley L. Nichols Nancy S. Jones ALABAMA DEPARTMENT OF MENTAL HEALTH RSA Union Building 100 North Union Street Montgomery, Alabama 36104 Tommy.Klinner@mh.alabama.gov Eddie.Hixon@mh.alabama.gov Ashley.Nichols@mh.alabama.gov Nancy.Jones@mh.alabama.gov Attorneys for Defendant Lynn T. Beshear
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Case 2:16-cv-00798-MHT-CSC Document 149 Filed 02/14/20 Page 5 of 5

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I have caused a true and correct copy of the foregoing

to be served on the counsel of record listed below by filing same with the Clerk of Court via the CM/ECF system this 14th day of January, 2020.

Shandra N. Monterastelli William Van Der Pol, Jr. Larry G. Canada Lonnie J. Williams Alabama Disabilities Advocacy Program 500 Martha Parham West Box 870395 Tuscaloosa, AL 35487-0395 smonterastelli@adap.ua.edu wvanderpoljr@adap.ua.edu lcanada@adap.ua.edu lwilliams@adap.ua.edu

Thomas B. Klinner Edward C. Hixon Ashley L. Nichols Nancy S. Jones Alabama Department of Mental Health RSA Union Building 100 North Union Street Montgomery, Alabama 36104 Tommy.Klinner@mh.alabama.gov Eddie.Hixon@mh.alabama.gov Ashley.Nichols@mh.alabama.gov Nancy.Jones@mh.alabama.gov

Henry F. (Hank) Sherrod III Henry F. Sherrod III, P.C. 119 South Court Street Florence, AL 35630 hank@alcivilrights.com
Randall C. Marshall ACLU of Alabama Foundation P.O. Box 6179 Montgomery, AL 36106-0179 rmarshall@aclualabama.org

/s/ Shandra N. Monterastelli Shandra N. Monterastelli (ASB-1016-N00Q) Counsel for Plaintiffs

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