Case 2:11-cv-00224-MHT-WC Document 61 Filed 09/29/11 Page 1 of 39

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

LOUIS HENDERSON, DANA HARLEY, DARRELL ROBINSON, DWIGHT SMITH, ALBERT KNOX, JAMES DOUGLAS, ALQADEER HAMLET, JEFFERY BEYER, and BONITA GRAHAM, on behalf of themselves and of all those similarly situated,

Civil Case No. 2:11cv224-MHT

Plaintiffs,

v.

KIM THOMAS, Commissioner, Alabama Department of Corrections; BILLY MITCHEM, Warden, Limestone Correctional Facility; FRANK ALBRIGHT, Warden, Julia Tutwiler Prison for Women; BETTINA CARTER, Warden, Decatur Work Release/Community Work Center; EDWARD ELLINGTON, Warden, Montgomery Women’s Facility, in their official capacities,

SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE
RELIEF

Defendants.

SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Introduction 1. Upon entering the state prison system in Alabama, each prisoner must submit to a test for the Human Immunodeficiency Virus (“HIV”). A positive test result will determine almost every aspect of that person’s life for as long as he or she is in prison. More than the severity of their crime, the length of their sentence, or almost any other factor, the HIV test will determine where the prisoner will be housed, eat, and recreate; his or her access to in-prison vocational, rehabilitative and faith-based programs; and whether he or she will have the opportunity for supervised work in the community, which is often the key to successful transition
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after release from prison. Prisoners diagnosed with HIV are segregated from all other prisoners and cannot keep their HIV status confidential. Every male prisoner who tests positive for HIV is required to wear an armband publicly identifying him as a person with HIV.
2. Alabama’s segregation policy, as described below, excludes Plaintiffs from a wide range of critically important prison programs and jobs, and denies them equal access to rehabilitative and community re-entry opportunities. This exclusion denies prisoners with HIV equal opportunities for personal rehabilitation and may result in prisoners serving longer sentences simply because they have HIV. Alabama’s policies and practices also result in involuntary public disclosure of the prisoners’ HIV status, in violation of medical ethics and international human rights law, and result in permanent stigmatization, causing prisoners with HIV to suffer severe emotional distress and impairing their opportunities for employment upon release from prison.
3. Alabama’s policies originated in the mid-1980s, when a tidal wave of public fear over the HIV/AIDS epidemic led a majority of state correctional systems to adopt policies requiring the segregation of prisoners with HIV. These policies were the product of a time when widespread popular confusion existed over the methods of HIV transmission, treatment options were virtually nonexistent, and HIV was considered a death sentence.
4. By the mid-1990s, however, new classes of antiretroviral medications proved extremely effective at suppressing the virus. These medications have changed HIV from a fatal disease to a chronic condition that can be successfully treated. Nowadays, people with HIV who receive appropriate treatment can look forward to a normal lifespan.
5. Also by the mid-1990s, the methods of HIV transmission had been clearly established, and myths that HIV could be transmitted through casual contact (such as
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handshakes, hugs, sharing food, or using the same toilet seats) had been widely debunked. Prison systems throughout the nation decided that HIV segregation was neither sound correctional policy nor justified by legitimate public health considerations. By 1994, only six prison systems had segregation policies. By 2003, that number had dwindled to three states— Alabama, South Carolina, and Mississippi. In 2010, the Mississippi Department of Corrections terminated its segregation policy.
6. Today, Alabama is one of only two states in the nation—South Carolina is the other—that continues to segregate all prisoners with HIV in separate, specially designated housing units.
7. Alabama insists that segregation is justified by the need to provide medical care and to prevent HIV transmission in prison. Prison systems throughout the United States have shown, however, that the states can meet their obligations to incarcerate prisoners safely and to provide them with necessary medical care without requiring prisoners with HIV to forfeit their right to be free from disability-based discrimination.
8. Plaintiffs are prisoners with HIV in the custody of the Alabama Department of Corrections (“ADOC”) who bring this action on their own behalf and on behalf of the approximately 250 other prisoners in ADOC custody who have tested positive for HIV. They seek declaratory and injunctive relief against the Alabama Department of Corrections for discriminating against them on the basis of their HIV status and excluding them from participation in, or denying them the benefits of, ADOC services, programs, or activities for which they are qualified, because they have HIV, in violation of Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq, and Section 504 of the Rehabilitation Act.
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Jurisdiction and Venue 9. This Court has jurisdiction over this action pursuant to 28 USC §1331. 10. Venue is proper in this District pursuant to 28 U.S.C. §1391 because the Alabama Department of Corrections is headquartered in Montgomery, Alabama, Defendants Bentley and Thomas have their offices there, and a substantial part of the events or omissions giving rise to this claim occurred in this District.
Parties Defendants
11. Defendant Kim Thomas is the Commissioner of the Alabama Department of Corrections. The Commissioner is responsible for heading the Department of Corrections, for the independent direction, supervision and control of the Department of Corrections, and for approving and issuing administrative regulations and changes. Ala. Code. 1975 § 14-1-1.3 (2010). He is sued in his official capacity.
12. Defendant Billy Mitchem is the warden at Limestone Correctional Facility (“Limestone”). He is responsible for the day-to-day operation and management of Limestone. He is sued in his official capacity.
13. Defendant Frank Albright is the warden at Julia Tutwiler Prison for Women (“Tutwiler”). He is responsible for the day-to-day operation and management of Tutwiler. He is sued in his official capacity.
14. Defendant Bettina Carter is the warden at Decatur Work Release/Community Work Center (“Decatur Work Release”). She is responsible for the day-to-day operation and management of Decatur Work Release. She is sued in her official capacity.
15. Defendant Edward Ellington is the warden at the Montgomery Women’s Facility.
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He is responsible for the day-to-day operation and management of Montgomery Women’s Facility. He is sued in his official capacity.
Plaintiffs Plaintiff Louis Henderson
16. Louis Henderson is a person with HIV. He is a prisoner housed in a segregated dormitory at Limestone. He is serving a twenty-five year sentence for Theft of Property I. Mr. Henderson has remained free of disciplinary violations (“disciplinary free”) for at least four years. His custody level is minimum-in. Minimum-in custody prisoners are eligible to work in jobs outside the perimeter of the prison, when supervised by a correctional officer.
17. In August 2009, Limestone’s classification team recommended that Mr. Henderson’s custody be lowered to minimum-out, making him eligible for work assignments outside the prison and without the direct supervision of a correctional officer, and that he be moved to Decatur Work Release. In July 2010, Limestone’s classification team recommended that Henderson’s custody be lowered further, to minimum-community, and again recommended that he be moved to Decatur Work Release. He has been medically cleared for work release. Despite the classification team’s recommendations, ADOC has not lowered his custody level and he remains at Limestone.
18. Mr. Henderson is qualified for a number of ADOC programs, privileges, activities, and services, including, for example, residence in the Faith-Based Honor Dorm at Limestone; transfer to a lower security level facility; transfer to a facility providing vocational training in heating and air, small engine repair, and information systems; transfer to an ADOC facility closer to his home in Mobile; and work release. Defendants exclude him from all of these programs and services solely because he has HIV.
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Plaintiff Darrell Robinson 19. Darrell Robinson is a person with HIV. He is a prisoner housed in a segregated
dormitory at Limestone Correctional Facility. He arrived at Limestone Correctional Facility in 2009 for a probation violation. His end of sentence (“EOS”) date is August 17, 2012. He has remained disciplinary free since arriving at Limestone. His current custody level is minimumout.
20. Mr. Robinson is qualified for many important programs from which ADOC excludes him solely because he has HIV. At Limestone, he is excluded from the Faith-Based Honor Dorm and the senior dorm. He wants to participate in furniture restoration and cabinet making programs, which are available at other ADOC facilities but not at Limestone. He would like to transfer to a lower security facility, or to an ADOC facility closer to his home in Mobile. He would like the opportunity to participate in work release. ADOC’s HIV policy excludes him from all of these important programs solely because he has HIV.
21. In 2009, the Limestone classification team recommended that Mr. Robinson be moved to Decatur Work Release. ADOC’s HIV specialist determined that Mr. Robinson did not need to be on any HIV medication, and did not prescribe HIV medication for him. Nevertheless, ADOC will not medically clear him for work release because he does not meet ADOC’s arbitrary medical eligibility criteria for work release for prisoners with HIV. Under these criteria, prisoners with HIV who are not prescribed HIV medication must have a viral load below 1000 and a CD4 number greater than 700 or CD4 % above 35. Even though ADOC designates Mr. Robinson as medically ineligible for work release, it has assigned him for the past year to work on an outdoor clean-up squad involving many hours of hard labor in the sun and he has performed these duties without medical problems.
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Plaintiff Albert Knox 22. Albert Knox is a person with HIV. He is a prisoner housed in a segregated
dormitory at Limestone Correctional Facility. He has been at Limestone for approximately two years for drug possession. His EOS date is March 12, 2013. Mr. Knox is qualified for a number of ADOC programs, privileges, activities, and services, including residence in the Faith-Based Honor Dorm and the senior dorm, from which Defendants exclude him solely because he has HIV.
23. On January 22, 2010, while Mr. Knox was participating in the eight-week Substance Abuse Program (“SAP”), he received two disciplinary reports for eating his lunch meal in the Population Chow Hall with the other SAP participants, who do not have HIV. The disciplinary reports charged him with being in an unauthorized area and intentionally creating a security, safety, or health hazard. The second charge was eventually dropped. For simply eating lunch with the other SAP participants, Mr. Knox was dropped from the program and spent 45 days of a 90 day sentence in a disciplinary segregation cell. Mr. Knox has been disciplinary free for approximately nine months, and recently completed the substance abuse program. However, solely because he has HIV, he was still prohibited from residing in the SAP dormitory or eating with the other program participants.
Plaintiff Dwight Smith 24. Dwight Smith is a person with HIV. He is a prisoner housed at Decatur Work
Release. His EOS date is January 11, 2013. Mr. Smith has a clear disciplinary record. His custody level is minimum-out. Although he was medically cleared for work release and recommended for transfer multiple times starting on August 18, 2009, he was not approved for
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transfer until August 30, 2011. On information and belief, the delay in approval of his transfer was solely because he has HIV.
25. Besides work release, Mr. Smith is qualified for a number of other ADOC programs, privileges, activities, and services, including transfer to an ADOC facility closer to his home in Atlanta. Defendants exclude him from all of these programs, privileges, activities, and services solely because he has HIV.
Plaintiff James Douglas 26. James Douglas is a person with HIV. He is a prisoner housed in a segregated
dormitory at Limestone Correctional Facility. Mr. Douglas has been at Limestone for over five years. His EOS date is September 14, 2015.
27. Mr. Douglas is qualified for a number of ADOC programs, privileges, activities, and services, including residence in the Faith-Based Honor Dorm and the senior dorm at Limestone; transfer to a lower security facility; transfer to a facility providing vocational training such as heating and air or electrical technology; and transfer to an ADOC facility closer to his home in Mobile. Defendants exclude him from all of these programs and services solely because he has HIV.
28. Mr. Douglas is also eligible for work release. He was medically cleared for work release and in October 2009 a classification specialist recommended that Mr. Douglas be moved to Decatur Work Release. Nevertheless, ADOC arbitrarily refuses to place him in work release because he has HIV.
Plaintiff Alqadeer Hamlet 29. Alqadeer Hamlet is a person with HIV. He is a prisoner housed at Decatur Work
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Release. His EOS date is August 10, 2027. The majority of Mr. Hamlet’s free-world work experience is in the food services industry, and he would like to have a food service or hotel job. However, ADOC prohibits Mr. Hamlet from working in food services jobs solely because he has HIV. Moreover, Mr. Hamlet has not had a job in the community since being at DWR even though he is medically cleared and is housed in Dorm J, with the rest of the people who are eligible to work in the community. On information and belief, ADOC’s failure to provide him with a job in the community is due to discrimination on account of his HIV status.
30. Besides work release, Mr. Hamlet is qualified for a number of other ADOC programs, privileges, activities, and services, including transfer to an ADOC facility closer to his home in Montgomery. Defendants exclude him from all of these programs, privileges, activities, and services solely because he has HIV.
Plaintiff Jeffery Beyer 31. Jeffery Beyer is a person with HIV. He is a prisoner housed in a segregated
dormitory at Limestone Correctional Facility. His current custody level is minimum-in. His EOS date is August 26, 2014. Mr. Beyer is eligible for a number of ADOC programs, privileges, activities, and services, including the Faith-Based Honor Dorm and the senior dorm. Defendants exclude him from all of these programs, privileges, activities, and services solely because he has HIV.
Plaintiff Dana Harley 32. Dana Harley is a person with HIV. She is a prisoner housed in a segregated
dormitory at Julia Tutwiler Prison for Women. In the fall of 2010, Defendant Warden Albright learned that Ms. Harley was in a consensual relationship with a general population prisoner,
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“Jane Doe.” Warden Albright telephoned that prisoner’s mother, “Mrs. Smith,” and determined that Mrs. Smith knew Plaintiff Harley but did not know Harley’s medical status. Warden Albright ordered Jane Doe to immediately disclose Harley’s HIV status to Mrs. Smith, warning Jane Doe that if she did not tell her mother, he would do so. Jane Doe complied. By ordering the completely gratuitous disclosure of Plaintiff Harley’s HIV status to a person in the free-world community, Warden Albright caused Harley anxiety, humiliation and distress.
Plaintiff Bonita Graham 33. Bonita Graham is a person with HIV. She is a prisoner housed in a segregated
dormitory at Julia Tutwiler Prison for Women. Ms. Graham has been housed in Tutwiler since 2006. Her EOS date is January 13, 2016.
34. Ms. Graham has been classified as minimum-out since May 2011. She is qualified for a number of ADOC programs, privileges, activities, and services, including residence in the Faith-Based Honor Dorm. But for ADOC’s arbitrary medical clearance requirements, she would also be eligible for work release. Defendants exclude her from all of these programs, privileges, activities, and services solely because she has HIV.
ADOC Policy on HIV Segregation 35. Alabama law mandates HIV testing of all prisoners coming into ADOC’s custody. Ala. Code § 22-11A-17, 38 (2008). The law does not require segregation of prisoners with HIV. As a matter of administrative practice and policy, however, ADOC immediately segregates all prisoners who test positive for HIV and houses them separate and apart from all other prisoners for the duration of their prison confinement.
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36. Appropriate prisoner classification is the backbone of the security program of any prison or jail. Like virtually every other prison system in the nation, ADOC uses an objective classification system to assign prisoners to appropriate custody levels. These classifications are based on the level of security and supervision the prisoner requires and the prisoner’s program needs, including consideration of which prisoners can be safely housed together; the degree of restrictiveness of confinement necessary to protect the safety of other prisoners, prison staff, and the public; and the extent to which a particular classification will interfere with a prisoner’s access to medical, mental health, educational, and other programs. Prison classification experts use standardized risk instruments and evidence-based judgments to make these decisions.
37. ADOC classifies all prisoners as close-custody, medium-, or minimum-custody. Close-custody is the most restrictive custody to which a prisoner may be assigned, and is reserved for prisoners who have demonstrated severe behavioral problems, some prisoners sentenced to life without parole, and some detainees awaiting trial or sentencing for capital offenses. Close-custody prisoners are usually housed in single cells at a close-security institution.
38. Medium-custody prisoners are eligible for assignment to formalized institutional treatment programs or work assignments within the confines of a secure institution. They may be housed in dormitories or double-occupancy cells at a medium- or close-security institution. When outside the institution, medium-security prisoners must be accompanied by an armed correctional officer.
39. Minimum-custody is the lowest custody designation. There are three levels of minimum-custody: minimum-in, minimum-out, and minimum-community. Minimum-in custody prisoners may receive work assignments inside a medium- or close-custody facility, or
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off-property when supervised by a correctional officer. Minimum-out custody prisoners are eligible for work assignments off-property without the direct supervision of a correctional officer. They may be placed at community work centers or minimum security camps. Minimum-community custody prisoners are at the lowest custody level and are typically approaching the final stage of incarceration. They are supervised during their time spent at work release centers and while participating in facility activities, but need not be directly supervised at other times.
40. ADOC’s segregation policy trumps all the usual considerations that prison officials take into account in making classification decisions, and results in prisoners at different custody levels being housed together for no reason other than that they have HIV. This automatic override of standard classification principles negatively impacts prisoners’ safety and security, and denies prisoners with HIV the same opportunity afforded other prisoners to earn greater liberty and privileges through good behavior.
Current Medical Consensus Concerning Treatment of Prisoners with HIV 41. The health status of people with HIV varies widely, as does their need for medical attention. Many people who test positive for HIV remain asymptomatic for many years. Current guidelines suggest that some people with HIV may not require treatment with antiretroviral medication. These people usually require no special medical attention, other than quarterly blood tests to verify that the disease has not progressed. 42. The Centers for Disease Control, the U.S. Department of Health and Human Services, and the International AIDS Society have issued national consensus guidelines on the treatment of HIV. According to these guidelines, when blood tests show that the concentration
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of the virus in a patient’s blood has increased and the immune system has declined to certain levels, patients should consult with an HIV specialist to decide on an individualized medication regimen. Once a patient is clinically stable on a medication regimen, however, he or she will generally have a markedly reduced need for care by an HIV specialist other than a check-up once every few months, to determine whether the medication regimen needs any modification. Where services are decentralized, many correctional systems have implemented telemedicine to overcome obstacles to providing on-site medical care for HIV treatment. In other settings, providers and consultants near to the correctional facility have successfully provided comprehensive HIV care.
43. There is a broad national consensus in the medical-correctional community that segregation of prisoners merely because they test positive for HIV is unnecessary and potentially harmful. The National Commission on Correctional Health Care (“NCCHC”) counsels that medical management of prisoners with HIV should parallel that offered to persons in the community. NCCHC explains as follows:
Decisions on housing HIV-positive inmates should be based on what is appropriate for their age, gender, and custody class. NCCHC opposes routine segregated housing for HIV-positive inmates. HIV-positive inmates, like any other inmate, may require a higher level of care that may not be available at all institutions. This is a clinical judgment, based upon the acuity of care required for the patient. Patients with HIV infection may require isolation if, for example, they have pulmonary tuberculosis. HIV patients should not be medically isolated solely because of their HIV status. Nat’l Com’n on Corr. Health Care, Position Statement: Administrative Management of HIV in Correctional Institutions, (rev. Oct. 8, 2005), available at http://www.ncchc.org/resources/statements/admin_hiv2005.html. 44. Isolation of prisoners with HIV may harm the treatment outcomes for those people. People with HIV and particularly prisoners with HIV already suffer from an increased
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prevalence of depressive symptoms. See Springer SA & Altice FL, Managing HIV/AIDS in correctional settings, 2 Curr HIV/AIDS Rep 165-70 (2005); Altice FL, Kamarulzaman A, Soriano VV, Schechter M, Friedland GH, Treatment of medical, psychiatric, and substance-use comorbidities in people infected with HIV who use drugs, 376 Lancet 59-79 (2010). Segregating these individuals into dedicated HIV units is stigmatizing and humiliating. Imposing greater stigmas on them, particularly through forced disclosure of their HIV status, can compound their depressive symptoms. These depressive systems are in turn associated with worse HIV treatment outcomes.
45. Providing HIV treatment without also providing other evidence-based re-entry interventions adds to the many obstacles that individuals with HIV face upon release from prison. Re-entry to the community is a complex process that requires addressing a number of educational, vocational, psychosocial, substance abuse treatment, and medical needs, especially for those with HIV. Failing to address those needs while the person is incarcerated can ultimately lead to worse health outcomes upon release from prison. For example, a prisoner with HIV might benefit most by having access to education and vocational training programs so that he might gain reasonable access to employment on release. Alternatively, effective drug treatment may be critical to a person’s optimal HIV treatment outcome; treating the HIV but excluding him from this program will have dire consequences.
Discrimination Against Prisoners with HIV at Limestone Segregation of Prisoners with HIV at Limestone
46. Limestone is divided into three sections: A-side, B-side, and C-side. B-side, with a population capacity of over 1,000, houses general population prisoners. C-Side, with a capacity of 700, houses the Faith-Based Honor Dorm and pre-release prisoners. A-side, with a capacity
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of 637, contains the HIV living area, the senior dormitory, the healthcare unit, and the segregation cells for dangerous or difficult-to-manage prisoners and those in protective custody.
47. Prisoners who test positive for HIV are categorically excluded from the general population dormitories and are housed together in a single HIV living area on the A-side of Limestone, whatever their custody level.
Public Disclosure and Stigmatization at Limestone 48. Defendants publicly disclose prisoners’ HIV status to all other prisoners, prison
staff, and free-world visitors at Limestone, in a variety of ways. Prisoners with HIV are required to wear white armbands signifying their assignment to the HIV living area at all times, even when the prisoners are working outside the prison gates. When free-world people take tours of Limestone, correctional officers point out the prisoners with HIV and disclose their HIV status. Some family members have learned that their loved ones have HIV through these various stigmatizing practices. The stigmatization follows the prisoners into the free world, and the widespread knowledge of their medical condition may result in potential employers refusing them jobs.
49. There are two exercise yards at Limestone, A-side and B-side. Prisoners who do not have HIV are allowed to use both sides of the yard, but prisoners with HIV are restricted to recreation on the A-side of the yard. As a matter of official policy, ADOC allows prisoners with HIV and prisoners who do not have HIV to recreate together on the A-side of the yard. In practice, when prisoners who do not have HIV arrive at Limestone and go through an orientation process, security staff warns them that they should stay away from the A-side of the yard unless they want to get HIV.
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Exclusion from Limestone Senior Housing 50. General-population prisoners at Limestone who are at least forty years old and
older are eligible for housing in a seniors’ dormitory. Prisoners with HIV, however, are excluded from senior housing even if they otherwise meet the criteria. Jeffery Beyer, Louis Henderson, Albert Knox, James Douglas, and Darrell Robinson are otherwise eligible to reside in the senior dorm, but are excluded solely because of their HIV status.
Exclusion from Limestone Residential Substance Abuse Treatment Program 51. One of the dormitories at Limestone houses a residential substance abuse
treatment program (“SAP”). The residential component is an important part of substance abuse treatment programs. Experts view residential therapeutic treatment programs as among the most effective models for in-prison substance abuse treatment. See Nat’l Inst. On Drug Abuse, Research Report Series: Therapeutic Community, NIH Pub. No. 02-4877 (Aug. 2002), available at http://drugabuse.gov/PDF/RRTherapeutic.pdf. Defendants permit some prisoners with HIV to participate in classes in the residential substance abuse program at Limestone. However, Defendants exclude those prisoners from living in the dormitory with the other participants, even though the residential component is important to the efficacy of the program.
52. As noted above, Albert Knox recently participated in the residential substance abuse program, but was prohibited from living or taking meals with other program participants solely because he has HIV, and was disciplined for having lunch with his fellow participants. Prisoners with HIV are also excluded from participating in pre-treatment and aftercare with the other participants.
53. Upon information and belief, ADOC allows only a few prisoners with HIV to participate in the SAP classes at a time, regardless of how many are qualified to participate.
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54. On information and belief, prisoners without HIV may become eligible for important benefits, including placement in a work release center, once they complete the SAP program. Prisoners with HIV do not become eligible for these benefits upon completion of the program even if otherwise qualified.
Exclusion from Limestone Residential Pre-release Unit 55. General-population prisoners who are near the end of their sentence or have been
granted parole are housed in a pre-release dormitory for ninety days to participate in residential programming, intended to prepare prisoners for release by providing the life skills they will need to successfully transition from prison to the community. Prisoners with HIV attend pre-release programming only for a few weeks and even then only for a few hours a day.
Exclusion from Limestone Faith- Based Honor Dormitory 56. Limestone prisoners with good disciplinary records are eligible for housing in the
Faith-Based Honor Dorm, where they have access to coveted benefits and privileges. On information and belief, the goal of the Faith-Based Honor Dorm is to reduce recidivism, provide a program based on opportunity and responsibility for those inmates willing to make a productive change in their lives, and to provide a safe, secure, and healthy environment. On information and belief, ADOC views positively a prisoner’s participation in the Faith-Based Honor Dorm in determining his security classification, risk assessment, and job placement. On information and belief, the Parole Board also views such participation favorably in determining parole eligibility. Prisoners receive other benefits as well. For example, approximately every six months families of the prisoners housed there are permitted to visit and bring food and other items to their loved ones.
57. Prisoners with HIV are categorically excluded from the Faith-Based Honor Dorm.
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One of the segregated HIV dorms contains an area informally dubbed an “honor dorm” but the so-called HIV “honor dorm” offers none of the amenities and privileges offered to prisoners in the general population Faith-Based Honor Dorm. Jeffery Beyer, Louis Henderson, Albert Knox, and Darrell Robinson are otherwise eligible to participate in the general population Faith-Based Honor Dorm, but are prohibited solely because they have HIV.
Exclusion from Kitchen Jobs and Other Jobs at Limestone 58. Qualified general-population prisoners at Limestone are eligible for jobs in the
prison kitchen or dining room, preparing and serving meals to the prisoner population. These jobs are generally considered extremely desirable because they allow prisoners to gain marketable work skills and experience. ADOC categorically excludes prisoners with HIV from kitchen jobs. There is no medical justification for this policy, which has been expressly rejected by the scientific community. The US Centers for Disease Control and Prevention (“CDC”) states:
There is no known risk of HIV transmission to co-workers, clients, or consumers from contact in industries such as food-service establishments. Food service workers known to be infected with HIV need not be restricted from work unless they have other infections or illnesses (such as diarrhea or hepatitis A) for which any food-service worker, regardless of HIV infection status, should be restricted. CDC, “HIV and Its Transmission” (July 1999). 59. Similarly, in its compliance guidelines for restaurants and other food service employers, the Equal Employment Opportunity Commission (“EEOC”) states there is no medical basis for categorically excluding people living with HIV from jobs in the food service industry. See EEOC, “How to Comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employers” (2004), available at
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http://www.eeoc.gov/facts/restaurant_guide.html. 60. Likewise, the CDC excludes HIV from the list of diseases that can be transmitted
through the food supply. See 74 Fed. Reg. 61152-53 (Nov. 23, 2009). See also Ala. Dep’t of Public Health, Fact Sheet: Basic Facts About HIV and AIDS (undated), available at http://adph.org/aids/assets/HIVAIDSFactSheet.pdf (noting that HIV cannot be transmitted from “drinking glasses, eating utensils or towels,” or “coming into contact with . . . sneezes, coughs, tears or sweat.”).
61. The ADOC Commissioner conceded in 2010 that there is no medical rationale for the policy, and stated that the only reason ADOC excludes prisoners with HIV from food service jobs is that it believes other prisoners would dislike eating food prepared by them. Even if some prisoners were opposed to allowing people with HIV to work in food service, ADOC’s decision to base its classification policy on prisoners’ unfounded fears and prejudices lacks any legitimate penological justification and is completely at odds with basic principles of prison classification. Moreover, by deferring to prisoners’ unfounded fears and prejudices about HIV, prison officials reinforce those purported fears and prejudices.
62. ADOC’s decision to reinforce prisoners’ unfounded fears is all the more harmful because ignorance about the disease is a major contributing factor to the HIV/AIDS epidemic in the South. The shame and stigma attached to a disease that many people connect with behaviors deemed objectionable, such as homosexuality and extra-marital sex, discourages many people from being treated—or even tested—for HIV/AIDS, lest their neighbors find out. Lani Luciano, Southern Discomfort—Coping with HIV/AIDS in the South Poses Challenges (Dec. 11, 2002) available at http://www.kaisernetwork.org/daily_reports/rep_index.cfm?DR_ID=15025.
63. ADOC also excludes prisoners with HIV from a variety of other jobs at
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Limestone, including receiving runner, administrative runner, Calhoun College runner, and jobs in the store, the canteen, the hospital, the healthcare unit, farm squad, and the visitation yard. Prisoners with HIV who are assigned yard maintenance or sanitation jobs are allowed to work only on the side of the prison where prisoners with HIV are housed, whereas other population prisoners assigned to those jobs work in both yards.
Exclusion from Limestone Dining Hall 64. The dining hall at Limestone is located on the B-side of the Limestone facility,
and all General-population prisoners housed on the B-side have their meals in the dining room. General-population prisoners housed on A-side who do not have HIV also have their meals in the dining room. Meanwhile, prisoners with HIV are categorically excluded from the dining room. There are too few dining tables in the HIV dorm to accommodate all the prisoners who live there, so some must eat inside their cells or sit outside the dorm, with no access to a sanitary eating area.
Disparate Punishment at Limestone of Prisoners with HIV 65. ADOC generally manages irresolvable serious personal conflicts among general
population prisoners at Limestone by housing the prisoners in separate dorms. However, this option is unavailable for prisoners with HIV because they are relegated to a single segregated housing area. Consequently, when to prisoners with HIV have a personal conflict with each other, ADOC resorts to locking one or both of them in isolation cells.
66. Prisoners with HIV receive disciplinary citations for appearing without the white armbands that identify them as living in the HIV dormitory. Most general population inmates are not required to wear armbands identifying their dorms, and those few who are required to wear such armbands—for example, prisoners in the Faith-Based Honor Dorm are supposed to
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wear orange armbands—are either not punished or receive only mild punishment for appearing without these armbands.
Discrimination Against Prisoners with HIV at Tutwiler Segregation of Prisoners with HIV at Tutwiler
67. Of the 15 housing units at Tutwiler, prisoners with HIV are excluded from all but two: an HIV dormitory housing all custody levels together, and the “healthcare unit.” The socalled “healthcare unit” contains five holding cells, two isolation rooms used primarily to house prisoners with HIV in disciplinary segregation or isolation, and eight infirmary beds.
Public Disclosure and Stigmatization of Prisoners with HIV at Tutwiler 68. Upon arriving at Tutwiler, all prisoners are placed in the receiving unit and tested
for HIV. Those prisoners who test positive for HIV are placed in a solitary confinement cell in the so-called HIV “healthcare unit,” where they may remain for weeks. Some of these women have just learned their HIV status for the first time. Solitary confinement is in itself a traumatic experience. For a person to be moved into solitary confinement immediately after being told she has HIV can be emotionally devastating.
69. The conditions in solitary confinement for women with HIV are extremely punitive. Enforced isolation and idleness for months at a time is in itself traumatizing, and the conditions in the HIV solitary confinement cells are particularly harsh. Opportunities for showers and exercise are meager; the cells themselves are filthy, with leaking toilets and spider infestations; and prisoners in solitary confinement are exposed day and night to the screaming, raving and other outbursts of seriously mentally ill prisoners who are also housed in the so-called “healthcare unit.” Ashley Dotson, for example, was placed in an isolation room one for three and a half weeks. In that time, her clothes were never laundered and she was not allowed to leave
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isolation for any reason. The window in her isolation cell leaked whenever it rained. On one occasion, an officer saw her looking out of the window in her isolation room. He warned her that she was not allowed to look out the window, and that if she was caught again she would be charged with attempting to escape.
70. Because of ADOC’s policy of segregating all prisoners with HIV, everyone at Tutwiler knows about their medical status. Correctional officers often do not refer to prisoners with HIV by their name or institutional numbers as they do for other prisoners, but simply as “E Dorm” (which everyone knows is the dormitory where prisoners with HIV are housed). One prisoner with HIV was forced to tell her two oldest children about her HIV status after two women who had been at Tutwiler told people in her small town about her HIV status.
71. Correctional staff openly express their hostility to and fear and of people with HIV, and their ignorance of the ways in which the disease can be transmitted. They refer to the women with HIV as “AIDS bitches” or “AIDS people,” or “AIDS ass,” and state that they fear contracting AIDS if they enter the HIV dormitory without face mask and gloves.
Disparate Punishment at Tutwiler of Prisoners with HIV 72. ADOC generally manages irresolvable personal conflicts among general
population prisoners at Tutwiler by housing the prisoners in separate dorms. Because there is only one dorm designated for all prisoners with HIV, ADOC cannot assign the prisoners to separate dorms, and instead often resorts to sending to solitary confinement one or the other of the women involved in the conflict.
73. Defendant Albright has designated Melinda Washington and “Sally Roe,” another prisoner with HIV, as enemies. Rather than house them in separate dormitories, as he would if
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they were HIV-negative, he keeps one in solitary confinement and the other in the HIV dorm, rotating them once every ninety days. This practice makes it impossible for Ms. Washington to participate in programs for which she is otherwise qualified. For example, on February 16, 2011, Ms. Washington began the 8-week substance abuse program. On March 14, 2011, however, ADOC removed her from the eight-week substance abuse program and returned to solitary, for the sole reason that it was “her turn” to be housed there.
74. Similarly, Warden Albright has designated Dana Harley and fellow prisoner with HIV “Mary Jones” as enemies, and instead of assigning them to separate dormitories he keeps one prisoner in solitary confinement and the other in the HIV dorm, rotating them about once every ninety days.
Exclusion of Prisoners with HIV from the Tutwiler Medical Dormitory 75. On information and belief, women with serious medical needs requiring nursing
care or in-patient care are housed in the Medical Dorm—so long as they do not have HIV. Prisoners with HIV who have comparable medical needs are categorically excluded from the medical dorm: they are either left in the HIV dorm, or else housed in the “healthcare unit” which is a unit used primarily to house prisoners with HIV in disciplinary segregation, protective custody, or isolation.
76. In January 2011, Bonita Graham was hospitalized for three weeks due to a staph infection. Upon release from the hospital, she was held in isolation for four weeks rather than being placed in the medical dorm, where she would have been housed but for her HIV status. While in isolation Ms. Graham had no interaction with other prisoners except during the limited yard time allowed, and no staff members checked on her except when it was necessary to draw blood. If she had been housed in the medical dorm, she would have had other prisoners to
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interact with, access to a microwave and television, and more regular interactions with staff.
Exclusion of Prisoners with HIV from the Tutwiler Faith-Based Honor Dorm 77. The Faith-Based Honor Dorm at Tutwiler is a residential program designed to
help prisoners develop life skills, personal growth, and accountability with outcomes of positive personal, family, institutional, and community relationships. The objective of the Faith-Based Honor Dorm is to provide prisoners the opportunity to demonstrate their willingness to pursue positive productive change in an atmosphere conducive to this change. The goal of the FaithBased Honor Dorm is to reduce recidivism, provide a program based on opportunity and responsibility for those inmates willing to make a productive change in their lives, and provide a safe, secure, and healthy environment which can be supervised with minimal security. On information and belief, ADOC and the Parole Board view participation in the Faith-Based Honor Dorm favorably in determining security classification, risk assessment, job placement, classification review, and parole eligibility. Otherwise qualified prisoners with HIV, including Bonita Graham, are categorically excluded from the Faith-Based Honor Dorm.
Exclusion of Prisoners with HIV from the Residential Component of the Tutwiler Substance Abuse Dormitory
78. The substance abuse dorm houses general population prisoners who are participating in the 8-week Substance Abuse Program (“SAP”), and also in the six-month Crime Bill Substance Abuse Program (“CB SAP”), which is funded by the federal government. Prisoners with HIV are categorically excluded from the residential component of these programs. They are allowed to participate for instruction but must return to the HIV dormitory to sleep— and even to use the bathroom. Exclusion of Prisoners with HIV from Tutwiler Kitchen Jobs
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79. Otherwise-qualified prisoners with HIV are prohibited from holding jobs in the kitchen and the laundry, solely because they have HIV.
Exclusion of Prisoners with HIV from Community Corrections 80. The Community Corrections Program (“CCP”) offers prisoners who can be safely monitored in the local community the opportunity to work in the community during the day, returning at night to a county jail. There are currently 34 community corrections programs in Alabama. According to statistics compiled by the ADOC, it costs only about $13 per day to supervise and house a person in the CCP, compared to $41.47 per day for incarceration in an ADOC prison. On information and belief, all qualified prisoners with HIV are categorically excluded from the CCP. The institutional diversion officer at Houston County Community Corrections told a prisoner with HIV who is otherwise eligible for CCP, “due to your medical condition and disability HCCC is not going to be able to accept you in any of our programs.” This prisoner does not have any medical condition or disability other than HIV.
Discrimination Against Prisoners with HIV in Work Release 81. ADOC has a work release program, which offers prisoners the opportunity to reside in low security facilities while working for either a state or a private employer. Prisoners are permitted to keep a percentage of their wages while demonstrating responsibility and establishing a relationship that might lead to employment when their sentence is complete. 82. According to ADOC’s Work Release policy, “The fundamental purposes of Alabama’s work release program are to assist selected prisoners in preparing for release and to aid in making the transition from a structured institutional environment back into the community.”
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83. Although there are eleven work release centers in Alabama— nine for men, two for women—ADOC permits men with HIV to be assigned only to the center in Decatur and women to be assigned only to the work release center at the Montgomery Women’s Facility. General-population prisoners with a six month clear record are eligible to apply for a lateral transfer. Lateral transfers are granted to general-population prisoners in order to place the prisoners closer to their families and to increase their job opportunities. Prisoners with HIV are categorically ineligible for lateral transfers to other work-release centers. Restriction to a single center unnecessarily limits their job opportunities and prevents prisoners with HIV from getting a job near their home and family. Limitation to a single facility may also limit the number of prisoners with HIV who can participate in work release once the single center reaches its capacity.
84. Even when prisoners with HIV are admitted to the work release program, ADOC discriminates against them in job placement. ADOC refuses to place prisoners with HIV in food service jobs, which constitute the majority of jobs available to prisoners placed at the Montgomery Women’s Facility and a substantial number of the jobs available at Decatur Work Release. Jobs with a paper company are also available to women in Montgomery Women’s Facility who do not have HIV; ADOC either discriminatorily refuses to place prisoners with HIV with the paper company, or else acquiesces in the discriminatory refusal of the paper company to accept women workers with HIV. A correctional officer told a woman with HIV that she could not work in the paper factory because she might get a paper cut.
85. Because of ADOC’s policy of segregation, the other prisoners at Decatur Work Release and Montgomery Women’s Facility already know the HIV status of newly-arriving prisoners. Around June 2010, an inmate from Limestone Correctional Facility disclosed Plaintiff
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Hicks’ HIV status to all of the other inmates at Decatur Work Release. Correctional officers at Decatur Work Release also know which inmates have HIV. A correctional officer at Montgomery Women’s Facility told one inmate with HIV not to touch him because she had “that stuff.” Another prisoner with HIV previously housed at Montgomery Women’s Facility believes that she was never assigned a job because of status-based discrimination by Warden Ellington; he told her that he was concerned other prisoners would talk about her HIV status on the job, and that this would end up adversely affecting ADOC.
86. ADOC’s work release policy for prisoners with HIV also imposes unnecessarily restrictive medical clearance criteria. If not taking HIV medications, prisoners with HIV must have “a viral load of less than 1,000 and a CD4 count greater than 700.” This arbitrarily high threshold prevents otherwise qualified prisoners with HIV from participating in work-release programs, without medical justification. Furthermore, prisoners who are on HIV medication must have successfully participated in the Keep On Person (“KOP”) medication program for six consecutive months or more prior to going to work release, and have a viral load of “less than 48 for four consecutive readings, and a CD4 count greater than 450,” to be eligible for work release. In practice, this means that it can take up to a year for a prisoner to obtain the requisite four consecutive readings to become eligible for work release since ADOC provides readings only at three-month intervals.
87. As a result of the arbitrary thresholds for those who do not need medication, some prisoners with HIV are excluded from work release because, paradoxically, they are too healthy to need HIV medications. For example, Plaintiff Darrell Robinson has been made to choose between foregoing work-release and undergoing premature, medically unnecessary HIV treatment. Defendants’ HIV specialist decided that Mr. Robinson has no current medical need
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for HIV medications, because his CD4 court is between 600 and 700, and his viral load is stable at 3000. Yet ADOC’s arbitrary medical eligibility criteria for work release require Mr. Robinson to start taking HIV medications, with all their potential risks and side effects, despite the lack of medical need. Similarly, Plaintiff Albert Knox has been told that he will not be medically cleared until he begins taking HIV medication, even though he has never medically required HIV medication.
88. ADOC’s arbitrary medical clearance policy affects not only eligibility for work release, but also custody levels more generally. Prisoners with HIV who are qualified for the least restrictive custody levels, minimum-out or minimum-community, instead receive the more restrictive custody level of minimum-in, solely because they have not been medically cleared for work release.
89. Furthermore, prisoners with HIV who meet the ADOC eligibility criteria for work release are often barred from transfer to work release centers for no apparent reason other than their HIV status. Upon information and belief, ADOC has never admitted more than a handful of men with HIV to the work release—perhaps fewer than twelve in total. ADOC recently allowed four prisoners with HIV to be transferred to the Decatur Work Release Center. Before that, it had been almost a year since ADOC had placed any men with HIV in the Decatur Work Release Center, even though several men with HIV were eligible for placement in work release, including Plaintiffs Louis Henderson, Jeffery Beyer, and Darrell Robinson. During that time, general population inmates continued to be placed in the Decatur Work Release Center. Upon information and belief, HIV prejudice, not a lack of bed space, is the reason for this disparity; there is bed space for at least fifteen other prisoners in the dorm where John Hicks was recently housed, in addition to space in the other dormitories at Decatur Work Release Center.
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90. ADOC did not transferred any women with HIV to the Montgomery Women’s Facility for work release from approximately August 2009 until July 2011. In mid-July 2011, ADOC transferred one inmate with HIV to the Montgomery Women’s Facility less than a month before her EOS date. Ashley Dotson was otherwise eligible for work release from December 2010 until her release from ADOC custody on parole in May 2011. When she was medically cleared for work release in late March 2011 correctional officers told her that because of her HIV status she would not be transferred to the Montgomery Women’s Facility. Upon information and belief, only four women with HIV have ever been sent to Montgomery Women’s Facility.
Discriminatory Exclusion of Prisoners with HIV from Other ADOC Facilities 91. Limestone is one of approximately 27 prisons that ADOC maintains for male prisoners. Some offer unique programs, privileges, services and activities that are unavailable at Limestone. General-population prisoners with a six month clear record are eligible to apply for a lateral transfer. Lateral transfers are granted to general-population prisoners in order to place the prisoners closer to their families and to allow them to participate in programs, services, and activities not offered at their current institution. Yet all male prisoners with HIV, even if they are otherwise eligible and qualified, are categorically excluded from transferring to those facilities and participating in the programs, services, and activities offered there. 92. For example, prisoners with HIV are excluded from the Frank Lee Youth Center in Deatsville, Alabama. The Youth Center is a minimum-security facility, intended to architecturally resemble a school rather than a prison. Frank Lee houses first offenders who are forty years old or less; have never committed a sex offense or a violent offense involving serious injury to the victim; have a sentence of 20 years or less; and are eligible for minimum-out custody. Prisoners assigned to the Youth Center on a long-term basis are eligible to attend a trade
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school for vocational training or GED and perform free labor in community work squads with neighboring municipalities. Frank Lee Youth Center offers trade classes in cabinet making, carpentry, commercial foods, electrical technology, furniture restoration, and plumbing. None of these trades are available to the men at Limestone.
93. Prisoners with HIV are also categorically excluded from the Alabama Therapeutic Education Center (“ATEF”) in Thomasville, Alabama and Columbiana, Alabama, which offer special vocational classes. ATEF trains inmates to be placed in skilled jobs once they are released into society or are eligible for work release. The trades taught at these prisons include carpentry, roofing, dry wall, painting, framing, electrical, plumbing, tile and masonry, fork lift operation, cabinet making, and barbering. Not all of these trades are taught at Limestone. Participation in trades improves the job possibilities for inmates upon release and the classification and parole boards look favorably upon it.
94. Prisoners with HIV are categorically excluded from Ventress Correctional Facility, located in Clayton, Alabama. Ventress houses prisoners with medium-custody or below, and makes available a number of substance abuse programs including a secular eightweek treatment class, and a 15-week program for inmates with dual disorders, neither of which is offered at Limestone. Ventress also offers academic and vocational educational programs, including heating and air conditioning and small engine repair, which are provided by the nearby Sparks Technical College and are not available at Limestone. In addition, Ventress provides community services to city, county and state agencies—opportunities not available at Limestone.
95. Prisoners with HIV are categorically excluded from St. Clair Correctional Facility in Springville, Alabama. St. Clair makes available a Therapeutic Community Substance Abuse Program that is not available at Limestone. The Alabama Correctional Industries operates a
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vehicle restoration facility and a chemical plant inside St. Clair. The facility provides on-site classroom settings for academic/vocational educational programs, including electrical technology and furniture restoration, which are provided by Gadsden State Community College and are not available at Limestone. St. Clair also provides a total care medical infirmary with complete dental care, dialysis, a cancer unit, emergency room, and diagnostic services that are not available at Limestone.
96. Prisoners with HIV are categorically excluded from the Hamilton Aged and Infirmed Center (“HAIC”), located in Hamilton, Alabama. HAIC has approximately five acres within a security fence, and houses minimum and medium custody inmates who are aged or infirm. A staff of minimum custody inmates provide facility upkeep and community work.
97. Prisoners with HIV are categorically excluded from Elmore Correctional Facility, located just north of Montgomery. Elmore is the recycling headquarters for ADOC and also maintains compost for the local area. Inmates classified as minimum-in custody work upon the institution’s property while under the supervision of ADOC employees; minimum-out inmates may work off the property under free-world supervision. Inmates employed on renovation crews of the Alabama Correctional Industries are housed at their work sites until weekends and holidays when they are returned to the institution. Elmore provides trade classes in barbering, cabinet making, carpentry, commercial foods, electrical technology, furniture restoration, and plumbing, which are not available at Limestone.
98. Prisoners with HIV are categorically excluded from the Farquhar Cattle Ranch, located approximately eight miles east of Greensboro. The Ranch houses minimum-custody inmates, who, when not working on the Ranch, work on community work projects for county, city, and other government agencies.
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99. Prisoners with HIV are categorically excluded from Donaldson Correctional Facility, located just west of Birmingham. Donaldson offers trade classes in barbering, carpentry, electrical technology, plumbing, and special education. These classes are not offered at Limestone.
100. Prisoners with HIV are categorically excluded from Draper Correctional Facility, located just north of Montgomery. Draper’s stated goal is to maintain an appropriate level of security that will eliminate escapes and present no dangerous threats to the community, while at the same time providing adequate housing, education and productive work for the inmates. Each inmate has an assigned job within the institution, on a large farming operation, a furniture plant, or a vehicle garage. Draper offers trade school programming in barbering, cabinet making, carpentry, commercial foods, electrical technology, furniture restoration, plumbing, and special education, which are not available at Limestone.
101. Prisoners with HIV are categorically excluded from JO Davis Correctional Facility (“Fountain”), located about seven miles north of Atmore on State Highway 21. Fountain maintains cattle, agricultural operations, and vegetable gardens. Additionally, the facility offers vocational programs through the nearby Jefferson Davis Community College, including barbering, cabinet making, commercial foods, plumbing, and small engine repair. These vocational programs are not available at Limestone. Fountain also offers a Relapse Treatment program designed for inmates who have completed one of the other ADOC drug treatment programs and have experienced relapse, either by a failure to remain abstinent or by failing to remain engaged in the recovery process. Utilizing evidence-based practices, the relapse treatment program focuses on post-acute withdrawal recognition and management, relapse warning sign identification and analysis, development of refusal skills, high risk situation
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identification and management, relapse prevention strategies, and relapse plan development. A relapse program is not available at Limestone.
102. Prisoners with HIV are categorically excluded from Staton Correctional Center, located just north of Montgomery. Staton offers courses in Adult Basic Education, literacy, and special education, college classes, and vocational training programs in auto body and heavy equipment repair, barbering, commercial food service, cabinet making, electrical technology, furniture restoration, and plumbing. None of these trade school courses are available at Limestone. Staton offers an eight-week matrix stimulant program, which targets the needs of prisoners with a history of methamphetamine and other stimulant dependency. This substance abuse program is not available at Limestone.
103. Prisoners with HIV are categorically excluded from Easterling Correctional facility, located near Clio on Highway 10. Easterling has a dorm dedicated to drug treatment for prisoners who have a history of substance abuse. The program includes a six month secular substance abuse program and secular aftercare. Secular treatment and aftercare is not available at Limestone. Easterling also provides vocational and educational programs through Sparks State Technical College, where prisoners can learn such trades as industrial electricity, cabinet making, and plumbing. Programs for learning these trades are not available at Limestone.
104. Many states have shown that HIV care can be distributed throughout a correctional system without incurring undue expense. For instance, in many states where prisons are located remotely from the urban centers where HIV specialists are typically located, telemedicine has been effectively used to ensure adequate health care irrespective of location. In other states, centers of excellence are created near the urban centers where HIV specialists work. In this way, HIV specialists may be contracted on a part-time basis to provide care within each
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geographical locale. These models are most effective when experienced HIV specialists provide clear and standardized guidelines for routine care, monitoring, follow-up and regular review.
HIV is a Disability Within the Meanings of the ADA and the Rehabilitation Act 105. HIV is an impairment of the immune system that substantially limits a person with HIV in one or more major life activities. It is therefore a disability within the meanings of 42 U.S.C. § 12102(1)(A) and 29 U.S.C. § 705(9)(B).
Federal Financial Funding 106. ADOC receives federal financial assistance. This assistance includes grants from the U.S. Department of Justice and the U.S. Department of Energy.
Class Action Allegations 107. Each of the named plaintiffs is a prisoner with HIV in the custody of ADOC, who brings this action on their own behalf and on behalf of all other prisoners with HIV in the custody of ADOC, now and in the future. 108. The class is so numerous that joinder of all members is impractical. ADOC currently has approximately two hundred sixty prisoners with HIV in its custody. The class also includes many future members as the facility regularly admits new prisoners with HIV. 109. There are questions of law and fact common to all class members, including but not limited to the following: whether the rights of Alabama prisoners with HIV under Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. §794, to be free of HIV-based discrimination, are violated by Defendants’ policy and practice of segregating prisoners with HIV, excluding them on the basis of their HIV status from prison programs, jobs, activities and privileges, and publicly disclosing
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their HIV status. 110. Because the policies and practices challenged in this Complaint apply with equal
force to the named Plaintiffs and the other members of the class, the claims of the named Plaintiffs are typical of the class in general.
111. The named Plaintiffs will fairly and adequately represent the interests of the class. They possess a strong personal interest in the subject matter of the lawsuit and are represented by experienced counsel with expertise in class action prison-conditions litigation in federal court, including class action litigation on the subject matter of this lawsuit. Plaintiffs’ counsel has the legal knowledge, experience and resources to fairly and adequately represent the interests of all class members in this action.
112. Defendants have acted or refused to act on grounds generally applicable to the class. Their policies, practices, acts and omissions have affected all class members. Accordingly, final injunctive and declaratory relief is appropriate to the class as a whole.
CAUSE OF ACTION 113. Defendants are violating Plaintiffs’ rights under Title II of the ADA and Section 504 of the Rehabilitation Act, by subjecting them to discrimination solely on the basis of their testing HIV-positive, and by excluding them from participation in, or denying them the benefits of, ADOC services, programs or activities for which Plaintiffs are qualified, because they have HIV. The actions and omissions which violate Plaintiffs’ rights under these statutes include the following: a) Denying Plaintiffs the opportunity to participate in or benefit from services, facilities, privileges and advantages for which they are qualified, because they have HIV;
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b) Denying Plaintiffs equal opportunity to participate in or benefit from services, facilities, privileges and advantages for which they are qualified, because they have HIV;
c) Providing Plaintiffs with benefits or services that are not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to prisoners who do not have HIV;
d) Applying eligibility criteria that screen out prisoners who are HIV seropositive from fully and equally enjoying services, facilities, privileges, advantages, and accommodations provided by ADOC to prisoners who do not have HIV;
e) Failing to make reasonable accommodations in policies, practices, and procedures when the modifications are necessary to avoid discrimination on the basis of disability;
f) Failing to administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified prisoners with HIV;
g) Depriving prisoners with HIV of visitation by family members by placing them in distance facilities where they would not otherwise be housed;
h) Denying prisoners with HIV the opportunity to equally participate in or benefit from work-release programs through its arrangements with work-release employers;
i) Through contractual or other arrangements with work-release employers, utilizing criteria or methods of administration that have the effect of subjecting qualified individuals with HIV to discrimination on the basis of their HIV status;
j) Aiding or perpetuating discrimination against prisoners with HIV, by providing significant assistance to work-release employers that discriminate on the basis of HIV status.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that the Court:
a) Certify, pursuant to Fed. R. Civ. P. 23(b)(2), a class consisting of all prisoners in the custody of the Alabama Department of Corrections, now and in the future, who have tested positive for HIV;
b) Declare that ADOC’s HIV segregation policy violates Title II of the ADA and Section 504 of the Rehabilitation Act;
c) Enjoin Defendants, their officers, agents, employees and all other persons in active concert and participation with Defendants from engaging in discriminatory policies and practices against Plaintiffs on the basis of their HIV status;
d) Grant reasonable attorney’s fees and litigation costs pursuant to 42 U.S.C. § 12205 and other applicable law;
e) Order such other and further relief as the interests of justice require.
RESPECTFULLY SUBMITTED:
/s/_Allison E. Neal_________________________ ALLISON E. NEAL (AOC #NEA008) AMERICAN CIVIL LIBERTIES UNION OF ALABAMA FOUNDATION 207 Montgomery Street, Suite 910 Montgomery, Al 36104 Phone: (334) 265-2754 Ext. 203 Fax: (334) 269-5666 MARGARET WINTER (DC Bar No.174805) mwinter@npp-aclu.org CARL TAKEI (DC Bar No. 987672) ctakei@npp-aclu.org THE NATIONAL PRISON PROJECT OF THE
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ACLU FOUNDATION, INC. 915 15th Street, N.W., Seventh Floor Washington, D.C. 20005 Tel. (202) 393-4930; fax (202) 393-4931

ROSE SAXE (SDNY No. RS 0463) rsaxe@aclu.org THE AIDS PROJECT OF THE FOUNDATION, INC. 125 Broad Street, Eighteenth Floor New York, N.Y. 10004 Tel. 212-549-2500; fax 212-549-2650

ACLU

ROBERT D. SEGALL (ASB-7354-E68R) segall@copelandfranco.com COPELAND, FRANCO, SCREWS & GILL, P.A. P.O. Box 347 Montgomery, Alabama 36101-0347 Tel. (334) 834-1180; fax (334) 834-3172

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CERTIFICATE OF SERVICE I hereby certify that on this 29th day of September 2011, I filed a true copy of the foregoing Second Amended Class Action Complaint for Declaratory and Injunctive Relief with the Court using the CM/ECF electronic filing system, which will automatically forward a copy to counsel for Defendants: Anne Adams Hill Anne.Hill@doc.alabama.gov, court.orders@doc.alabama.gov David Berman Block dblock@maynardcooper.com Janine Alicia McKinnon jmckinnon@maynardcooper.com Mitesh Shah mshah@maynardcooper.com Scott Lee Rouse scott.rouse@doc.alabama.gov William Richard Lunsford blunsford@maynardcooper.com, kwarman@maynardcooper.com
/s/ Allison E. Neal___________________ ALLISON E. NEAL
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 Case 2:11-cv-00224-MHT-WC Document 188 Filed 08/30/12 Page 1 of 22

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

LOUIS HENDERSON, et al.,
Plaintiffs,
v.
KIM THOMAS, Commissioner, Alabama Department of Corrections, et al.,
Defendants.

)

)

)

) CIVIL ACTION NO.

)

2:11cv224-MHT

)

(WO)

)

)

)

)

)

OPINION AND ORDER The plaintiffs are eight HIV+ inmates who challenge the policy of the Alabama Department of Corrections of segregating HIV+ inmates from the general prison population. The plaintiffs claim that the defendants (the ADOC Commissioner and four wardens) have discriminated against them on the basis of a disability (HIV+ status) in violation of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794.

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Jurisdiction is proper under 28 U.S.C. § 1331 (federal question).
The case is currently before the court on the plaintiffs’ motion for certification of a class consisting of all present and future HIV+ inmates incarcerated in ADOC prisons. For the reasons that follow, the court will certify this class under Federal Rule of Civil Procedure 23(a) and (b)(2).
I. CLASS-CERTIFICATION STANDARD Federal Rule of Civil Procedure 23 “establishes the legal roadmap courts must follow when determining whether class certification is appropriate.” Valley Drug Co. v. Geneva Pharmaceuticals, Inc., 350 F.3d 1181, 1187 (11th Cir. 2003). The party seeking to maintain the class action bears the burden of demonstrating that all the requirements of Rule 23 have been met. Id. “A class action may be maintained only when it satisfies all the requirements of Fed. R. Civ. P. 23(a)
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and at least one of the alternative requirements of Rule 23(b).” Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir. 1997) (footnotes omitted). Failure to establish any one of the four prerequisites under Rule 23(a) and at least one of the alternative requirements of Rule 23(b) precludes class certification. Valley Drug , 350 F.3d at 1188.1
The court's role at the class-certification stage is not to decide the merits of the case, but rather to determine whether the purported class representative satisfies the procedural requirements for class certification. See Eisen v. Carlisle & Jacquelin , 417 U.S. 156, 177-78 (1974). However, “the trial court can and should consider the merits of the case to the degree
1. The prerequisites to a class action are numerosity, commonality, typicality, and adequacy of representation. Fed. R. Civ. P. 23(a). Here, the plaintiffs seek a class certified under Rule 23(b)(2), which is appropriate when “the party opposing the class 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.”
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necessary to determine whether the requirements of Rule 23 will be satisfied.” Valley Drug , 350 F.3d at 1188 n.15.
II. BACKGROUND The eight plaintiffs (Louis Henderson, Dana Harley, Darrell Robinson, Dwight Smith, Albert Knox, James Douglas, Alqadeer Hamlet, and Jeffery Beyer) are inmates who have been diagnosed with HIV. They allege that ADOC maintains a policy that segregates them from the general prison population and discriminates against them on the basis of a disability, namely their HIV status. They seek to represent and have certified a class to pursue their statutory claims. They seek declaratory and injunctive relief requiring the defendants to end these allegedly illegal practices. Alabama law requires HIV testing for all prisoners. 1975 Ala. Code §§ 22-11A-17 & 22-11A-38. Alabama law, however, is silent on the segregation of HIV+ prisoners.
4

Case 2:11-cv-00224-MHT-WC Document 188 Filed 08/30/12 Page 5 of 22
The defendants’ HIV-segregation policy dictates that HIV+ inmates are housed in separated accommodations, both inter- and infra-facility and regardless of security classification.
Alabama has five levels of prisoner classification: close-custody, medium, minimum-in, minimum-out, and minimum-community. Security classification is a multifactor analysis that includes an individual’s criminal history, past convictions, past violence, length of sentence, and pendency of unresolved charges. Atchison Affidavit (Doc. No. 47-1) ¶ 3.
Close-custody is “reserved for prisoners who have demonstrated severe behavioral problems, some prisoners sentenced to life without parole, and some detainees awaiting trial or sentencing for capital offenses.” Second Amended Complaint (Doc. No. 61) ¶ 37. Mediumcustody prisoners are held at medium- or close-security institutions and are housed in double-occupancy cells or
5

Case 2:11-cv-00224-MHT-WC Document 188 Filed 08/30/12 Page 6 of 22
dormitories. Medium-custody prisoners may receive work assignments inside a secure facility.
The “minimum” classification includes three subparts, all of which permit some type of work outside a secure facility. Most important for present purposes, only minimum-out and minimum-community inmates may transfer to a work-release center. Atchison Affidavit (Doc. No. 47-1) ¶ 5.
The plaintiffs allege that, despite this classification system, all HIV+ inmates are housed in four facilities. Male HIV+ inmates are housed at either Limestone Correctional Facility or Decatur Work Release/Community Work Center. Female HIV+ inmates are housed at either Julia Tutwiler Prison for Women or the Montgomery Women’s Facility.
The centerpiece of Alabama’s segregation policy is that HIV+ prisoners are housed at certain facilities and completely barred from others. For instance, male inmates who have a six-month clear record may apply to
6

Case 2:11-cv-00224-MHT-WC Document 188 Filed 08/30/12 Page 7 of 22
transfer to a facility closer to their families. Id . ¶ 13. While no inmate has a right to transfer, HIV+ male inmates are prohibited entirely from transferring. Thus, the male plaintiffs are barred from approximately two dozen facilities around the State.
The HIV-segregation policy is replicated within facilities. At Limestone, all HIV+ prisoners are housed on the A-side. HIV+ prisoners, therefore, are excluded from the general population area in B-Side and the FaithBased Honor Dorm in C-Side. They are also barred from the senior dormitory in A-Side. Limestone separates HIV+ prisoners by forcing them to wear white armbands, thereby disclosing their health status to fellow prisoners, staff, and visitors.
Because Alabama has far fewer female inmates, it maintains only one secure institution (Julia Tutwiler Prison for Women) and two work-release facilities for women. Within Tutwiler, HIV+ prisoners are housed in two of 15 housing units: an HIV dormitory and the healthcare
7

Case 2:11-cv-00224-MHT-WC Document 188 Filed 08/30/12 Page 8 of 22

unit. Despite these differences in institutional

setting, the HIV-segregation policy as applied to females

mirrors the male counterpart.

The plaintiffs further allege that ADOC utilizes a

discriminatory medical-clearance policy when deciding

which inmates to send to work-release facilities.

According to the plaintiffs, the policy forces inmates to

start antiretroviral medications before their viral loads

require it. Second Amended Complaint (Doc. No. 61) ¶ 86.

The plaintiffs, therefore, allege discriminatory

treatment in transferring male prisoners to Decatur Work

Release and female prisoners to Montgomery

Women’s

Facility. Id. ¶¶ 89-90.

Additionally, the plaintiffs claim that ADOC’s

segregation policy impacts certain programs. HIV+

inmates, for example, are barred from the residential

component of any program, such as Limestone’s substance-

abuse program. And by implication, the plaintiffs are

barred from programs at the majority of ADOC’s prisons.

8

Case 2:11-cv-00224-MHT-WC Document 188 Filed 08/30/12 Page 9 of 22
The HIV-segregation policy extends beyond residential areas and prohibits HIV+ inmates from obtaining foodservice employment. Finally, the plaintiffs assert that the HIV-segregation policy results in disparate punishment and the unlawful disclosure of their medical status.
The court offers this background based on the evidence presented so far on the class-certification motion. This background is, of course, not binding on the court at trial. The court also recognizes that the named plaintiffs may have changed, and are changing, since the court began considering the class-certification motion. But the ultimate question is whether these are class members who are currently subject to the defendants’ alleged discriminatory policy, with perhaps a change in class representation. Nevertheless, to the extent the evidence at trial differs materially from this background, the defendants may ask the court to revisit the class-certification issue.
9

Case 2:11-cv-00224-MHT-WC Document 188 Filed 08/30/12 Page 10 of 22
III. DISCUSSION The plaintiffs seek certification pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2). The court addresses each requirement for class certification in turn.
A. Numerosity Numerosity is satisfied if joinder of all class members would be impracticable. Courts have held that classes containing 41 or more members are usually sufficiently large under Fed. R. Civ. P. 23(a)(1). See, e.g., Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986). Moreover, the fluid nature of a plaintiff class--as in the prison-litigation context-counsels in favor of certification of all present and future members. See Kilgo v. Bowman Transp. Inc. , 789 F.2d 859, 878 (11th Cir. 1986) (affirming a certified class of 31 present members and future members, who could not be identified); Green v. Johnson , 513 F. Supp. 965,
10

Case 2:11-cv-00224-MHT-WC Document 188 Filed 08/30/12 Page 11 of 22
975 (D. Mass. 1981) (Freedman, J.) (finding numerosity after considering “the fact that the inmate population at these facilities is constantly revolving”).
Here, the plaintiffs have submitted evidence, and the defendants concede, that approximately 260 ADOC inmates are HIV+. The plaintiffs, therefore, easily satisfy the numerosity requirement.
The defendants respond by parsing the plaintiffs’ proposed class in multiple ways. For instance, the defendants contend that 180 of the 260 HIV+ inmates are ineligible for work release because of their security classification. Defendants’ Brief (Doc. No. 47) at 45. But this still leaves approximately 80 HIV+ inmates who are eligible for a work-release transfer, a number that easily satisfies Rule 23(a)(1). The defendants’ argument does not even speak to the plaintiffs’ broader claim to be eligible to transfer to other ADOC prisons or to even move within Limestone or Tutwiler.
11

Case 2:11-cv-00224-MHT-WC Document 188 Filed 08/30/12 Page 12 of 22
Relatedly, the defendants assert that at least one named plaintiff must be eligible for and seek a specific program to satisfy the numerosity requirement. The defendants misconstrue the plaintiffs’ claims. The plaintiffs challenge ADOC’s HIV-segregation policy as a policy, not as an atomized list of discriminatory decisions. They contend that the defendants’ HIVsegregation policy violates federal anti-discrimination statutes in various ways: inter- and intra-facility segregation; discriminatory criteria for assignment to work release; exclusion from food-service jobs and residential components of programs; disparate punishment; and public revelation of private medical information.
As to each of these claims, the named plaintiffs have a representative. Within Limestone and Tutwiler, the plaintiffs seek re-assignment to other dorms, such as the senior dorm and the honor dorm. ADOC also permits inmates to request transfers to other secure facilities for vocational programs or to be closer to family. See
12

Case 2:11-cv-00224-MHT-WC Document 188 Filed 08/30/12 Page 13 of 22
Atchison Affidavit, Doc. No. 47-1, ¶ 13. Several of the named plaintiffs–-Henderson, Robinson, Smith, and Douglas–-are eligible for and seek transfer to another ADOC secure facility.
Regarding work-release, two named plaintiffs–Robinson and Douglas--are eligible based upon their security classifications but have been denied transfer because of defendants’ allegedly discriminatory medicalclearance policy. Plaintiff Henderson contends that defendants’ refusal to lower his security classification and therefore assign him to work release is based on his HIV status. Additionally, plaintiff Smith, who was transferred to Decatur Work Release only recently, seeks assignment to a work-release facility closer to his family’s home in Atlanta.
Turning to programs, the male plaintiffs seeking transfer to other prisons are excluded from programs unique to those institutions. The defendants’ policy also precludes HIV+ inmates from working in the food-service
13

Case 2:11-cv-00224-MHT-WC Document 188 Filed 08/30/12 Page 14 of 22
industry. Plaintiff Hamlet, who has prior experience in this field, is currently housed at Decatur Work Release, but is barred from these jobs. The plaintiffs’ disparate-punishment claim is represented by Knox, who was disciplined for attempting to eat in the general population chow hall-–which he is prohibited from doing solely because of his HIV status. And the plaintiffs’ unlawful-disclosure claim is satisfied by Hamlet, whose HIV+ status prevents him working in the food-service industry at Decatur Work Release.
Finally, the defendants object to the inclusion of female HIV+ prisoners in the class. Currently, there are approximately 10 female prisoners diagnosed with HIV. Defendants’ Brief (Doc. No. 47) at 48-49. The defendants contend that the female HIV+ population is too small and their circumstances too unique to warrant inclusion in the plaintiffs’ class.
To be sure, Tutwiler’s status as the sole secure facility for women in Alabama changes the analysis to an
14

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extent. But HIV+ female inmates, like their male counterparts at Limestone, are segregated within Tutwiler. They are also limited to one of two workrelease centers. Thus, female HIV+ prisoners face the same allegedly discriminatory policy as male inmates–only the institutional context is different.
The court recognizes that the defendants contend that the plaintiffs’ challenge to the defendants’ overall ‘policy,’ rather than to each program, is not actionable. With this opinion, the court does not resolve the issue of whether the plaintiffs’ approach is appropriate. The court has merely assumed such, and, if the plaintiffs’ claims lack merit, they will lose.
B. Commonality and Typicality The “‘commonality and typicality requirements of Rule 23(a) tend to merge.’” Wal-Mart Stores, Inc. v. Dukes , 131 S. Ct. 2541, 2552 n.5 (2011) (quoting General Telephone Co. of the Southwest v. Falcon , 457 U.S. 147,
15

Case 2:11-cv-00224-MHT-WC Document 188 Filed 08/30/12 Page 16 of 22
157 n.13 (1982)). Both inquiries ask “‘whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.’” Id.
Here, the plaintiffs claim that they have the same disability and that the defendants ’ HIV segregation policy affects them in similar ways. For example, every plaintiff is barred from transferring within their secure facility and all male plaintiffs are prohibited from applying to transfer to another secure facility. Plaintiffs eligible for work release–-both male and female–-are subject to the same allegedly discriminatory medical-clearance policy and may only transfer to one work-release facility.
The factual differences between the plaintiffs are minor and do not rise to the level to defeat class certification. See Kornberg v. Carnival Cruise Lines,
16

Case 2:11-cv-00224-MHT-WC Document 188 Filed 08/30/12 Page 17 of 22
Inc., 741 F.2d 1332, 1137 (11th Cir. 1984) (“A sufficient nexus is established if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory. ... A factual variation will not render a class representative's claim atypical unless the factual position of the representative markedly differs from that of other members of the class.”). Most significantly, the named plaintiffs’ legal claim-–that the defendants are engaged in disability discrimination in violation of the ADA and Rehabilitation Act–-is identical to the class’s claim. See Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279 n.14 (11th Cir. 2000) (noting that “a strong similarity of legal theories will satisfy the typicality requirement despite substantial factual differences”) (internal quotation marks omitted). Thus, the plaintiffs have satisfied the commonality and typicality requirements.
17

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C. Adequacy of Representation Under Rule 23(a)(4), the adequacy-of-representation 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 Pharmaceuticals, Inc., 350 F.3d 1181, 1189 (11th Cir. 2003) (internal quotation marks and citation omitted). The fact that the plaintiffs have satisfied the commonality and typicality requirements is strong evidence that they adequately represent the class. See Wal-Mart, 131 S. Ct. at 2552 n.5 (quoting Falcon, 457 U.S. at 157 n.13). The defendants, however, foresee a potential conflict of interest between the named plaintiffs and the class. The defendants point to certain living conditions and medical treatment received by HIV+ inmates pursuant to a now-expired consent decree. See Settlement Agreement, Leatherwood v. Campbell, No. CV-02-BE-2812-W (N.D. Ala.
18

Case 2:11-cv-00224-MHT-WC Document 188 Filed 08/30/12 Page 19 of 22
Apr. 24, 2004) (Bowdre, J.). Specifically, the defendants note that Limestone’s HIV-dorm is less crowded than other dorms and that HIV+ inmates receive better food than other prisoners. Mitchem Affidavit (Doc. No. 47-2) ¶¶ 3-4. The defendants assert that some HIV+ inmates may prefer their present accommodations to the right not to be discriminated against on the basis of a disability.
The defendants present an illusory choice. The Leatherwood consent decree addressed alleged Eighth Amendment violations in HIV healthcare at Limestone and expired in 2006. Notwithstanding any relief that may be ordered in this case and the expiration of the Leatherwood consent decree, the defendants are still obliged to provide HIV+ inmates a constitutionally adequate level of care. The Eighth Amendment and federal anti-discrimination statutes are not mutually exclusive.
Moreover, “the conflict must be more than merely speculative or hypothetical.” 5 Moore’s Federal Practice
19

Case 2:11-cv-00224-MHT-WC Document 188 Filed 08/30/12 Page 20 of 22
§ 23.25[2][b][ii] (3d ed. 2011). “[T]he existence of minor conflicts alone will not defeat a party's claim to class certification: the conflict must be a ‘fundamental’ one going to the specific issues in controversy.” Valley Drug, 350 F.3d at 1189 (emphasis added).
The defendants speculate as to the scope of any relief and whether certain class members would prefer their current living conditions at Limestone over the free choice to transfer inter- and infra-facility. The weighing of these options is premature and nebulous. Tellingly, the defendants’ argument relies on cases in which the plaintiff class was conflicted because of economic winners and losers. See , e.g., Defendants’ Brief (Doc. No. 47) at 62-63 (citing Valley Drug , 350 F.3d at 1189). The defendants’ alleged conflict is too ancillary and contingent to defeat class certification here, where the named plaintiffs allege class-wide discrimination.
20

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Finally, the court finds that plaintiffs’ counsel are qualified and experienced in class-action litigation involving prisons and, therefore, satisfy the adequacy requirement.
D. Rule 23(b)(2) Rule 23(b)(2) certification is appropriate for plaintiffs seeking prospective relief for the class as a whole. The Rule “reflects a series of decisions involving challenges to racial segregation–-conduct that was remedied by a single classwide order.” Wal-Mart, 131 S. Ct. at 2558. This case fits squarely within Rule 23(b)(2)’s history. Indeed, this same class has been certified twice before by this court. See Onishea v. Hopper, 171 F.3d 1289, 1292 (11th Cir. 1999) (en banc); Edwards v. Alabama Department of Corrections, 81 F. Supp. 2d 1242, 1245 (M.D. Ala. 2000) (Thompson, J.). Here, the plaintiffs seek a declaratory judgment that Alabama’s HIV segregation policy violates federal anti-
21

Case 2:11-cv-00224-MHT-WC Document 188 Filed 08/30/12 Page 22 of 22
discrimination laws and an injunction against its further enforcement. The plaintiffs do not seek monetary relief. Given the plaintiffs’ allegations of an overarching policy of disability discrimination and their request for prospective relief, Rule 23(b)(2)’s requirements have been met.
* * * Accordingly, it is ORDERED that: (1) Plaintiffs’ motion for class certification (Doc. No. 2) is granted. (2) A plaintiff class is certified as consisting of all present and future prisoners diagnosed with HIV in the custody of the Alabama Department of Corrections. (3) The class representatives are Louis Henderson, Dana Harley, Darrell Robinson, Dwight Smith, Albert Knox, James Douglas, Alqadeer Hamlet, and Jeffery Beyer. DONE, this the 30th day of August, 2012.
/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

Case 2:11-cv-00224-MHT-WC Document 188-1 Filed 08/30/12 Page 1 of 2
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1 365, 1 368 ( 11th Ci r. 1 983). A magistrate judge’s report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885- 86 (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L .Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders “granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . .” and from “[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed.” Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964). Rev.: 4/04

Case 2:11-cv-00224-MHT-WC Document 188-1 Filed 08/30/12 Page 2 of 2
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

 
 Case 2:11-cv-00224-MHT-WC Document 199 Filed 09/05/12 Page 1 of 48

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

LOUIS HENDERSON, et al.,
Plaintiffs,
v.
KIM THOMAS, Commissioner, Alabama Department of Corrections, et al.,
Defendants.

)

)

)

) CIVIL ACTION NO.

)

2:11cv224-MHT

)

(WO)

)

)

)

)

)

OPINION AND ORDER

The eight named plaintiffs (Louis Henderson, Dana

Harley, Darrell Robinson, Dwight Smith, Albert Knox,

James Douglas, Alqadeer Hamlet, and Jeffery Beyer) bring

this lawsuit on behalf of themselves and a class of all

current and future HIV+ prisoners incarcerated in Alabama

Department of Corrections (ADOC) facilities. They

challenge ADOC’s policy of segregating HIV+ inmates from

the general prison population. They have named as

defendants ADOC Commissioner Kim Thomas and the wardens

of the four ADOC facilities that house HIV+ inmates.

Case 2:11-cv-00224-MHT-WC Document 199 Filed 09/05/12 Page 2 of 48
The plaintiffs claim that the HIV-segregation policy discriminates against them on the basis of a disability (HIV+ status) in violation of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. Jurisdiction is proper under 28 U.S.C. § 1331 (federal question).
The case is currently before the court on the defendants’ motion to dismiss. The defendants argue that dismissal is warranted (1) because the action is barred by res judicata; (2) because the plaintiffs have failed to state a claim for which relief can be granted; (3) under the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321; and 4) on sovereign-immunity grounds. For the reasons that follow, the court denies the motion to dismiss, but sets aside the res judicata issue until a ruling on the merits.
2

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I. MOTION-TO-DISMISS STANDARD In considering the defendants’ motion to dismiss, the court accepts the plaintiffs’ allegations as true, Hishon v. King & Spaulding , 467 U.S. 69, 73 (1984), and construes the complaint in the plaintiffs’ favor. Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). To survive a motion to dismiss, a complaint must present “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint satisfies the plausibility standard when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
3

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II. BACKGROUND A. ADOC’s HIV-Segregation Policy Alabama law requires HIV testing for all prisoners. 1975 Ala. Code §§ 22-11A-17 & 22-11A-38. Alabama statutory and administrative law, however, is silent on the segregation of HIV+ prisoners. In the absence of an explicit policy, the plaintiffs point to several specific ways in which ADOC’s HIV-segregation policy functions in practice. At its core, the defendants’ HIV-segregation policy dictates that HIV+ inmates are housed in separated accommodations, both inter- and intra-facility, and regardless of security classification. Alabama has five levels of prisoner classification: close-custody, medium, minimum-in, minimum-out, and minimum-community. Security classification is a multifactor analysis that includes an individual’s criminal history, past convictions, past violence, length of sentence, and pendency of unresolved charges. Atchison Affidavit (Doc. No. 47-1) ¶ 3.
4

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Close-custody is “reserved for prisoners who have demonstrated severe behavioral problems, some prisoners sentenced to life without parole, and some detainees awaiting trial or sentencing for capital offenses.” Second Amended Complaint (Doc. No. 61) ¶ 37. Mediumcustody prisoners are held at medium- or close-security institutions and are housed in double-occupancy cells or dormitories. Medium-custody prisoners may receive work assignments inside a secure facility.
The “minimum” classification includes three subparts, all of which permit some type of work outside a secure facility. Most important for present purposes, only minimum-out and minimum-community inmates may transfer to a work-release center. Atchison Affidavit (Doc. No. 47-1) ¶ 5.
The plaintiffs allege that, despite this classification system, all HIV+ inmates are housed in four facilities. Male HIV+ inmates are housed at either Limestone Correctional Facility or Decatur Work
5

Case 2:11-cv-00224-MHT-WC Document 199 Filed 09/05/12 Page 6 of 48
Release/Community Work Center. Female HIV+ inmates are housed at either Julia Tutwiler Prison for Women or the Montgomery Women’s Facility.
The centerpiece of Alabama’s segregation policy is that HIV+ prisoners are housed at certain facilities and completely barred from others. For instance, male inmates who have a six-month clear record may apply to transfer to a facility closer to their families. Id . ¶ 13. While no inmate has a right to transfer, HIV+ male inmates are prohibited entirely from transferring. Thus, the male plaintiffs are barred from approximately two dozen facilities around the State.
The HIV-segregation policy is replicated within facilities. At Limestone, all HIV+ prisoners are housed on the A-Side. HIV+ prisoners, therefore, are excluded from the general population area in B-Side and the FaithBased Honor Dorm in C-Side. They are also barred from the senior dormitory in A-Side. Limestone separates HIV+ prisoners by forcing them to wear white armbands, thereby
6

Case 2:11-cv-00224-MHT-WC Document 199 Filed 09/05/12 Page 7 of 48
disclosing their health status to fellow prisoners, staff, and visitors.
Because Alabama has far fewer female inmates, it maintains only one secure institution (Julia Tutwiler Prison for Women) and two work-release facilities for women. Within Tutwiler, HIV+ prisoners are housed in two of 15 housing units: an HIV dormitory and the healthcare unit. Despite these differences in institutional setting, the HIV-segregation policy as applied to females mirrors the male counterpart.
The plaintiffs further allege that ADOC utilizes a discriminatory medical-clearance policy when deciding which inmates to send to work-release facilities. According to the plaintiffs, the policy forces inmates to start antiretroviral medications before their viral loads require it. Second Amended Complaint (Doc. No. 61) ¶ 86. The plaintiffs, therefore, allege discriminatory treatment in transferring male prisoners to Decatur Work
7

Case 2:11-cv-00224-MHT-WC Document 199 Filed 09/05/12 Page 8 of 48

Release and female prisoners to Montgomery

Women’s

Facility. Id. ¶¶ 89-90.

Additionally, the plaintiffs allege that ADOC’s

segregation policy excludes them from certain programs.

HIV+ inmates, for example, are barred from the

residential component of any program, such as Limestone’s

substance-abuse program. And by implication, the

plaintiffs are barred from programs at the majority of

ADOC’s prisons. This includes several programs that are

not available at Limestone, such as agricultural programs

at J.O. Davis Correctional facility, trade schools at

Staton Correctional Center, and a secular substance abuse

program at Easterling Correctional facility. Id. ¶¶ 101-

103. The HIV-segregation policy extends beyond

residential areas and prohibits HIV+ inmates from

obtaining food-service employment. Finally, the

plaintiffs assert that the HIV-segregation policy results

in disparate punishment and the unlawful disclosure of

their medical status.

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B. Prior Litigation Alabama first instituted its HIV-segregation policy in the 1980s, when widespread public concern over HIV/AIDS prompted the overwhelming majority of States to isolate HIV+ prisoners. But once the sources of HIV transmission were firmly established, many States rescinded these policies. By 1994, only six States had HIV+ segregation policies. Today, only Alabama and South Carolina maintain a policy of isolating all HIV+ prisoners in separate housing units. This is not the first lawsuit challenging the segregation of HIV+ prisoners in Alabama. In 1987, prisoners challenged the segregation of recreational, religious, and educational programs under the Rehabilitation Act. After a decade of litigation, the en banc Eleventh Circuit Court of Appeals held that HIV+ prisoners were not “otherwise qualified” under the Rehabilitation Act and that no “reasonable
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accommodations” were required. Onishea v. Hopper , 171 F.3d 1289 (11th Cir. 1999) (en banc).1
The Eleventh Circuit premised its ruling on an exception to § 504 of the Rehabilitation Act. The statute excludes from its definition of an “otherwise qualified individual with a disability” those persons that have a “‘currently contagious disease or infection and who, by reason of such disease or infection, would constitute a direct threat to the health or safety of other individuals.’” Id . at 1296-97 (quoting 29 U.S.C. § 705(20)(D)).
This statutory exception codified the Supreme Court’s ruling in School Board of Nassau County v. Arline , 480 U.S. 273 (1987). Under Arline , four factors determine whether the contagious-disease exception applies:
“[F]indings of fact, based on reasonable medical judgments given the state of medical knowledge, about (a) the nature of the risk (how the disease is transmitted), (b) the duration of the
1. The Onishea plaintiffs also brought an Eighth Amendment claim, which was rejected.
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risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm.” Id. at 288 (alteration in original). In weighing these factors, Arline instructs courts to “defer to the reasonable medical judgments of public health officials” when making these findings of fact. Id . The Arline Court concluded that a person “who poses a significant risk of communicating an infectious disease to others ... will not be otherwise qualified ... if reasonable accommodation will not eliminate that risk.” Id. at 287 n.16 (emphasis added). Thus, the contagious-disease exception requires courts not only to examine the risk associated with the disease but also to make findings about whether a reasonable accommodation can ameliorate that risk. In Onishea, the Eleventh Circuit, building on the Arline test, emphasized: “In the state of medical knowledge and art at the time of trial, HIV infection
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inevitably progressed to AIDS. AIDS always led to death, often after lengthy suffering.” Onishea , 171 F.3d at 1293. Given this premise, the court of appeals held that, when “transmitting a disease inevitably entails death, the evidence supports a finding of ‘significant risk’ if it shows both (1) that a certain event can occur and (2) that according to reliable medical opinion the event can transmit the disease.” Id . at 1299. The Eleventh Circuit concluded that the evidence adduced at trial established that HIV posed a “significant risk” in the prison context.
In 1997, while Onishea was pending, another group of HIV+ prisoners filed suit in this court, claiming that Alabama’s segregation policy violated the ADA and the Eighth Amendment. Edwards v. Alabama Dep’t of Corr., 81 F. Supp. 2d 1242 (M.D. Ala. 2000) (Thompson, J.). With regards to the ADA claim, this court held that it was identical to the Onishea plaintiffs’ Rehabilitation Act claim and was precluded under res judicata. Id. at 1249.
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This court noted that “nothing in [its] opinion should be taken to hold that the court has rejected the application of a changed-circumstances argument to the plaintiffs’ ADA claim.” Id. at 1250 n.2.
Regarding the Eighth Amendment claim, this court found res judicata inapplicable because of changed factual conditions. Id . at 1250. The Eighth Amendment claim, however, was dismissed because the plaintiffs failed to exhaust their administrative remedies under the PLRA. Id. at 1256-57.
Shortly after Edwards , a class action was brought challenging the constitutional adequacy of medical care for HIV+ inmates at Limestone Correctional Facility. A consent decree was entered in 2004 and terminated in 2006. See Settlement Agreement, Leatherwood v. Campbell, No. CV-02-BE-2812 (N.D. Ala. Apr. 29, 2004) (Bowdre, J.).
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C. This Suit Eight plaintiffs brought this suit under the Rehabilitation Act and the ADA. According to the allegations in the complaint, plaintiffs Louis Henderson, Darrell Robinson, Albert Knox, James Douglas, and Jeffery Beyer are housed at Limestone; plaintiffs Dwight Smith and Alqadeer Hamlet are housed at Decatur Work Release; and plaintiff Dana Harley is housed at Tutwiler. The named plaintiffs are just a fraction of the approximately 260 HIV+ inmates in the Alabama prison system. They represent a class of all prisoners diagnosed with HIV in the custody of ADOC, now and in the future. Henderson v. Thomas, 2012 WL 3777146 (M.D. Ala. 2012) (Thompson, J.) Five state officials are sued in their official capacities: Kim Thomas, Commissioner of the Alabama Department of Corrections; Billy Mitchem, warden at Limestone; Frank Albright, warden at Tutwiler; Bettina Carter, warden at Decatur Work Release/Community Work
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Center; and Edward Ellington, warden at Montgomery Women’s Facility.
The plaintiffs seek prospective relief: a declaratory judgment that the segregation policy violates the ADA and the Rehabilitation Act and an injunction against its further enforcement. The plaintiffs seek no money damages.
III. DISCUSSION A. Res Judicata The defendants raise the affirmative defense of res judicata as a bar to the “re-litigation” of its HIVsegregation policy. Res judicata prohibits a subsequent action if four elements are present: “(1) a final judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) the parties, or those in privity with them, must be identical in both suits, and (4) the same cause of action must be involved in both cases.” Hart v. Yamaha-Parts Distributors, Inc., 787 F.2d
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1468, 1470 (11th Cir. 1986). The defendants contend that

the plaintiffs’ claims under the Rehabilitation Act and

the ADA are identical to those raised in Onishea

and

Edwards.

As described above, the same class of plaintiffs

failed in their challenges to this policy in Onishea and

Edwards.2 In Onishea, the plaintiffs brought suit under

the Rehabilitation Act and the Eighth Amendment.

2. The defendants do not rely on the Leatherwood

class action for their res judicata

argument. See

Defendants’ Brief (Doc. No. 35) at 12 n.5 (“While there

are reasonable grounds to conclude that the Named

Plaintiffs are collaterally estopped from bringing their

claims by virtue of Leatherwood, the preclusive effect of

the other actions is such that the Court need not even

consider any collateral estoppel resulting from the

Leatherwood matter.”). In any event, the Leatherwood

plaintiffs raised an Eighth Amendment claim, not a

disability claim.

The defendants also cite a recent 42 U.S.C. § 1983 suit brought by an HIV+ prisoner at Limestone who challenged the prison’s armband policy as a violation of his constitutional right to privacy under the Fourteenth Amendment. Id . at 16 n.8. The Eleventh Circuit concluded that the defendants were entitled to qualified immunity. Reed v. Allen , 379 Fed. App’x 879 (11th Cir. 2010). Reed is inapposite because, among other reasons, it is premised on a constitutional claim.
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Edwards, 81 F. Supp. 2d at 1246-47 (summarizing the decade-long history of the Onishea litigation). In Edwards, the plaintiffs’ claims were brought under the ADA and the Eighth Amendment. Id. at 1245.
The plaintiffs concede that the first three elements of res judicata are satisfied. Plaintiffs’ Brief (Doc. No. 37) at 2. The plaintiffs, however, argue that the defendants cannot meet the fourth element because of changed-factual circumstances. Relying on Edwards , the plaintiffs argue that the “‘determinative factor in ascertaining whether two causes of action are identical for res judicata purposes is not only whether the same legal claim is asserted, but also whether the factual underpinnings of the causes of action are constant.’” I.d (quoting Edwards, 81 F. Supp. 2d at 1249); see also Edwards, 81 F. Supp. 2d at 1248 (“It is now said, in general, that if a case arises out of the same nucleus of operative fact, or is based upon the same factual predicate, as a former action, that the two cases are
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really the same ‘claim’ or ‘cause of action’ for purposes of res judicata.”) (internal quotation marks omitted).
The plaintiffs contend that the “central factual premise of the Onishea decision--that HIV infection inevitably progresses to AIDS and then to death-–is no longer true.” Plaintiffs’ Brief (Doc. No. 37) at 3. Since the introduction of highly active antiretroviral therapy in 1997, HIV has gradually become a “manageable chronic condition.” Id . at 4-5. These changed circumstances, in turn, impact the “significant risk” standard for contagious diseases under the ADA and Rehabilitation Act.
Because this issue requires an examination of the past and present state of HIV treatments, this court need not address the res judicata issue now. As a general rule, an affirmative defense, such as res judicata, “will not support a [Fed. R. Civ. P.] 12(b)(6) motion to dismiss for failure to state a claim.” Fortner v. Thomas, 983 F.2d 1024, 1028 (11th Cir. 1993). Only when
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the “defense’s existence can be judged on the face of the complaint” may a court grant a motion to dismiss on a res judicata ground. Concordia v. Bendekovic, 693 F.2d 1073, 1075 (11th Cir. 1982). If more information is necessary to adjudicate the res judicata defense, then the court must treat the motion “as if it were a motion for summary judgment under [Fed. R. Civ. P.] 56.” Id.
At oral argument on September 16, 2011, counsel for the defendants indicated that discovery related to the changed-circumstances argument was appropriate in order for the court to make an informed decision about the recent improvements in HIV treatments. Oral Argument Transcript (Doc. No. 56) at 30-32. The court, therefore, sets aside the res judicata issue for the moment and will make a ruling after the bench trial.3
3. Although not mentioned by either side, the court notes that Congress’s recent amendments to the ADA may supply a basis for changed legal conditions. Specifically, the ADA now lists “functions of the immune system” as a major bodily function. 42 U.S.C. § 12102(2)(B). This amendment may reflect congressional concern that diseases that affect the immune system–-such
(continued...)
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B. Failure to State a Claim The defendants raise three Fed. R. Civ. P. 12(b)(6) arguments that the plaintiffs’ complaint fails to state a claim. First, they argue that the “Plaintiffs’ cursory non-descript allegations of ‘discrimination’” runs afoul of the plausibility standard. (Doc. No. 35) at 22. Second, they contend that the plaintiffs have no right to be incarcerated at any particular facility. Third, the defendants submit that prisoners have no right to confidentiality relating to their HIV status.4
(...continued)
as HIV and AIDS-–merit protection under federal antidiscrimination statutes. See also infra Section III.B.1.
4. The defendants also argued that Governor Robert Bentley was improperly named as a defendant in this action. After an agreement between the parties at oral argument on September 16, 2011, the court dismissed Governor Bentley as a defendant. See Doc. No. 53.
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1. The Plausibility Standard A complaint must present “enough facts to state a claim to relief that is plausible on its face.” Twombl,y 550 U.S. at 570. Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The defendants submit that the plaintiffs have failed to state sufficient facts to establish a claim under Title II of the ADA and § 504 of the Rehabilitation Act. In the Eleventh Circuit, the “causes of action under Title II of the ADA and the Rehabilitation Act are essentially identical.” Everett v. Cobb County Sch. Dist., 138 F.3d 1407, 1409 (11th Cir. 1999). The only salient difference is that a claim under the Rehabilitation Act can be brought only against a recipient of federal funding, a fact that the defendants concede. Defendants’ Brief (Doc. No. 35) at 25 n.10.
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Thus, for purposes of this opinion, the court uses the two statutes interchangeably.
To state a claim under Title II of the ADA, a plaintiff must demonstrate that he “(1) is disabled, (2) is a qualified individual, and (3) was subjected to unlawful discrimination because of [his] disability.” Waddell v. Valley Forge Dental Assoc., Inc. , 276 F.3d 1275, 1279 (11th Cir. 2001) (internal quotation marks omitted) (alteration in original).
Under these statutes, a “disability” is defined as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1). In this suit, the plaintiffs have alleged that they have an existing physical impairment that substantially limits a major-life activity. Second Amended Complaint (Doc. No. 61) ¶ 105.
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A disability under the statutory scheme, therefore, is (1) a physical or mental impairment that (2) substantially limits (3) a major-life activity. An impairment is not necessarily a disability under the statutory definition; the impairment must substantially limit a major-life activity. See Adams v. Rice, 531 F.3d 936, 943-44 (D.C. Cir. 2008) (distinguishing an impairment and a disability).
Under the ADA Amendments Act of 2008, a major-life activity includes, but is not limited to, “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A). The statutory definition of major-life activities also encompasses “major bodily functions” which “includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder,
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neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” Id. § 12102(2)(B) (emphasis added).
The defendants contend that the plaintiffs have not pled sufficient facts to establish that their HIV status substantially limits a major-life activity. The defendants believe that the complaint is deficient in multiple ways.
First, according to the defendants, the “Named Plaintiffs must present an individual assessment of whether HIV substantially limits a ‘major life activity’ of a particular plaintiff.” Defendants’ Brief (Doc. No. 39) at 13 (citing Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 194 (2002)).
The complaint specifies that each named plaintiff is diagnosed with HIV. See, e.g., Second Amended Complaint, (Doc. No. 61) ¶ 16 (Henderson); Id . ¶ 32 (Harley). The complaint also provides information on the contemporary medical consensus regarding HIV treatment. Id. ¶¶ 1, 4-
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5, 41-42. The plaintiffs further allege that “HIV is an impairment of the immune system that substantially limits a person with HIV in one or more major-life activities. It is therefore a disability within the meaning of 42 U.S.C. § 12102(1)(A) [Title II of the ADA] and 29 U.S.C. § 705(9)(B) [Rehabilitation Act].” Id . ¶ 105. 5 Given these allegations, it is “plausible on its face” that every one of the HIV+ plaintiffs suffers from an impairment (HIV) that substantially limits a major-life activity (the immune system). Twombly, 550 U.S. at 570.
Second, the defendants contend that the plaintiffs have failed to plead sufficient facts that there is no “significant risk” of HIV infection if prisons are integrated. Defendants’ Brief (Doc. No. 35) at 28. Under Onishea, when “transmitting a disease inevitably entails death, the evidence supports a finding of
5. The defendants concede that HIV is a physical impairment under the ADA. See Defendants’ Brief (Doc. No. 39) at 13. At oral argument, the defendants also agreed that the complaint alleges that the “major life activity” at issue in this litigation is the immune system. Oral Argument Transcript (Doc. No. 56) at 35.
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‘significant risk’ if it shows both (1) that a certain event can occur and (2) that according to reliable medical opinion the event can transmit the disease.” Onishea, 171 F.3d at 1299. If the plaintiffs’ HIV status poses a “significant risk,” they are not considered “otherwise qualified” under the statute and fall outside its protections.
At this stage of the litigation, taking the allegations in the complaint as true, the plaintiffs have demonstrated that HIV does not pose the same “significant risk” as it did in the 1990s. The court finds it significant that the Eleventh Circuit anchored its ruling on “the state of medical knowledge and art at the time of trial.” Id. at 1293. In the early 1990s, “HIV infection inevitably progressed to AIDS. AIDS always led to death, often after lengthy suffering.” Id. at 1293. Given this premise, the Eleventh Circuit held that when “transmitting a disease inevitably entails death , the evidence supports a finding of ‘significant risk’ if it
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shows both (1) that a certain event can occur and (2) that according to reliable medical opinion the event can transmit the disease.” Id. at 1299.
The complaint provides detailed allegations regarding the recent improvement in HIV treatments. See , e.g., Second Amended Complaint (Doc. No. 61) ¶ 4 (“By the mid1990s, however, new classes of antiretroviral medications proved extremely effective at suppressing the virus. These medications changed HIV from a fatal disease to a chronic condition that can be successfully treated.”) (emphasis added). Assuming it is true that HIV no longer “inevitably entails death,” Onishea ’s heightened “significant risk” test may be undermined to the point that it no longer controls.
If Onishea is inapplicable, the Supreme Court’s more general “significant risk” test for communicable diseases would apply. In Arline , the Court concluded that a person “who poses a significant risk of communicating an infectious disease to others ... will not be otherwise
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qualified ... if reasonable accommodation will not eliminate that risk.” Arline, 480 U.S. 287 n.16 (emphasis added).
The complaint pleads sufficient facts to show that reasonable accommodations can be made to integrate HIV+ inmates. For instance, the complaint notes that all but two state penal systems have integrated HIV prisoners into the general population and that the National Commission on Correctional Health Care counsels against segregation. Second Amended Complaint (Doc. No. 61) ¶¶ 5-6 & 43. The plaintiffs, therefore, have pled sufficient facts to show that they do not pose a “significant risk” under either Onishea or Arline.
Finally, the defendants find fault with the plaintiffs’ “cursory, non-descript allegations such as their repeated general references to ‘services, programs, or activities.’” Defendants’ Brief (Doc. No. 35) at 28. Similarly, the defendants argue that the plaintiffs have
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not pled that they are “otherwise qualified” for these programs.
The plaintiffs provide detailed lists of the types of programs and accommodations that they are ineligible for solely because of their HIV status. See , e.g., Second Amended Complaint, Doc. No. 61, ¶ 50 (Limestone senior dorm); id. ¶ 56 (Limestone honor dorm); id . ¶ 67 (Tutwiler internal segregation); id . ¶¶ 91-103 (accommodations and programs at other ADOC facilities). Regarding work-release, the plaintiffs claim discriminatory placement–-not, as the defendants construe, total exclusion–-and have pled sufficient facts to survive a motion to dismiss. See id. ¶¶ 81-90. And, as to the named plaintiffs, they have pled that they are “otherwise qualified” for transfer and other programs. See, e.g., id. ¶ 18 (Henderson); id. ¶ 31 (Beyer).
This complaint is not the series of “conclusory allegation[s]” that the plausibility standard bars. Twombly, 550 U.S. at 557. The plaintiffs have more than
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“nudged their claims across the line from conceivable to plausible.” Id. at 570.
2. Requesting a Transfer The defendants contend that the plaintiffs have no right to transfer to new accommodations. Within ADOC, no inmate, “regardless of HIV status, enjoys the right to demand that they be placed in the prison of their choosing.” Defendants’ Brief (Doc. No. 35) at 30. Defendants also note that “a prisoner does not have a [constitutional] right to confinement in a particular penal facility.” Id. at 30 (citing Sandin v. Conner, 515 U.S. 472, 478 (1995) and Meachum v. Fano , 427 U.S. 215, 225 (1976)). The defendants misconstrue the plaintiffs’ claim. The plaintiffs do not assert a constitutional right to placement in any particular facility. Rather, the plaintiffs seek the statutory right to apply for a transfer to another facility–-or within Limestone and
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Tutwiler–-without being discriminated against on the basis of a disability.
That is the plaintiffs’ claim for relief in this suit. ADOC policy permits inmates to request transfers to other facilities in order to be closer to home or to enroll in vocational programs. Atchison Affidavit (Doc. No. 47-1) ¶ 13. Given that the ADA and Rehabilitation Act apply to prisons, these statutory protections against disability discrimination extend to programs and accommodations at ADOC facilities. See Pa. Dept. of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (ADA Title II); Onishea, 171 F.3d at 1296 n.11 (Rehabilitation Act). Indeed, the “text of the ADA provides no basis for distinguishing these [correctional and rehabilitative] programs, services, and activities from those provided by public entities that are not prisons.” Yeskey, 524 U.S. at 210. Accordingly, the plaintiffs have stated a claim upon which relief can be granted.
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3. Medical Privacy The defendants submit that prisoners have no constitutional right to privacy in their HIV+ status, relying on a precedent from the Onishea litigation. In Harris v. Thigpen , 941 F.2d 1495 (11th Cir. 1991), the Eleventh Circuit assumed arguendo that prisoners maintain a right to medical privacy in their HIV status and held that Alabama’s legitimate penological interest in safety outweighed any privacy right. Id. at 1512 & 1521. The plaintiffs concede that the there is no independent basis for the medical-privacy claims “[i]nsofar as these disclosures only affect the prisoners’ family relationships and personal well-being.” Plaintiffs’ Brief (Doc. No. 37) at 26. However, when the disclosure of private medical information permits disability discrimination by a private contractor, the plaintiffs have a claim under federal law. See28 C.F.R. §§ 35.130(b)(1)(v) & 35.130(b)(3)(I). The complaint’s allegations regarding work placement and HIV status
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trigger these protections. See Second Amended Complaint, (Doc. No. 61) ¶¶ 84-85.
C. The PLRA The defendants raise two arguments for dismissal pursuant to the PLRA. First, they contend that the plaintiffs failed to exhaust their administrative remedies. Second, the defendants assert that the PLRA bars the type of relief sought.
1. Failure to Exhaust The PLRA mandates that, “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). As this is an affirmative defense, “[t]he defendants bear the burden of proving that the plaintiff has failed to
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exhaust his available administrative remedies.” Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). Although this issue is raised at the motion-to-dismiss stage, the court may look behind the pleadings and conduct fact-finding to resolve this question. See Bryant v. Rich , 530 F.3d 1368, 1374 (11th Cir. 2008) (noting that a judge may conduct fact-finding when deciding “a motion to dismiss for failure to exhaust nonjudicial remedies”).
The parties dispute whether Alabama’s medical grievance system is “available” for a complaint about the HIV-segregation policy. At Alabama’s four facilities that house HIV+ inmates, a prisoner must file an informal “Medical Grievance” form to the healthcare unit through the institutional mail system. A written response on the bottom of the same document is provided within five days. See Reese Affidavit (Doc. No. 35-1) ¶ 6; Hunt Affidavit (Doc. No. 35-2) ¶ 6. Below the response, the form states, in all caps:
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“IF YOU WISH TO APPEAL THIS REVIEW YOU MAY REQUEST A GRIEVANCE APPEAL FORM FROM THE HEALTH SERVICES ADMINISTRATOR. RETURN THE COMPLETED FORM TO THE ATTENTION OF THE HEALTH SERVICE ADMINISTRATOR. YOU MAY PLACE THE FORM IN THE SICK CALL REQUEST BOX OR GIVE IT TO THE SEGREGATION SICK CALL NURSE ON ROUNDS.” Reese Affidavit (Doc. No. 35-1) ¶ 6. A written response to a medical grievance appeal is provided within five days. In the interim, an inmate may be brought in for a one-on-one conversation with the medical staff. Id. ¶ 6. The defendants contend that this medical grievance system was not exhausted by the plaintiffs. Specifically, ADOC points to the plaintiffs’ claims of disparate-healthcare treatment and the restrictivemedical-clearance criteria for work release as issues that should have been addressed through the prison’s medical grievance process. The defendants provide evidence-–exhibits attached to affidavits–-showing that one plaintiff (Harley) used the medical grievance system
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in the past, thus establishing that the plaintiffs were aware that it existed. See id. Ex. B.
The plaintiffs respond that the medical grievance process is not “available” to them to challenge Alabama’s HIV-segregation policy. The plaintiffs contend that the Reese and Hunt affidavits focus exclusively on healthcare claims, not on the segregation policy more generally. According to the plaintiffs, the defendants have not made any showing that the medical officers have any authority over the HIV-segregation policy.
The plaintiffs submit that ADOC “does not maintain any administrative remedy program system-wide, at Limestone, or at Tutwiler” for non-medical complaints. Plaintiffs’ Brief (Doc. No. 37) at 28. The plaintiffs support this contention by inference from the medical grievance forms and through prisoner declarations that aver that no facility-specific, non-medical grievance system exists at Limestone and Tutwiler. See Hatcher
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Declaration (Doc. No. 37-5) ¶¶ 7-9 (Limestone); Harley Declaration (Doc. No. 37-6) ¶¶ 5-9 (Tutwiler).
The plaintiffs also submitted a declaration by Allison Neal, an ACLU attorney. The Neal Declaration states that ADOC’s special counsel informed her during a telephone conversation that “there is no formal systemwide administrative remedy or grievance procedures.” Neal Declaration ( Doc. No. 37-4) ¶ 2. The Neal Declaration also states that Limestone’s warden told her that there was no non-medical grievance system at that institution. Id. ¶ 3.
Under the PLRA, a grievance system needs to be “available” in order to trigger the exhaustion requirement. See Turner, 541 F.3d at 1084 (“A remedy has to be available before it must be exhausted.”). “Without the possibility of some relief, the administrative officers would presumably have no authority to act on the subject of the complaint, leaving the inmate with nothing to exhaust.” Booth v. Churner , 532 U.S. 731, 736 n.4
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(2001). The court finds that the medical grievance forms are “available” only to address medical issues and that no general, non-medical, system-wide grievance system exists in ADOC prisons.
At the top of the medical grievance forms, prisoners may check one of only two boxes: “Medical Grievance” or “Medical Grievance Appeal.” The medical grievance form, therefore, is no misnomer: the form deals solely with medical claims, not broader disputes about ADOC housing and transfer policy.
Moreover, the medical grievance forms include checkboxes for administrators to complete. These boxes includes labels for healthcare issues (e.g. , “access to onsite care” and “medication issues”) and a catch-all box labeled “other.” See , e.g., Reese Affidavit (Doc. No. 35-1) at 11. There is no indication on the form that it could be used to complain to prison officials-–as opposed to the Correctional Medical Services personnel–-about accommodations policy.
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This reading of the medical grievance form comports with how prisoners interpreted it. See , e.g., Harley Declaration (Doc. No. 37-6) ¶ 4-5. These declarations state that prisoners are told to submit only medicallyrelated grievances to these systems. In fact, plaintiff Harley’s medical grievance forms submitted by the defendants cut against their argument. Harley complains about medical issues, not ADOC’s HIV segregation policy as it applies to accommodations. See , e.g., Harley Grievance (Doc. No. 35-1) at 13.
And at oral argument, defense counsel listed examples of medical grievances: “[a]ny decision made by a member of the medical staff: when labs are drawn; what time of day they’re drawn; whether a doctor evaluates...one of the named plaintiffs.” Oral Argument Transcript (Doc. No. 56) at 34. These claims are not in the same class as a grievance against the HIV segregation policy.
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Perhaps most revealing, the defendants have submitted no evidence that the medical professionals reviewing the medical grievance forms had any authority over nonmedical issues or ADOC policy more generally. Allowing ADOC to characterize the medical grievance process as a generalized system would bait-and-switch the plaintiffs. See Goebert v. Lee County, 510 F.3d 1312, 1323 (11th Cir. 2007) (criticizing prison officials for playing “hideand-seek” with administrative remedies); see also Hutto v. Barnes, No. 04-0522-WS-M, 2006 WL 2052596, at *1 n.1 (S.D. Ala. July 2006) (noting that ADOC failed to offer evidence of any state grievance procedure available to Alabama prisoners in support of its exhaustion defense). In light of the evidence before the court, the medical grievance system is not “available” to the plaintiffs to address their grievances concerning the HIV-segregation policy.
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The question, then, is whether ADOC maintains a
general, non-medical grievance procedure. The court
concludes that it does not.
The defendants have provided no evidence that an
alternative, generalized system exists. The Neal
Declaration confirms that, in this case, absence of
evidence is evidence of absence. See Neal Declaration
(Doc. No. 37-4) ¶ 2. The defendants have failed to meet
their burden of establishing that a general grievance
procedure exists. Because there is no non-medical
grievance process, there is no exhaustion requirement
before filing suit to challenge the HIV segregation
policy. As the Eleventh Circuit has explained:
“We find that the term ‘available’ in section 1997e(a) is used to acknowledge that not all prison actually have administrative remedy programs. Some state penal institutions may not have an administrative remedy program to address prison conditions, and thus there are no ‘available’ administrative remedies to exhaust. Section 1997e(a) permits these prisoners to pursue their claims directly in federal court.”
41

Case 2:11-cv-00224-MHT-WC Document 199 Filed 09/05/12 Page 42 of 48
Alexander v. Hawk , 159 F.3d 1321, 1326-27 (11th Cir. 1998).
The court notes that, with no generalized grievance system, ADOC inmates have lost “a way of attempting to improve prison conditions without having to file a lawsuit.” Turner , 541 F.3d at 1084. In turn, corrections officials “lose the substantial benefits that administrative remedies were intended to provide them.” Id. at 1085. ADOC officials have decided against maintaining a general grievance process to address inmate complaints about potentially unlawful activity in the prison system. Accordingly, the plaintiffs may file suit directly in federal court to address these non-medical grievances.
2. The “Need-Narrowness-Intrusiveness” Test In prison litigation suits, a court granting prospective relief must determine “that such relief is narrowly drawn, extends no further than necessary to
42

Case 2:11-cv-00224-MHT-WC Document 199 Filed 09/05/12 Page 43 of 48

correct the violation of the Federal right, and is the

least intrusive means necessary to correct the violation

of the Federal right.” 18 U.S.C. § 3626(a)(1)(A).

The defendants contend that the “relief requested

does not meet the requisite standards for prospective

relief under the PLRA.” Defendants’ Brief (Doc. No. 35)

at 37. According to the defendants, the plaintiffs have

failed to satisfy this “need-narrowness-intrusiveness”

test because a “prohibition on all

discriminatory

policies and practices for HIV inmates is entirely too

broad and will ultimately hinder ADOC administrators.”

Id. at 38 (emphasis in original).

The “need-narrowness-intrusiveness” test, however,

is a limitation on judicial authority over prisons at the

remedial stage, not a heightened-pleading requirement

imposed on the plaintiffs. The PLRA’s plain language

makes this clear. See 18 U.S.C. § 3626(a)(1)(A) (“The

court shall not grant or approve any prospective relief

unless the court finds” that it satisfies the need-

43

Case 2:11-cv-00224-MHT-WC Document 199 Filed 09/05/12 Page 44 of 48
narrowness-intrusiveness test.) (emphasis added). Other provisions in § 3626(a) reinforce this reading, see id. § 3626(a)(3) (requirements for prisoner release orders); id. § 3626(b) (placing conditions on the time period for prospective relief); see also Babbitt v. Sweet Home Chapter of Comm. for a Great Oregon, 515 U.S. 687, 702-03 (1995) (applying the Whole Act Rule), as does the relevant precedent. See Williams v. Edwards , 87 F.3d 126 (5th Cir. 1996); Anderson v. Garner , 22 F. Supp. 2d 1379 (N.D. Ga. 1997) (Murphy, J.).
The PLRA did not abrogate the longstanding rule that, at the motion-to-dismiss stage, a complaint is judged by whether it presents “enough facts to state a claim to relief that is plausible on its face,” Twombly, 550 U.S. at 570, not whether the relief requested will be granted in full.
44

Case 2:11-cv-00224-MHT-WC Document 199 Filed 09/05/12 Page 45 of 48
D. Sovereign Immunity The defendants assert that sovereign immunity precludes this suit. They note that the plaintiffs may not seek damages under Title II of the ADA because Congress failed to validly abrogate the States’ sovereign immunity. Seeking to avoid the Young fiction, Ex parte Young, 209 U.S. 123 (1908), the defendants argue that Onishea and Edwards demonstrate that “not only is there ... no violation of federal law, but there is certainly not any ongoing and continuous violation.” Defendants’ Brief (Doc. No. 35) at 41. They contend that the plaintiffs failed to “allege an ‘ongoing and continuous violation.’” Id. But, as the plaintiffs point out, this is a suit for prospective relief, not for damages. Indeed, the relief sought is quintessentially prospective: a declaratory judgment and an injunction. See Second Amended Complaint (Doc. No. 61) at 37. The five defendants have been sued
45

Case 2:11-cv-00224-MHT-WC Document 199 Filed 09/05/12 Page 46 of 48
in their official capacities, id . ¶¶ 11-15, thus triggering the Ex parte Young analysis.
In determining whether Young’s exception to sovereign immunity applies, “a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’” Verizon Maryland, Inc. v. Public Service Comm. of Maryland , 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997)) (alteration in original). The court need not look to the merits of the suit to determine whether Young applies; an allegation in the complaint will suffice. Here, the plaintiffs allege that the “Defendants are violating Plaintiffs’ rights under Title II of the ADA and Section 504 of the Rehabilitation Act.” Second Amended Complaint (Doc. No. 61) ¶ 113 (emphasis added). Because the plaintiffs have alleged an ongoing violation of federal law and are
46

Case 2:11-cv-00224-MHT-WC Document 199 Filed 09/05/12 Page 47 of 48
seeking only prospective relief, sovereign immunity presents no bar to this action.
The court notes that this case falls within a long history of suits brought by inmates seeking to vindicate their constitutional and statutory rights. See , e.g., Brown v. Plata, 131 S. Ct. 1910 (2011) (affirming threejudge district court’s order to reduce prison overcrowding); Hutto v. Finney , 437 U.S. 678 (1978) (affirming district court’s 30-day time limit for placing prisoners in isolation cells); Laube v. Campbell, 333 F. Supp. 2d 1234 (M.D. Ala. 2004) (Thompson, J.) (approving settlement agreement to remedy Eighth Amendment violations at Julia Tutwiler Prison for Women). The Eleventh Amendment did not prevent courts from ordering prospective relief in these cases. Indeed, ADOC officials have recognized this fact in past litigation over this policy. See Onishea, 171 F.3d at 1296 n.11 (noting that defendants conceded sovereign immunity point during en banc oral argument).
47

Case 2:11-cv-00224-MHT-WC Document 199 Filed 09/05/12 Page 48 of 48
* * *
Accordingly, it is ORDERED that the defendants’ motion to dismiss (Doc. No. 34) is denied with the understanding that the court will address the res judicata issue after the bench trial.
DONE, this the 5th day of September, 2012. /s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

Case 2:11-cv-00224-MHT-WC Document 199-1 Filed 09/05/12 Page 1 of 2
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1 365, 1 368 ( 11th Ci r. 1 983). A magistrate judge’s report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885- 86 (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L .Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders “granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . .” and from “[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed.” Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964). Rev.: 4/04

Case 2:11-cv-00224-MHT-WC Document 199-1 Filed 09/05/12 Page 2 of 2
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

 
 Case 2:11-cv-00224-MHT-WC Document 201 Filed 09/05/12 Page 1 of 4

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

LOUIS HENDERSON, et al.,

Plaintiffs,

v.

Civil Case No. 2:11cv224-MHT

KIM THOMAS, Commissioner, Alabama Department of Corrections, et al.,

Defendants.

MOTION TO APPEAL MAGISTRATE JUDGE’S ORDER During the pretrial hearing on August 17, Plaintiffs gave verbal notice that the Plaintiffs intended to call Plaintiff Albert Knox remotely by videoconferencing. Defendants made no objection at the time, and the Court instructed Plaintiffs to confer with the courtroom deputy regarding the technological issues involved. On August 27, 2012, Plaintiffs filed an Application for Assistance in Facilitating Plaintiffs’ Attendance at Trial (Doc. No. 184). The application requested assistance regarding the attendance of the incarcerated Plaintiffs (not at issue in this appeal) and also requested that the Court permit Plaintiff Albert Knox remotely by videoconferencing. On August 29, Defendants filed an opposition that, in relevant part, argued that allowing Mr. Knox to testify remotely by videoconferencing would “materially limit the State’s ability to cross examine him given the extensive amount of documents which may be utilized in cross examination.” Defendants’ Response to Plaintiffs’ Motion (Doc. No. 185). On August 30, Magistrate Judge Capel denied Plaintiffs’ request to allow Mr. Knox to testify via videoconference on the ground that “Plaintiffs have made no showing that a request for a

1

Case 2:11-cv-00224-MHT-WC Document 201 Filed 09/05/12 Page 2 of 4
modification of the terms of Knox’s parole, to allow him to travel to the Middle District of Alabama for this trial, has been made and denied.” Order, Aug. 30, 2012 (Doc. No. 189).
The standard applied by the Magistrate Judge was excessively stringent. Mr. Knox’s situation is unusual in that he is presently on parole in his home state of Illinois, not in Alabama. Thus, although his conditions of parole are set by the Alabama Board of Pardons and Paroles, he is actually under the supervision of the Illinois Department of Corrections. This arrangement took months of communication between the relevant Alabama and Illinois parole authorities to set up, and it is Plaintiffs’ counsels’ understanding that multiple miscommunications between the two authorities occurred before the arrangement was finalized. Attempting to renegotiate Mr. Knox’s conditions of parole less than two weeks before the trial, and then seeking to ensure that all relevant officials in both the Alabama Board of Pardons and Paroles and the Illinois Department of Corrections are fully informed of those changes, would be excessively burdensome and create a high risk of further miscommunications that may carry serious implications for Mr. Knox’s parole status. For these reasons alone, Plaintiffs’ request to allow Mr. Knox to testify via videoconference should be granted.1
Defendants’ concerns regarding their ability to cross-examine Mr. Knox by video should not be given significant weight. Defendants deposed Mr. Knox in Illinois on May 16, 2012. In that deposition, Defendants had a full and fair opportunity to explore the nature of Mr. Knox’s
1 Additionally, requiring Mr. Knox to travel from Illinois to Alabama for the trial would be excessively burdensome even if it did not endanger his parole status. Following his release from ADOC custody, Mr. Knox was diagnosed with amyotrophic lateral sclerosis (ALS, more commonly known as Lou Gehrig’s Disease), which causes a progressive decline in muscle strength and coordination. Only about 25% of ALS patients survive more than five years after diagnosis. If his condition deteriorates by the time of the trial, Mr. Knox may lack sufficient physical coordination to travel by airplane unassisted. The cost of travel would also be significant for Mr. Knox, as disability payments have been his sole source of income since his ALS diagnosis.
2

Case 2:11-cv-00224-MHT-WC Document 201 Filed 09/05/12 Page 3 of 4

claims and to probe areas of potential cross-examination. Additionally, Plaintiffs’ counsel are willing to work with Defendants to facilitate the transport or electronic transmission of exhibits to a videoconferencing facility in Illinois.
For the foregoing reasons, the Magistrate Judge’s Order of August 30, 2012 should be reversed insofar as it denied Plaintiffs’ request to allow Mr. Knox to testify via videoconference.

Dated: September 5, 2012

Respectfully submitted,
/s/ Carl Takei CARL TAKEI (DC Bar No. 987672) ctakei@npp-aclu.org MARGARET WINTER (DC Bar No.174805) mwinter@npp-aclu.org THE NATIONAL PRISON PROJECT OF THE ACLU FOUNDATION, INC. 915 15th Street, N.W., Seventh Floor Washington, D.C. 20005 Tel. (202) 393-4930; fax (202) 393-4931
ROSE SAXE (SDNY No. RS 0463) rsaxe@aclu.org AMANDA GOAD (SDNY No. GO 6678) agoad@aclu.org THE AIDS PROJECT OF THE ACLU FOUNDATION, INC. 125 Broad Street, Eighteenth Floor New York, N.Y. 10004 Tel. (212) 549-2500; fax (212) 549-2650
ROBERT D. SEGALL (ASB-7354-E68R) segall@copelandfranco.com COPELAND, FRANCO, SCREWS & GILL, P.A. P.O. Box 347 Montgomery, Alabama 36101-0347 Tel. (334) 834-1180; fax (334) 834-3172
Attorneys for Plaintiffs

3

Case 2:11-cv-00224-MHT-WC Document 201 Filed 09/05/12 Page 4 of 4 CERTIFICATE OF SERVICE
I hereby certify that on this 5th day of September, 2012, I electronically filed a true copy of the foregoing with the Court using the CM/ECF system, which automatically served the same upon Defendants’ counsel of record via electronic mail.
/s/ Carl Takei CARL TAKEI
4

 
 Case 2:11-cv-00224-MHT-WC Document 205 Filed 09/06/12 Page 1 of 4

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

LOUIS HENDERSON, et al.,

Plaintiffs,

v.

Civil Case No. 2:11cv224-MHT

KIM THOMAS, Commissioner, Alabama Department of Corrections, et al.,

Defendants.

URGENT MOTION FOR RULING FROM DISTRICT JUDGE MYRON H. THOMPSON ON PLAINTIFFS’ APPEAL OF MAGISTRATE JUDGE’S ORDER (DOC. NO. 201) Plaintiffs have filed an appeal (Doc. No. 201) of an Order (Doc. No. 189), prohibiting
Plaintiff Albert Knox from testifying by videolink. Judge Thompson has jurisdiction over the appeal pursuant to 28 U.S.C. § 636, and Plaintiffs request a ruling on the appeal from Judge Thompson.
Plaintiffs raised the issue of Mr. Knox testifying by videolink during the pretrial conference, Defendants did not object, and Judge Thompson instructed Plaintiffs to coordinate technical arrangements regarding Mr. Knox’s testimony through the Deputy Clerk. Plaintiffs subsequently filed Application for Assistance in Facilitating Plaintiffs’ Attendance at Trial (Doc No. 184), requesting, among other things, that “[t]hat the Court permit Mr. Knox to testify remotely by videoconferencing and advise Plaintiffs as to the Court’s capacity for videoconferencing for witnesses in remote locations.” Believing that there were no substantive or disputed questions with regard to Mr. Knox’s testimony, Plaintiffs did not include substantive argument in their application for assistance. Defendants then filed a response (Doc. No. 185) and objected to Mr. Knox testifying by videolink.
1

Case 2:11-cv-00224-MHT-WC Document 205 Filed 09/06/12 Page 2 of 4 The Magistrate Judge then entered an order (Doc. No. 189), stating: “Plaintiffs’ request that Plaintiff Knox be permitted to testify remotely by video-conferencing is DENIED.” Plaintiffs then filed an appeal of that order to Judge Thompson (Doc. No. 201). Today, the Magistrate Judge entered an order (Doc. No. 204) construing the appeal as a motion for reconsideration and ordering a hearing on the motion for Monday, September 10. Plaintiffs’ appeal was not intended as a motion for reconsideration, and Plaintiffs request a ruling from the District Judge on their appeal. The appeal should be granted for the reasons stated in Doc. No. 201.
2

Case 2:11-cv-00224-MHT-WC Document 205 Filed 09/06/12 Page 3 of 4

Dated Sept. 6, 2012

Respectfully submitted,
s/David M. Shapiro DAVID M. SHAPIRO (DC Bar No. 501909) dshapiro@npp-aclu.org MARGARET WINTER (DC Bar No.174805) mwinter@npp-aclu.org CARL TAKEI (DC Bar No. 987672) ctakei@npp-aclu.org THE NATIONAL PRISON PROJECT OF THE ACLU FOUNDATION, INC. 915 15th Street, N.W., Seventh Floor Washington, D.C. 20005 Tel. (202) 393-4930; fax (202) 393-4931
ROSE SAXE (SDNY No. RS 0463) rsaxe@aclu.org AMANDA GOAD (SDNY No. GO 6678) agoad@aclu.org THE AIDS PROJECT OF THE ACLU FOUNDATION, INC. 125 Broad Street, Eighteenth Floor New York, N.Y. 10004 Tel. (212) 549-2500; fax (212) 549-2650
ROBERT D. SEGALL (ASB-7354-E68R) segall@copelandfranco.com COPELAND, FRANCO, SCREWS & GILL, P.A. P.O. Box 347 Montgomery, Alabama 36101-0347 Tel. (334) 834-1180; fax (334) 834-3172
Attorneys for Plaintiffs

3

Case 2:11-cv-00224-MHT-WC Document 205 Filed 09/06/12 Page 4 of 4 CERTIFICATE OF SERVICE
I hereby certify that on this 6th day of September, 2012, I electronically filed a true copy of the foregoing with the Court using the CM/ECF system, which automatically served the same upon Defendants’ counsel of record via electronic mail.
s/David M. Shapiro David M. Shapiro
4

 
 Case 2:11-cv-00224-MHT-WC Document 223 Filed 09/14/12 Page 1 of 1
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

LOUIS HENDERSON, et al., )

)

Plaintiffs,

)

)

v.

)

)

KIM THOMAS, Commissioner, )

Alabama Department of

)

Corrections, et al.,

)

)

Defendants.

)

CIVIL ACTION NO. 2:11cv224-MHT

ORDER

It is ORDERED that the motion to enforce (Doc. No.

212) is granted to the extent that counsel for the

parties are to follow the procedures set forth by the

court during an on-the-record conference call on

September 11, 2012.

DONE, this the 14th day of September, 2012.

/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

 
 Case 2:11-cv-00224-MHT-WC Document 221 Filed 09/11/12 Page 1 of 3

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

LOUIS HENDERSON, et al.,

Plaintiffs,

v.

Civil Case No. 2:11cv224-MHT

KIM THOMAS, Commissioner, Alabama Department of Corrections, et al.,

Defendants.

PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’ WITNESS AND EXHIBIT LIST Pursuant to the Court’s September 5, 2012 Order (Doc. No. 198), Plaintiffs respectfully submit the following objections to Defendants’ Witness and Exhibit List. As specified in the September 5 Order, Plaintiffs include objections only to Defendants’ “will call” witnesses and “will use” exhibits. Plaintiffs reserve all objections to any witnesses on Defendants’ “may call” witness list and to any exhibits designated as “may use” on Defendants’ exhibit list. Objections to Defendants’ “will use” exhibits are attached hereto as Exhibit A. Plaintiffs reserve all objections to Defendants’ “may use” exhibits.1 Plaintiffs further reserve objections to any exhibits that Plaintiffs were unable to correctly identify due to errors in Defendants’ exhibit descriptions and/or Bates numbers. To the extent Defendants plan to introduce any portion of any deposition at trial, Plaintiffs reserve all objections to those portions that may be offered. Plaintiffs do not object to any witness on Defendants’ “will call” witness list.
1 This includes the collections or ranges of documents listed without Bates numbers (and in many cases identified only by generic categories such as “Any and all relevant documents produced by the State during the course of this litigation”) in the paragraphs numbered 1 through 35 on pages 19 through 22 of the confidential document entitled “Defendants’ Witness and Exhibit List.”
1

Case 2:11-cv-00224-MHT-WC Document 221 Filed 09/11/12 Page 2 of 3
RESPECTFULLY SUBMITTED:
/s/ Carl Takei______________________ CARL TAKEI (DC Bar No. 987672) ctakei@npp-aclu.org MARGARET WINTER (DC Bar No.174805) mwinter@npp-aclu.org DAVID M. SHAPIRO (DC Bar No. 501909) dshapiro@npp-aclu.org THE NATIONAL PRISON PROJECT OF THE ACLU FOUNDATION, INC. 915 15th Street, N.W., Seventh Floor Washington, D.C. 20005 Tel. (202) 393-4930; fax (202) 393-4931 ROSE SAXE (SDNY No. RS 0463) rsaxe@aclu.org AMANDA C. GOAD (SDNY No. GO 6678) agoad@aclu.org THE AIDS PROJECT OF THE ACLU FOUNDATION, INC. 125 Broad Street, Eighteenth Floor New York, N.Y. 10004 Tel. (212) 549-2500; fax (212) 549-2650 ROBERT D. SEGALL (ASB-7354-E68R) segall@copelandfranco.com COPELAND, FRANCO, SCREWS & GILL, P.A. P.O. Box 347 Montgomery, Alabama 36101-0347 Tel. (334) 834-1180; fax (334) 834-3172
2

Case 2:11-cv-00224-MHT-WC Document 221 Filed 09/11/12 Page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that on this 11th day of September, 2012, I filed a true copy of the foregoing with the Court using the CM/ECF electronic filing system, which will automatically forward a copy to counsel for the Defendants: Anne Adams Hill Anne.Hill@doc.alabama.gov, court.orders@doc.alabama.gov David Berman Block dblock@maynardcooper.com Janine Alicia McKinnon jmckinnon@maynardcooper.com Mitesh Shah mshah@maynardcooper.com Scott Lee Rouse scott.rouse@doc.alabama.gov William Richard Lunsford blunsford@maynardcooper.com, kwarman@maynardcooper.com Mitchell Greggs MGreggs@maynardcooper.com Elizabeth Sees elizabeth.sees@doc.alabama.gov
/s/ Carl Takei_________________________ CARL TAKEI
3

Case 2:11-cv-00224-MHT-WC Document 221-1 Filed 09/11/12 Page 1 of 20

EXHIBIT A: PLAINTIFFS' OBJECTIONS TO DEFENDANTS' "WILL USE" EXHIBITS

Description

Bates No.

Memoranda from Limestone Clinical Psychologist re: Louis Henderson completion of institutional programs
Certificates of Completion granted to Louis Henderson for completion of various programs within Limestone Correctional Facility
Louis Henderson Classification Summary

ADOC000001-000004 ADOC000005-000033 ADOC000046

Signed certification by Louis Henderson of attending orientation at Limestone ADOC000326 Correctional Facility

Signed receipt/understanding by Louis Henderson of presence of HIV

ADOC000617

Louis Henderson Medication Administration Record (11/2001)

ADOC000936-000937

Certificates of Completion granted to Dana Harley for completion of various ADOC001091-001380 programs
Dana Harley Inmate Refusal to Participate in Drug Treatment Form (8-6-10) ADOC001116

Dana Harley Classification Summary (8-30-10)

ADOC001206, 001208

Dana Harley 24 Hour Advance Notification of Pending Reclassification (8-25- ADOC001209 10)

Dana Harley Inmate Classification Security Level (8-2009)

ADOC001235

Dana Harley Classification Summary (4-13-10)

ADOC001261

Dana Harley Classification Summary (6-15-11)

ADOC001262

Dana Harley Custody Classification (2009)

ADOC001263

Dana Harley Custody Classification (7-27-09)

ADOC001264

Letter from ADOC Classification Division to District Attorney Geneva regarding Dana Harley community-based program
Dana Harley Inmate Request Slip (4-14-11)

ADOC001299 ADOC001305

Dana Harley Inmate Request Slip (4-5-11)

ADOC001306

Dana Harley Inmate Request Slip (4-21-11)

ADOC001312

Objection
FRE 801, 802, 803*
No objection
FRE 801, 802, 803*. Additionally, FRE 401, 404(a)(1) and (b)(1), 608(b), 609, 801, 802, 803, 805 as to "Justification and Comments" section and handwritten notations by staff FRE 401
FRE 401
FRE 410, FRE 801, 802, 803*.
No objection as to 1091-1115; All objections reserved as to the subsequent pages that do not match the description given.
FRE 401
FRE 801, 802, 803*. Additionally, FRE 401, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 as to each "Comments" section and "Justification and Comments" section FRE 801, 802, 803* unless it is introduced solely to establish that Ms. Harley received and signed this document. Additionally, FRE 401, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 as to each "Comments" section and "Justification and Comments" section FRE 801, 802, 803*. Additionally, FRE 401, 404(a)(1) and (b)(1), 608(b), 609, 801, 802, 803, 805 as to each "Comments" section and "Justification and Comments" section FRE 801, 802, 803*. Additionally, FRE 401, 404(a)(1) and (b)(1), 608(b), 609, 801, 802, 803, 805 as to "Justification and Comments" section and handwritten notations except signatures. FRE 801, 802, 803*. Additionally, FRE 401, 404(a)(1) and (b)(1), 608(b), 609, 801, 802, 803, 805 as to "Justification and Comments" section. FRE 801, 802, 803*. Additionally, FRE 401, 404(a)(1) and (b)(1), 608(b), 609, 801, 802, 803, 805 as to "Justification and Comments" section and handwritten notations except signatures. FRE 801, 802, 803*. Additionally, FRE 401, 404(a)(1) and (b)(1), 608(b), 609, 801, 802, 803, 805 as to "Justification and Comments" section. FRE 401, FRE 801, 802, 803*
FRE 401
FRE 401
FRE 401. Additionally, FRE 801, 802, 803 as to response by "MSJ"

Page 1 of 20

Case 2:11-cv-00224-MHT-WC Document 221-1 Filed 09/11/12 Page 2 of 20

Description

Bates No.

Dana Harley Inmate Request Slip (4-11-11)

ADOC001313

Dana Harley Inmate Request Slip (3-21-11)

ADOC001314

Dana Harley Inmate Request Slip (12-28-10)

ADOC001317

Dana Harley Inmate Request Slip (9-26-10)

ADOC001321

Dana Harley Inmate Request Slip (12-19-10)

ADOC001326

Dana Harley Inmate Request Slip (11-2000)

ADOC001328

Dana Harley Inmate Request Slip (12-3-10)

ADOC001329

Dana Harley Inmate Request Slip (12-16-08)

ADOC001331-001332

Dana Harley Inmate Request Slip (12-16-08) with note from Lt. Mills

ADOC001334

Dana Harley Letter to Warden Jones regarding protective custody

ADOC001338

Dana Harley Letter to Warden Albright regarding lock-up/protective custody ADOC001340

Dana Harley Inmate Request Slip (8-7-08)

ADOC001360

Dana Harley Inmate Request Slip (11-2000)

ADOC001366

Dana Harley Inmate Request Slip (11-5-07)

ADOC001367

Letter from Dana Harley to Dr. Chambers regarding student aide at J.F. Ingram Technical College(9-5-07)
Dana Harley Inmate Request Slip (4-9-07)

ADOC001369 ADOC001372

Dana Harley Inmate Request Slip (4-9-07)

ADOC001374-001375

Dana Harley Inmate Request Slip (9-9-04)

ADOC001378

Dana Harley Inmate Request Slip (11-2003)

ADOC001381

Letter from Dana Harley to Ms. Deese regarding custody review (11-21-02) ADOC001382

Dana Harley Peace Agreement (9-10-00)

ADOC001433

Objection FRE 401. Additionally, FRE 801, 802, 803 as to response by "MSJ" FRE 401. Additionally, FRE 801, 802, 803 as to response by "MSJ" FRE 401. FRE 801, 802, 803*. FRE 901 FRE 401. Additionally, FRE 801, 802, 803, 805 as to response by (illegible) FRE 401. Additionally, FRE 801, 802, 803 as to response by "Kjon" FRE 401. Additionally, FRE 801, 802, 803 as to response and comment by Karla Jones and "KJ" FRE 401. Additionally, FRE 801, 802, 803 as to response by "VMcQueen" FRE 401. Additionally, FRE 801, 802, 803 as to response by (illegible) FRE 401 FRE 401, 403 FRE 401, 403, 404(a)(1) and (b)(1), 608(b). Additionally, 801, 802, 803 as to response by (illegible). FRE 401. Additionally, FRE 801, 802, 803 as to response by Ms V(aughn?) FRE 401. Additionally, FRE 801, 802, 803 as to response by Ms V(aughn?) FRE 401 FRE 401. Additionally, FRE 801, 802, 803 as to response by Ms. V(aughn?) FRE 801, 802, 803 as to responses by Ms. V(aughn?) and (illegible) FRE 401. Additionally,, FRE 801, 802, 803, 404(a)(1), 404(b)(1), 608(b) as to response by (illegible) FRE 401. Additionally, FRE 801, 802, 803 as to unsigned notations by staff. FRE 401, 403, 404(a)(1) and (b)(1), 608(b). FRE 401, 403, 404(b)(1), 608(b)

Page 2 of 20

Case 2:11-cv-00224-MHT-WC Document 221-1 Filed 09/11/12 Page 3 of 20

Description

Bates No.

Dana Harley acknowledgment regarding community based placement (2-810)
Dana Harley Peace Agreement (3-14-04)

ADOC001521 ADOC001569

Dana Harley Disciplinary Report (10-31-05 incident)

ADOC00171-001712

Dana Harley Disciplinary Report (1-28-04 incident)

ADOC001737-001740

Dana Harley Disciplinary Report (1-28-04 incident)

ADOC001741-001743

Dana Harley Disciplinary Report (10-6-02 incident)

ADOC001770-001771

Dana Harley Disciplinary Report (10-5-02 incident)

ADOC001781-001783

Dana Harley Disciplinary Report (7-20-02 incident)

ADOC001793-001795

Dana Harley Classification on Appeal Form (6-23-11)

ADOC001893

Dana Harley Classification Summary (6-2011)

ADOC001894

Dana Harley Classification Appeal Form (12-29-09)

ADOC001895

Dana Harley Intra-System Transfer/Receiving Screening (9-21-11))

ADOC002695

Dana Harley Intra-System Transfer/Receiving Screening (8-21-10)

ADOC002727

Dana Harley Medication Administration Record (12-2011)

ADOC002979-002980

Memorandum from Limestone Clinical Psychologist/Psychological Associate ADOC003156 regarding Darrell Robinson Mental Health Workshops and Other Instructional Programs (2009) Memorandum from Limestone Clinical Psychologist/Psychological Associate ADOC003157 regarding Darrell Robinson Mental Health Workshops and Other Institutional Programs (2005)

Darrell Robinson Supervised Re-Entry Program Application (10-27-11)

ADOC003186-003189

Darrell Robinson Classification Summary (2010)

ADOC003192

Darrell Robinson Health Screening and Criteria Assessment Tool DWR (7-29- ADOC003226-003227 11)

Darrell Robinson Health Screening and Criteria Assessment Tool DWR (12-7- ADOC003229-003230 09)

Inmate Darrell Robinson Awareness Acknowledgement (5-7-09)

ADOC003238-003238

Objection FRE 106, 401 FRE 401, 403, 404(b)(1), 608(b). Additionally, FRE 801, 802, 803, 805 as to handwritten "summary" section. FRE 106, 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 106, 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, FRE 801, 802, 803, 805 as to handwritten "Comments of Warden/Classification Personnel" FRE 801, 802, 803*. Additionally, FRE 401, 404(a)(1) and (b)(1), 608(b), 609, 801, 802, 803, 805 as to each "Comments" section and "Justification and Comments" section FRE 401. Additionally, FRE 801, 802, 803, 805 as to handwritten "Comments of Warden/Classification Personnel" FRE 401, FRE 801, 802, 803* FRE 401, FRE 801, 802, 803* FRE 106, 401, 801, 802, 803* FRE 401, FRE 801, 802, 803*
FRE 401, FRE 801, 802, 803*
FRE 801, 802, 803*. Additionally, FRE 401, 404(a)(1) and (b)(1), 608(b), 609, 801, 802, 803, 805 as to each "Comments" section FRE 801, 802, 803*. Additionally, FRE 401, 404(a)(1) and (b)(1), 608(b), 609, 801, 802, 803, 805 as to "Justification and Comments" section and additional handwritten and typewritten notations except signatures. No objection No objection FRE 401

Page 3 of 20

Case 2:11-cv-00224-MHT-WC Document 221-1 Filed 09/11/12 Page 4 of 20

Description

Bates No.

Darrell Robinson Major Institutions -Behavior Citation (2-20-06)

ADOC003263

Darrell Robinson Incident Report (2-15-06)

ADOC003264-003265

Darrell Robinson HIV Intake Questionnaire (5-7-09)

ADOC003361

Darrell Robinson Medication Administration Record (11-2011)

ADOC003444

Darrell Robinson Keep On Person-Self Medication Program Patient and Provider Contract (6-2-09)
Dwight Smith List of Completed/Participated Programs

ADOC003479 ADOC003538

Memoranda from Limestone Clinical Psychologist re: Dwight Smith completion of mental health workshops and other institutional programs

ADOC003539-003541

Dwight Smith Custody Classification (8-17-09)

ADOC003565

Dwight Smith Letter to Ms. Bias regarding Work Release (6-2011)

ADOC003599

Jefferson County Department of Health Male Sexually Transmitted Disease Record for Dwight Smith (12/23/99)
Dwight Smith Decatur Community Based Facility/Community Work Center acknowledgement of rules and policies in Inmate Orientation Booklet

ADOC003672 ADOC003689

Dwight Smith Orientation Form (5-30-06)

ADOC003698

Dwight Smith Classification Appeal Form (6-15-11)

ADOC003771

Dwight Smith HIV Intake Questionnaire (5-26-06)

ADOC003792

Albert Knox Pre Release and Re-Entry Services Inmate Community Re-Entry Checklists
Albert Knox Personal Data Report for Transferred Inmate (10-24-11)

ADOC004116-004224 ADOC004117-004149

Alabama Board of Pardons and Paroles Report of Investigation -Albert Knox Jr.
Albert Knox letter to Ms. Harris regarding Work Release

ADOC004173-004172 ADOC004198

Albert Knox Peace Agreement (5-20-10)

ADOC004233

Albert Knox Disciplinary Report (1-22-10)

ADOC004256-004259

Albert Knox Incident Report (6/10/09)

ADOC004265

Objection
FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805
FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805
FRE 401, 801, 802, 803*
FRE 801, 802, 803*. Additionally, FRE 401 as to everything except the notation "HIV+"
FRE 401
FRE 801, 802, 803*, 901
FRE 801, 802, 803*
FRE 801, 802, 803*. Additionally, FRE 401, 404(a)(1) and (b)(1), 608(b), 609, 801, 802, 803, 805 as to "Justification and Comments" section. FRE 404(a)(1) and (b)(1), 608. FRE 801, 802, 803 as to response by Ms. Bias
FRE 401, 403, 801, 802, 803*, 901
FRE 106, 401
FRE 401
FRE 106, 401, 404(a)(1) and (b)(1), 608(b). Additionally, 801, 802, 803, 805 as to "Comments of Warden/Classification Personnel" FRE 401, 801, 802, 803*
FRE 401, 801, 802, 803* as to ADOC004116; All objections reserved as to the subsequent pages that do not match the description given. FRE 401, 404(a)(1) and (b)(1), 608(b), 801, 802, 803* as to ADOC004117-4118; All objections reserved as to the subsequent pages that do not match the description given. FRE 106, 401, 403, 404(a)(1) and b(1), 608(b), 609, 801, 802, 803, 805 as to the Probation and Parole Investigation. All objections reserved as to ADOC004172, which is an unrelated document. FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 609, 801, 802, 803, 901 as to handwritten, unsigned response.
FRE 401, 403, 404(b)(1), 608(b), 801, 802, 803, 805.
No objection
FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805

Page 4 of 20

Case 2:11-cv-00224-MHT-WC Document 221-1 Filed 09/11/12 Page 5 of 20

Description Albert Knox Inmate Classification Security Level

Bates No. ADOC004355-004323

Albert Knox Health Record -Master Problem List (4-18-09 to 7-2-11)

ADOC004369

Albert Knox Escape Sheet LCF

ADOC004370

Albert Knox Release of Responsibility (10-11-11)

ADOC004378

Albert Knox Release of Responsibility (7-2011)

ADOC004384

Albert Knox Release of Responsibility (1-5-10)

ADOC004387

Albert Knox Consent Form For Flu Vaccine (10-10-09)

ADOC004388

Albert Knox HIV Intake Questionnaire (5-20-09)

ADOC004391

Albert Knox Prison Medical History and Screening (4-16-09)

ADOC004398

Albert Knox Health Screening and Criteria Assessment Tool DWR (7-29-2011) ADOC004402

Albert Knox Segregation Record Review and Visit Log (2010)

ADOC004404

Albert Knox Refusal to Submit To Treatment (11-30-09)

ADOC004405

Albert Knox Release of Responsibility (11-30-09)

ADOC004406

Albert Knox Health Screening and Criteria Assessment Tool DWR (10-27-09) ADOC004407

Albert Knox Segregation Record Review and Visit Log (2009)

ADOC004410

Albert Knox Special Unit Inmate Release (10-21-11)

ADOC004412

Albert Knox Health Services Request Form (5-20-11)

ADOC004446

Albert Knox Health Services Request Form (5-24-10)

ADOC004464

Albert Knox Inter Disciplinary Progress Notes (4-24-09)

ADOC004488

Albert Knox Health Services Request Forms

ADOC004491-004457

Albert Knox Chronic Disease Clinic Follow-Ups

ADOC004503-004495

Objection FRE 106, FRE 401, 404(a)(1) and (b)(1), 608(b), 609, 801, 802, 803, 805 as to each "Comments" section on ADOC004355; All objections reserved as to other numbers apparently identified that are out of sequence with this page. These out of sequence pages do not match the description given. FRE 401, 801, 802, 803* FRE 401, 609, 801, 802, 803* FRE 401 FRE 401 FRE 401 FRE 401 FRE 801, 802, 803* FRE 401, 801, 802, 803* FRE 106, 801, 802, 803* FRE 401, 403, 801, 802, 803* FRE 401 FRE 401, 801, 802, 803, 805 FRE 106, 801, 802, 803* FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803 FRE 401 FRE 401. Additionally, FRE 801, 802, 803 as to handwritten notations by staff. FRE 401. Additionally, FRE 801, 802, 803 as to handwritten notations by staff. FRE 801, 802, 803 FRE 401, 801, 802, 803 as to ADOC004491; All objections reserved as to other numbers apparently identified that are out of sequence with this page. These out of sequence pages do not match the description given. Assuming that the out of sequence numbers were intended to read ADOC004495-4503: FRE 401, 801, 802, 803. To the extent that something different was intended with this out of sequence numbering, all objections are reserved.

Page 5 of 20

Case 2:11-cv-00224-MHT-WC Document 221-1 Filed 09/11/12 Page 6 of 20

Description

Bates No.

Albert Knox Medication Administration Record (8-2011)

ADOC004617

James Anthony Douglas Escape Report (6-5-02)

ADOC004817

James Douglas Health Screening and Criteria Assessment Tool (1-5-11)

ADOC004861

James Douglas Orientation Form (10-12-05)

ADOC004897

James Douglas Disciplinary Report (6-1-02 incident)

ADOC004940-004941

James Douglas Classification Appeal Form (8-26-11)

ADOC005013

James Douglas Medication Administration Record (11-2011)

ADOC005477

Alqadeer Hamlet Classification Summary (1-26-11)

ADOC005621

Alqadeer Hamlet Custody Classification (1-13-10)

ADOC005622

Alqadeer Hamlet Letter to Mr. Sumner regarding custody classification

ADOC005651

Alqadeer Hamlet HIV Intake Questionnaire (12-1-08)

ADOC005803

Alqadeer Hamlet Chronic Disease Clinic Follow-Up (8-16-10)

ADOC005822

Alqadeer Hamlet Physician's Orders (2009)

ADOC005845

Alqadeer Hamlet Intra-System Transfer/Receiving Screening (3-25-11)

ADOC005855

Alqadeer Hamlet Medication Administration Record (11-2011)

ADOC005870

Alqadeer Hamlet Refusal of Treatment Form (3-19-09)

ADOC005903

Jeffery Beyer Classification Summary (1-26-11)

ADOC005964

Jeffery Beyer Bureau of Field Services Case Report (11-5-82)

ADOC005970

Jeffery Beyer Letter to Mr. Sumner regarding Requesting Classification Appeal ADOC005985 Form (9-26-11)
Jeffery Beyer Health Screening and Criteria Assessment Tool DWR (9-8-11) ADOC006003

Jeffery Beyer Health Screening and Criteria Assessment Tool DWR (12-7-10) ADOC006005-006006

Objection FRE 401, 801, 802, 803* FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 106, 801, 802, 803 FRE 401 FRE 401, 403, 404(a)(1) and b(1), 608(b), 801, 802, 803, 805 FRE 106, 401. Additionally, FRE 801, 802, 803, 805 as typewritten and handwritten notations by staff. FRE 401, 801, 802, 803* FRE 801, 802, 803*. Additionally, FRE 401, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 as to "Justification and Comments" section FRE 801, 802, 803*. Additionally, FRE 401, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 as to "Justification and Comments" section FRE 401. Additionally, 801, 802, 803 as to handwritten responses by staff. FRE 401, 801, 802, 803* FRE 401, 801, 802, 803* FRE 401, 801, 802, 803, 805 FRE 401, 801, 802, 803, 805 FRE 401, 801, 802, 803* FRE 401, 403, 801, 802, 803, 805 FRE 801, 802, 803*. Additionally, FRE 401, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 as to "Justification and Comments" section and handwritten notations by staff. FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805, 901 FRE 106, 401 FRE 106 (complete document is Joint Exhibit J-28) No objection

Page 6 of 20

Case 2:11-cv-00224-MHT-WC Document 221-1 Filed 09/11/12 Page 7 of 20

Description

Bates No.

Jeffery Beyer HIV Intake Questionnaire (5-28-10)

ADOC006090

Jeffery Beyer Intra-System Transfer/Receiving Screening (7-8-10)

ADOC006127

Jeffery Beyer Medication Administration Record (11-2011)

ADOC006183

Jeffery Beyer Medication Non Adherence (7-20-10)

ADOC006203

Inmate Handbook (6/9/2003) (Comm Campbell)

ADOC008607-008661

ADOC Classification Manual (2010)

ADOC008663-008782

Code Map

ADOC008783-008786

E-4 Inmate Periodic Health Assessment (2010)

ADOC008790-008801

ADOC Classification Department Requested Pre-Transfer Health Screening Review/Health Service Screening Guideline/Female Inmate

ADOC008802-008802

Female Inmate With HIV + Serology/Health Screening and Criteria Assessment ADOC008809-008810 Tool Specific to Montgomery Work Release Program

Male Inmate With HIV + Serology/Health Screening and Criteria Assessment ADOC008811-008812 Tool Specific to Decatur Work Release Program

Information for HIV+ Inmates to be Considered for or Housed at Work Release ADOC008813-008813

Intra-System Transfer/Receiving Screening

ADOC008814-008814

E-3 Pre-Transfer Inmate Health Screening and Transfer/Receiving Screening of ADOC008856-008865 Inmates

A-8 Health Classification, Assessment Coding and Communication of Needs ADOC008866-008869 (9/28/10)

D-2 Over the Counter Medication and Keep on Person (KOP) Medication

ADOC008870-008881

B-1(e) HIV Serology in Determining Special Housing Needs; Rev. 6/10/09

ADOC008886-008889

A-8-a Medical Coding Assessment Guide, Rev. 2/2011

ADOC008893-008893

Decatur Community Based Facility Standard Operating Procedure: 4-13 (Inmate Employment and Paychecks)
Decatur Community Based Facility JPO Monthly Report

ADOC008937-008942 ADOC008943-008944

Orientation Package (9/22/09) (Tutwiler)

ADOC009005-009035

Objection FRE 401, 801, 802, 803* FRE 401, 403, 801, 802, 803* FRE 401, 801, 802, 803* FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803* FRE 401 No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection

Page 7 of 20

Case 2:11-cv-00224-MHT-WC Document 221-1 Filed 09/11/12 Page 8 of 20

Description

Bates No.

Tutwiler Standard Operating Procedure 12-3 for Inmates with HIV/AIDS (11/28/2011)
Tutwiler Standard Operating Procedure 13-10 Faith/Character Based Honor Dorm (6/16/2008)
AR 400 Classification of Inmates (11/10/04)

ADOC009036-009040 ADOC009041-009051 ADOC009298-009302

Inmate Orientation (LCF)

ADOC009303-009317

Calhoun Community College and College System Programs

ADOC009487-009494

Tutwiler Standards of Operation 12-3 Inmates with HIV/AIDS (5/28/10)

ADOC009801-009805

Tutwiler Standards of Operation 12-3 Inmates with HIV/AIDS (11/28/11)

ADOC009806-009810

May 2012 Work Release Employer Report (Redacted)

ADOC009927-009928

Paul Edwards Disciplinary Report (6-4-07)

ADOC011291-011298

Dana Harley Recommendation of Probation/Parole and Release (12-22-08) ADOC01197

ADOC Job Lists (All Facilities)

ADOC014569-014685

SOP 13-10 Faith/Character Based Honor Dorm for Julia Tutwiler Prison for Women (6-16-08)
Criteria For Inmate Placement in 8-Week Matrix Stimulant Use Disorder Program (4-19-11)
ADOC Recap of Expenditures (FY07-FY12)

ADOC015589-015599 ADOC015600-015601 ADOC015602-015602

ADOC Medical Coding Assessment Guide; Rev. 06/09

ADOC016602-016602

ADOC HIV Drug Costs Corizon Contract (Nov 2007-May2012)

ADOC016610-016612

January-May 2012 HIV Tests Performed by Kilby Laboratory

ADOC016613-016617

December 2011-June 2012 HIV Tests Performed by Kilby Laboratory

ADOC016618-016626

April 2010--December 2011 HIV Tests Performed by Kilby Laboratory

ADOC016868-016889

ADOC A-8 Health Classification Assessment Coding and Communication of Needs (2-5-09)
Office of Health Services Division Manual/Policies and Procedures

ADOC017007-017010 ADOC017740-018038

Objection No objection No objection No objection No objection FRE 901 as to ADOC9488-92 No objection No objection FRE 801, 802, 803* FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 106, 401, 609 No objection No objection (but note that this is identical to Joint Exhibit J-5) No objection FRE 401, 801, 802, 803, 901 No objection FRE 401, 801, 802, 803, 901 FRE 801, 802, 803, 901 FRE 801, 802, 803, 901 FRE 801, 802, 803, 901 No objection No objection

Page 8 of 20

Case 2:11-cv-00224-MHT-WC Document 221-1 Filed 09/11/12 Page 9 of 20

Description

Bates No.

Decatur Photographs (Confidential)

ADOC018956-018974

Limestone Photographs (Confidential)

ADOC018975-019289

Montgomery Photographs (Confidential)

ADOC019290-019298

Tutwiler Photographs (Confidential)

ADOC019299-019362

Assessment of the Impact of Changing Policies and Procedures Regarding ADOC020435-020532 Alabama Prison Inmates Who Have Tested Positive for the AIDS Virus (HIV) by Dr. Jerry J. Ingram (February, 1989)

ADOC Education -Trade School

ADOC020923-020926

ADOC Programs Chart

ADOC020927-020930

Expert Report -Billy Mitchem (The Correctional Approach to Housing HIVPositive Inmates in Alabama (July 18, 2012)
Expert Report -Dr. W. Brent Maulden and Dr. Jerry Ingram --Assessment and Impact of Potential Policy and Procedure Changes Regarding Alabama Prison Inmates Who Have Tested Positive For HIV (July 18, 2012)

Expert Report -George Lyrene, M.D. (July 18, 2012)

Expert Report -Steven F. Scheibel, M.D. (July 18, 2012)

Expert Report Hal White (ADOC Telemedicine Equipment Installation) (July 18, 2012)
Expert Report of Dr. George Camp

Dwight Smith -Certificate for complete 6 month Crime Bill (6/15/07)

Henderson000001

Dwight Smith – Values Clarification Certificate (5/24/11)

Henderson000002

Dwight Smith – Coping and Hoping Certificate 9/14/10)

Henderson000003

Dwight Smith – Making Decisions Certificate (2/9/10)

Henderson000004

Dwight Smith – Relapse Prevention Certificate (7/21/09)

Henderson000005

Dwight Smith – Rational Thinking Certificate (5/19/09)

Henderson000006

Dwight Smith – Self-Awareness Certificate (3/31/09)

Henderson000007

Objection FRE 401, 901, 1003 FRE 401, 901, 1003 FRE 401, 901, 1003 FRE 401, 901, 1003 FRE 401, 403, 703, 801, 802, 803, 805
FRE 703, 801, 802, 803, 805, 901. Additionally, FRE 401 as to ADOC20925. FRE 703, 801, 802, 803, 805, 901 FRE 801, 802, 803, 805 FRE 403, 801, 802, 803, 805
FRE 801, 802, 803, 805 FRE 801, 802, 803, 805 FRE 801, 802, 803, 805 FRE 801, 802, 803, 805 No objection No objection No objection No objection No objection No objection No objection

Page 9 of 20

Case 2:11-cv-00224-MHT-WC Document 221-1 Filed 09/11/12 Page 10 of 20

Description Dwight Smith – Values Clarification Certificate (2/25/09) Dwight Smith – Personal Development Certificate (12/23/08) Dwight Smith – Dealings with Feelings Certificate (10/28/08) Dwight Smith – Coping Skills Group Certificate (4/29/08) Dwight Smith – Self-Awareness Group Certificate (6/10/08) Dwight Smith – Self Concept Group Certificate (7/22/08) Dwight Smith – Prison Fellowship Bible Study Certificate (4/11/08) Dwight Smith – Prison Fellowship Seminar Certificate (6/14/08) Dwight Smith – Baptismal Certificate (3/31/08) Dwight Smith – Prison Fellowship Seminar Certificate (2/23/08) Dwight Smith – Rational Thinking Certificate (2/5/08) Dwight Smith – Cognitive Retraining Certificate (10/2/07) Dwight Smith – Values Clarification Certificate (9/26/06) Dwight Smith – Anger Management Certificate (6/27/06) Dwight Smith – Certificate of Completion (illegible copy) Dwight Smith – Faith Bible Study Course Certificate (7/15/06) Dwight Smith – Self-Esteem Group Certificate (8/15/06) Dwight Smith – Prison Fellowship Seminar Certificate (9/23/06) Dwight Smith – Human Sexuality and Addiction Class Certificate (9/1/06) Dwight Smith – Anger Management Certificate (2/6/07) Dwight Smith – Rational Thinking Certificate (12/26/06)

Bates No. Henderson000008 Henderson000009 Henderson000010 Henderson000011 Henderson000012 Henderson000013 Henderson000014 Henderson000015 Henderson000016 Henderson000017 Henderson000018 Henderson000019 Henderson000020 Henderson000021 Henderson000022 Henderson000023 Henderson000024 Henderson000025 Henderson000026 Henderson000027 Henderson000028

Objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection

Page 10 of 20

Case 2:11-cv-00224-MHT-WC Document 221-1 Filed 09/11/12 Page 11 of 20

Description

Bates No.

Dwight Smith – Searching the Scriptures Certificate (12/23/06)

Henderson000029

Dwight Smith – Purpose Driven Life Study Course Certificate of Completion (12/11/06)
Dwight Smith – Personal Development Certificate (11/21/06)

Henderson000030 Henderson000031

Dwight Smith – Certificate of Completion (illegible copy)

Henderson000032

Dwight Smith – Prison Fellowship Seminar Certificate of Completion (9/22/07) Henderson000033

Dwight Smith – Study of the Book of Acts Certificate of Completion (8/31/07) Henderson000034

Dwight Smith – Values Clarification Group Certificate (8/9/07)

Henderson000035

Dwight Smith – Criminal Thinking Group Certificate (8/14/07)

Henderson000036

Dwight Smith – Self-Awareness Group Certificate (7/3/07)

Henderson000037

Dwight Smith – Health Use of Leisure Certificate (6/21/07)

Henderson000038

Dwight Smith – Self Esteem Group Certificate (5/10/07)

Henderson000039

Dwight Smith – Lifestyles and Values Certificate (5/8/07)

Henderson000040

Dwight Smith – Cognitive Restructuring Certificate (4/5/07)

Henderson000041

Dwight Smith – Problem Solving Group Certificate (3/27/07)

Henderson000042

Dwight Smith – Certificate of Completion (illegible copy)

Henderson000043

Dwight Smith – Anger Management Certificate (11/3/06 – 2/9/07)

Henderson000044

Dwight Smith – Purpose Driven Life Certificate of Completion (4/17/07)

Henderson000045

Dwight Smith – Positive Living Program Certificate (3/2/07)

Henderson000046

Dwight Smith – Personal Development (3/30/07 – 5/18/07)

Henderson000047

Dwight Smith – Six Month Crime Bill Certificate (6/15/07)

Henderson000048

Dwight Smith – Six Month Crime Bill Certificate (6/15/07)

Henderson000049

Objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection

Page 11 of 20

Case 2:11-cv-00224-MHT-WC Document 221-1 Filed 09/11/12 Page 12 of 20

Description

Bates No.

Dwight Smith – Self-Awareness Certificate (11/24/09)

Henderson000050

Dwight Smith – Six Month Crime Bill Certificate (6/15/07)

Henderson000051

Dwight Smith – Communications Skills (3/31/08)

Henderson000052

Dwight Smith – Prison Fellowship Seminar Certificate (2/23/08)

Henderson000053

Dwight Smith – Baptismal Certificate (10/30/06)

Henderson000054

Dwight Smith – Faith Bible Study Course Certificate (7/15/06)

Henderson000055

Dwight Smith – Rational Thinking Certificate (2/5/08)

Henderson000056

Dwight Smith – Cognitive Retraining (10/2/07)

Henderson000057

Dwight Smith -2/5/09 Letter from Calhoun Community College re:

Henderson000058

requirements completed for a Certificate in Design Drafting/Advanced CAD.

Dwight Smith – Cognitive Restructuring Certificate (4/5/07)

Henderson000059

Dwight Smith – Problem Solving Group Certificate (3/27/07)

Henderson000060

Dwight Smith – Calhoun Community College Certificate in Drafting and Advanced CAD (12/22/08)

Henderson000061

Dwight Smith – Calhoun Community College Certificate in Design Drafting and Henderson000062 Basic Architecture (12/15/09)

Dwight Smith – 6/21/10 Letter from Calhoun Community College re: requirements completed for a Certificate in Design Drafting and Basic Architecture. Dwight Smith – Values Clarification Certificate (9/26/06)

Henderson000063 Henderson000064

Dwight Smith – Stress Management Certificate (8/4/06 – 9/22/06)

Henderson000065

Dwight Smith – Prison Fellowship Seminar Certificate (9/22/07)

Henderson000066

Dwight Smith – Study of the Book of Acts Ch. 1-12 Certificate (8/31/07)

Henderson000067

Dwight Smith – Values Clarification Group Certificate (8/9/07)

Henderson000068

Dwight Smith – Criminal Thinking Group Certificate (8/14/07)

Henderson000069

Dwight Smith – Self-Awareness Group Certificate (7/3/07)

Henderson000070

Objection No objection No objection No objection No objection No objection No objection No objection No objection No objection
No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection

Page 12 of 20

Case 2:11-cv-00224-MHT-WC Document 221-1 Filed 09/11/12 Page 13 of 20

Description Dwight Smith – Healthy Use of Leisure Certificate (6/21/07) Dwight Smith – Self-Esteem Group Certificate (5/10/07) Dwight Smith – Life Styles and Values Certificate (5/8/07) Dwight Smith – Purpose Driven Life Study Course Certificate (4/17/07) Dwight Smith – Cognitive Restructuring Certificate (4/5/07) Dwight Smith – Problem Solving Group (3/27/07) Dwight Smith – Positively Living Certificate (3/2/06) Dwight Smith – Anger Management Certificate (11/3/06 – 2/9/07) Dwight Smith – Anger Management Certificate (2/6/07) Dwight Smith – Rational Thinking Certificate (12/26/06) Dwight Smith – Searching the Scriptures Certificate (12/23/06) Dwight Smith – Purpose Driven Life Certificate (12/11/06) Dwight Smith – Personal Development Certificate (11/21/06) Dwight Smith – Positive Living Certificate (date illegible) Dwight Smith – Prison Fellowship Seminar Certificate (9/23/06) Dwight Smith – Human Sexuality and Addiction Class Certificate (9/1/06) Dwight Smith – Self-Esteem Group Certificate (8/15/06) Dwight Smith – Positively Living Certificate (date illegible) Dwight Smith – Anger Management Certificate (6/27/06) Dwight Smith – Positively Living Certificate (4/8/06) Dwight Smith – Self Esteem Group Certificate (8/15/06)

Bates No. Henderson000071 Henderson000072 Henderson000073 Henderson000074 Henderson000075 Henderson000076 Henderson000077 Henderson000078 Henderson000079 Henderson000080 Henderson000081 Henderson000082 Henderson000083 Henderson000084 Henderson000085 Henderson000086 Henderson000087 Henderson000088 Henderson000089 Henderson000090 Henderson000091

Objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection

Page 13 of 20

Case 2:11-cv-00224-MHT-WC Document 221-1 Filed 09/11/12 Page 14 of 20

Description

Bates No.

Objection

Dwight Smith – Self Esteem Group Certificate (8/15/06)

Henderson000092

No objection

Dwight Smith – Prison Fellowship Seminar Certificate (9/23/06)

Henderson000093

No objection

Dwight Smith – Prison Fellowship Seminar Certificate (9/23/06)

Henderson000094

No objection

Dwight Smith – Positively Living Phase I, Level II (date illegible)

Henderson000095

No objection

Dwight Smith – Personal Development Certificate (11/21/06)

Henderson000096

No objection

Dwight Smith – Purpose Driven Life Certificate (12/11/06)

Henderson000097

No objection

Dwight Smith – Searching the Scriptures Certificate (12/23/06)

Henderson000098

No objection

Dwight Smith – Rational Thinking Certificate (12/26/06)

Henderson000099

No objection

Dwight Smith – Anger Management Certificate (2/6/07)

Henderson000100

No objection

Dwight Smith – Anger Management Certificate (11/3/06 – 2/9/07)

Henderson000101

No objection

Dwight Smith – 6/28/11 Letter of recommendation from Stephen Cranford Henderson000102

No objection

Dwight Smith – 6/28/11 Letter of recommendation from Stephen Cranford Henderson000103

No objection

Dwight Smith -2/5/09 Letter from Calhoun Community College re:

Henderson000104

requirements completed for a Certificate in Design Drafting/Advanced CAD.

Dwight Smith – Certificate of Design Drafting/ CAD from Calhoun Community Henderson000105 College (12/15/08)

Dwight Smith – Certificate of Drafting/ Advanced CAD from Calhoun Community College (12/22/08)

Henderson000106

Dwight Smith – Certificate of Design Drafting/ Basic Architecture from Calhoun Community College (12/15/08)

Henderson000107

Dwight Smith – Certificate for being placed on the President’s List Spring Semester 2009

Henderson000108

Al-Qadeer Hamlet – Certificate of Completion in West Law research (5/24/10) Henderson000109

No objection
No objection No objection No objection No objection No objection

Louis Henderson -Calhoun Community College Final Grade Report

Henderson000110-000111 No objection

3-20-06 Letter of Recommendation from Jennifer Lord of Prison Health Services regarding Louis Henderson
Louis Henderson -9/19/06 & 8/22/06 Work Supervisor’s/ Correctional Officers Reports

Henderson000112

FRE 401, 801, 802, 803

Henderson000113-000114 No objection

Page 14 of 20

Case 2:11-cv-00224-MHT-WC Document 221-1 Filed 09/11/12 Page 15 of 20

Description Louis Henderson – Certificate of Completion in COPE (8/5/05) Louis Henderson – Self-Awareness Group Certificate (9/6/05) Louis Henderson – Anger Management Certificate (10/18/05) Louis Henderson – Self-Awareness Group (7/3/07) Louis Henderson – Criminal Thinking Group (8/14/07) Louis Henderson – Anger Management Certificate (9/27/07) Louis Henderson – Cognitive Retraining Certificate (10/2/07) Louis Henderson – Personal Development Certificate (11/13/07) Louis Henderson – Coping Skills Certificate (12/17/07) Louis Henderson – Rational Thinking Certificate (2/5/08) Louis Henderson – Communication Skills Certificate (3/31/08) Louis Henderson – Coping Skills Group Certificate (4/29/08) Louis Henderson – Self-Awareness Certificate (6/10/08) Louis Henderson – Managing Anxiety Certificate (6/30/08) Louis Henderson – Self-Concept Group Certificate (7/22/08) Louis Henderson – Dealing with Feelings Program Certificate (10/28/08) Louis Henderson – Personal Development Certificate (12/23/08) Louis Henderson – Values Clarification Certificate (2/25/09) Louis Henderson – Self-Awareness Certificate (3/31/09) Louis Henderson – Rational Thinking Certificate (5/19/09) Louis Henderson – Relapse Prevention Certificate (7/21/09)

Bates No. Henderson000115 Henderson000116 Henderson000117 Henderson000118 Henderson000119 Henderson000120 Henderson000121 Henderson000122 Henderson000123 Henderson000124 Henderson000125 Henderson000126 Henderson000127 Henderson000128 Henderson000129 Henderson000130 Henderson000131 Henderson000132 Henderson000133 Henderson000134 Henderson000135

Objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection

Page 15 of 20

Case 2:11-cv-00224-MHT-WC Document 221-1 Filed 09/11/12 Page 16 of 20

Description

Bates No.

Louis Henderson -Louis Henderson – Dealing with Feelings Program Certificate (8/6/09)
Louis Henderson – Preparing for Change Certificate (9/22/12)

Henderson000136 Henderson000137

Louis Henderson – Certificate of Achievement in Alternatives to Violence (10/1/09)
Louis Henderson – Self-Awareness Certificate (11/24/09)

Henderson000138 Henderson000139

Louis Henderson – Making Decisions Certificate (2/9/10)

Henderson000140

Louis Henderson – Effective Communications Certificate (5/4/10)

Henderson000141

Louis Henderson – Anger Management Certificate (5/13/10)

Henderson000142

Louis Henderson – Self Esteem Certificate (6/29/10)

Henderson000143

Louis Henderson – Self-Esteem Certificate (7/1/10)

Henderson000144

Louis Henderson – Sleep Hygiene Certificate (8/4/10)

Henderson000145

Louis Henderson – Coping and Hoping (9/14/10)

Henderson000146

Louis Henderson – Anger Management Certificate (2/8/11)

Henderson000147

Louis Henderson – Self-Esteem Certificate (4/5/11)

Henderson000148

Louis Henderson – Values Clarification Certificate (5/24/11)

Henderson000149

Louis Henderson -Anger Management Certificate (2/8/11)

Henderson000150

Louis Henderson – Self-Esteem Certificate (4/5/11)

Henderson000151

Louis Henderson -Values Clarification Certificate (5/24/11)

Henderson000152

Louis Henderson – Dignity Hospice/Palliative Care Program Certificate (6/8/11)

Henderson000153

Louis Henderson -Dignity Hospice/Palliative Care Program Certificate (6/8/11) Henderson000154

Louis Henderson – Making Decisions Certificate (7/19/11)

Henderson000155

Louis Henderson – Identifying and Changing Certificate ( 9/6/11)

Henderson000156

Objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection No objection

Page 16 of 20

Case 2:11-cv-00224-MHT-WC Document 221-1 Filed 09/11/12 Page 17 of 20

Description

Bates No.

Objection

Louis Henderson -Anger Management Certificate (11/8/11)

Henderson000157

No objection

Louis Henderson -Anger Management Certificate (11/9/11)

Henderson000158

No objection

Louis Henderson – Stress Management Certificate (2/28/12)

Henderson000159

No objection

Louis Henderson – Rational Thinking Certificate (1/3/06)

Henderson000160

No objection

Louis Henderson – Crime Bill Drug Treatment Certificate (9/12/05 – 3/10/06) Henderson000161

No objection

Louis Henderson – Self-Awareness (5/2/06)

Henderson000162

No objection

Louis Henderson – Values Clarification (9/26/06)

Henderson000163

No objection

Louis Henderson – Personal Development ( 11/21/06)

Henderson000164

No objection

Louis Henderson – Rational Thinking (12/26/06)

Henderson000165

No objection

Louis Henderson – Anger Management (2/6/07)

Henderson000166

No objection

Louis Henderson – Positively Living Phase I Level IV (3/2/07)

Henderson000167

No objection

Louis Henderson – Problem Solving Group (3/27/07)

Henderson000168

No objection

Louis Henderson -Lifestyles and Values (5/8/07)

Henderson000169

No objection

CDC website: HIV Transmission Among Male Inmates in a State Prison System Henderson000279-000285 – Georgia 19922005

March Letter from Dwight Smith to Mr. Sumner and response from Mr. Sumner regarding work release

Henderson001280

4/20/12 Letter from Dwight Smith to Mr. Sumner and response from Mr. Sumner regarding work release

Henderson001281

10/6/09 Letter from Dwight Smith to Mr. Sumner and response from Mr. Sumner regarding work release

Henderson001282

6/14/11 Letter from Dwight Smith To Mr. Sumner and response from Mr. Sumner regarding work release

Henderson001283

5/23/11 Letter from Dwight Smith to Mr. Sumner and response from Mr. Sumner regarding work release

Henderson001284

2/16/11 Letter from Dwight Smith to Mr. Sumner and response from Mr. Sumner regarding work release

Henderson001285

6/5/10 Letter from Dwight Smith to Mr. Sumner and response from Mr. Sumner regarding work release

Henderson001286

No objection FRE 801, 802, 803 as to response by Mr. Sumner FRE 801, 802, 803 as to response by Mr. Sumner FRE 801, 802, 803 as to response by Mr. Sumner FRE 801, 802, 803 as to response by Mr. Sumner FRE 801, 802, 803 as to response by Mr. Sumner FRE 801, 802, 803 as to response by Mr. Sumner FRE 801, 802, 803 as to response by Mr. Sumner

Page 17 of 20

Case 2:11-cv-00224-MHT-WC Document 221-1 Filed 09/11/12 Page 18 of 20

Description

Bates No.

Objection

9/28/09 Letter from Dwight Smith to Classification Specialist and response Henderson001287 from Mr. Sumner regarding work release

9/30/09 Letter from Dwight Smith to Classification Specialist and response Henderson001288 from Mr. Sumner regarding work release

Letter from Alqadeer Hamlet to Mr. Sumner and response from Mr. Sumner Henderson001289 regarding work release

Letter from Alqadeer Hamlet to Classification and response from Mr. Sumner Henderson001290 regarding work release

11/3/10 Letter from Jeffrey Beyer to Classification and response from Mr. Sumner regarding work release

Henderson001291

9/26/11 Letter from Jeffrey Beyer to Classification and response from Mr. Sumner regarding work release

Henderson001292-001293

5/18/11 Letter from Jeffrey Beyer to Mr. Sumner and response from Mr. Sumner regarding work release

Henderson001294

12/28/10 Letter from Jeffrey Beyer to Mr. Sumner and response from Mr. Sumner regarding work release

Henderson001295

2/7/11 Letter from James Douglas to Mr. Sumner and response from Mr. Sumner regarding work release

Henderson001296

2/11/11 Letter from James Douglas to Mr. Sumner and response from Mr. Sumner regarding work release

Henderson001297

2/2011 Letter from James Douglas to Mr. Sumner and response from Mr. Sumner regarding work release

Henderson001298

10/6/09 Letter from James Douglas to Mr. Sumner and response from Mr. Sumner regarding work release

Henderson001299

12/9/09 Letter from James Douglas to Mr. Sumner and response from Mr. Sumner regarding work release

Henderson001300

12/11/09 Letter from James Douglas to Mr. Sumner and response from Mr. Henderson001301 Sumner regarding work release

12/15/09 Letter from James Douglas to Mr. Sumner and response from Mr. Henderson001302 Sumner regarding work release

12/22/09 Letter from James Douglas to Mr. Sumner and response from Mr. Henderson001303 Sumner regarding work release

9/24/09 Letter from James Douglas to Ms. Harris and response from Ms. Harris regarding work release

Henderson001304

Letter from Louis Henderson to Mr. Sumner and response from Mr. Sumner Henderson001305

FRE 801, 802, 803 as to responses by Ms. Hester and Mr. Sumner FRE 801, 802, 803 as to response by unidentified staff member. FRE 801, 802, 803 as to response by Mr. Sumner FRE 801, 802, 803 as to response by Mr. Sumner FRE 801, 802, 803 as to response by Mr. Sumner FRE 801, 802, 803 as to response by Mr. Sumner FRE 801, 802, 803 as to response by Mr. Sumner FRE 801, 802, 803 as to response by Mr. Sumner FRE 801, 802, 803 as to response by Mr. Sumner FRE 801, 802, 803 as to response by Mr. Sumner FRE 801, 802, 803 as to response by Mr. Sumner FRE 801, 802, 803 as to response by Mr. Sumner FRE 801, 802, 803 as to response by Mr. Sumner FRE 801, 802, 803 as to response by Mr. Sumner FRE 801, 802, 803 as to response by Mr. Sumner FRE 801, 802, 803 as to response by Mr. Sumner FRE 801, 802, 803 as to response by Ms. Harris FRE 801, 802, 803 as to response by Mr. Sumner

4/16/12 Letter from Louis Henderson to Captain Smith regarding work release
2/2/08 Letter from Dana Harley to Ms. Ruth regarding issues with Warden Albright
9/6/07 Letter from Dana Harley to Governor Riley regarding women at Julia Tutwiler Women’s prison with HIV

Henderson001306 Henderson001307 Henderson001308

No objection No objection No objection

Page 18 of 20

Case 2:11-cv-00224-MHT-WC Document 221-1 Filed 09/11/12 Page 19 of 20

Description

Bates No.

11/28/07 Letter from Dana Harley to Commissioner Allen regarding women at Henderson001309 Julia Tutwiler Women’s prison with HIV

Motion for Consideration to Back Date Case No. CC-2002-1016 Circuit Court Deposition Exhibit Baldwin County.

Class Action Complaint for Declaratory and Injunctive Relief,Louis Henderson, Deposition Exhibit

et al., v. Kim Thomas, et al., U.S.D.C. Middle District of Alabama, 2:11-cv-

00224-MHT-WC. Second Amended Class Action Complaint for Declaratory and Injunctive

Deposition Exhibit

Relief,Henderson, et al. v. Thomas, et al.

Mississippi Department of Corrections Housing Units by Facility (6-19-12) Deposition Exhibit

April 2012 Listing or Categorical Numbering of HIV Inmates Housed in Mississippi DOC by Housing Unit.
Madeleine LaMarre, MN, FNP-BC Curriculum Vitae

Deposition Exhibit Deposition Exhibit

IDCR Special Report: Transmission of HIV within A State Prison

Deposition Exhibit

Leon McGhee Incident Report (11-26-04)

Deposition Exhibit

Leon McGhee Disciplinary Report (11-26-04 incident)

Deposition Exhibit

Leon McGhee Incident Report (4-25-08)

Deposition Exhibit

Leon McGhee Disciplinary Report (4-25-08 incident)

Deposition Exhibit

Leon McGhee Incident Report (5-20-08)

Deposition Exhibit

Leon McGhee Disciplinary Report (5-20-08 incident)

Deposition Exhibit

Leon McGhee Disciplinary Report (1-21-09 incident)

Deposition Exhibit

Leon McGhee Health Screening and Criteria Assessment Tool DWR (4-20-10) Deposition Exhibit

Leon McGhee Classification Summary (4-27-10)

Deposition Exhibit

Lewis Powe Disciplinary Report (10-2-02 incident)

Deposition Exhibit

Lewis Powe Disciplinary Report (3-25-03 incident)

Deposition Exhibit

Lewis Powe Disciplinary Report (4-17-05 incident)

Deposition Exhibit

Bernarthur Jones Disciplinary Report (3-17-97 incident)

Deposition Exhibit

Objection No objection FRE 401 No objection
No objection FRE 801, 802, 803, 901 FRE 801, 802, 803, 901 No objection FRE 801, 802, 803, except for portions authored by Madeleine LaMarre FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 801, 802, 803* FRE 401, 801, 802, 803*. Additionally, FRE 401, 404(a)(1) and (b)(1), 608(b), 609, 801, 802, 803, 805 as to "Justification and Comments" section and additional handwritten notations except signatures. FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805

Page 19 of 20

Case 2:11-cv-00224-MHT-WC Document 221-1 Filed 09/11/12 Page 20 of 20

Description Bernarthur Jones Disciplinary Report (11-20-95 incident) Bernarthur Jones Disciplinary Report (4-9-98 incident) Bernarthur Jones Disciplinary Report (4-12-98 incident) Bernarthur Jones Disciplinary Report (8-21-99 incident) Bernarthur Jones Disciplinary Report (5-29-03 incident) Bernarthur Jones Disciplinary Report (12-3-04 incident) Bernarthur Jones Disciplinary Report (6-5-06 incident) Bernarthur Jones Disciplinary Report (7-11-06 incident) Bernarthur Jones Disciplinary Report (8-5-05 incident) Bernarthur Jones Disciplinary Report (5-1-08 incident) Kenneth Brown Disciplinary Report (7-11-98 incident) Kenneth Brown Disciplinary Report (1-6-99 incident)

Bates No. Deposition Exhibit Deposition Exhibit Deposition Exhibit Deposition Exhibit Deposition Exhibit Deposition Exhibit Deposition Exhibit Deposition Exhibit Deposition Exhibit Deposition Exhibit Deposition Exhibit Deposition Exhibit

Objection FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805 FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805. Additionally, FRE 901 as to the pages entitled "Disciplinary Segregation Medical Documentation" FRE 401, 403, 404(a)(1) and (b)(1), 608(b), 801, 802, 803, 805. Additionally, FRE 901 as to the incident report and incident report control sheet that appear subsequent to the disciplinary report in the exhibit.

When “FRE 801, 802, 803” is followed by an * (asterisk), this signifies that the foregoing FRE 801, 802, 803 objection may be resolved by a showing that the requirements of Fed. R. Evid. 803(6)(D) have been satisfied.

Page 20 of 20

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

LOUIS HENDERSON, DANA

)

HARLEY, DWIGHT SMITH,

)

ALBERT KNOX, JAMES

)

DOUGLAS, ALQADEER HAMLET, )

and JEFFREY BEYER, on

)

behalf of themselves and )

of those similarly

)

situated,

)

)

Plaintiffs,

)

)

v.

)

)

KIM THOMAS, Commissioner, )

Alabama Department of

)

Corrections; BILLY

)

MITCHEM, Warden, Limestone )

Correctional Facility;

)

FRANK ALBRIGHT, Warden, )

Julia Tutwiler Prison

)

for Women; BETTINA CARTER, )

Warden, Decatur Work

)

Release/ Community Work )

Center; EDWARD ELLINGTON, )

Warden, Montgomery Women’s )

Facility, in their

)

official capacities,

)

)

Defendants.

)

CIVIL ACTION NO. 2:11cv224-MHT (WO)

OPINION

The seven plaintiffs (Louis Henderson, Dana Harley,

Dwight Smith, Albert Knox, James Douglas, Alqadeer

Hamlet, and Jeffery Beyer) bring this lawsuit on behalf of themselves and a class of all current and future HIVpositive prisoners incarcerated in Alabama Department of Corrections (ADOC) facilities. They challenge the ADOC's policy of categorically segregating HIV-positive prisoners from the general prison population, arguing, among other things, that, despite the dramatic advances in the treatment of HIV and despite the plaintiffs’ differing individual circumstances, the plaintiffs are being denied the opportunity to be even considered for various rehabilitative services and programs offered to other prisoners. They have named as defendants ADOC Commissioner Kim Thomas and the wardens of the four ADOC facilities that house HIV-positive prisoners.
The plaintiffs claim that the HIV-segregation policy discriminates against them on the basis of a disability (HIV status) in violation of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794.
2

Jurisdiction is proper under 28 U.S.C. § 1331 (federal question).
Based on the evidence presented during a month-long non-jury trial and for the reasons that follow, this court holds that the ADOC has violated the ADA’s Title II and the Rehabilitation Act’s § 504.
I. BACKGROUND A. HIV/AIDS
The human immonodeficiency virus, or HIV, is a chronic disease. If left untreated, it weakens the immune system and eventually leads to death. The disease unfolds in several stages. Soon after contracting the virus, an infected person enters acute infection. During this time, the person’s viral load (the extent to which the virus is present in the blood) rockets upward. People in this stage of the disease can have hundreds of thousands of copies of the virus. Despite that, people in this stage test negative for HIV. This phase, known
3

as the “window period,” generally lasts for a few weeks, but can extend as long as three months, and the people experiencing it represent the most infectious group of individuals with HIV.
Acute HIV gives way to chronic-HIV infection. During this stage, the viral load lowers. The final stage, advanced-HIV infection, occurs when the body’s CD4 Tcells, which play a critical role in the immune system, drop to low levels and the viral load rises. 1 More commonly, this final stage is known as acquired immunodeficiency virus, or AIDS.
HIV emerged in the United States in the early 1980s and soon grew into an epidemic. HIV inevitably progressed to AIDS. Virtually everyone infected died. Meanwhile, no one, including the medical community, understood how HIV was transmitted. Fearing that even casual contact could spread it, doctors treating patients
1. As the facts will show, not everyone with HIV will enter this final stage.
4

with HIV wore protective gear so extensive it was nicknamed a “space suit.” The profound consequences of the disease, combined with lack of knowledge about how it could spread, created an era of hysteria in the epidemic’s early days.
The tide began to turn in the decade that followed. In 1996, the first protease inhibitors were approved to treat HIV. Highly active antiretroviral therapy (HAART), emerged as an effective weapon against the disease. These treatments did not eliminate the virus, but they did restrict its ability to progress and could stave off AIDS. However, while important developments, early treatment combinations had many deficiencies. The medications had to be administered multiple times each day; they had severe side effects, including diarrhea and peripheral neuropathy; and because the regimes were so complicated and so punished patients with side effects, many HIV patients failed to take their medication.
5

Today, advances in HIV treatment have profoundly changed the disease. There is still no cure for HIV: indeed, there is only one known case in which a person was completely cured of it. However, modern treatment regimes have rendered it manageable. The vast majority of HIV patients can be treated by one pill once a day; side effects are less severe, and, where they do occur, multiple treatment options allow patients to try different medications until they find one that works; and, most importantly, although people with HIV will require treatment for their entire lives, HIV is no longer invariably fatal. People who receive treatment for HIV can expect to enjoy near-normal lifespans.
HIV can be transmitted through contaminated blood and bodily secretions, commonly during unprotected sex (between a man and a woman or between men) and needle sharing (for drug use or tattooing, for example). It is not transmitted through casual contact or through the
6

food supply.2 A person would have to drink a 55-gallon drum of saliva in order for it to potentially result in a transmission. There is no documented case of HIV being sexually transmitted between women.
Moreover, simply because HIV can be transmitted in certain contexts does not mean that it will be, or even that it is likely to be, transmitted by that means. Advances in antiretroviral treatment have not only ameliorated the effects of HIV, but have also powerfully reduced (and in some contexts, even vitiated) the possibility of transmission, even when individuals engage in high-risk behavior. This is true because transmission typically occurs only when a person’s viral load is at a certain minimum threshold. Modern treatments, however, if successful (which they generally are), result in “viral suppression,” a state in which the person’s viral
2. The U.S. Centers for Disease Control and Prevention excludes HIV from its list of diseases that can be transmitted through the food supply.
7

load is so low that the likelihood of HIV transmission is, generally speaking, virtually non-existent.
Because modern treatment is effective as prevention, the medical community now recommends that antiretroviral treatment be offered to everyone living with HIV who is ready and willing to take it. This approach represents a sea change that has revolutionized the public-health strategy for preventing transmissions.
While in 2012, outcomes are better, treatment simpler, and prevention possible, social perceptions of HIV have yet to catch up with the modern realities of the illness. Undoubtedly exacerbated by the terror that accompanied the disease in its early history, a relentless stigma adheres to HIV. This stigma has at least two plausible sources. First, HIV is most frequently found among historically marginalized populations: particularly, gay men. Prejudice against homosexuals intensifies prejudice against HIV, and prejudice against HIV becomes a proxy for prejudice
8

against members of the gay community. Because HIV is also more common among minorities and the poor, the stigma attached to HIV deeply implicates race and class prejudice, as well as homophobia.
A second source of stigma stems from the means of HIV transmission. The plaintiffs’ expert, Dr. Frederick Altice, an international authority on HIV and the Director of the HIV in Prisons Program at Yale University School of Medicine, explained: “People make judgments just by the virtue of HIV that you must have done ... something dirty or something awful to have acquired HIV. Being gay. Being a prostitute. Being sexually promiscuous.”3 These impressions build upon negative stereotypes about the groups most commonly affected by HIV.
3. Unfortunately, the transcript from the trial is not yet available, and the court is therefore unable to cite to it.
9

The progression of how HIV has been handled in American prisons somewhat mirrors its progression in the free world: initial (and understandable) terror about its spread gave rise to drastic prevention measures, which subsided as both treatment and understanding of HIV improved.
The first report of HIV in prisons was made in 1983. Soon after, a critical minority (but never a majority) of state-correctional systems began segregating HIV-positive prisoners from the general prison population. In the mid-1990s, as the fear surrounding HIV began to subside, most States that had enacted such policies reversed them. By 2006, only three States still segregated HIV-positive prisoners: South Carolina, Mississippi, and Alabama. In 2010, Mississippi ended its segregation policy as well. Today, preeminent public-health organizations, including the U.S. Centers for Disease Control and the National Commission on Correctional Healthcare, uniformly recommend against segregating prisoners with HIV.
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B. The ADOC’s HIV-Segregation Policy As in the rest of the nation, the advent of the AIDS epidemic generated panic within the ADOC. Billy Mitchem, the former warden of Limestone Correctional Facility, explained: “[E]verybody was ... afraid. The inmates were afraid. The staff was afraid. We didn’t understand, really, how you could get AIDS. I mean, you used your imagination, and most of that was wrong.... And people were dying.” It was in this atmosphere that the ADOC established its original HIV-segregation policy. The initial policy was austere. HIV-positive prisoners were segregated in every aspect of their daily lives, from the dorms in which they were housed to the chapels in which they worshiped. They had no access to the myriad programs available to the general-population prisoners. At Limestone, the dorms where HIV-positive prisoners were housed were cordoned off from the rest of the prison by a fence with a locked-metal gate. Plaintiff Dana Harley
11

described the circumstances of HIV-positive women in a
letter to the warden of Tutwiler:
“We are in isolation from general population like we are contagious animals. Officers only come and see about us when they see fit.... Basketballs are flat and playing cards are beyond recognition. It’s enough to be living every day with our virus and trying to cope. We are confined and can’t even participate in everyday activities such as trade schools or state jobs to stay occupied.... It’s like punishment three times over: Prison, the virus, then the denial of an education or trade. We are secluded from everyday life.”
Pls.’ Ex. 82.
During this time, a class of HIV-positive prisoners
twice challenged the ADOC’s segregation policy. In the
first challenge, the plaintiffs alleged that the
segregation of recreational, religious, and educational
programs violated the Rehabilitation Act. The district
court denied their claims, and, after a decade of
litigation, the Eleventh Circuit Court of Appeals upheld
that decision. See Onishea v. Hopper , 171 F. 3d 1289
12

(11th Cir. 1999) (en banc ). Before the Onishea litigation had concluded on appeal, the same class of HIV-positive prisoners challenged the same policies, this time under the ADA and the Eighth Amendment. SeeEdwards v. Ala. Dep’t of Corr. , 81 F. Supp. 2d 1242 (M.D. Ala. 2000) (Thompson, J.). This court found that the plaintiffs’ claims in Edwards were identical to those denied in Onishea and therefore barred under the doctrine of res judicata.
In 2007 and 2008, the ADOC relaxed its segregation policy. HIV-positive prisoners were integrated into trade schools, substance-abuse programs, and other activities, and, for the first time, they were permitted to participate in the work-release program.
At trial, the parties offered competing characterizations of the department’s policy as it operates today. The court finds that the policy itself is best described as, in general, a series of categorical, non-individualized determinations that the
13

department makes with regard to HIV-positive prisoners. Simply put, in a number of aspects of institutional life, HIV results in automatic placement and automatic exclusion. Outcomes that depend on a complex web of factors for HIV-negative prisoners are determined based on a prisoner’s HIV-positive diagnosis alone. Because the policy differs with respect to male and female prisoners, the respective practices are discussed separately below.
1. Men Every male prisoner entering the ADOC first reports to Kilby Correctional Facility to undergo classification. There, each prisoner is given a physical and mentalhealth evaluation, is interviewed by a classification specialist, and his behavioral history (particularly his criminal history) is reviewed. As a result of this process, the prisoner is assigned a custody level. Custody levels for men include “close,” “medium,”
14

“minimum-in,” and “minimum-out,” and this designation
determines the ADOC facilities to which the prisoner may
be sent.4 Different facilities provide varying levels of
freedoms and restrictions. For instance, if a prisoner’s
classification number signifies that he is medium
security, he may be placed at only a major facility that
has armed guards. On the other hand, a prisoner who is
designated as minimum-out can be placed at a community-
work center.
The classification team also evaluates the prisoner’s
need for educational programs, trade school, substance-
4. Close custody is the most restrictive custody level. Prisoners who are classified at this level must be housed in a single cell, with movement outside of the housing area restrained, and the prisoner must be accompanied by armed correctional personnel. Medium custody prisoners may live in dormitories or double cells, must be assigned to a medium- or close-security institution, and must be supervised by armed correctional personnel when outside of the institution. Prisoners classified as minimum-in can participate in work assignments at ADOC facilities or off ADOC property with the supervision of correctional officers. Minimum-out prisoners can be assigned to off-property work details without the direct supervision of correctional staff.
15

abuse treatment, and certain mental-health programs. As Stephanie Atchison, Classification Assistant Director for the ADOC, explained, this impacts the department’s placement decisions. If, for example, a prisoner “needed to participate in a substance abuse program,” the classification team would “approve a group of institutions that offered substance abuse treatment, and whichever one had the space available, that’s the one he would go to.” Finally, each prisoner is subject to a medical and mental assessment, which can further limit the number of facilities for which he is eligible.
For the approximately 250 men within the ADOC who are HIV-positive, however, all of the factors normally considered in the classification process are overridden by an HIV-positive diagnosis.5 Upon entering the system,
5. Atchison explained that the automatic decision with regard to HIV is a “placement directive.” Placement directives come from the commissioner rather than from the classification specialists and override normal classification considerations.
16

every prisoner is given an enzyme-linked immunosorbent
assay (ELISA) test, which measures an antibody to HIV. 6
If the test is preliminarily positive, the prisoner is
placed in an isolation cell to await confirmatory testing
with a Western blot test. 7 If the Western blot test
confirms the diagnosis, the prisoner is transferred to
Limestone Correctional Facility.8 This occurs regardless
of whether the prisoner has complex medical needs or very
simple ones. HIV is the only disease or medical
6. The diagnostic test upon entry is required by state law. See 1975 Ala. Code § 22-11A-17(a).
7. Testimony at trial demonstrated that, in addition to the stress of being confined in an isolation cell, this practice is harmful because it comes across as a punishment for being diagnosed with HIV. Plaintiff Albert Knox explaned: “I didn’t feel like I deserved to be locked up in [a segregation cell] .... I always considered seg to be a place where you [go when you] screw up in prison or whatever ... that’s a disciplinary that you get .... [F]or me to be locked up in there, and I didn’t do anything wrong, I didn’t think it was right. It was punishment.”
8. The testing process cannot reliably diagnose all HIV-positive prisoners, however, because, as discussed above, individuals who have recently been infected and fall in the “window” period will not test positive for HIV, despite being very contagious.
17

condition listed on the ADOC’s medical-classification chart for which diagnosis alone, without any consideration of actual treatment needs, limits the prisoner’s placement possibilities to a single facility. This placement is also made without regard to securityclassification procedures. Limestone is equipped to house only general-population prisoners who are medium and minimum custody; the only close-custody prisoners there are those who have HIV.
The decision to house men exclusively in Limestone results in a number of inevitable consequences. For instance, prisoners who are not HIV-positive are assigned a mental-health code of zero through six; any prisoner with a mental-health code that requires special housing is sent to Bullock Correctional Facility (which can house codes three though six) or Donaldson Correctional Facility (which can house codes three and four). However, regardless of their mental-health needs, HIVpositive prisoners are precluded from Bullock and
18

Donaldson and instead placed at Limestone, which is only designed to house codes zero through two.
Program opportunities are also necessarily limited. For instance, the ADOC’s sole 12-15 month therapeuticcommunity program for substance-abuse treatment is offered at St. Clair Correctional Facility. HIV-positive prisoners are never placed at St. Clair, no matter how dire their addictions. Further, while approximately 85 % of HIV infections in Alabama come from Mobile, Montgomery, and Birmingham, all of which are in central or southern Alabama, Limestone is located on the State’s northern border, far from these cities (Mobile is an over five-hour drive from the prison). Therefore, while general-population prisoners are by no means guaranteed a placement near their homes and families, most HIVpositive prisoners are completely barred from this possibility. For many of them, this makes family visits difficult or impossible.
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The segregation policy continues within Limestone. There, HIV-positive men are separated into two HIV-only dormitories: Dorms B and C. Together, these dorms are known as the “Special Unit.” HIV-positive prisoners who are mentally ill, because they are barred from going to Bullock or another facility equipped to treat serious mental health needs, are housed in the Residential Treatment Unit, a set of nine cells in Dorm C cordoned off by a large metal cage, which juts out into the dorm’s common area. If an HIV-positive prisoner is placed in administrative or disciplinary isolation (for example, as punishment for his conduct), he is placed in the same isolation dormitory as the HIV-negative prisoners, Dorm E. Although that dormitory includes only individual isolation cells that are locked closed throughout the day, which completely prevents any physical contact among prisoners, the HIV-positive prisoners are placed together in a row, separated from cells occupied by HIV-negative prisoners by a floating metal gate.
20

Because HIV-positive men are uniformly housed in Limestone’s Special Unit, they are necessarily excluded from any benefits that stem from being housed in other dorms. Limestone has, for instance, a Senior Dorm, which provides a safer and calmer environment. There is also a Faith-Based Honor Dorm, whose prisoners enjoy occasional (though rare) benefits such as a family night, during which family members can visit and bring food. Limestone also offers a Pre-Release Dorm for prisoners who are within 120 days of their end-of-sentence dates. This dorm is designed to provide a supportive atmosphere for prisoners who will soon transition back into the free world.
HIV-positive prisoners are also barred from certain aspects of the Substance Abuse Program (SAP). In that program, which can last either eight weeks or six months, prisoners live together in a special dorm, take classes together, and eat their meals together. Dr. Altice explained at trial that this “milieu environment” is
21

often “extremely effective” because the “minute-by-minute
interaction in the bathroom, in the dorms or in their
housing units, [and] at meals” creates an “ongoing
dialogue about the sort of issues that are taught” in the
program.
HIV and substance abuse are frequently comorbid:
currently, around 41 prisoners with HIV are enrolled in
some component of SAP. However, while HIV-positive
prisoners can participate in SAP classes, they are not
permitted to live in the SAP dorm, and must return to the
Special Unit for meals and when classes end each day. As
a result, they are deprived of one of the fundamental
qualities that makes SAP effective.9
9. At trial, the ADOC downplayed the importance of the residential aspect from which HIV-positive prisoners are excluded. However, this representation is belied by the department’s own description of SAP’s objectives: “The goals of the program are to: (1) offer a stable, quiet and residential environment wherein recovering inmates can live together as a family , reinforcing each others[’] sobriety.” Pls.’ Ex. 51, at 15 (emphasis added). The very existence of a SAP dorm could be viewed as communicating the ADOC’s belief that substance-abuse programming benefits from a residential component.
22

In addition to the housing-segregation policy,
prisoners with HIV at Limestone are required to wear
white armbands. The ADOC attests that all prisoners are
required to wear armbands of various colors and that
each color simply designates the dorm to which each prisoner belongs.10 Commissioner Thomas explained that
the armbands “help control the flow of inmates throughout
a facility”: they prevent violence and unauthorized
activity because correctional staff can better monitor
whether the prisoners are in their proper dorms.
However, while no other two dorms share the same armband
color, both of the Special Unit dormitories, Dorm B and
Dorm C, are assigned white armbands. A correctional
officer stated that this makes it difficult to tell
whether the HIV-positive prisoners are in their correct
10. There was conflicting testimony at trial about when the armbands policy was initiated. Testimony from the plaintiffs’ witnesses suggested that, originally, only HIV-positive prisoners had armbands and that other dorms were given armbands only after the onset of this litigation. The ADOC disputes this chronology. Currently, every dorm except for the pre-release dorm uses armbands.
23

dorms, hollowing out the purported security purpose of the armbands.
There is one circumstance in which HIV-positive prisoners may be housed outside of Limestone: when they participate in the work-release program. Work-release placement allows selected prisoners to work (for pay) for participating employers in the community during the day, and then return to a work-release facility each night. While the ADOC operates a number of work-release facilities, HIV-positive prisoners are housed exclusively at one: Decatur Work Release. There, unlike at Limestone, HIV-positive prisoners are not required to sleep in a designated dorm, but instead share dormitories and the dining hall with prisoners who do not have HIV.
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2. Women
Tutwiler is the only prison for women in the ADOC.
Upon arrival there, each woman is given an ELISA test to
determine whether she has HIV. If a woman’s test comes
back positive, an officer removes the woman from the
receiving area and escorts her to an isolation cell. The
woman then must wait there for several weeks (at times
for up to a month) for the results of the Western blot to confirm the diagnosis.11
When diagnosis is confirmed, HIV-positive women are
assigned to Dorm E, which is segregated from the general
population. Like the men at Limestone, they are
permitted to participate in the prison’s various
11. This period of isolation, occurring just after the woman enters the prison and is newly diagnosed with HIV, is frequently traumatic. The women are provided with no educational materials or counseling. Plaintiff Dana Harley, an HIV-positive prisoner at Tutwiler, is frequently asked to counsel the women herself. “[U]sually they’re going crazy,” she explained. “Hysterical, crying ... like they’re about to pass out, thinking they’re going to die. I mean just going absolutely crazy.”
25

programs. However, also like the men at Limestone, they cannot reside in any specialized dorms, including Tutwiler’s SAP dorm and Honor Dorm. HIV-positive women who are mentally ill, instead of being placed in the open-bay area of the mental-health unit, are automatically sent to the isolation cells reserved for the seriously mentally ill (the Intensive Psychiatric Stabilization Unit), regardless of their actual mentalhealth needs.
3. Food-Service Jobs Many prisoners at Limestone and Tutwiler have jobs in those prisons’ kitchens. In the work-release program, many of the approved employers are restaurants or food processing factories in the community. HIV-positive prisoners, however, are wholly excluded from participation in any job related to food services: they may not hold kitchen jobs at Limestone and Tutwiler, and
26

they may not work for food-service employers in the workrelease program.
4. Work-Release Eligibility Criteria When HIV-positive prisoners are considered for the work-release program, they must meet a number of criteria that are not imposed on other prisoners. For an HIVpositive prisoner (male or female) who is not taking HIV medication, her viral load must be lower than 1,000 and her CD4 count must be greater than 700 (or her CD4 percentage must be greater than 35). An HIV-positive prisoner who is taking HIV medications must be approved for the keep-on-person program and have adhered to it for six consecutive months or more. Her viral load must have been less than 48 for four consecutive readings, and her CD4 count must be greater than 450 (or her CD4 percentage must be greater than 30). Each HIV-positive prisoner is evaluated according to these criteria by an institution’s
27

Site Medical Director or an HIV Specialist, who has the option to waive them at her discretion.
Although the ADOC manages populations with a number of illnesses that are equally as serious and as infectious as HIV, HIV is the only disease with a separate subset of criteria dedicated solely to it. It is also the only disease whose criteria are based on rigid numerical thresholds rather than treatment needs or functional abilities. A prisoner who does not have HIV is instead evaluated based on her medical code and the seriousness of her treatment needs. For instance, prisoners who are receiving dialysis, hepatitis chemotherapy treatments, and cancer treatments are not “clear” for work release (but the criteria do not categorically require people with these illnesses to satisfy any numerical criteria divorced from actual treatment or capabilities). Joint Ex. 35.
28

II. DISCUSSION A. Justiciability Before reaching the merits of the plaintiffs’ claims, the court must decide whether they have standing under Article III of the Constitution to raise them. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (holding that standing, an “indispensable part of the plaintiff’s case, ... must be supported ... at [each] stage[] of the litigation”). To satisfy Article III's standing requirements, a plaintiff must show (1) she has “suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 528 U.S. 167, 180-81 (2000) (quotation marks and citation omitted).
29

As this case is a class action, “each claim must be
analyzed separately, and a claim cannot be asserted on
behalf of a class unless at least one named plaintiff
[individually has standing to raise] that claim.” Prado-
Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1280 (11th
Cir. 2000). To analyze each claim separately, the court
must first decide what claims have been raised. That is,
surprisingly, not simple here, because the plaintiffs
have not framed the dispute in terms of discrete claims1.2
For reasons that will become clear below, the governing
law in this case requires the court to decide certain
issues separately in a manner that amounts to
12. The plaintiffs assert a challenge both to the ADOC’s HIV-segregation practice as a whole and to various aspects of the policy. They also presented significant evidence about the discriminatory effects of the policy, at times making it difficult for the court to discern what the plaintiffs considered to be true aspects of the policy and what were merely its deleterious effects. As previously explained, the court considers the heart of the challenged policy to be a series of automatic determinations made with regard to HIV-positive prisoners. However, the challenged conduct is the determination itself, and not its many effects.
30

adjudication of several distinct claims for relief. See Harris v. Thigpen, 941 F.2d 1495, 1526 (11th Cir. 1991) (requiring the district court to evaluate the risk of HIV transmission occurring “with regard to each program from which [HIV-positive prisoners] have been automatically excluded,” rather than with respect to prison in general); see also Miller v. King, 449 F.3d 1149, 1150-51 (11th Cir. 2006) (stating that “it is important for lower courts to determine on a claim-by-claim basis ... which aspects of the State’s alleged conduct violate[s] Title II”). The court understands the plaintiffs’ claims against the HIV-segregation policies and practices at ADOC prisons to encompass challenges to the following discrete policies: (1) the policy that HIV-positive men are segregated within Limestone from the generalpopulation prisoners; (2) the policy that HIV-positive men are permitted housing only at Limestone and Decatur Work Release, and excluded from all other ADOC men’s facilities; (3) the policy that HIV-positive women are
31

segregated within Tutwiler from the general-population prisoners; (4) the policy that women are allowed workrelease housing at Montgomery Women’s Facility, but not the ADOC’s other work-release facility for women; (5) the exclusion of HIV-positive prisoners, male and female, from food-service jobs within the prison and at work release; (6) the eligibility criteria applied to HIVpositive prisoners, male and female, who apply to participate in the work-release program; and (7) the requirement that male HIV-positive prisoners wear white armbands.
As for the first two claims (segregation within Limestone and exclusion from other ADOC facilities for men), plaintiffs Louis Henderson, Jeffrey Beyer, and James Douglas have standing to challenge these policies. All three reside in the Special Unit at Limestone and wish to be integrated into the general population at Limestone and to be eligible for housing at other facilities. Plaintiffs Dwight Smith and Alqadeer Hamlet,
32

who are currently placed at Decatur Work Release, would like to be eligible for other work-release facilities; they therefore have standing to challenge the ADOC’s policy of housing HIV-positive prisoners exclusively at Decatur.
As for the third and fourth claims (segregation within Tutwiler and eligibility for only one women’s work-release facility), plaintiff Dana Harley has standing. At the time this case began, Harley was housed in Tutwiler’s segregation dormitory and wished to be integrated. She also wanted to be eligible for all women’s work-release facilities (rather than only for Montgomery Women’s Facility). All plaintiffs have standing to raise the fifth (exclusion from food-service jobs) and sixth (HIV-related eligibility requirements for work release) claims, as all desire the opportunity to work in food-service jobs and to apply for work release without being subjected to eligibility criteria that they argue are discriminatory and unnecessary. In particular,
33

plaintiff Douglas has been excluded from work release

because of the eligibility requirements. Lastly, all

male plaintiffs have standing to raise the seventh claim,

as they all are required to wear white armbands.

The ADOC devoted ample time at trial to the argument

that class representatives who were denied certain

benefits because of the policy lack standing because they

would not have been guaranteed those benefits even if

they were not HIV-positive. For instance, the department

argues that the male plaintiffs lack standing to

challenge their ineligibility for transferring to

facilities other than Limestone because no prisoner has

a right to transfer to the facility of his choosing.

Therefore, the ADOC argues, even if this court were to

order relief, the plaintiffs’ injuries could not be

redressed. However, this argument misses the point. The

plaintiffs are not challenging the outcome

of the

department’s decisions, but rather, the fact that they

are entirely barred from consideration because they have

34

HIV. Therefore, the plaintiffs’ standing hinges on the fact that they have not been considered even though they wish to be, not on whether this consideration would result in a particular outcome. It has long been understood that governmental policies of exclusion and segregation create actual, concrete injuries that are redressable by the courts. See, e.g. , Jackson v. Okaloosa Cnty., 21 F.3d 1531, 1537 (11th Cir. 1994) (holding that a claim of “exclusion ... and, as a result of this exclusion, imminent segregation,” alleges a “redressable injury”); cf. Ne. Fla Chapter of Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993) (“When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The ‘injury in fact’ in an equal protection
35

case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.”).
The ADOC also contends that, because Harley was transferred out of Tutwiler and into Montgomery Women’s Facility after the complaint in this case was filed, her challenge to segregation within Tutwiler is now moot. Further, towards the end of trial, the ADOC conceded certain aspects of the plaintiffs’ claims and assured the court that its practices “would change” in certain respects.13 Now, the ADOC urges the court to disregard those claims, arguing that they have been mooted.
13. The policies and practices that the ADOC committed to changing include: (1) the exclusion of HIVpositive prisoners from food-service jobs in prison and in the work-release program; (2) the requirement that all HIV-positive men wear white armbands; and (3) the policy that HIV-positive men are placed together in Dorm E (administrative and disciplinary isolation). The ADOC also committed to evaluating options for removing the fence that currently surrounds the Special Unit at Limestone.
36

“[T]he voluntary cessation of challenged conduct will moot a claim only when there is no ‘reasonable expectation’ that the accused litigant will resume the conduct after the lawsuit is dismissed.” Nat’l Ass’n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga., 633 F.3d 1297, 1309 (11th Cir. 2011) (citations omitted). “Otherwise a party could moot a challenge to a practice simply by changing the practice during the course of the lawsuit, and then reinstate the practice as soon as the litigation was brought to a close.” Id . (quotation marks and citations omitted).
The party asserting mootness generally bears the “heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to recur.” Friends of the Earth, Inc., 528 U.S. at 170. At the same time, however, a governmental defendant enjoys a “rebuttable presumption that the objectionable behavior will not recur.” Troiano v. Supervisor of Elections in Palm Beach Cnty., 382 F.3d 1276, 1283 (11th Cir. 2004) (emphasis in
37

original). This court must conduct the mootness inquiry with attention to three relevant factors: (1) “whether the termination of the offending conduct was ‘unambiguous’”; (2) “whether the change in government policy or conduct appears to be the result of substantial deliberation, or is simply an attempt to manipulate jurisdiction”; and (3) “whether the government has ‘consistently applied’ a new policy or adhered to a new course of conduct.” Nat’l Ass’n of Bds. of Pharmac,y 633 F.3d at 1310 (citations omitted).
The mootness issue with regard to Harley can be dispensed with easily. The HIV segregation that Harley challenges at Tutwiler never ended: the ADOC simply removed her from the location of the challenged conduct. The only question, then, is whether Harley can expect to be subjected to the ADOC’s practices at Tutwiler in the future. Transfers between Tutwiler and Montgomery Women's Facility are common (indeed, Harley has previously been moved back and forth between the
38

facilities), and as such, there is a more than reasonable basis to believe that she will be subjected to segregation in Tutwiler again.
Nor is this court deprived of its power to decide the plaintiff’s claims challenging policies that the ADOC now agrees to change. The ADOC has provided no information about the department’s deliberation process and has provided only vagueries about the basis for its decision to alter its policies. Therefore, its policy changes are far from unambiguous. See Harrell v. The Fla. Bar , 608 F.3d 1241, 1267 (11th Cir. 2010) (“[T]he Board acted in secrecy, meeting behind closed doors and ... failing to provide any basis for its decision [to change its challenged practices]. As a result, [the court has] no idea whether the Board’s decision was well-reasoned and therefore likely to endure.”) (quotations and citations omitted). In addition, while “a defendant’s cessation before receiving notice of a legal challenge weighs in favor of mootness ... cessation that occurs late in the
39

game will make a court more skeptical of the voluntary changes that have been made.” Harrell, 608 F.3d at 1266 (quotation marks and citations omitted). In this case, the department committed to policy changes at the close of trial, despite the fact that this litigation has been ongoing for over a year-and-a-half. The concessions therefore seem more likely an attempt to avoid an unfavorable result in this litigation than “the result of substantial deliberation.” Nat’l Ass’n of Bds. of Pharmacy, 633 F.3d at 1310.
As to the third factor, the court has not received any concrete evidence as to whether and how any changes have, in fact, been made, nor has it received any evidentiary details about when and how future changes to the current policy might occur. Therefore, the court cannot be sure whether the ADOC truly has mooted these claims. All three factors thus counsel against a finding of mootness on the conceded issues.
40

In sum, all of the plaintiffs’ claims present justiciable controversies. Neither the standing nor mootness doctrines preclude the court from reaching the merits of these claims.
B. Title II of the Americans With Disabilities Act and § 504 of the Rehabilitation Act
The plaintiffs assert claims under Title II of the ADA and under § 504 of the Rehabilitation Act. Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity.” 42 U.S.C. § 12132. Section 504 provides that, “No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial
41

assistance.” 29 U.S.C. § 794(a). 14 Claims under both statutes are governed by the same standards. See, e.g., Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000); see also Everett v. Cobb County Sch. Dist. , 138 F.3d 1407, 1409 (11th Cir. 1999). To state a claim under either statute, the plaintiffs must show: “(1) that [they are] qualified individual[s] with a disability; (2) that [they were] either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or [were] otherwise discriminated against by the public entity; and (3) that the exclusion, denial of benefit, or discrimination was by reason of the plaintiff[s’] disability.” Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1083 (11th Cir. 2007) (citation omitted);
14. Both statutes clearly apply to Alabama state prisons. See Pa. Dep’t of Corr. v. Yeskey , 524 U.S. 206 (1998)(holding that state prisons and jails are considered public entities for the purposes of the ADA); Pretrial Order (Doc. No. 177) at 12 (Stip. 1) (stating that the ADOC receives federal financial assistance, therefore subjecting the ADOC to the requirements of the Rehabilitation Act).
42

see also Harris, 941 F.2d at 1522 (applying those

elements in the prison context). Because the same

standards govern claims under both statutes, in the

interest of brevity, the court will refer to both as “the

ADA.”

The plaintiffs correctly assert (and the ADOC

concedes) that HIV is a disability under the ADA.

15

Therefore, the court’s analysis addresses the other

elements of a claim under the ADA.

15. The ADA and the Rehabilitation Act define disability as (among other things) “a physical or mental impairment that substantially limits one or more major life activities of such individual.” 42 U.S.C. § 12102(1)(A) (ADA); 29 U.S.C. § 705(20)(B) (Rehabilitation Act). The ADA Amendments Act of 2008 clarifies that “major life activities” includes “the operation of a major bodily function, including ... functions of the immune system.” 42 U.S.C. § 12102(2)(B). As HIV critically impacts the immune system, it is within the ambit of the statute.
43

1. Segregation Among the regulations promulgated under Title II of the ADA is the “integration regulation,” which provides that, “A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d) (emphasis added). “[T]he most integrated setting appropriate” is defined as “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” 28 C.F.R. Pt. 35, App. B (2011). Consonant with the integration mandate, the Supreme Court has concluded that, “Unjustified isolation ... is properly regarded as discrimination based on disability.” Olmstead v. L.C. ex rel Zimring , 527 U.S. 581, 597 (1999).
44

At trial, the ADOC insisted that its policies do not
amount to segregation. 16 The department argued, in
essence, that, because HIV-positive prisoners can
participate in certain integrated programs, they are not
truly “segregated.”17 The ADOC enmeshed these arguments
16. The ADOC made this a rgument despite the fact that, even during the trial, the department's own website described the policy as segregation.
17. The ADOC downplayed the significance of separate dorms for HIV-positive prisoners by referring to them as simply “where the prisoners sleep.” See, e.g. , Defs.’ Pretrial Br. (Doc. No. 211) at 65 (“Class Representatives simply cannot sleep in the dorms ... with the rest of the general population); id . at 67 (referring to the plaintiffs’ claim as a “sleeping arrangement request”). The ADOC's expert, Dr. George Lyrene, was particularly dismissive, stating that, “The argument about the importance of sleeping together seems petty and spurious to me.” Defs.’ Ex. 336, at 12. However, the facts show that the dorm is more than where the prisoners sleep. Prisoners spend much of the day in their dorms. (Plaintiff Beyer reported spending an average of 7-8 waking hours in his dorm during the summer months, and 10 hours a day in the winter. Plaintiff Knox testified that he spends around 6-8 hours each day in his dorm.) Residents of the Special Unit (and many other dorms at Limestone) also eat all of their meals there. Beyer said of his dorm, “It’s the place ... where I sleep, I eat, I read, I watch TV. It’s just the place where I live. ... [I]t’s not just where I sleep.” Plaintiff Henderson
(continued...)
45

with an emphasis on the adequacy of medical care in the
Special Unit and an account of various programs to which
HIV-positive prisoners have access. Thus, the
department's true meaning appears to be that, because the
prisoners are not denied health care and because they
have access to many programs, they have no right to
complain about the fact that they are segregated. The
court agrees that “segregation” is an uncomfortable term, loaded with implications of prejudice. 18 The court also
finds that it is an appropriate way to describe the
policy at issue here. Mandatory separate housing in a
separate dorm (which is, for male prisoners, itself
17. (...continued) echoed Beyer's comments, saying of his dorm, “That’s where I live.”
18. “Segregation” is defined as “the separation or isolation of individuals or groups from a larger group or from society,” but it can also refer to “the separation or isolation of a race, class, or ethnic group by enforced or voluntary residence in a restricted area, barriers to social intercourse, divided educational facilities, or other discriminatory means.” Webster’s Third New International Dictionary 2057 (2002).
46

within a separate facility) would doubtlessly violate the ADA if unjustified. The same can be said for the practice of excluding HIV-positive prisoners from foodservice jobs.19
However, the ADA extends its protections to only individuals claiming discrimination with respect to, or exclusion from, a public entity’s services who were “otherwise qualified” for those services. Onishea , 171 F.3d at 1300. “‘An otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap.’” Id . (quoting Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979)).
The “otherwise qualified” analysis entails a two-part inquiry. First, the court must determine whether the plaintiffs are qualified for integration where they are currently segregated. Second, if the plaintiffs are not
19. The ADOC's work-release policy and its policy requiring male prisoners with HIV to wear white armbands are analyzed under different legal frameworks under the umbrella of the ADA.
47

qualified as an initial matter, “the court must nevertheless evaluate ... whether reasonable accommodations would[, if made by the ADOC,] make [plaintiffs] otherwise qualified.” Harris , 941 F.2d at 1525; see also Martinez v. Sch. Bd. of Hillsborough Cnty., 861 F.2d 1502, 1505 (11th Cir. 1988). The plaintiffs carry the burden of making a prima-facie showing that they are otherwise qualified or would be if the ADOC made reasonable accommodations. Onishea , 126 F.3d at 1329-30. If the plaintiffs make a prima-facie showing, the burden then shifts to the ADOC to establish that the proposed accommodations are not “reasonable” because implementation would impose “undue financial and administrative burdens” or require “a fundamental alteration in the nature of [the] program” at issue. Harris, 941 F.2d at 1572 n.48 (citations omitted); see also Henrietta D. v. Bloomberg , 331 F.3d 261, 280 (2d Cir. 2003) (“[I]t is enough for the plaintiff to suggest the existence of a plausible accommodation, the costs of
48

which, facially, do not clearly exceed its benefits, and ... [o]nce the plaintiff has done this, she has made out a prima facie showing that a reasonable accommodation is available, and the risk of nonpersuasion falls on the defendant.”) (quotation marks and citation omitted).
Courts have prescribed a particular analytical approach where the disability is a contagious illness. If a person with a contagious illness poses a direct threat to the health and safety of others, then she is not “qualified” within the meaning of the statute. See Onishea, 171 F.3d 1296-97. To make this determination, courts apply the factors identified by the Supreme Court in School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987); see also Martinez, 861 F.2d at 1505 (explaining that, when a person is handicapped with a contagious illness, a court must first apply the Arline factors, and second, evaluate whether reasonable accommodations would make the person otherwise qualified); Onishea, 171 F.3d at 1297 (applying the
49

Arline factors to a challenge of the ADOC HIV-segregation policy). The factors include: "(a) the nature of the risk (how the disease is transmitted), (b) the duration fo the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degress of harm." Onishea, 126 F.3d at 1297 (quoting Arline , 480 U.S. at 288). In applying these factors, the court must take into account the basic principle that “the significance of a risk is a product of the odds that transmission will occur and the severity of the consequences.” Id.
Arline emphasized that these factors must be applied on an individualized basis: only by doing so can the court honor Congress's “goal of protecting handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns ... as avoiding exposing others to significant health and safety risks.”
50

Arline, 480 U.S. at 287; see also id. (stating that “the district court will need to conduct an individualized inquiry” in applying the factors). It follows that, in the context of a class action challenging the treatment of persons with a disability as a group, the court must not make a finding of significant risk as to the entire group unless it can be sure that no individual within the group would not pose such a risk.
When the Eleventh Circuit previously considered whether the ADOC’s segregation policy violated the ADA, that court found that the seriousness of HIV, then a death sentence for everyone who contracted it, rendered unacceptable even a small (though plausible) risk of transmission. See Onishea, 171 F.3d at 1293 (“HIV infection inevitably progressed to AIDS. AIDS always led to death, often after lengthy suffering.”). The court held that, “when transmitting a disease inevitably entails death, the evidence supports a finding of ‘significant risk’ if it shows both (1) that a certain
51

event can occur and (2) that according to reliable
medical opinion the event can transmit the disease.”
Onishea, 171 F.3d at 1299. Because HIV was inevitably
fatal, those infected with it fell outside of the ADA’s
protections. Significantly, the Eleventh Circuit
emphasized that its conclusion was based on “the state of
medical knowledge and art at the time of trial.” Id. at
1293.
Today, however, HIV does not invariably cause death2.0
The vast majority of infected individuals can expect to
live a near-normal lifespan. Therefore, the heightened
20. While the ADOC argues that the Onisheatest still applies to HIV, they, puzzlingly, never argue that HIV is still invariably fatal; instead, they state that it is fatal when left untreated . Defs.’ Prop. Findings (Doc. No. 246) at 6 (“[I]f left untreated , HIV has the same affect on people that it did before the development of the current antiretroviral medications, i.e., development of ‘full-blown’ AIDS and inevitable death.”) (emphasis added). It strains credulity to imagine that the Eleventh Circuit meant to encompass in its rule all diseases that are fatal without the benefit of modern medicine; indeed, albeit not contagious, conappendicitis, high blood pressure, and even tooth decay can be fatal when left untreated.
52

standard that the Eleventh Circuit applied in Onisheafor fatal illnesses no longer applies to HIV. Instead, this court must apply the “significant risk” test the the Supreme Court outlined in Arline.
The court may not simply conduct this analysis with respect to HIV in prison in general, however. Instead, the court must consider the risk of transmission with respect to each specific aspect of institutional life in which the plaintiffs claim exclusion. See Harris, 941 F.2d at 1526 (reversing the district court because it “should have determined the risk of transmission not merely with regard to prison in general, but with regard to each program from which appellants have been automatically excluded”). Because the plaintiffs have not provided clear guidance on how the court should parse their claims, the court will do so according to the different contexts in which the transmission risk may differ. Assessment of the risk with regard to men must be separate from that with regard to women, since the
53

latter transmit the disease in more limited
circumstances. Similarly, the risk differs in the
context of food services from the risk posed by
integrated dormitories. The court will therefore analyze
each context in turn.
a. The Special Unit Within Limestone
The court first addresses the ADOC's housing
segregation policy at Limestone, which requires all HIV-
positive prisoners to reside in the Special Unit. 21 As
21. The court notes the obvious fact that this is not a case in which the plaintiffs are unqualified because of legitimate eligibility requirements unrelated to their HIV status. See, e.g. , Pottgen v. Mo. State High Sch. Activities Ass'n, 40 F.3d 926, 928 (8th Cir. 1994) (addressing argument that student was excluded from interscholastic sports because of legitimate maximumage-eligibility requirement, not because he had learning disabilities). On the contrary, here, because housing is a necessary component of institutional life that is provided to all incarcerated persons, the plaintiffs clearly “meet all of [the] requirements” for being housed with the general population in ADOC facilities, Onishea, 171 F.3d at 1300; as such, the plaintiffs are unqualified for integrated housing only if they would “constitute a direct threat to the health or safety of other
(continued...)
54

this court has explained, HIV can be transmitted through contaminated blood or bodily fluids. In the prison context, this is most likely to occur during unprotected sex or needle sharing (for example, intravenous drug use or tattooing). See Onishea, 171 F.3d at 1294-95.
The degree to which a person with HIV is infectious can vary over the course of his disease. As the court has already described, modern HIV treatments can not only effectively treat the virus, but, generally speaking, prevent its transmission. Dr. Altice explained that “the newer HIV therapy regimens are so effective in suppressing the virus that HIV transmission is almost impossible even if high-risk activity occurs between HIVpositive and HIV-negative individuals, if the HIVpositive individual is receiving antiretroviral therapy and their virus is suppressed.” Altice Report, Pls.’ Ex.
21. (...continued) individuals” and that threat could not be eliminated with reasonable accommodations. Id . at 1296-97 (citations omitted); Harris, 941 F.2d at 1525.
55

107, at 6. As the viral load drops, so does the risk of transmission, and, once full viral suppression is obtained, the risk is essentially non-existent.
The level of scientific certainly for this general principle, however, differs in different contexts. The best data available come from randomized controlled trials. In 2011, Science magazine reported the results of one such trial showing that, among heterosexual couples, the use of antiretroviral therapy dramatically reduces transmission of the disease. Science deemed these results its “Breakthough of the Year.” The randomized control trial studying the effect of antiretroviral therapy on transmissions between men who have sex with men is still underway. However, “community viral load data among men who have sex with men” suggest “a markedly reduced level of transmission” for that group as well. It was clear to the court that both the plaintiffs and the ADOC had adopted the general principle that virally suppressed individuals are highly unlikely
56

to transmit HIV sexually, whether the sexual act is between people of different sexes or of the same sex. None of the ADOC’s experts disputed the proposition that viral suppression dramatically reduces a person’s ability to transmit HIV through sexual activity: The ADOC's expert witness, Dr. Steven Scheibel, stated that: “[S]omeone's not infectious in terms of sex if they have an undetectable viral load .... If ... people ... are on antiretroviral medication and the virus level is suppressed, they are ... very unlikely to transmit.”
There has also been no completed randomized controlled trial studying the risk of transmission among virally suppressed individuals who share needles (although one such study is currently underway). Early indicators suggest that antiretroviral drugs have a similarly preventative effect when it comes to transmission through needle sharing. This outcome would be logical because, after all, regardless the means of transmission, so long as a person is adherent to
57

antiretrovirals, the virus will be only have a minimal presence in the blood and body fluids. Based on the current state of medical knowledge, Dr. Altice found it probable that viral suppression reduces risk of transmission via needle sharing: “[C]ohort studies and community types of studies ... suggest[] that this treatment as prevention paradigm works for all groups. However, he conceded that “the jury's not in 100 percent” in that regard. Dr. Scheibel was more skeptical: “[T]he bottom line is that we do not know how transmission may occur when people are sharing needles and when people are tattooing in terms of HIV transmission.” Despite Dr. Altice's optimism and indicators showing that virallysuppressed HIV-positive persons pose a drastically reduced risk of transmission when sharing needles, “‘[l]aw lags science; it does not lead it.’” McClain v. Metabolife Int'l, Inc. , 401 F.3d 1233, 1247 (11th Cir. 2005) (quoting Rosen v. Ciba-Geigy Corp. , 78 F.3d 316, 319 (7th Cir. 1996)). Therefore, at this time, the court
58

cannot conclusively find that virally suppressed HIVpositive individuals who share needles pose no, or only a nominal, risk of transmission.
In addition to individuals who obtain viral suppression through medication, there is another very small group called “elite suppressors” who often have undetectable viral loads without the aid any HIV medications. The risk of elite suppressors spreading the virus is similar to that of persons who have obtained viral suppression throughout treatment. Dr. Scheibel’s chart review of HIV-positive prisoners at Limestone reveals that the vast majority of prisoners on antiretroviral medications have acheived viral suppression. He also identified one elite suppressor among those who are not on HIV medication.
Based on this evidence, it is clear that at least some, if not a majority, of HIV-positive prisoners at Limestone present a very low risk of transmitting the
59

virus.22 Prisoners who have achieved viral suppression pose an infintesimal risk if they abstain from sharing needles, regardless of whether they have sexual intercourse with other prisoners.
The understanding that some people with HIV are very unlikely to transmit the disease is shared by ADOC Commissioner Thomas. In the context of addressing the criteria the department uses to determine whether HIVpositive prisoners are eligible for work release, he explained that “the medical criteria allows ... a person [for] who[m] the risk of transmission is almost zero to have access to a work-release program.” Implicit in that testimony is that Commissioner Thomas not only believes that individuals exist within the system who are not
22. Despite the power of antiretrovirals to reduce the odds of transmission, adherence is key to the medications’ success. People infected with HIV who are virally suppressed can quickly become infectious again if they cease to take their medicines.
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infectious, but he also that believes that the ADOC is able to identify those individuals.23
The level of risk is somewhat different for prisoners who were not previously diagnosed with HIV (but had been unknowingly living with the disease) before entering the ADOC's custody. This group is, generally speaking, very infectious until medication takes effect. As the medication takes effect and the viral load lowers, the risk of transmission decreases accordingly. Thus, for these prisoners, the probability of transmission will depend on the length of time over which they are adherent to medication and their behavior. Should they engage in high-risk behavior (including both sex and needlesharing) before achieving viral suppression, the risk of transmission is high. On the other hand, if these
23. Since HIV-positive prisoners are not segregated at work release, but are housed alongside HIV-negative prisoners, Commissioner Thomas’s statement also relates confidence that the department can safely house at least some HIV-positive individuals with prisoners who are HIVnegative.
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prisoners abstain from voluntarily participating in behavior that risks transmission, the risk is minimal. However, even in the absence of high-risk behavior, involuntary occurrences (such as rape) create some risk. Nevertheless, on balance, the probability of transmission posed by even a quite infectious person who does not voluntarily engage in high-risk behavior is generally low, and it will reduce drastically as treatment takes effect.
There may exist a small minority of prisoners who, for various reasons, will never achieve viral suppression (barring further advances in science or changes in behavior). For exampl e, some people with HIV who have poorly adhered to antiretroviral medications develop strains of the virus that are resistant to treatment. Others may, for various reasons, be unwilling to take medications altogether. For these prisoners, the risk and probability of transmission are largely a function of
62

behavior (though this risk will be higher than that posed by prisoners who have achieved viral suppression), and the duration of the risk is indefinite. Essentially, the risk posed by this group is the same as that posed by all HIV-positive prisoners before the advent of antiretroviral treatment.
The ADOC’s argument that integrating HIV-positive prisoners would increase the number of transmissions stems from the indisputable fact that integration would increase opportunities for high-risk behavior. However, the picture is more complex than the department suggests. HIV-positive and HIV-negative prisoners at Limestone already have ample opportunity to interact with one another and engage in high-risk activity in areas of the prison other than their housing units. As Dr. James Austin, a nationally renowned expert in prison and jail classification and risk assessment, explained, “sexual contact between prisoners occurs in virtually all areas
63

of prisons except where prisoners are in permanent isolation.” Austin Report, Pls.’ Ex. 108, at 15. Segregation also does not reduce opportunities for transmission through sexual activity between staff and prisoners, nor from prisoners who are transferred to county jails or work-release facilities (where they are not segregated) and then back to prison. Meanwhile, the transmission rate for HIV within the ADOC is exceedingly low: at or approaching zero. 24 In light of the substantial opportunities for interaction between HIVpositive and HIV-negative prisoners, the virtual nonexistence of transmissions within the ADOC casts serious doubt on the department’s assumption that further integration would increase the transmission rate. It
24. The low transmission rate is particularly notable because in the earlier litigation challenging the more stringent version of this policy, the ADOC argued, and the district court agreed, that “the transmission risk [was] significant in all programs.” Onishea, 171 F.3d at 1295. In spite of this finding, no transmissions in fact occurred when programs were integrated.
64

instead appears that so long as integration is handled responsibly, it is unlikely to meaningfully increase transmissions, if at all.
Further still, it is possible that eliminating the segregation policy could deter high-risk behavior in some instances. Dr. Altice opined that, among HIV-negative prisoners prone to risky behavior, segregation could create a false sense of security. Believing that no one in their midst had HIV, they may be more willing to engage in high-risk behavior than they would otherwise. This could place them at risk for contracting HIV from highly infectious HIV-positive prisoners who were not segregated because they were tested during the “window period” (and for countless other sexually transmitted infections). Thus, perversely, it is at least, arguably, possible that the segregation policy could lead to
65

transmissions that would not occur if the prisoners were integrated.25
There is a small risk of transmission that exists under the current policy: this cannot be eliminated so long as human beings interact. There is no evidence that integrating HIV-positive prisoners in housing would meaningfully increase the probability of transmissions. Although integration would certainly create more opportunities for high risk behavior, such opportunities exist now and have not resulted in any transmissions. The link between the department’s lack of transmissions and the segregation policy thus merely amounts to post hoc ergo propter hoc.
25. Deputy Commissioner Emmitt Sparkman of the Mississippi Department of Corrections testified that he was not concerned about transmissions when that department integrated HIV-positive prisoners in 2010 because he felt the segregation policy simply created a false sense of security that encouraged high-risk behavior.
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Regardess of the likelihood of transmissions, the significance of transmission for the person who becomes infected with the virus should not be understated. There is no cure for HIV at this time. Therefore, should a prisoner in the custody of the ADOC become HIV-positive while incarcerated, he will remain so for the rest of his life (barring scientific advances). Accordingly, he would be burdened with a lifelong responsibility to maintain access and adhere to antiretroviral treatment, a failure to do so likely resulting in a dramatically shortened lifespan. For the disproportionately poor prisoners in the ADOC, this responsibility (which is literally a matter of life or death) is no small thing. On the other hand, the consequences of being HIV-positive are not nearly as severe today as they were during an earlier time. As has been discussed, the vast majority of people with HIV enjoy near-normal lifespans. They can typically be treated with a simple one-pill-a-day regimen
67

free of crippling side-effects. And, because of antiretrovirals, they can also engage in ordinary sexual behavior without reasonable fear of transmitting HIV to their partners. With appropriate treatment, they can have lives nearly identical to those of people who do not have HIV (that is, aside from having to take medications).
Balancing these factors and weighing “the odds that transmission will occur” against “the severity of the consequences,” Onishea, 126 F.3d at 1297, it is obvious that, given the life-changing advances in HIV treatment, ceasing the housing, categorically, of all HIV-positive prisoners exclusively in Limestone's Special Unit would not create “a direct threat to the health or safety of other individuals” within the meaning of the ADA. Onishea, 171 F.3d at 1296-97. A very low risk would be created if the ADOC integrated HIV-positive prisoners on an individual-by-individual basis, based, for example, on
68

whether their viral levels are suppressed and whether
they have a demonstrated history of medication adherence
and abstinence from high-risk behavior. That description
could fit many prisoners currently incarcerated in the
Special Unit; segregating them thus violates the ADA. On
the other end of the spectrum, a threat could be created
if the ADOC integrated (without imposing additional
safeguards) HIV-positive prisoners with high viral loads
who refuse to take medication and who have a history of
risky behavior (for example, attempting to rape other
prisoners).26
26. Integrating such persons could, in certain circumstances, amount to a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment. See, e.g., Gates v. Collier , 501 F.2d 1291, 1300 (5th Cir. 1974) (finding an Eighth Amendment violation where inadequate medical care resulted in, among other things, “inmates with serious contagious diseases [being] allowed to mingle with the general prison population”); Clark v. James, 794 F.2d 595, 596 (11th Cir. 1986) (requiring “reconsideration of appellant’s claim that by assigning him to prison duties requiring exposure to contagious diseases, prison officials violated his eighth ... amendment rights”); Billman v. Ind. Dept. of Corr. , 56
(continued...)
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What is critical here is that, despite this range of
risk, the ADOC maintains a blanket policy of precluding
all HIV-positive prisoners at Limestone from integrated
housing, regardless of their individual circumstances.
That policy denies plaintiffs the individualized
determinations to which they are entitled under the ADA,
see Arline, 480 U.S. at 287, and unjustifiably treats all
HIV-positive prisoners identically, despite the fact that
their circumstances are materially different, not
identical. See Kapche v. City of San Antonio , 304 F.3d
493, 499 (5th Cir. 2002) (describing Supreme Court
precedent interpreting the ADA as “consistently
26. (...continued) F.3d 785, 788 (7th Cir. 1995) (upholding Eighth Amendment claim alleging that “employees of the prison system, knowing that [a prisoner] had a history of raping his cellmates and was HIV-positive, nevertheless placed [the plaintiff] in the same cell without warning him of the danger he faced, and that they did nothing to interrupt the rape while it was in progress”). However, even with these prisoners, the court can discern no reason why the ADOC would need to treat them differently from other prisoners who have shown sexually predatory behavior and have serious infectious diseases other than HIV.
70

point[ing] to an individualized assessment mandated by [the act],” and “further not[ing] that [the court is] unaware of any decision from [its] sister Circuits abrogating the requirement of an individualized assessment in favor of a per se exclusion under the ADA.”). For this reason, the ADOC is currently violating the rights of the HIV-positive prisoners within its custody by categorically segregating them because of their HIV status and excluding them from the integrated housing for which they may be qualified.
The court witnessed the impact of the segregation policy when it toured Limestone and the Special Unit with both legal teams during the trial. The court recognizes that the prisoners in the Special Unit were locked down during the visit out of consideration for the court's safety. Even discounting the effect of the lockdown, the Special Unit evoked the feeling of a place abandoned. The prisoners there displayed a striking uniformity of
71

disposition. They peered, sullen, from their cells. The quiet, which the ADOC touted at trial as an asset of the unit, seemed instead to accent the dormitories' isolation from the lively general-population dorms, communicating these prisoners’ exclusion. The imposing cage around the residential treatment unit, where mentally ill prisoners with HIV are kept, allows any observer to see the activity within. The effect of a severely mentally ill man isolated within the cage, which juts into the common area where the prisoners eat and watch television, would surely be disturbing to those both within it and without. It is evident that, while the ADOC’s categorical segregation policy has been an unnecessary tool for preventing the transmission of HIV, it has been an effective one for humiliating and isolating prisoners living with the disease.
As for the precise circumstances that would render a prisoner qualified or unqualified for integrated
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housing at Limestone, the court need not draw such lines now, at the liability stage. This case is a class action including as plaintiffs all present and future HIVpositive prisoners within the custody of the ADOC. See Henderson v. Thomas, 2012 WL 3777146 (M.D. Ala. Aug. 30, 2012) (Thompson, J.) (certifying class). Consequently, for the ADOC to escape liability, there must be not a single HIV-positive prisoner who is or could be qualified for, and thus has the right to, integrated housing. That is clearly not the case. For now, it is sufficient to say that, pursuant to binding Supreme Court and Eleventh Circuit case law, the ADOC is in violation of the ADA with respect to the plaintiff class.
The only barrier to integrated housing for qualified prisoners at Limestone is the ADOC’s medical classification system, which treats all HIV-positive prisoners identically and precludes them from being integrated. As such, the sole accommodation necessary
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for qualified plaintiffs is that the ADOC modify its classification system to afford the plaintiffs the individualized determinations to which they are entitled instead of treating HIV status as a dispositive criterion regardless of viral load, history of high-risk behavior, physical and mental health, or any other individual aspects of the prisoner.
The facts (and common sense) compel the conclusion that making such a modification to the ADOC’s policies is a reasonable accommodation that would not impose “undue financial and administrative burdens” or require “a fundamental alteration in the nature of” ADOC operations. Harris, 941 F.2d at 1527 n.48 (citations omitted). First, the ADOC has the ability to measure prisoners’ viral loads; the ADOC already does so. Second, the department is capable of differentiating among prisoners on the basis of their behavior, since the ADOC already does this in the context of security classification.
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Third, the department is likewise able to distinguish
among HIV-positive prisoners based on their medical
needs, as evidenced by the medical coding chart it
already uses. Fourth, there is no evidence that
modifying its classification policies would require
unreasonable cost expenditures. See Onishea, 171 F.3d at
1303 (holding that cost is relevant for assessing whether
an accommodation imposes an undue burden). In short,
requiring the ADOC to modify its classification system in
order to effectuate integrated housing at Limestone would
be reasonable.27
27. The ADOC asserts a fundamental-alteration defense to these accommodations. If accommodations amount to a fundamental alteration, the defendants need not make them. “[A] proposed accommodation amounts to a ‘fundamental alteration’ if it would eliminate an ‘essential’ aspect of the relevant activity.” Schwarz v. City of Treasure Island , 544 F.3d 1201, 1220 (11th Cir. 2008) (citations omitted). For example, in PGA Tour, Inc. v. Martin, 532 U.S. 661, 682-83 (2001), the Supreme Court listed as examples of hypothetical fundamental alterations of a golf tournament, “changing the diameter of the hole from three to six inches,” which would “alter an essential aspect of the game,” or a change that “might
(continued...)
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For those prisoners who are not currently qualified
(perhaps because they are highly infectious), the law
requires the ADOC to make reasonable accommodations that
would render them qualified. See Bircoll, 480 F.3d at
1081-82 (citing 28 C.F.R. § 35.130(b)(7), which requires
that “[a] public entity ... make reasonable modifications
in policies, practices, or procedures when the
modifications are necessary to avoid discrimination on
27. (...continued) ... give a disabled player ... an advantage over others,” thus “fundamentally alter[ing] the character of the competition.” Here, the ADOC contends that, because its current treatment of HIV-positive prisoners was shaped in part by prior litigation (in particular, the consent decree in, Leatherwood v. Campbell , No. CV–02–BE–2812–W (N.D. Ala. Apr. 24, 2004) (Bowdre, J.)), any change from the status quo would constitute a fundamental alteration. This contention is without merit. The fundamentalalteration defense is not intended to serve the purpose of foreclosing successive litigation on related (albeit not identical) issues. Moreover, despite what the ADOC may imply, the Leatherwood court did not order the ADOC to segregate HIV-positive prisoners from the general prison population; it merely addressed the unconstitutionally inadequate conditions of confinement that HIV-positive prisoners faced at Limestone at the time, namely, inadequate medical care. The court sees no tension between Leatherwood and its decision today.
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the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.”).
The plaintiffs have shown that reasonable accommodations exist that would reduce (and even eliminate) most of these individuals’ odds of transmitting the disease. Principally, Dr. Altice explained that, “From a public health and clinical perspective, the rational way to reduce the risk of HIV transmission in prison is not through housing segregation but through effective HIV treatment.” Altice Report, Pls.’ Ex., at 6. Under this approach, antiretroviral medication is offered to every HIV-positive person who is ready and willing to take it so that it will suppress the virus and reduce or eliminate the chances of transmission. Taking this step could eliminate many prisoners’ likelihood of transmitting HIV. Thorough
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education would also play a preventative role. These methods are reasonable ways to reduce the risk of transmission.
The court emphasizes that, in affording HIV-positive prisoners the individualized determinations to which they are entitled, the ADA grants the ADOC discretion in choosing how best to do so. See, e.g., Frame v. City of Arlington, 657 F.3d 215, 246 (5th Cir. 2011) (“Indeed, a municipality is granted the discretion to choose how best to make its services accessible.”), cert. denied, 132 S. Ct. 1561 (2012). This court is “sensitive to ... the need for deference to experienced and expert prison administrators faced with the difficult and dangerous task of housing large numbers of” prisoners. Brown v. Plata, 131 S. Ct. 1910, 1928 (2011); see also Turner v. Safley, 482 U.S. 78, 85 (1987) (“[F]ederal courts have ... reason to accord deference to the appropriate prison authorities.”). In making determinations as to
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particular prisoners’ qualifications for integration, the ADOC is entitled to rely on the reasonable judgments of its medical professionals. See Olmstead, 527 U.S. at 602 (“Consistent with [the ADA’s prohibition of unnecessary segregation], the State generally may rely on the reasonable assessments of its own professionals in determining whether an individual ‘meets the essential eligibility requirements’ for habilitation in a community-based program.”); Arline , 480 U.S. at 288 (“[C]ourts normally should defer to the reasonable medical judgments of public health officials.”).
However, while the law grants the ADOC deference in choosing how to satisfy its responsibilities, the department is of course obligated to act in good faith as it works to ensure that no prisoner in its custody remains unnecessarily segregated because of his HIV status. Cf . Griffin v. United Parcel Serv., Inc. , 661 F.3d 216, 224 (5th Cir. 2011) (“[W]hen an employer's
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unwillingness to engage in a good faith interactive process leads to a failure to reasonably accommodate an employee, the employer violates [Title I of] the ADA.”) (citation omitted).
A final aspect of the ADOC’s housing policy at Limestone warrants brief discussion: the practices in Dorm E. That dormitory houses both HIV-positive and HIVnegative prisoners who have been placed in administrative or disciplinary isolation. As was noted above, before the end of trial, the ADOC conceded this aspect of the plaintiffs’ challenge and assured the court that its practices would change. Now, the ADOC urges the court to disregard the issue, arguing that it has been mooted. The court, however, finds good cause for resolving the matter. For the reasons given earlier, the court has not been deprived of its power to determine the legality of this challenged conduct simply because the ADOC says it has voluntarily ceased that conduct during the course of
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litigation. See Nat'l Ass'n of Bds. of Pharmacy , 633 F.3d at 1309. Moreover, the ADOC’s conceded practices have evidentiary relevance; they speak to the credibility of the department with regard to other justifications, and they provide evidence of the department’s intentional discrimination against individuals with HIV.
Unlike prisoners housed in other parts of Limestone, prisoners in Dorm E are restricted to their closed (and locked) cells (each of which holds only a single prisoner) for almost the entire day. They leave their cells only when handcuffed and escorted by ADOC staff. Because of this intensive monitoring, they have no physical contact with one another at any time, and consequently, transmission of HIV between an HIV-positive and HIV-negative prisoner in isolation is not remotely possible. Nevertheless, the HIV-positive and HIVnegative prisoners in Dorm E are segregated: HIV-positive prisoners are clustered together separately from the HIV-
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negative prisoners. Because the size of each group will differ depending on isolation needs at the time, the dorm features a “floating gate” that the ADOC uses to demarcate the border where the HIV-positive cluster ends and the cells housing HIV-negative prisoners begin.
Because ending segregation in Dorm E would present absolutely no risk of harm, it is clear that the ADOC’s policy of separating HIV-positive prisoners and HIVnegative prisoners in the dormitory and using the physical infrastructure of the building to indicate which prisoners have HIV, is, and has always been, wholly unnecessary and promotes no legitimate purpose. As such, it serves only to discriminate for the sake of discrimination. That is precisely the sort of “irrational disability discrimination” that the ADA “seeks to [prohibit].” Tennessee v. Lane, 541 U.S. 509, 522 (2004); see also Bledsoe v. Palm Beach Cnty. Soil and Water Conservation Dist. , 133 F.3d 816 821-22 (1998)
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(holding that the ADA prohibits “all discrimination by a

public entity” regardless of the form it takes).

The ADOC’s practices in Dorm E are most relevant in

that they illuminate the intent underlying the

department’s treatment of HIV-positive prisoners. In

order to accommodate assumed and actual anti-HIV

prejudice among its staff and prisoners in its custody,

and to some extent due to prejudice that stems from

department decision-makers, the ADOC has sought to

segregate HIV-positive prisoners from the general

population in all possible contexts regardless of whether

any legitimate purpose is served by doing so. Moreover,

the ADOC has been uninterested in reexamining seemingly

irrational policies. Only at the eleventh hour, during

the last days of trial, after the ADOC was at a loss for

words in mustering a justification for its practices in

Dorm E, did the department seek to assure the court that

these practices would change. See

Defs.’ Resp. to

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Judicial Request (Doc. No. 240) at 1-2 (responding to a judicial inquiry about the purpose of the Dorm E practices by referencing unspecified prior “conflicting statements,” but not attempting to put forth any actual purported purpose).
In addition to Dorm E, certain other unnecessary features remain in place at Limestone. One standard operating procedure, which remains on the books (though purportedly unenforced), warns that, “Routine physical contact with Special Unit inmates should be kept at a minimum at all times.” Joint Ex. 7, at 3. “Any staff member who enters the cell of a Special Unit inmate may wear ... 1) plastic or latex gloves; 2) Face mask; 3) Goggles; 4) Protective Rainwear.” Id . A barbed-wire fence surrounds the two Special Unit dorms. Originally, that fence separated HIV-positive prisoners from generalpopulation prisoners in the common yard. The gate to the fence is kept open now, but the fence is no less
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visible; it remains a stark reminder of the HIV-positive
prisoners’ separation.28 These relics of the department’s
earlier policies, unaltered despite having no current
purpose, suggest that other aspects of the policy are
likewise relics of a different era, retained by the
department due more to inertia than because they are
truly needed today.
Moreover, these other unnecessary features matter in
their own right, even if unused. They impress upon both
the prisoners and ADOC staff that HIV-positive prisoners
are different and dangerous. Despite the ADOC’s
28. The fence's purpose (enforcing segregation) is obvious in the layout of the prison. Much of Limestone's grounds are symmetrical. After entering the prison's front entrance, to the left is the "A-Side" of the facility, and to the right is the "B-Side." Each side is made up of five separate dormitories (all of which are identical) that are laid out in a circle with a common yard in the middle. Two of A-Side's dormitories, Dorms B and C, make up the Special Unit. A-Side and B-Side are completely identical in their physical appearance, except that for the large, barbed-wire fence that cuts through the middle of the common yard and around the two Special Unit dormitories. Of course, no such fence exists on BSide (which is otherwise identical in all respects).
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modifications to its policy in recent years, the symbolic power of the segregation policy has not been diluted. Like the fence with its unlocked gate, the barrier between the prisoners with HIV and the rest of the prison is more visible and more imposing than the narrow doorways that allow them access.
b. Exclusively Housing HIV-positive Men at Limestone and Decatur Work Release
The ADOC has neither argued nor given the court any reason to believe that the transmission risk posed by housing HIV-positive prisoners in general-population dorms at Limestone would differ in any meaningful way from housing HIV-postive prisoners in general-population dorms at other facilities throughout the State. Nor has the ADOC argued or presented evidence that housing HIVpositive prisoners at a work-release facility other than Decatur would pose any additional risk of transmission. Therefore, the court may answer the “otherwise qualified”
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question with the same analysis under Arline articulated with respect to housing within Limestone. In terms of the Arline analysis, to the extent that HIV-positive prisoners are qualified for integrated housing within Limestone, they are, to the same extent, qualified for integrated housing at any other facility. Similarly, the same accommodations that the court has already found reasonable (modifying the ADOC’s classification system and various prevention measures) would suffice to consider HIV-positive men for prisons other than Limestone. Since HIV-positive prisoners are already housed in an integrated setting at Decatur Work Release, the court finds that no concerns about transmission justify a blanket bar on housing HIV-positive prisoners at other work-release facilities.
The question, instead, is whether housing prisoners at facilities other than Limestone and Decatur would impose an undue burden on the State. In essence, the
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ADOC argues that its current system of providing HIV care at Limestone is effective, and that housing HIV-positive prisoners at other facilities would inevitably denigrate the quality of care. Likewise, the department explains that HIV-positive prisoners in the work-release program are housed exclusively at Decatur because it is close to Limestone, which allows prisoners at Decatur ready access to Limestone’s medical facilities. The ADOC states that housing prisoners at other facilities would force it to alter its current system of providing medical care to prisoners who have HIV. This, they attest, would drastically diminish quality of care for HIV-positive prisoners and would be cost the State more money than it has to spend.29
29. As context for its argument, at trial the ADOC emphasized the significant advances in HIV care that the department made pursuant to its settlement with a class of male HIV-positive prisoners incarcerated at Limestone in Leatherwood v. Campbell, No. CV02-BE-2812-W (N.D. Ala. Nov. 18, 2002) (Bowdre, J.). In that case, the plaintiffs challeged the inadequate medical treatment and
(continued...)
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The court first considers what accommodations would
be necessary in order to house HIV-positive prisoners at
other facilities. In doing so, the court will not assume
that the ADOC would have to house prisoners with the most
dire medical needs at every facility in the State.
Instead, the court will simply evaluate what would be
required to end the ADOC’s current policy of
categorically housing all HIV-positive prisoners in one
prison and one work-release facility.30
29. (...continued) substandard housing provided to HIV-positive prisoners. In the 2004 settlement, the ADOC agreed to significant changes to its housing and standard of medical care for prisoners with HIV. In 2006, the consent decree expired. However, the ADOC has continued to adhere to its terms. Experts on both sides agree that the current level of care is good, and the ADOC has shown that it may well exceed the level of care typically provided in the community.
30. The ADOC argues that the plaintiffs can find no relief here because the ADOC's prisoners, regardless of any diseases they may have, do not have a right to be transferred to the facility of their choice and, therefore, this court cannot "allow[] HIV-positive inmates greater access or rights to the benefits of
(continued...)
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The court first observes that care for HIV-positive
individuals can be highly variable, ranging from
profoundly complex care to a regime that is relatively
simple. In assessing the ADOC’s claims, the question is
not whether every facility or even whether any additional
facility could provide adequate care for the most ill
prisoners, but rather whether any facility could provide
HIV care for any of the system’s HIV-positive prisoners.
One critical component of the ADOC’s current system
of care is the availability of an HIV specialist to meet
with prisoners at Limestone. The parties dispute how
often and to what extent a specialist must be involved in
30. (...continued) services and programs afforded to all inmates." Defs.’ Pretrial Br. (Doc. No. 211) at 31. The ADOC misconstrues the plaintiffs' claim. The plaintiffs do not request a right to transfer to the facility of their choosing; the plaintiffs ask only not to be segregated on account of their HIV status. Cf . United States v. Jefferson Cnty. Bd. of Educ., 380 F.2d 385, 390 (5th Cir. 1967) (school children have the right to desegregated education despite the fact that “a schoolchild has no inalienable right to choose his school”).
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care. Dr. Altice opined that, while it is appropriate for HIV patients initially to be monitored quarterly by a specialist, patients who become stabilized and virally suppressed do not require such frequent consultation with a specialist: instead, they can be monitored by a specialist as little as twice a year. Dr. Altice found that, for a stable patient, a specialist may also evaluate laboratory results without even seeing the patient. The ADOC’s experts contested Dr. Altice’s view. Dr. Lyrene noted that some very sick patients must see a specialist every day. Dr. Schiebel stated that, while biannual appointments with a specialist may be appropriate for a stabilized and adherent patient, a more conservative approach is appropriate in the prison environment, where adherence to medication is a challenge. Dr. Scheibel also emphasized the value of a specialist’s opinion in evaluating lab results, addressing drug interaction concerns, and treating comorbitities.
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It is clear that every person infected with HIV will require access to a specialist at certain points. However, the degree to which this is required varies both from patient to patient and from one time to another as a patient’s disease progresses. No expert has testified that every person with HIV requires daily or even weekly treatment from a specialist. Moreover, no expert disputed that, for at least some patients, quarterly or even biannual meetings with a specialist are adequate to manage their HIV (although Dr. Scheibel expressed skepticism as to whether any prisoner within the ADOC falls into this category). Dr. Lyrene testified that the HIV-positive prisoners at Limestone are generally healthy. Dr. Scheibel found, through a chart review, that most have acheived viral suppression. Therefore, the court concludes that, for at least some of the HIVpositive prisoners, daily or weekly access to an HIV specialist is not necessary for their care.
The court also finds that, to the extent that specialty care is needed, reasonable accommodations are
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available that could make HIV specialty care available at
multiple facilities. One means of doing so, much debated
at trial, is telemedicine, whereby an HIV specialist
would virtually consult with primary care providers in
other locations.31 The ADOC’s primary argument against
telemedicine is based on cost. To that end, the
department presented Hal White, the director of an
information technology consultancy. White conducted a
thorough evaluation of the costs of implementing
31. The court finds it clear the telemedicine is an adequate means of providing access to specialty care. However, the debate over its merits at trial warrants some discussion. Dr. Altice testified that telemedicine has been effectively used for the provision of HIV specialty care in a number of other prison systems. Dr. Scheibel suggested that telemedicine is less than ideal because the primary care physician may lack experience with HIV and may not report back to the specialist. However, he also reported that most patients he had consulted via telemedicine had good outcomes, although several experienced nonadherence problems, which he attributed to unknowledgable primary care physicians. Dr. Lyrene expressed concern about practical matters, such as the handling of patient files. The court finds that these concerns can be addressed through simple planning and training, particularly since telemedicine has been effectively implemented elsewhere. Further, while the ADOC’s experts identified concerns about telemedicine, neither suggested that it is an inadequate means of providing HIV care.
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telemedicine within the ADOC and visited various facilities to assess potential challenges. He estimated that the total cost of installing the necessary technological equipment for all ADOC prison sites for five years would be $ 2,026,619.53. While the ADOC emphasized this larger number at trial, the cost for each individual facility was estimated at $ 21,184 for equipment with an additional $ 8,217.53 to install special equipment at Limestone, from which it is presumed the HIV-specialist would operate. The facilities would then have highly variable maintenance costs, ranging from a total of $ 8,000 per facility over a five-year period to $ 49,250 per facility. The General Fund Appropriation for the ADOC for fiscal year 2012 is $ 377,900,000; the total cost of adding telemedicine at one facility for five years at even the most expensive facilities therefore amounts to .02 % of the ADOC’s budget. At the least expensive facilities (of which there are 13, according to White’s expert report), the cost would amount to less than .01 % of the budget. Given this,
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while the court stops short of deciding whether telemedicine is the best or even a good option for the ADOC, the court concludes that it would not be prohibitively costly to install telemedicine in at least one additional facility (and, indeed, the plaintiffs do not insist that it should be installed at every facility in the system).
Even if telemedicine were not possible, however, the plaintiffs also make the plausible suggestion that an HIV specialist could travel to different locations within the system to see patients. Further, the plaintiffs presented evidence that in certain other states, HIVpositive prisoners travel to a designated prison for HIV specialty care. The court finds both of these options particularly feasible since stable HIV patients require care only quarterly or biannually. In sum, the court is not convinced that the ADOC could not find a reasonable, cost-effective way to provide HIV specialty care on an as-needed basis in at least one facility other than Limestone.
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The ADOC similarly argues that the other members of its medical staff, from doctors to pharmacists, cannot provide adequate HIV care at any facility other than Limestone. The department contends that it cannot train staff at other facilities to provide adequate HIV care. Further still, the ADOC claims that its staff cannot adequately provide the routine monitoring necessary to track the progress of HIV.
However, even if the court takes the ADOC’s experts at their word when they say that the department's medical staff is not currently equipped to handle even basic care for HIV-positive prisoners, the court does not find it credible that the ADOC cannot sufficiently train at least some medical staff enough that they could provide the most basic HIV care. The plaintiffs have shown that an abundance of resources exist in Alabama from organizations that specialize in the provision of HIV care and are ready and willing to train ADOC staff for free. For instance, Dr. James Raper, who directs the 1917 Clinic, a multispecialty HIV practice at the
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University of Alabama at Birmingham with vast experience in the provision of HIV care (including to patients exiting the correctional system) testified that he would be open to having health care providers at his clinic assist with the delivery of health care to HIV-positive prisoners on a consulting basis. Madeleine LaMarre, a nurse practitioner who served as nursing director and clinical services manager for the Georgia Department of Corrections and participated in a committee to oversee that department’s transition from a segregated to integrated system for HIV-positive prisoners, evaluated the resources available in Alabama for HIV treatment and concluded that these resources were adequate to train ADOC staff at multiple facilities. Given LaMarre’s experience overseeing Georgia’s transition from a segregated to integrated system and her personal outreach to HIV care professionals in Alabama, the court finds that her testimony merits substantial weight.
Dr. Altice also presented evidence that effective training has been possible in several state systems, many
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of which he consulted during that process. In Florida, for instance, he helped create a mini-residency program to train correctional medical staff throughout the state in routine primary HIV care. On-site training helped to “create[] de-facto treating experts where there had previously been a complete void.” Moreover, this was all achieved at a time when, unlike today, HIV care was “really, really complex” across the board.
It is readily apparent that, if the ADOC wishes to train medical staff at other facilities (at least enough to equip them to address the basic needs of stabilized, virally suppressed HIV-positive prisoners), it may do so. Further, it may do so at minimal or no cost.
The ADOC’s protestations do not alter the court’s opinion. They do, however, expose a persistent pattern in the ADOC of maintaining the status quo on the basis of mere assumptions rather than actual investigation. For instance, Assistant Commissioner of Health Services Ruth Naglich admitted that she was unfamiliar with any of the options that the plaintiffs offered for the provision of
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free training for medical staff in HIV care. Further still, in making a determination that delivering HIV care at facilities other than Limestone would raise costs, she did not consult with a single community health-care organization in Alabama. This would have been fruitless, she assumed, because “community providers ... generally do not wish to come into the confines of the prison. So therefore, we would have to take our inmates out into the community to receive care.” Based on the testimony of the plaintiffs’ witnesses, her assumption was incorrect.
Dr. Scheibel testified that, even if training was provided, the individuals trained would still not rise to the level of expertise. This may well be. However, this argument does nothing to disrupt the court’s conclusion that medical staff could learn the basic HIV care needed for at least some HIV-positive prisoners within the system.
The ADOC further argues that, if prisoners were housed outside of Limestone, it could compromise their adherence to HIV medications. The court takes very
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seriously the ADOC’s concerns about adherence. It is evident that adherence to medications is both highly important and a persistent problem in the provision of HIV care. However, the court does not find that the ADOC has provided any meaningful link between its segregation policy and adherence. Dr. Scheibel’s testimony showed that it would be possible for a prisoner to feel embarassed by his medications or its side effects, particularly diarrhea, when housed in general population, and that this could result in nonadherence. However, this argument is counter-weighed by Dr. Altice’s equally convincing opinion that segregation can cause depression and deprives prisoners of the mental-health and substance-abuse services offered at other facilities, which can lead to nonadherence. Moreover, while several of the ADOC’s experts speculated that segregation could create a community that encourages adherence, Dr. Altice emphatically and credibly attested that no medical literature supports the premise that involuntary immersion in a community of people with HIV has any
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positive effect on adherence (or any therapeutic benefits whatsoever). Indeed, the plaintiffs in this case uniformly expressed only deep sadness at being segregated, and the ADOC presented no prisoner witnesses to contradict this testimony. Therefore, while the court finds that adherence is of tantamount concern for HIV patients, the court does not find that housing prisoners in a segregated environment makes adherence more likely. To the extent that the ADOC argues that adherence issues are better addressed by professionals who are knowledgable about HIV, the court finds that, given the resources available, this concern can be addressed through training. In any event, and perhaps most importantly, the ADOC has also not shown why it could not identify prisoners with an adherence problem and address those prisoners’ behavior separately from adherent patients; indeed, Dr. Scheibel was able to identify such individuals in his chart review. In sum, adherence should be addressed on an individual-by-individual basis, as the ADA requires, rather than categorically.
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The ADOC’s arguments about medical care are also undermined by the wide variety of correctional systems that have successfully provided care in more than one facility. It is evident that there is no one-size-fitsall approach. Each system approaches this issue differently based on its needs. Dr. Altice provided several examples of systems in which he served as a consultant. In California, for example, the largest prison system in the country, facilities throughout the State can manage HIV, but the State also maintains a central unit where patients with complex medical needs can go on a purely voluntary basis. In Texas, routine HIV care is provided at prisons throughout the State, often supplemented by specialty care provided via telemedicine. Texas also maintains specialty centers for more intensive treatment. Florida maintains six to eight “centers of excellence” to manage complex HIV, but does not require HIV-positive prisoners to remain at these centers if their conditions are stable. In Massachusetts, HIV patients are monitored on-site
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throughout the entire system, and specialty services are
provided as needed from the central office. LaMarre
testified to the success of the integration program in
Georgia, which relies on its medical prison for complex
HIV care but does not require HIV-positive prisoners to
be housed there when stable. While Alabama is different
from each of these States, each of these States is
equally different from every other. Therefore, while
this court does not go so far as to prescribe which of
these systems might suit Alabama, 32 the court does not
find it credible that Alabama is uniquely unable to
provide HIV at even one additional facility.
32. Dr. Altice also stopped short of prescribing which system would work best for Alabama. This task is impossible, he said, without serious discussion among the key stakeholders. He described the process used in other States, which he testified that Alabama should pursue: “[Y]ou get the ... health professional leaders. You also get the correctional ... staff involved. You draw up a map ... and you put in a lot more information in terms of which places have got medical facilities. Sometimes the places will make some decisions about augmenting some of their staffing, or they may move staffing around. But it’s a process. It’s not something that you can just go in in five minutes and say, ‘here’s the fix.’”
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The ADOC’s current mechanisms for assessing the needs of prisoners with other serious diseases casts further doubt on its contention that it cannot change its current system. The department’s own medical coding guide provides a powerful example. While the ADOC does medically cluster inviduals with certain conditions, in the case of other chronic diseases, it does so by assessing the actual medical needs of the prisoner, not diagnosis alone. For instance, a chronic-care clinic patient, such as a person suffering from hepatitis C, who has been diagnosed for at least three months, is stable, and requires provider follow-up no less than every 120 days, can be placed at any institution within the system. However, a person with hepatitis C who requires chemotherapy may only be housed at four institutions: St. Clair, Tutwiler, Donaldson, and Limestone. Even adopting Dr. Scheibel’s more conservative estimate that a stable, virally suppressed person with HIV must see a specialist every three months, under the medical coding guide as it is applied to all other prisoners, that person would be
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eligible for any institution in the ADOC. However,
instead of providing any sort of scale for HIV-positive
prisoners with different needs, the guide instead limits
them to Limestone and Tutwiler alone.33
Testimony at trial revealed that other diseases
routinely managed by the department are as, or more,
challenging to manage than HIV. 34 The ADOC’s ability to
place them based on their actual medical needs and
provide them with adequate care deeply discredits its
arguments that it cannot do the same for HIV. The only
plausible differences that the ADOC’s experts identified
between HIV and these diseases are that medication
33. The guide also indicates that HIV-positive prisoners may be housed at Kilby, which is the classification prison for men. HIV-positive prisoners are housed in isolation cells during the classification process at Kilby before being transferred to Limestone.
34. For example, Hepatitis B, a viral infection that is transmitted in the same way as HIV, is two to two-anda-half times more prevalent in prisons nationwide than HIV and is 20 times more infectious than HIV. Hepatitis C is 10 to 15 times more prevalent in prisons nationwide and is 30 % more infectious than HIV. Since 2007, the mortality rate for Hepatitis C has exceeded that for HI.V
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adherence is more important for HIV patients and that HIV has no cure. The former distinction can be easily dismissed: good adherence can, and should be addressed on an individual-by-individual basis. The second distinction is irrelevant to the feasibility of providing care.
The plaintiffs have also presented evidence that the ADOC’s HIV-segregation policy may actually undermine the level of care provided to HIV-positive prisoners in certain respects. First, the policy of automatically sending HIV-positive prisoners to Limestone necessarily bars those prisoners from other facilities, some of which provide care that is not available at Limestone. A key example is Bullock, where prisoners with complex mentalhealth problems are treated. Dr. Altice testified that, “[O]ftentimes, HIV is the least of [a prisoner’s] worries.... [F]or individuals who don’t have access to the kind of full array of treatment that is going to be most optimal and important to them, it can actually detract from HIV treatment outcomes.” Further, because
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HIV-positive prisoners are barred from the residential aspect of the substance-abuse treatment program within Limestone and cannot participate in the much more robust therapeutic-community program at St. Clair, they are denied the best treatment for their substance-abuse needs. This is significant because HIV is commonly comorbid with substance abuse. Dr. Altice found in a study that HIV patients whose substance-abuse needs are met are five times more likely to adhere to their HIV medications.
In sum, the ADOC has failed to show that it is necessary to categorically house all HIV-positive males only at Limestone (and Decatur Work Release) in order to provide adequate care. Indeed, it is possible that the policy actually worsens treatment outcomes, particularly for patients with other severe needs that cannot be adequately addressed at Limestone.
In reaching these conclusions, the court does not speculate as to how many institutions could feasibly provide HIV care or how many HIV-positive prisoners could
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be removed from Limestone and housed elsewhere. Instead, the court simply concludes that the ADOC’s current assumption, that no HIV-positive prisoner could receive adequate care at any other institution within the system, lacks credence. The ADOC’s own expert, Dr. Scheibel, perhaps expressed the court’s impression best: “HIV is a complex disease, and we have to ... examine it patient by patient.” (emphasis added.) When determining the medical needs of people with HIV, “[y]ou can't group all patients together.”
In addition to its contentions that the required accommodations would impose an undue burden, the ADOC contends that housing HIV-positive prisoners at additional facilities would constitute a fundamental alteration of its system for providing medical care. A fundamental alteration exists where a proposed accommodation would “elimininate an ‘essential’ aspect of the relevant activity.” Schwarz, 544 F.3d at 1220. The basic purpose of a prison medical system is to provide care to its prisoners. See id. at 1221 (considering the
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“basic purpose” of zoning in order to determine whether a proposed change amounted to a fundamental alteration). Thus, while a fundamental alteration may exist if the plaintiffs requested that the ADOC fire all of its doctors or eliminate its pharmacies, the accommodations necessary to house HIV-positive prisoners at additional facilities do not amount to such a drastic change, particularly because this step may be taken without compromising the quality of medical care given to prisoners (and, indeed, it must not be compromised). See Henderson, 2012 WL 3777146, at *6 (“Notwithstanding any relief that may be ordered in this case and the expiration of the Leatherwood consent decree, the defendants are still obliged to provide HIV+ inmates a constitutionally adequate level of care. The Eighth Amendment and federal anti-discrimination statutes are not mutually exclusive.”).
In evaluating a State’s fundamental-alteration defense, a district court must also be attentive to the cost of the proposed changes to the system in light of
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both the resources at the State’s disposal and the State’s other responsibilities. See Olmstead , 527 U.S. at 597. The ADOC vigorously argued that enacting any of the changes proposed by the plaintiffs would be prohibitively costly. It emphasized the dire state of the department’s finances: Steve Brown, the Associate Commissioner for Administrative Services in the ADOC, testified that the department is facing a $ 15 million budget shortfall and is operating on a severely constrained budget.
The court does not doubt that the ADOC suffers from severe shortages of funding. However, the court is not convinced that dismantling its segregation policy would add any significant costs to the department’s budget. The ADOC has presented evidence that an increase in transmissions within the prison would cost the department a substantial amount of money because it would then have to treat the infected prisoners’ HIV. However, the court is not convinced that the transmission rate would rise upon integration.
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The department also argued that the cost of providing medical care at facilities other than Limestone would be cripplingly high. The evidence showed, however, that medical-training resources are available to the ADOC at low cost or cost-free. Moreover, the options for specialty care, which could range from telemedicine to the specialist traveling to select facilities to prisoners traveling to meet the specialist, present a number of cost-effective options from which the ADOC may choose.
The ADOC might even save costs by dismantling its segregation policy. Indeed, Emmitt Sparkman, Deputy Commissioner of the Mississippi Department of Corrections, testified that ending the HIV-segregation policy actually saved his department money on the whole. He explained: “[W]henever you have a specialized population it’s more costly, because they can only be housed in one location.” This limits the department’s flexibility in placing and moving prisoners. As an example, Sparkman explained that, if a prison maintains
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a housing unit with 50 beds in the HIV unit, but only 20 HIV-positive prisoners, the prison still must staff that unit for 50 beds, which wastes resources. Sparkman’s analysis can be easily applied to the ADOC. For instance, while Limestone is not designed to house close custody prisoners, it must do so within the Special Unit because all HIV-positive prisoners are assigned there. 35 Therefore, the court finds it likely that the expenses that the ADOC incurs in changing its policy will be at least somewhat offset by the money it saves by having a more flexible system. In sum, then, the court does not find that ending the HIV-segregation policy would be prohibitively costly for the ADOC. Therefore, the department’s cost-based fundamental alteration defense must fail.
35. Special measures (and, by basic inference, additional resources) are required for prisoners in close custody: they must be housed in a single cell, and, when outside of the housing area, restrained and accompanied by armed correctional personnel.
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The court concludes that the ADOC’s current policy of categorically housing HIV-positive prisoners within Limestone and Decatur Work Release violates the ADA. The court need not decide now how far the ADOC must go to act within the confines of the law, and this holding should not be interpreted to mean that integrating HIV-positive prisoners at every facility in the state is necessary nor that integrating them at only one additional facility is enough. It sufficient at this stage to find that the current categorical policy violates the law.
c. The HIV-Segregation Policy for Women at Tutwiler and Montgomery Women's Facility
The court now turns to the female plaintiffs’ claims. The female plaintiffs challenge the ADOC’s policy of requiring all HIV-positive women to be housed in Dorm E at Tutwiler, which precludes them from integrated housing in the general-population dormitories, and also from housing alongside HIV-negative prisoners in the infirmary and mental-health unit. They also challenge the fact
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that they are eligible to be housed only at Montgomery Women’s Facility when they participate in the workrelease program. The court will first address the segregation policy at Tutwiler.
While it is clear that some men at Limestone could be provided integrated housing without posing a meaningful risk, it is even more obvious that this is true for the women at Tutwiler. The vast majority of women (four out of five) within the ADOC who are taking antiretroviral medication have acheived viral suppression, which dramatically reduces the probability of transmission. 36 In addition, the transmission risk among women is significantly lower than it is among men because women cannot transmit the virus through sexual activity. As the court has already stated, there has never been a
36. The one patient who had not yet achieved it had recently begun the medication, and so there had not been enough time for her virus to become undetectable.
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documented case of HIV that was sexually transmitted from one woman to another.37
Further, as is the case with male prisoners, the
opportunities for high-risk behavior that already exist
have not yielded any transmissions. Women are integrated
in programs at Tutwiler and thus have the opportunity to
engage in high-risk behavior in places other than their
dorms. Sexual conduct with staff (including staff-on-
prisoner sexual assault) and travel between county jails
and work-release centers present further opportunities
for high-risk behavior. Nevertheless, the transmission
rate among female prisoners within the ADOC is at or
approaching zero. Moreover, there is no evidence that
the transmission rate is any higher in other prison
systems where female prisoners with HIV are integrated.
37. The department argued that transmission is possible when women use sexual devices (“toys”) and presented thin evidence that such devices have been used at Tutwiler. However, even accepting this fact as true, it is obvious that the chances of transmission through sexual activity between women are significantly lower than the chances of transmission through sexual activity between men.
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The evidence also casts doubt on the ADOC’s characterization of its policy as a practical necessity divorced from any discriminatory intent. The court gained the impression that animus against HIV-positive prisoners has emanated from the top at Tutwiler, particularly from its warden, Frank Albright. Dana Harley described Warden Albright’s reaction when, in preparation for a legal challenge, she and the other women in Dorm E began filing requests for access to various programs from which they were excluded because of their HIV-positive status.38 A week after they filed the requests, Warden Albright “[s]tormed in” with a captain, a lieutenant, and the entire classification team, and said: “[T]he next request you write, write it to me so I can deny it personally. Because when you file the lawsuit, I want it to say ‘Albright’ with one ‘L.’ ... Y’all will not walk my halls and spread HIV.” At trial, Warden Albright demonstrated willful ignorance about HIV:
38. This incident occurred in 2007 before Tutwiler had integrated its programs.
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he testified that he did not know, and did not need to
know, whether HIV can be transmitted through food
preparation. Harley also reported that correctional
officers at Tutwiler commonly refer to Dorm E as the
“AIDS dorm.”39 From the attitude exhibited by Albright
and his staff, it is plainly apparent that prejudice, at
least, infects the way that the HIV-segregation policy is
implemented.
The court’s impression of the atmosphere at Tutwiler
is powerfully informed by the court’s tour of the prison
during the trial. During the tour, part of Dorm E was
under construction, but this did not influence the court.
Only four HIV-positive women are currently housed in
Tutwiler, and, when the court visited, only three were
39. Disclosure of HIV-positive status is an inevitable byproduct of segregation at Tutwiler just as it is as Limestone. The HIV-positive women at Tutwiler do not wear white armbands; however, because they are housed together in the small facility, it is abundantly clear who they are. Dana Harley echoed male prisoners’ feelings about forced disclosure: “It doesn’t bother me for people to know my status if I choose to disclose it,” she said, but she did not want “to be labeled in the HIV dorm.”
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present in Dorm E. The court struggles to convey the depression in that room, so thick it felt possible to reach out and touch it. While the other dorms in Tutwiler were vibrant, Dorm E was nearly empty. Vacant bunk beds lined the room, stripped of sheets and mattresses. It resembled an isolation cell more than it did a dorm.
Balancing the relevant factors and weighing “the odds that transmission will occur” against “the severity of the consequences,” Onishea , 171 F.3d at 1297, it is obvious that HIV-positive female prisoners in the custody of the ADOC are not categorically unqualified for integrated housing. Requiring the ADOC to modify its procedures to make individualized determinations is at least as reasonable for female prisoners as it is for men. Given that there are usually hundreds of HIVpositive male prisoners and under ten HIV-positive female prisoners in the ADOC’s custody at any given time, the burden imposed on the ADOC in making individualized determinations for female prisoners is far lighter.
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Further, the department’s cost-based defense is even weaker in the context of Tutwiler than it is for men. Indeed, it is almost certain that the department is in fact wasting valuable resources by maintaining the segregation policy: Dorm E at Tutwiler--a large space filled with empty beds--is being used to house only a few women. Therefore, requiring the ADOC to dismantle its policy of segregating HIV-positive women would neither impose “undue financial and administrative burdens” nor require “a fundamental alteration in the nature of” ADOC operations. Harris , 941 F.2d at 1572 n.48 (citations omitted).
The court now turns to the ADOC's practice of housing HIV-positive women exclusively at Montgomery Women’s Facility. The ADOC justifies this policy on the same basis that it justifies housing HIV-positive men exclusively at Decatur: Montgomery Women’s Facility is close to Tutwiler, allowing women in the work-release
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program access to the medical services at the prison. 40 For the same reasons that this court concluded that the ADOC can provide (at a minimum) basic HIV care for men in at least one additional facility, the court finds that the department can do so in this context as well. This is particularly feasible since the ADOC operates only one work-release facility for women other than Montgomery Women’s Facility. Thus, for the same reasons expressed above, ceasing to place women categorically at Montgomery will not impose an undue burden on the State or cause it to fundamentally alter its system of providing medical care.
40. HIV-positive women already reside in integrated housing at Montgomery Women’s Facility, and the ADOC has not suggested that there are any differences in the transmission risks at its other work-release facility for women. Therefore, the court easily concludes that no concerns about transmission justify this policy.
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d. Food-Service Jobs The court now turns to two policies that impact both male and female prisoners: the exclusion of HIV-positive prisoners from kitchen jobs within Limestone and Tutwiler and from holding food-service jobs in the work-release program. The ADOC committed to changing these policies at the end of trial and no longer attempts to defend them. Although the ADOC argues that the issues are moot, the court, for reasons already given, disagrees. See Nat'l Ass'n of Bds. of Pharmacy, 633 F.3d at 1309. The challenged policies are obviously irrational. As both parties agreed, the science is unanimous: there is no risk of HIV spreading through food. Therefore, there is no plausible argument (and the ADOC did not attempt to make one) that barring HIV-positive prisoners from foodservice jobs within the prisons and at work release prevents the transmission of HIV. However, before the ADOC conceded these issues at the end of trial, it first attempted to put forth other justifications. For one, the ADOC argued that, if it allowed HIV-positive
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prisoners to take food-service jobs on work release,
employers may withdraw from the program because of their
own anti-HIV prejudices. The ADOC wisely no longer
contends that accommodating assumed prejudice is a
legitimate justification for discriminating against the plaintiffs in this way.41
Moreover, despite the ADOC’s insistence that concern
about transmission risk played no role in the food-
service policy, the evidence suggests that many ADOC
staff members are unaware that HIV cannot be transmitted
through food preparation and that staff members acted on
their misconceptions. Plaintiff Knox testified that,
after he ate with the general-population prisoners that
were in SAP with him, prison officials disciplined him
41. The ADOC also argued that a primary motivation for excluding HIV-positive prisoners from food-service jobs within prisons is the threat that HIV-negative prisoners would react with violence. The ADOC used this justification for several of its policies and presented evidence about this risk generally, rather than how this risk would manifest with regard to specific policy changes. The court addresses this argument later in this opinion.
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for creating a health hazard and searched for the utensils and plates that he had used to eat his meal (presumably fearing that they were contaminated). Further, as the court has already noted, the warden of Tutwiler did not know that HIV could not be transmitted through food. Therefore, despite the ADOC’s protestations that its food-service policy is not based on transmission risk, it is evident that false beliefs about this risk, at the very least, have impacted the way that this policy is implemented.
At this stage, the ADOC puts forth no further justifications for this policy, and the court will not search for one. Because the challenged policies irrationally exclude the plaintiffs from programs to which they are unquestionably qualified, those policies violate the plaintiffs’ rights under the ADA.
But, most importantly, the ADOC's adherence to its food-service policy throughout most of this litigation, (including the trial), its relucance to reexamine its policy, and its seemingly deliberate indifference to the
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unfounded prejudice that the policy reinforced, buttress this court’s earlier conclusions that the ADOC's arguments in support of its overall segregation policy are based in large measure on a failure to reexamine that policy in more detail in light of what other States have done and in light of the resources that are available in this State.
2. Work Release In addition to the integration mandate, the ADA prohibits the unnecessary exclusion of disabled individuals. The implementing regulations to the ADA state:
“A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.”
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28 C.F.R. § 35.130(b)(8) (emphasis added). “[L]egitimate safety requirements” may be imposed, but only when they are “necessary for safe operation” and “based on actual risks and not mere speculation, stereotypes, or generalizations about individuals with disabilities.” 28 C.F.R. § 36.301(b).
The plaintiffs argue that the work-release criteria that the ADOC imposes on HIV-positive prisoners constitute unnecessary eligibility criteria and therefore violate the ADA. It is evident that the eligibility criteria at issue tend to screen out individuals with HIV. Indeed, screening out at least some individuals with the virus is precisely what the criteria were designed to do. Of course, because the ADA’s protections extend to only qualified individuals with disabilities, the plaintiffs must also show that at least some of the class members on whom the criteria were imposed are otherwise qualified for work release. This, however, is easily satisfied: the work-release criteria are imposed upon (and therefore burden and diminish the chances of
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participation for) all HIV-positive prisoners who are
considered for work release. This includes those
prisoners who ultimately satisfy the work-release
criteria and are admitted into the work-release program
and therefore obviously are qualified for participation4.2
However, under the current criteria, even these
individuals have a lower chance of being admitted and are
subjected to standards that prisoners who do not have HIV
are not.
The ADOC therefore bears the heavy burden of showing
that the criteria are necessary. See Guckenberger v.
42. The plaintiffs also provide specific examples of how the criteria have in fact screened out individuals who are qualified. For instance, James Douglas was denied medical clearance because of a “blip” that showed a viral load measurement over the required threshold, even though viral load returned to undetectable levels after the blip. The ADOC argues that Douglas was denied participation in work release because of his history of escapes; however, this does nothing to change the fact that eligibility criteria were imposed on him with regard to his viral load despite the fact that they were unnecessary. Moreover, plaintiffs who have not achieved viral suppression but have consistently abstained from any high-risk behavior may be qualified for work release; the criteria categorically disallow any such individuals to participate.
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Boston University, 974 F. Supp. 106, 139 (D. Mass. 1997) (Saris, J.) (“[The defendant’s] burden is a heavy one because it must show that the more stringent eligiblity criterion is ‘necessary’ to achieve [the defendant’s] goal.”).
At trial, however, the ADOC sought to justify these criteria under an incorrect standard. By the department’s account, the standard for evaluating the work-release criteria is the one the Supreme Court identified in Turner v. Safely , 482 U.S. 78 (1987), in which the Court held that, “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Id. at 89. The ADOC argues that the Turner doctrine applies to statutory rights (including those afforded by the ADA) as well as constitutional rights, and cites Onishea for support. Thus, under Turner, the ADOC argues, the work-release criteria must merely satisfy a “reasonableness” test. Defs.' Br. (Doc. No. 247) at 7.
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But Onishea rendered no such holding. Indeed, the court explained that Turner “does not, by its terms, apply to statutory rights.” Onishea, 171 F.3d at 1300; see also Pope v. Hightower, 101 F.3d 1382, 1384 (11th Cir. 1996) (referencing the Turner doctrine as balancing judicial restraint against “the need to protect constitutional rights”) (emphasis added); Al-Amin v. Smith, 511 F.3d 1317, 1327 (11th Cir. 2008) (“Turner ... adopted a ... test for determining whether prison practices impermissibly burden inmates’ constitutional rights”) (emphasis added).43
Because the ADOC has applied the wrong standard, it has neither argued nor presented evidence that the workrelease criteria are necessary. Therefore, the court has not been adequately informed by the department, and must
43. While the Eleventh Circuit in Onishea noted that penological interests are relevant in determining whether the plaintiffs meet the essential eligibility criteria of a program, the potential relevance of such concerns does not, of course, absolve the ADOC of the obligation to meet its burden under the ADA.
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therefore reserve its decision on this issue to be
addressed at a later time.
3. The White-Armband Policy
The ADA's prohibition on discrimination is not
limited to exclusion from “programs, services, or
activities.” Bledsoe, 133 F.3d at 821-22. Rather, the
ADA "prohibits all discrimination by a public entity,
regardless of the context.” Id . (emphasis added;
citation omitted).44
44. The ADOC argues that “a plaintiff cannot maintain an ADA claim if the alleged exclusion does not pertain to or involve a service program, or activity.” Defs.’ Pretrial Br. (Doc. No. 211) at 32 (quotations and citations omitted). However, as the Eleventh Circuit’s decision in Bledsoe , supra, reveals, the department is incorrect. The department nevertheless runs with its interpretation, citing, first, a Ninth Circuit case that, by its terms, expressly disagreed with the Eleventh Circuit’s opinion in Bledsoe , and, second, the district court's decision in Bledsoe that was reversed on appeal. See Defs.’ Pretrial Br. (Doc. No. 211) at 32-33 (relying on Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169 (9th Cir. 1999) and Bledsoe v. Palm Beach Soil and Water Conservation Dist., 942 F. Supp. 1439 (S.D. Fla. 1996)). As these arguments contradict Eleventh Circuit law, the court easily dispenses with them.
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The ADOC’s policy of requiring male HIV-positive

prisoners to wear white armbands implicates this broad

prohibition against discrimination. At trial, the ADOC

insisted that the sole purpose of the armbands policy at

Limestone is to allow correctional officers to identify

easily whether a p risoner is in a dormitory other than

the one to which he is assigned (which would implicate

legitimate safety concerns). That justification is not

credible. Cf. United States v. Virginia , 518 U.S. 515,

533 (1996) (“The justification must be genuine, not

hypothesized or invented post hoc

in response to

litigation.”). Throughout Limestone, each dormitory has

its own assigned colored armbands. The sole exception is

that the two Special Unit dormitories are both assigned

white armbands. As a correctional officer frankly told

the court during its site visit, Limestone staff have no

way of knowing whether a prisoner assigned to Dorm B is

impermissibly present in Dorm C when he should not be,

and vice versa. The department’s justification for the

armband policy presents no evidence of its neutrality. 130

The justification (dorm identification) is pretextual,
for the white armbands do not identify which dorm (B or
C) a prisoner is from but rather identifies the prisoner
as HIV-positive.45 The policy, therefore, tellingly
portrays the ADOC’s willingness to discriminate against
HIV-positive prisoners and then dress naked
discrimination in the guise of neutral policy. Here, the
emperor has no clothes. The purpose of the white
armbands has been to identify the HIV-positive prisoners.
Indeed, when combined with the presence of the
Special Unit itself, the armbands make disclosure of the
prisoners’ HIV status all but inevitable. As Dr. Altice
45. During the site visit of Limestone, the court took notice that, in the HIV-negative areas of the prison, large numbers of prisoners were not wearing any armband at all. Prison officials explained that the HIVnegative prisoners are frequently moved from one dorm to another and there is a time lag between the move and the officials’ ability to obtain a new armband. This substantial failure in effectiveness of the use of armbands among HIV-negative prisoners would seem to support the plaintiffs’ contention that armband use was later expanded to HIV-negative prisoners as a cover for the initial discriminatory purpose behind their use for HIV-positive prisoners. See supra n.10. Regardless, the court need not rely on this contention.
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explained: “If you have an HIV unit within your facility, there just aren’t any secrets.... The notion that every time you may be walking out into a yard or with visitors walking by, that somebody may recognize ... that you’re the person who’s wearing the white arm band,” amounts to a constant outing of the prisoners’ HIV-positive status.
And, regardless of whether or not a person which HIV wishes to disclose his status, voluntary dislosure is different from forced disclosure.46
The white armbands are also profoundly stigmatizing. Plaintiff Henderson said: “I feel like it’s a tag.... Just like you put a tag on cattles .... It’s branding me. Everywhere I go ... it sticks out.” Henderson communicated the cumulative effect of the ADOC’s treatment of HIV-positive prisoners, from their
46. Plaintiff Henderson testified, “I am comfortable with who I am and what I’m dealing with. HIV doesn’t define me .... But I still should have that right to be able to disclose this to whoever I want to disclose it to.” Plaintiff Knox said: “I think that should be our choice and our choice alone who we should disclose [our HIV status] to.”
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segregation in the Special Unit to the requirement that
they wear white armbands:
“In Limestone it’s like no matter what you do, you just there .... It’s like ... putting a bunch of fishes in an aquarium. And that’s it. They’re just in this aquarium, just swimming around in this aquarium 24/7, all day long, all night, all year.... And ... to be placed in this aquarium and have individuals outside of this aquarium to pass by ... it’s like a zoo ... or a circus ... where people just pass by and ... look at you like you some kind of exotic animal .... When the tours came, it was like I was placed in that aquarium, and these people came to the museum to see exotic fishes. And the guide ... would point their finger inside the aquarium at the fishes.... [O]ne time ... I was outside working out ... and a tour came through with some young kids .... And they couldn’t tell whether or not I was HIV positive ... [b]ecause I had a long sleeve shirt [which hid the white armband]. They stopped, and [the guard giving the tour] was pointing towards the dorm, and he told the tour, the kids, that this is where we house our HIV/AIDS patients.... And they was like ... amazed, like they was looking at some exotic stuff.... I want to say something real bad, because it touched me.... I am one of these people that he’s talking about with this
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virus, you know, and it hurts. It really did. It hurt[].”47
Requiring all HIV-positive prisoners to wear white armbands that disclose their HIV status does not serve a legitimate purpose. This policy constitutes unlawful, and, indeed, intentional, discrimination under the ADA. Bledsoe, 133 F.3d at 821-22.
4. Penological Concerns
The ADOC contends that, even if the plaintiffs show a violation of the ADA, the department will face no liability if it justifies its segregation policies on the basis of legitimate penological concerns. The department relies on the Supreme Court's holding in Turner v. Safley that a regulation that impinges on constitutional rights
47. Henderson’s account recalls Frantz Fanon in his essay, “The Fact of Blackness”: “I found that I was an object in the midst of other objects.... [T]he movements, the attitudes, the glances of the other fixed me there, in the sense in which a chemical solution is fixed by a dye.” Frantz Fanon, Black Skin, White Masks 109 (Charles Lam Markmann trans., Grove Press 1967) (1952).
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is valid so long as it is “reasonably related to legitimate penological interests.” 483 U.S. at 89. However, as this court has already explained, Turner does not apply to statutory rights. See Onishea, 171 F.3d at 1300 (noting that Turner “does not, by its terms, apply to statutory rights”).
This does not mean that the factors identified in Turner have no relevance. In Onishea , the Eleventh Circuit found that the lower court’s consideration of Turner factors did not warrant vacatur, reasoning that it “seems obvious ... that the requirements for participation in prison programs are determined in part by the same ‘legitimate penological interests’ that Turner respects in the [constitutional rights] context.” Onishea, 171 F.3d at 1300. Thus, because of the substantial overlap between factors that must be considered in both Turner analysis and ADA analysis, “the district court could properly use factors such as Turner's to determine whether the plaintiffs were
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otherwise qualified to participate in the programs.” I.d
at 1301.
Neither Turner nor Onishea require this court to
treat penological interests as a trump on the plaintiffs’
statutory rights as the ADOC contends it must.48 But even
when the court gives full consideration to the ADOC’s
48. In Pa. Dep't of Corr. v. Yeskey , 524 U.S. 206 (1998), the first Supreme Court case to affirm the ADA’s application to state prisons, the Court provided entirely no indication that Turner would apply (nor did the Court cite Turner a single time), and that case was decided eleven years after Turner . Additionally, the Religious Land Use and Institutionalized Persons Act (RLUIPA) provides a useful analogy for illustrating Turner 's application to constitutional rights only. Congress enacted that statute to afford a greater right of religious freedom to prisoners than is provided by the Constitution. See Cutter v. Wilkinson , 544 U.S. 709, 714-15 (2005) (describing RLUIPA). Eighteen years after the Turner decision, in Cutter v. Wilkinson, the Supreme Court upheld RLUIPA’s validity. Id . at 719-20. If the ADOC were correct that any state prison practice that impinges statutory rights created by Congress is nevertheless valid if merely reasonably related to legitimate penological interests, the Court’s upholding of RLUIPA’s heightened strict-scrutiny standard for impignments on religious rights is difficult to square. See Van Wyhe v. Reisch, 581 F.3d 639, 651 (8th Cir. 2009) (rejecting the prison officials’ “argu[ment] that RLUIPA violates the doctrine of the separation of powers because the statute improperly overturns the more deferential constitutional standard set forth by [Turner]”).
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purported penological justifications, the department still cannot prevail. For example, the ADOC argues that it has a “‘legitimate penological interest[]’ ... [in] curtail[ing] the spread of HIV to the general population inmates.” Defs.’ Pretrial Br. (Doc. No. 211) at 55. That is undoubtedly true, but, as the court has discussed, it is also true that the ADOC can in fact effectuate the plaintiffs’ rights under the ADA while simultaneously preventing HIV transmissions. Cost is also a legitimate concern. See Onishea , 171 F.3d at 1300. However, the court has already found that none of the accommodations necessary to dismantle the challenged policies would be unreasonably costly.
The ADOC also argues that its policies are supported by its penological interests in safety and security within the prison. Security is indeed a valid penological concern, and, pursuant to the Eleventh Circuit’s analysis in Onishea , it can go to whether an individual is otherwise qualified under the ADA. Id . (“Security is [a] legitimate interest.”). The department
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posits that dismantling the segregation policy in housing and in food services would result in violence, placing prisoners and correctional staff at risk.
To support this claim, the department principally relies on a survey conducted by Drs. Brent Maulden and Jerry Ingram. The two administered their survey in July 2012 to 1,186 prisoners at different correctional institutions throughout Alabama.
Among other results, the survey found that 52.2 % of prisoners believe that acts of violence such as threats, stabbings, and beatings will occur if HIV-positive prisoners are integrated into the general population. In addition, 39 % expressed agreement with the statement, “I would use force to keep an inmate with HIV away from me.” Other results suggest widespread discomfort born of misinformation. For instance, 62.4 % of prisoners would be concerned about transmission if HIV-positive inmates prepared their food, and 38.5 % answered that it would bother them if an HIV-positive prisoner worked in the laundry and washed their clothes and bedsheets.
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Drs. Maulden and Ingram also conducted a survey of correctional officers, surveying 155 officers representing 42 institutions in the ADOC. That survey’s results suggest, above all, that many members of the ADOC correctional staff lack basic understanding of HIV and seem to harbor severe prejudice against those who have it. Troublingly, 44.4 % responded that they would be less likely to stop acts of violence in the prison if prisoners with HIV were involved.
The plaintiffs’ expert on polling, Dr. Faye Taxman, found numerous faults with the survey. Among them were that Drs. Maulden and Ingram did not follow basic protocols for conducting research on human subjects, that their sampling strategy was inadequate to guarantee a representative sample, and that the questions in the survey were too convoluted to merit confidence in the accuracy of the responses.
Further, Dr. Ingram conducted a nearly identical survey in 1989 when HIV-positive prisoners challenged the ADOC's policy. That survey predicted that violence would
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occur if programs were integrated: it did not. This

result casts doubt on Dr. Ingram's similar predictions in

this case.

However, the greatest damage to the credibility of

the survey was done by Dr. Ingram himself at trial. Dr.

Ingram testified, for example, that he included questions

about the prisoners’ attitudes about homosexuality

because, “Homosexuality is a high-risk behavior.”

49

Dr. Ingram is incorrect to equate sexual orientation to

unprotected sexual activity, and his error exemplifies a

mutually reinforcing relationship between prejudice

49. Dr. Ingram later corrected himself and said that he meant to say that homosexual acts are high-risk, not homosexual orientation. Dr. Ingram's deposition transcript shows that when asked how he would respond to the statement, “I would use force to keep a homosexual away from me,” he stated, “I would.” According to the transcript, Dr. Ingram answered the question this way in two separate instances. At trial, Dr. Ingram said that the transcript of the deposition was incorrect in both places where this answer was shown, and that it should have shown that his response was: “I would not .” The court finds both Dr. Ingram's claim that the transcript was incorrect and his post-hoc corrections of his statements disingenuous. It was evident from both his testimony and his demeanor in editing his own words that Dr. Ingram harbors prejudice against homosexual people.
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against HIV and homophobia. The court was disturbed by his attitudes. More pertinently, because much of the survey assessed attitudes about homosexuality, the court is concerned that the study was tainted by Dr. Ingram's own biases. Therefore, while the court considers the results of the survey, it lends them only limited credence.
Even if the study were an exemplar of professional integrity (and it is not), its results do not show that violence would necessarily result if the ADOC changed its policy. This conclusion can only be drawn when the study’s results are coupled with the fatalistic assumption that potential backlash cannot be prevented.
The evidence, however, reveals that this is not the case. There was not significant unrest, for instance, when the ADOC integrated HIV-positive prisoners into various programs and activities, although department officials, including Associate Commissioner DeLoach,
141

feared that violence would occur. 50 Deputy Commissioner Emmitt Sparkman attests to a similar result when the Mississippi Department of Corrections integrated its HIVpositive prisoners in 2010: though violence was anticipated, none, in fact, took place. Sparkman credits this success to a robust education effort that the Mississippi Department of Corrections conducted in anticipation of integration. And indeed, since the results of the prisoners’ survey revealed widespread misinformation about how HIV is spread, it it imminently possible that education would both dispel these assumptions and reduce the fear (and the potential violent backlash) that accompany them.
The ADOC has an equally scant basis for assuming that correctional officers could not be educated to better address potential unrest. Moreover, the ADOC has a
50. Based largely on Dr. Ingram's survey, ADOC argued that violent backlash would result from program inegration in Onishea, interpreting the evidence to show “that residential and program integration would be equally objectionable to certain inmates.” Onishea, 171 F.3d at 1300.
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responsibility to ensure that its officers are informed and would treat all prisoners equally. Therefore, if correctional officers really would hesitate to break up fights involving HIV-positive prisoners, then the appropriate response is certainly not to accommodate it.
Indeed, rather than justifying the ADOC’s policy, the correctional officers’ responses to the survey instead provide strong evidence that prejudice against prisoners who have HIV is prevalent within the department. And as a general matter, the department’s arguments about the results of the survey (which suggested that bias, misinformation, and homophobia are persistent problems within the ADOC) demonstrate the ADOC’s willingness to defer to prejudiced viewpoints rather than correct them. Associate Commissioner DeLoach’s testimony on the potential threat of violence exemplifies this approach:
“DELOACH: Inmates still have this mindset that HIV-positive offenders-–in large part, they equate that to homosexual activity.
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“THE COURT: So the real animating trait here is really not the HIV-positive quality, but the gay quality. “DELOACH: Yes, sir.” Associate Commissioner DeLoach testified that this impacted his assessment of whether HIV-positive inmates could be safely housed in cells with prisoners who do not have HIV. Thus, DeLoach demonstrated a willingness to allow homophobia to drive the department’s policy with regard to HIV-positive prisoners. Despite this, however, Associate Commissioner DeLoach largely testified directly against the ADOC’s position on security justifications for its policy. According to DeLoach, today, there is no security reason that HIVpositive prisoners could not share open bay dormitories with general-population prisoners at Limestone. He testified that he now has no concerns about integrating HIV-positive prisoners at Tutwiler. He is also concerned about integration at facilities other than Limestone, but believed that an incremental process accompanied by education could allow the department to integrate
144

successfully at those facilities as well. Integration could be achieved, he said, as long as the process is “slow and gradual.” That the very man responsible for implementing the segregation policy (and a person who has not shied away from accommodating prejudice) finds no security justification today for maintaining it discredits deeply the department’s insistence that its approach is essential to the safety and good operation of the prison system. DeLoach’s last-minute concessions also deepen the court’s impression that the ADOC’s policy has stood on stale assumptions.
In sum, the ADOC has not demonstrated that intgrating the plaintiffs in housing or including them in foodservice jobs would create a serious threat of disorder; the court’s conclusion that the plaintiffs are not categorically unqualified therefore remains in tact. Even if the court were to apply Turnerformally, it would not find the ADOC’s current segregation policies justified. To the extent that violence is a credible concern, the “existence of ... ready alternative[s]”,
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such as education, renders segregation precisely the sort of “‘exaggerated response’ to prison concerns” that the Turner doctrine is not intended to shield. Turner, 482 U.S. at 90.
C. Res Judicata The court now turns to a defense asserted by the ADOC at early stages of this litigation. The court set this issue aside for further factual development at trial. See Henderson v. Thomas, ____ F. Supp. 2d ____, 2012 WL 3846439, at *6 (M.D. Ala. 2012) (Thompson, J.). The ADOC contends that the plaintiffs’ claims under the ADA are identical to those adjudicated in Onishea and Edwards , and are thus precluded from relitigation in this case under the doctrine of res judicata. Res judicata bars a subsequent action where four elements are satisfied: “(1) a final judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) the parties, or those in privity with them, must be identical in both suits, and (4) the same
146

cause of action must be involved in both cases.” Hart v. Yamaha-Parts Distribs., Inc., 787 F.2d 1468, 1470 (11th Cir. 1986) (citations omitted). The plaintiffs concede that the first three elements are met. However, they contend that the fourth element is not satisfied because the underlying facts have changed.
In determining whether two causes of action are identical for the purposes of res judicata , the court must consider “not only whether the same legal claim is asserted, but also whether the factual underpinnings of the causes of action are constant.” Edwards, 81 F. Supp. 2d at 1249. Thus, “in determining whether to apply res judicata, [the court] must look to the factual issues to be resolved in the second cause of action, and compare them with the issues explored in the first cause of action. If there has been a modification of significant facts creating new legal conditions, res judicata is no defense.” Southeast Fla. Cable, Inc. v. Martin County , 173 F.3d 1332, 1336 (11th Cir. 1999) (punctuation marks and citations omitted).
147

Here, the plaintiffs argue that the “central factual

premise of the Onishea decision--that HIV infection

inevitably progresses to AIDS and then to death-–is no

longer true.” Pls.’ Br. (Doc. No. 37) at 3. As the

court has already concluded, that is correct. HIV is no

longer inevitably fatal. Because the Onishea court’s

holding hinged on this fact, Onishea cannot preclude the

plaintiffs from litigating the case at issue here.

In addition, the ADOC has significantly changed its

policy with regard to HIV-positive prisoners since

Onishea was litigated. These changes include abandoning

policies that the ADOC argued in Onishea were necessary

to protect the safety of all prisoners within the system.51 Therefore, the ADOC’s own actions are poweful

evidence that circumstances since Onishea

have

significantly changed.

51. The district court in the Onishea litigation “concluded that the transmission risk [was] significant in all programs.” Onishea, 171 F.3d at 1295.
148

It is clear, then, that the factual underpinnings of this action are different from those in Onishea . In Edwards, this court dismissed the lawsuit as an attempted relitigation of the Onishea claims; thus, if this case is not precluded because of Onishea , nor is it precluded because of Edwards. Res judicata is therefore no bar to this suit.
III. RELIEF Having decided the ADOC’s liability, the court now turns to the issue of appropriate relief. The Prison Litigation Reform Act requires that the relief imposed be “narrowly drawn, extend[] no further than necessary ..., and [be] the least intrusive means necessary to correct the violation of the Federal right[s].” Brown , 131 S. Ct. at 1929 (quoting 18 U.S.C. § 3626(a)(1)(A)). At the end of the trial in this case, the court promised that, should it find in favor of the p laintiffs on liability, it would afford the defendants an opportunity to propose appropriate relief to the court and that this
149

opportunity would include time for both sides to meet and attempt to agree upon relief. The court will keep its promise. Cf . Davoll v. Webb , 194 F.3d 1116, 1132 n.8 (10th Cir. 1999) (“The federal regulations implementing [Title I of] the ADA envision an interactive process that requires participation by both parties.... Both parties thus have an obl igation to interact in good faith to determine how to reasonably accommodate the employee.”) (quotation marks and citations omitted).
*** In conclusion, the court holds that, except as to the work-release policy, the ADOC's HIV-segregation policy violates the ADA. In reaching this holding, the court will emphasize three points. First, the court finds that the segregation policy is based on outdated and unsupported assumptions about HIV and the prison system's ability to deal with HIV-positive prisoners. The policy is also infected, and the reasons
150

the ADOC has proffered for its continued existence undermined, by an intentional bias against HIV-positive people, as reflected in a bias from those in charge (for example, with the white-armband policy) and in a systemwide tolerance for a culture of bias, rooted in large measure in ignorance about HIV, from among not only prisoners but employees in general (for example, with the food-service policy and the fear that guards will not protect HIV-positive prisoners). More specifically, in response to the question of why the ADOC continued to exclude HIV-positive prisoners from food-service jobs in the prison kitchens and in the work-release program when it was clear that HIV was not transmitted by handling food and when there had been no complaints from employers about HIV-positive prisoners having food-service jobs, Associate Commissioner DeLoach responded: “[W]e live in Alabama, and there are a lot of prejudices.... [I]t doesn’t sound nice. It doesn’t sound ... chic.... Prejudices ... die hard in Alabama.” Therefore, any
151

remedy the defendants might propose to the court must be based not only on a willingness to revisit assumptions and to look to all reasonably available and untapped resources; and must not only be uninfected by bias against those with HIV, but it must also address the lack of education and ignorance among both prisoners and prison employees about HIV. "We live in Alabama" is not an excuse.
Second, the court cannot overemphasize that it is not holding that all HIV-positive prisoners are entitled to be co-mingled with HIV-negative prisoners; indeed, the court is not even holding that any particular HIVpositive prisoner is entitled to such. Rather, the court is simply holding that how prisoners should be treated based on their HIV-positive status must depend upon an individual-by-individual assessment of these prisoners that honors each prisoner's rights under the ADA, and the court is convinced that resources are reasonably available to do this. The essential thrust of this
152

court's opinion today is simply that the ADOC must look at each HIV-positive prisoner separately and individually based upon that prisoner’s particular circumstances.
Third and finally, the court will address later and by a separate order how the parties are to proceed as to the unresolved challenge to the ADOC's work-release policy.
An appropriate judgment will be entered. DONE, this the 21st day of December, 2012.
/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

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

LOUIS HENDERSON, DANA

)

HARLEY, DWIGHT SMITH,

)

ALBERT KNOX, JAMES

)

DOUGLAS, ALQADEER HAMLET, )

and JEFFREY BEYER, on

)

behalf of themselves and )

of those similarly

)

situated,

)

)

Plaintiffs,

)

)

v.

)

)

KIM THOMAS, Commissioner, )

Alabama Department of

)

Corrections; BILLY

)

MITCHEM, Warden, Limestone )

Correctional Facility;

)

FRANK ALBRIGHT, Warden, )

Julia Tutwiler Prison

)

for Women; BETTINA CARTER, )

Warden, Decatur Work

)

Release/ Community Work )

Center; EDWARD ELLINGTON, )

Warden, Montgomery Women’s )

Facility, in their

)

official capacities,

)

)

Defendants.

)

CIVIL ACTION NO. 2:11cv224-MHT (WO)

JUDGMENT

In accordance with the opinion entered this date, it is the ORDER, JUDGMENT, and DECREE of the courats follows:
(1) Judgment is entered in favor of the plaintiffs and against the defendants.
(2) It is DECLARED that, with the exception of the Alabama Department of Corrections’ work-release policy, its segregation policy with regard to HIV-positive prisoners violates Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794.
(3) The parties will be given a reasonable opportunity, jointly or separately, to propose relief to the court.
(4) By a later separate order, the court will address the unresolved challenge to the work-release policy.
DONE, this the 21st day of December, 2012.
/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

 
 Case 2:11-cv-00224-MHT-WC Document 1 Filed 03/28/11 Page 1 of 39

RECEIVED

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

LOUIS HENDERSON, DANA HARLEY, DARRELL ROBINSON, DWIGHT SMITH, ALBERT KNOX, ROOSEVELT JAMES, JOHN HICKS, APRIL STAGNER, ASHLEY DOTSON, and MELINDA WASHINGTON, on behalf of themselves and of all those similarly situated,

Civil Case No.

MAR 28 A 8: 35
DEORA P. ACcj; CLK U.S. O!STRICT COURT
MIDDLE D1STRCT ALA

Plaintiffs,

v.

ROBERT BENTLEY, Governor of Alabama; KIM THOMAS, Commissioner, Alabama Department of Corrections; BILLY MITCHEM, Warden, Limestone Correctional Facility; FRANK ALBRIGHT, Warden, Julia Tutwiler Prison for Women; BETTINA CARTER, Warden, Decatur Work Release/Community Work Center; EDWARD ELLINGTON, Warden, Montgomery Women's Facility, in their official capacities,

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE
RELIEF

Defendants.

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Introduction 1. Upon entering the state prison system in Alabama, each prisoner must submit to a test for the Human Inimunodeficiency Virus ("HIV"). A positive test result will determine almost every aspect of that person's life for as long as he or she is in prison. More than the severity of their crime, the length of their sentence, or almost any other factor, the HIV test will determine where the prisoner will be housed, eat, and recreate; his or her access to in-prison vocational, rehabilitative and faith-based programs; and whether he or she will have the

Case 2:11-cv-00224-MHT-WC Document 1 Filed 03/28/11 Page 2 of 39
opportunity for supervised work in the community, which is often the key to successful transition after release from prison. Prisoners diagnosed with HIV are segregated from all other prisoners and cannot keep their HIV status confidential. Every male prisoner who tests positive for HIV is required to wear an armband publicly identifying him as a person with HIV.
2. Alabama's segregation policy, as described below, excludes Plaintiffs from a wide range of critically important prison programs and jobs, and denies them equal access to rehabilitative and community re-entry opportunities. This exclusion denies prisoners with HIV equal opportunities for personal rehabilitation and may result in prisoners serving longer sentences simply because they have HIV. Alabama's policies and practices also result in involuntary public disclosure of the prisoners' HIV status, in violation of medical ethics and international human rights law, and result in permanent stigmatization, causing prisoners with HIV to suffer severe emotional distress and impairing their opportunities for employment upon release from prison.
3. Alabama's policies Originated in the mid-1980s, when a tidal wave of public fear over the HIV/AIDS epidemic led a majority of state correctional systems to adopt policies requiring the segregation of prisoners with HIV. These policies were the product of a time when widespread popular confusion existed over the methods of HIV transmission, treatment options were virtually nonexistent, and HIV was considered a death sentence.
4. By the mid-1990s, however, new classes of antiretroviral medications proved extremely effective at suppressing the virus. These medications have changed HIV from a fatal disease to a chronic condition that can be successfully treated. Nowadays, people with HIV who receive appropriate treatment can look forward to a normal lifespan.
5. Also by the mid-1990s, the methods of HIV transmission had been clearly
2

Case 2:11-cv-00224-MHT-WC Document 1 Filed 03/28/11 Page 3 of 39
established, and myths that HIV could be transmitted through casual contact (such as handshakes, hugs, sharing food, or using the same toilet seats) had been widely debunked. Prison systems throughout the nation decided that HIV segregation was neither sound correctional policy nor justified by legitimate public health considerations. By 1994, only six prison systems had segregation policies. By 2003, that number had dwindled to three states— Alabama, South Carolina, and Mississippi. In 2010, the Mississippi Department of Corrections terminated its segregation policy.
6. Today, Alabama is one of only two states in the nation—South Carolina is the other—that continues to segregate all prisoners with HIV in separate, specially designated housing units.
7. Alabama insists that segregation is justified by the need to provide medical care and to prevent HIV transmission in prison. Prison systems throughout the United States have shown, however, that the states can meet their obligations to incarcerate prisoners safely and to provide them with necessary medical care without requiring prisoners with HIV to forfeit their right to be free from disability -based discrimination.
8. Plaintiffs are prisoners with HIV in the custody of the Alabama Department of Corrections ("ADOC") who bring this action on their own behalf and on behalf of the approximately 250 other prisoners in ADOC custody who have tested positive for HIV. They seek declaratory and injunctive relief against the Alabama Department of Corrections for discriminating against them on the basis of their HIV status and excluding them from participation in, or denying them the benefits of, ADOC services, programs, or activities for which they are qualified, because they have HIV, in violation of Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq, and Section 504 of the Rehabilitation Act.
3

Case 2:11-cv-00224-MHT-WC Document 1 Filed 03/28/11 Page 4 of 39
Jurisdiction and Venue 9. This Court has jurisdiction over this action pursuant to 28 Usc § 1331. 10. Venue is proper in this District pursuant to 28 U.S.C. §1391 because the Alabama Department of Corrections is headquartered in Montgomery, Alabama, Defendants Bentley and Thomas have their offices there, and a substantial part of the events or omissions giving rise to this claim occurred in this District.
Parties Defendants
11. Defendant Robert Bentley is the Governor of the 5tate of Alabama. The Governor is vested with ultimate authority and responsibility over the corrections system. Ala. Code 1975 § 14-1-15 (2010). The Governor has the authority to promulgate rules and regulations necessary to the management and security of all prisons and jails. Ala. Code 1975 § 14-1-8 (2010). Governor Bentley is sued in his official capacity.
12. Defendant Kim Thomas is the Commissioner of the Alabama Department of Corrections. The Commissioner is responsible for heading the Department of Corrections, for the independent direction, supervision and control of the Department of Corrections, and for approving and issuing administrative regulations and changes. Ala. Code. 1975 § 14-1-1.3 (2010). He is sued in his official capacity.
13. Defendant Billy Mitchem is the warden at Limestone Correctional Facility ("Limestone"). He is responsible for the day-to-day operation and management of Limestone. He is sued in his official capacity.
14. Defendant Frank Aibright is the warden at Julia Tutwiler Prison for Women ("Tutwiler"). He is responsible for the day-to-day operation and management of Tutwiler. He is
4

Case 2:11-cv-00224-MHT-WC Document 1 Filed 03/28/11 Page 5 of 39
sued in his official capacity. 15. Defendant Bettina Carter is the warden at Decatur Work Release/Community
Work Center ("Decatur Work Release"). She is responsible for the day-to-day operation and management of Decatur Work Release. She is sued in her official capacity.
16. Defendant Edward Ellington is the warden at the Montgomery Women's Facility. He is responsible for the day-to-day operation and management of Montgomery Women's Facility. He is sued in his official capacity.
Plaintiffs Plaintff Louis Henderson
17. Louis Henderson is a person with HIV. He is a prisoner housed in a segregated dormitory at Limestone. He is serving a twenty-five year sentence for Theft of Property I. Mr. Henderson has remained free of disciplinary violations ("disciplinary free") for at least four years. His custody level is minimum-in. Minimum-in custody prisoners are eligible to work in jobs outside the perimeter of the prison, when supervised by a correctional officer.
18. In August 2009, Limestone's classification team recommended that Mr. Henderson's custody be lowered to minimum-out, making him eligible for work assignments outside the prison and without the direct supervision of a correctional officer, and that he be moved to Decatur Work Release. In July 2010, Limestone's classification team recommended that Henderson's custody be lowered further, to minimum-community, and again recommended that he be moved to Decatur Work Release. He has been medically cleared for work release. Despite the classification team's recommendations, ADOC has not lowered his custody level and he remains at Limestone.
19. Mr. Henderson is qualified for a number of ADOC programs, privileges,
5

Case 2:11-cv-00224-MHT-WC Document 1 Filed 03/28/11 Page 6 of 39
activities, and services, including, for example, residence in the Faith-Based Honor Dorm at Limestone; transfer to a lower security level facility; transfer to a facility providing vocational training in heating and air, small engine repair, and information systems; transfer to a ADOC facility closer to his home in Mobile; and work release. Defendants exclude him from all of these programs and services solely because he has HIV.
Plaint iff Darrell Robinson 20. Darrell Robinson is a person with HIV. He is a prisoner housed in a segregated
dormitory at Limestone Correctional Facility. He arrived at Limestone Correctional Facility in 2009 for a probation violation. His end of sentence ("EOS") date is August 17, 2012. He has remained disciplinary free since arriving at Limestone. His current custody level is minimumout.
21. Mr. Robinson is qualified for many important programs from which ADOC excludes him solely because he has HIV. At Limestone, he is excluded from the Faith-Based Honor Dorm and the senior dorm. He wants to participate in furniture restoration and cabinet making programs, which are available at other ADOC facilities but not at Limestone. He would like transfer to a lower security facility, or to an ADOC facility closer to his home in Mobile. He would like the opportunity to participate in work release. ADOC's HIV policy excludes him from all of these important programs solely because he has HTV.
22. In 2009, the Limestone classification team recommended that Mr. Robinson be moved to Decatur Work Release. Dr. Joiner, the HIV specialist for the Alabama Department of Corrections, has determined that Mr. Robinson does not need to be on any HIV medication, and has not prescribed HIV medication for Mr. Robinson. Nevertheless, ADOC will not medically clear him for work release because he does not meet ADOC's arbitrary medical eligibility

Case 2:11-cv-00224-MHT-WC Document 1 Filed 03/28/11 Page 7 of 39
criteria for work release for prisoners with HIV. Under these criteria, prisoners with HIV who are not prescribed HIV medication must have a viral load below 1000 and a CD4 number greater than 700 or CD4 % above 35. Even though ADOC designates Mr. Robinson as medically ineligible for work release, it has assigned him for the past year to work on an outdoor clean-up squad involving many hours of hard labor in the sun and he has performed these duties without medical problems.
Plaintiff John Hicks 23. John Hicks is a person with HIV. He is a prisoner housed at Decatur Work
Release. Mr. Hicks is prohibited by ADOC from working in food services jobs solely because he has HIV. Mr. Hicks is a certified welder, and would like to transfer to a facility where he can apply those skills, but is prohibited from transferring to another facility solely because of his HIV status. In or around June 2010, a former Limestone inmate disclosed Mr. Hicks' HIV status to all the inmates at the Decatur Work Release. This prisoner knew that Mr. Hicks has HIV because of ADOC's HIV segregation policy. Mr. Hicks is afraid that other inmates will disclose his status to potential employers.
Plaint 'if Roosevelt Jones
24. Roosevelt James is a person with HIV. He is a prisoner housed at Decatur Work Release. Because of Limestone Correctional Facility's policy of segregation, the correctional officers and other prisoners at Decatur Work Release know Mr. James has HIV, and he is afraid that other prisoners will disclose his HIV status to potential employers.
25. Mr. James has been assigned to only a few short-term jobs since he arrived at Decatur Work Release in May of 2010. He is certified in upholstery/automotive interior and trim. He would like to transfer to a work release center in Mobile or Birmingham where his Calhoun
7

Case 2:11-cv-00224-MHT-WC Document 1 Filed 03/28/11 Page 8 of 39
College upholstery professor, who has upholstery shops there, could help him obtain work. He is barred from transfer to these work release centers solely because he has HJV.
26. Furthermore Mr. James is eligible for a four-hour pass, which would allow him to leave the prison for a few hours to visit his family. He cannot take advantage of this important privilege because his family lives in Birmingham, and he is barred from transferring to Birmingham, solely because he has HIV.
Plaint ffAlbert Knox 27. Albert Knox is a person with HJV. He is a prisoner housed in a segregated
dormitory at Limestone Correctional Facility. He has been at Limestone for approximately two years for drug possession. His EOS date is March 12, 2013. Mr. Knox is qualified for a number of ADOC programs, privileges, activities, and services, including residence in the Faith-Based Honor Dorm and the senior dorm, from which Defendants exclude him solely because he has HIV.
28. On January 22, 2010, while Mr. Knox was participating in the eight-week Substance Abuse Program ("SAP"), he received two disciplinary reports for eating his lunch meal in the Population Chow Hall with the other SAP participants, who do not have HIV. The disciplinary reports charged him with being in an unauthorized area and intentionally creating a security, safety, or health hazard. The second charge was eventually dropped. For simply eating lunch with the other SAP participants, Mr. Knox was dropped from the program and spent 45 days of a 90 day sentence in a disciplinary segregation cell. Mr. Knox has been disciplinary free for approximately nine months, and is once more participating in the SAP program. However, solely because he has HJV, he is still prohibited from residing in the SAP dormitory or eating with the other program participants.
8

Case 2:11-cv-00224-MHT-WC Document 1 Filed 03/28/11 Page 9 of 39
Plaintiff Dwight Smith 29. Dwight Smith is a person with HIV. He is a prisoner housed in a segregated
dormitory at Limestone Correctional Facility. Mr. Smith has been at Limestone for five years. His EOS date is January 11, 2013.
30. Mr. Smith has a clear disciplinary record. His custody level is minimum-out, and he has been medically cleared for work release. Limestone's classification team has recommended him for work release two or three times, but ADOC has yet to approve his transfer to Decatur Work Release Center. On information and belief, ADOC has not approved his transfer solely because he has HIV.
31. Besides work release, Mr. Smith is qualified for a number of other ADOC programs, privileges, activities, and services, including the Faith-Based Honor Dorm and the senior dorm at Limestone; transfer to a lower security level facility; transfer to the Alabama Therapeutic Education Center; transfer to a facility providing vocational training such as barbering; and transfer to an ADOC facility closer to his home in Atlanta. Defendants exclude him from all of these programs and services solely because he has HIV.
PlaintiffAshley Dotson 32. Ashley Dotson is a person with HIV. She is a prisoner housed in a segregated
dormitory at Julia Tutwiler Prison for Women. She has been at Tutwiler since December 2010 for a probation violation. Her EOS date is July 16, 2012. She has no disciplinary violations. Her custody level is minimum-out. Ms. Dotson is qualified for a number of ADOC programs, privileges, activities, and services, including residence and participation in the SAP program and work release, from which Defendants exclude her solely because she has HIV.
9

Case 2:11-cv-00224-MHT-WC Document 1 Filed 03/28/11 Page 10 of 39
Plaintff Dana Harley 33. Dana Harley is a person with HIV. She is a prisoner housed in a segregated
dormitory at Julia Tutwiler Prison for Women. In the fall of 2010, Defendant Warden Albright learned that Ms. Harley was in a consensual relationship with a general population prisoner, "Jane Doe." Warden Albright telephoned that prisoner's mother, "Mrs. Smith," and determined that Mrs. Smith knew Plaintiff Harley but did not know Harley's medical status. Warden Albright ordered Jane Doe to immediately disclose Harley's HIV status to Mrs. Smith, warning Jane Doe that if she did not do so, he would. Jane Doe complied. By ordering the completely gratuitous disclosure of Plaintiff Harley's HIV status to a person in the free-world community, Warden Albright caused Harley anxiety, humiliation and distress.
PlaintiffApril Stagner 34. April Stagner is a person with HIV. She is a prisoner housed in a segregated
dormitory at Julia Tutwiler Prison for Women. A correctional officer told Ms. Stagner that she is a disgrace to women because she has HIV, and that working in the HIV unit makes the officer fear for her life. Ms. Stagner's treatment by ADOC staff reflects such attitudes. For consensually kissing another inmate on the cheek (which poses no risk of HIV transmission), Ms. Stagner was given forty-five days in segregation and twenty-one days' loss of privileges. On information and belief, prisoners without HIV who engage in similar conduct typically receive much lighter punishment, if any.
Plaintff Melinda Washington 35. Melinda Washington is a person with HIV. She is a prisoner housed in a
segregated dormitory at Julia Tutwiler Prison for Women. She has been subjected to harsher punishment solely because she has HIV.
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Case 2:11-cv-00224-MHT-WC Document 1 Filed 03/28/11 Page 11 of 39
ADOC Policy on HIV Sere2ation
36. Alabama law mandates HIV testing of all prisoners coming into ADOC's custody. Ala. Code § 22-11A-17, 38 (2008). The law does not require segregation of prisoners with HIV. As a matter of administrative practice and policy, however, ADOC immediately segregates all prisoners who test positive for HIV and houses them separate and apart from all other prisoners for the duration of their prison confinement.
37. Appropriate prisoner classification is the backbone of the security program of any prison or jail. Like virtually every other prison system in the nation, ADOC uses an objective classification system to assign prisoners to appropriate custody levels. These classifications are based on the level of security and supervision the prisoner requires and the prisoner's program needs, including consideration of which prisoners can be safely housed together; the degree of restrictiveness of confinement necessary to protect the safety of other prisoners, prison staff, and the public; and the extent to which a particular classification will interfere with a prisoner's access to medical, mental health, educational, and other programs. Prison classification experts use standardized risk instruments and evidence-based judgments to make these decisions.
38. ADOC classifies all prisoners as close-custody, medium-, or minimum-custody. Close-custody is the most restrictive custody to which a prisoner may be assigned, and is reserved for prisoners who have demonstrated severe behavioral problems, some prisoners sentenced to life without parole, and some detainees awaiting trial or sentencing for capital offenses. Close-custody prisoners are usually housed in single cells at a close-security institution.
39. Medium-custody prisoners are eligible for assignment to formalized institutional treatment programs or work assignments within the confines of a secure institution. They may be housed in dormitories or double-occupancy cells at a medium- or close-security institution.
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When outside the institution, medium-security prisoners must be accompanied by an armed correctional officer.
40. Minimum-custody is the lowest custody designation. There are three levels of minimum- custody: minimum-in, minimum-out, and minimum-community. Minimum-in custody prisoners may receive work assignments inside a medium- or close-custody facility, or off-property when supervised by a correctional officer. Minimum-out custody prisoners are eligible for work assignments off-property without the direct supervision of a correctional officer. They may be placed at community work centers or minimum security camps. Minimum-community custody prisoners are at the lowest custody level and are typically approaching the final stage of incarceration. They are supervised during their time spent at work release centers and while participating in facility activities, but need not be directly supervised at other times.
41. ADOC's segregation policy trumps all the usual considerations that prison officials take into account in making classification decisions, and results in prisoners at different custody levels being housed together for no reason other than that they have HIV. This automatic override of standard classification principles negatively impacts prisoners' safety and security, and denies prisoners with HIV the same opportunity afforded other prisoners to earn greater liberty and privileges through good behavior.
Current Medical Consensus Concernin! Treatment of Prisoners With HIV 42. The health status of people with HIV varies widely, as does their need for medical attention. Many people who test positive for HIV remain asymptomatic for many years. Current guidelines suggest that some people with HIVmay not require treatment with antiretroviral medication. These people usually require no special medical attention other than quarterly blood
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tests to verifi that the disease is has not progressed. 43. The Centers for Disease Control, the U.S. Department of Health and Human
Services, and the International AIDS Society have issued national consensus guidelines on the treatment of HIV. According to these guidelines, when blood tests show that the concentration of the virus in a patient's blood has increased and the immune system has declined to certain levels, patients should consult with an HIV specialist to decide on an individualized medication regimen. Once a patient is clinically stable on a medication regimen, however, he or she will generally have a markedly reduced need for care by an HIV specialist other than a check-up once every few months, to determine whether the medication regimen needs any modification. Where services are decentralized, many correctional systems have implemented telemedicine to overcome obstacles to providing on-site medical care for HIV treatment. In other settings, providers and consultants near to the correctional facility have successfully provided comprehensive HIV care.
44. There is a broad national consensus in the medical-correctional community that segregation of prisoners merely because they test positive for HIV is unnecessary and potentially harmful. The National Commission on Correctional Health Care ("NCCHC") counsels that medical management of prisoners with HIV should parallel that offered to persons in the community. NCCHC explains as follows:
Decisions on housing HI V-positive inmates should be based on what is appropriate for their age, gender, and custody class. NCCHC opposes routine segregated housing for HI V-positive inmates. HI V-positive inmates, like any other inmate, may require a higher level of care that may not be available at all institutions. This is a clinical judgment, based upon the acuity of care required for the patient. Patients with HIV infection may require isolation if, for example, they have pulmonary tuberculosis. HIV patients should not be medically isolated solely because of their HIV status.
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Nat'! Com'n on Con. Hea!th Care, Position Statement: Administrative Management of HIV in Correctional Institutions, (rev. Oct. 8, 2005), available at http://www.ncchc.org/resources/statements/admin_hiv2005.html.
45. Isolation of prisoners with HIV may harm the treatment outcomes for those people. People with HIV, and particularly prisoners with HIV, already suffer from an increased prevalence of depressive symptoms. See Springer SA & Altice FL, Managing HI V/AIDS in correctional settings, 2 CURR HIV/AIDS REP !65-70 (2005); Altice FL, Kamarulzaman A, Soriano VV, Schechter M, Friedland GH, Treatment of medical, psychiatric, and substance-use comorbidities in people infected with HIV who use drugs, 376 LANCET 59-79 (2010). Segregating these individuals into dedicated HIV units is stigmatizing and humiliating. Imposing greater stigmas on them, particularly through forced disclosure of their HIV status, can compound their depressive symptoms. These depressive systems are in turn associated with worse HIV treatment outcomes.
46. Providing HIV treatment without also providing other evidence-based re-entry interventions adds to the many obstacles that individuals with HIV face upon release from prison. Re-entry to the community is a complex process that requires addressing a number of educational, vocational, psychosocial, substance abuse treatment, and medical needs, especially for those with HIV. Failing to address those needs while the person is incarcerated can u!timately lead to worse health outcomes upon release from prison. For example, a prisoner with HIV might benefit most by having access to education and vocational training programs so that he might gain reasonable access to employment on re!ease. Alternatively, effective drug treatment may be critical to a person's optimal HIV treatment outcome; treating the HIV but excluding him from this program will have dire consequences.
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Discrimination Against Prisoners with HIV at Limestone Segregation of Prisoners with HIV at Limestone
47. Limestone is divided into three sections: A-side, B-side, and C-side. B-side, which houses general population prisoners, has a capacity of 1,166. C-Side, which is used to house the Faith-Based Honor Dorm and pre-release prisoners, has a capacity of 700. A-side, with a capacity of 637 prisoners, contains the HIV living area, the senior dormitory, the healthcare unit, and the segregation cells for especially dangerous or difficult-to-manage prisoners and those in protective custody.
48. Prisoners who test positive for HIV are categorically excluded from the general population dormitories and are housed together in a single HIV living area on the A-side of Limestone, whatever their custody level.
Public Disclosure and Stigmatization at Limestone 49. Defendants publicly disclose prisoners' HIV status to all other prisoners, prison
staff, and freeworld visitors at Limestone, in a variety of ways. Prisoners with HIV are required to wear white armbands signifying their assignment to the FIIV living area at all times, even when the prisoners are working outside the prison gates. When free-world people take tours of Limestone, correctional officers point out the prisoners with HIV and disclose their HIV status. Some family members have learned that their loved ones have HIV through these various stigmatizing practices. The stigmatization follows the prisoners into the free world, and the widespread knowledge of their medical condition may result in potential employers refusing them jobs.
50. There are two exercise yards at Limestone, A-side and B-side. Prisoners who do not have HIV are allowed to use both sides of the yard, but prisoners with HIV are restricted to
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recreation on the A-side of the yard. As a matter of official policy, ADOC allows prisoners with HIV and prisoners who do not have HIV to recreate together on the A-side of the yard. In practice, when prisoners who do not have HIV arrive at Limestone and go through an orientation process, security staff warns them that they should stay away from the A-side of the yard unless they want to get HIV.
Exclusion from Limestone Senior Housing 51. General-population prisoners at Limestone who are at least forty years old and
older are eligible for housing in a seniors' dormitory. Prisoners with HIV, however, are excluded from senior housing even if they otherwise meet the criteria. Louis Henderson, Dwight Smith, Albert Knox, and Darrell Robinson are otherwise eligible to reside in the senior dorm, but are excluded solely because of their HIV status.
Exclusion from Limestone Residential Substance Abuse Treatment Program 52. One of the dormitories at Limestone houses a residential substance abuse
treatment program ("SAP"). The residential component is an important part of substance abuse treatment programs. Experts view residential therapeutic treatment programs as among the most effective models for in-prison substance abuse treatment. See NAT'L INST. ON DRUG ABUSE, RESEARCH REPORT SERIES: THERAPEUTIC COMMUNITY, NIH PUB. No. 02-4877 (Aug. 2002), available at http://drugabuse.gov/PDF/RRTherapeutic.pdf. Defendants permit some prisoners with HIV to participate in classes in the residential SAP program at Limestone. However, Defendants exclude those prisoners from living in the dormitory with the other participants, even though the residential component is important to the efficacy of the program.
53. As noted above, Albert Knox is currently participating in the SAP program, but is prohibited from living or taking meals with other program participants solely because he has
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HIV, and was disciplined for having lunch with his fellow participants. Prisoners with HIV are also excluded from participating in pre-treatment and aftercare with the other participants.
54. Currently there are only three prisoners with HIV participating in the SAP program. Upon information and belief, only a few prisoners with HIV are allowed to participate in the SAP classes at a time, regardless of how many are qualified to participate.
55. On information and belief, prisoners without HIV may become eligible for important benefits, including placement in a work release center, once they complete the residential SAP program. Prisoners with HIV do not become eligible for these benefits upon completion of the SAP program even if otherwise qualified.
Exclusion from Limestone Residential Pre-release Unit 56. General-population prisoners who are near the end of their sentence or have been
granted parole are housed in a pre-release dormitory for ninety days to participate in residential programming, intended to prepare prisoners for release by providing the life skills they will need to successfully transition from prison to the community. Prisoners with HIV are excluded from the residential component and are offered this programming on a more limited basis solely because of their HIV status. Prisoners with HIV attend pre-release programming only for a few weeks and even then only for a few hours a day.
Exclusion from Limestone Faith- Based Honor Dormitory 57. Limestone prisoners with good disciplinary records are eligible for housing in the
Faith-Based Honor Dorm, where they have access to coveted benefits and privileges. On information and belief, the goal of the Faith-Based Honor Dorm is to reduce recidivism, provide a program based on opportunity and responsibility for those inmates willing to make a productive change in their lives, and to provide a safe, secure, and healthy environment. On
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information and belief, ADOC views positively a prisoner's participation in the Faith-Based Honor Dorm in determining his security classification, risk assessment, and job placement. On information and belief, such participation is also viewed favorably by the Parole Board in determining parole eligibility. Prisoners receive other benefits as well. For example, approximately every six months families of the prisoners housed there are permitted to visit and bring food and other items to their loved ones.
58. Prisoners with HIV are categorically excluded from the Faith-Based Honor Dorm. One of the segregated HIV dorms, which also contains a psychiatric ward, contains an area informally dubbed an "honor dorm" but it offers none of the amenities and privileges accorded to prisoners in the general population Faith-Based Honor Dorm. Louis Henderson, Dwight Smith, Albert Knox, and Danell Robinson are otherwise eligible to participate in the general population Faith-Based Honor Dorm, but are prohibited solely because they have HIV. A number of prisoners with HIV recently requested applications for the Faith-Based Honor Dorm but were refused because they have HIV.
Exclusion from Kitchen Jobs and Other Jobs at Limestone 59. Qualified general-population prisoners at Limestone are eligible for jobs in the
prison kitchen or dining room, preparing and serving meals to the prisoner population. These jobs are generally considered extremely desirable because they allow prisoners to gain marketable work skills and experience. ADOC categorically excludes prisoners with HIV from kitchen jobs. There is no medical justification for this policy, which has been expressly rejected by the scientific community. The US Centers for Disease Control and Prevention ("CDC") states:
There is no known risk of HIV transmission to co-workers, clients, or consumers from contact in industries such as food-service establishments. Food service workers known to
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be infected with HIV need not be restricted from work unless they have other infections or illnesses (such as diarrhea or hepatitis A) for which any food-service worker, regardless of HIV infection status, should be restricted. CDC, "HIV and Its Transmission" (July 1999). 60. Similarly, in its compliance guidelines for restaurants and other food service employers, the Equal Employment Opportunity Commission ("EEOC") states there is no medical basis for categorically excluding people living with HIV from jobs in the food service industry. See EEOC, "How to Comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employers" (2004), available at http://www.eeoc.gov/facts/restaurant_guide.html. 61. Likewise, the CDC excludes HIV from the list of diseases that can be transmitted through the food supply. See 74 Fed. Reg. 61152-53 (Nov. 23, 2009). See also Ala. Dep't of Public Health, Fact Sheet: Basic Facts About HIV and AIDS (undated), available at http://adph.org/aids/assets/HIVAIDSFactSheet.pdf (noting that HIV cannot be transmitted from "drinking glasses, eating utensils or towels," or "coming into contact with . . . sneezes, coughs, tears or sweat.") 62. The ADOC Commissioner conceded in 2010 that there is no medical rationale for the policy, and stated that the only reason ADOC excludes prisoners with HIV from food service jobs is that it believes other prisoners would dislike eating food prepared by them. Even if some prisoners were opposed to allowing people with HIV to work in food service, ADOC's decision to base its classification policy on prisoners' unfounded fears and prejudices lacks any legitimate penological justification and is completely at odds with basic principles of prison classification. Moreover, by deferring to prisoners' unfounded fears and prejudices about HIV, prison officials reinforce those purported fears and prejudices.
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63. ADOC's decision to reinforce prisoners' unfounded fears is all the more harmful because ignorance about the disease is a major contributing factor to the HIV/AIDS epidemic in the South. The shame and stigma attached to a disease that many people connect with behaviors deemed objectionable, such as homosexuality and extra-marital sex, discourages many people from being treated—or even tested—for HIV/AIDS, lest their neighbors find out. Lani Luciano, Southern Discomfort—Coping with HI V/AIDS in the South Poses Challenges (Dec. 11, 2002) available at http://www.kaisernetwork.org/daily_reports/rep index.cfm?DR D= 15025.
64. ADOC also excludes prisoners with HIV from a variety of other jobs at Limestone, including receiving ruimer, administrative ruimer, Calhoun College runner, and jobs in the store, the canteen, the hospital, the healthcare unit, farm squad, and the visitation yard. Prisoners with HIV who are assigned yard maintenance or sanitation jobs are allowed to work only on the side of the prison where prisoners with HIV are housed, whereas other population prisoners assigned to those jobs work in both yards.
Exclusion from Limestone Dining Hall 65. The dining hail at Limestone is located on the B-side of the Limestone facility,
and all General-population prisoners housed on the B-side have their meals in the dining room. General-population prisoners housed on A-side who do not have HIV also have their meals in the dining room. Meanwhile, prisoners with HIV are categorically excluded from the dining room. There are too few dining tables in the HIV dorm to accommodate all the prisoners who live there, so some must eat inside their cells or sit outside the dorm, with no access to a sanitary eating area.
Disparate Punishment at Limestone of Prisoners with HIV 66. ADOC generally manages irresolvable serious personal conflicts among general 20

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population prisoners at Limestone by housing the prisoners in separate dorms. However, this option is unavailable for prisoners with HIV because they are relegated to a single segregated housing area. Consequently, when to prisoners with HIV have a personal conflict with each other, ADOC resorts to locking one or both of them in isolation cells.
67. Prisoners with HIV receive disciplinary citations for appearing without the white armbands that identif,' them as living in the HIV dormitory. Most general population inmates are not required to wear armbands identify'ing their dorms, and those few who are required to wear such armbands—for example, prisoners in the Faith-Based Honor Dorm are supposed to wear orange armbands—are either not punished or receive only mild punishment for appearing without these armbands.
Discrimination A2ainst Prisoners with HIV at Tutwiler Segregation of Prisoners with HIV at Tutwiler
68. Of the 15 housing units at Tutwiler, prisoners with HIV are excluded from all but two: an HIV dormitory housing all custody levels together, and the "healthcare unit." The socalled "healthcare unit" contains five holding cells, two isolation rooms used primarily to house prisoners with HIV in disciplinary segregation, protective custody, or isolation, and eight infirmary beds.
Public Disclosure and Stigmatization of Prisoners with HIV at Tutwiler 69. Upon arriving at Tutwiler, all prisoners are placed in the receiving unit and tested
for HIV. Those prisoners who test positive for HIV are placed in a solitary confinement cell in the so-called HIV "healthcare unit," where they may remain for weeks. Some of these women have just learned their HIV status for the first time. Solitary confinement is in itself a traumatic experience. For a person to be moved into solitary confinement immediately after being told she
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has HIV can be emotionally devastating. 70. Because of ADOC's policy of segregating all prisoners with HIV, everyone at
Tutwiler knows about their medical status. Correctional officers often do not refer to prisoners with HIV by their name or institutional numbers as they do for other prisoners, but simply as "E Dorm" (which everyone knows is the dormitory where prisoners with HIV are housed). One prisoner with HIV was forced to tell her two oldest children about her HIV status after two women who had been at Tutwiler told people in her small town about her HIV status.
Disparate Punishment at Tutwiler of Prisoners with liv 71. ADOC generally manages irresolvable personal conflicts among general
population prisoners at Tutwiler by housing the prisoners in separate dorms. Because there is only one dorm designated for all prisoners with HIV, ADOC cannot assign the prisoners to separate dorms, and instead often resorts to sending to solitary confinement one or the other of the women involved in the conflict.
72. Defendant Albright has designated Melinda Washington and "Sally Roe," another prisoner with HIV, as enemies. Rather than house them in separate dormitories, as he would if they were HIV-negative, he keeps one in solitary confinement and the other in the HIV dorm, rotating them once every ninety days. Similarly, Warden Albright has designated Dana Harley and fellow prisoner with HIV "Mary Jones" as enemies, and instead of assigning them to separate dormitories he keeps one prisoner in solitary confinement and the other in the HIV dorm, rotating them about once every ninety days.
73. The conditions in solitary confinement for women with HIV are extremely punitive. Enforced isolation and idleness for three months at a time is in itself traumatizing, and the conditions in the HIV solitary confinement cells are particularly harsh. Opportunities for
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showers and exercise are meager; the cells themselves are filthy, with leaking toilets and spider infestations; and prisoners in solitary confinement are exposed day and night to the screaming, raving and other outbursts of seriously mentally ill prisoners who are also housed in the so-called "healthcare unit."
Exclusion of Prisoners with HIV from the Tutwiler Medical Dormitory 74. On information and belief, women with serious medical needs requiring nursing
care or in-patient care are housed in the Medical Dorm—so long as they do not have HIV. Prisoners with HIV who have comparable medical needs are categorically excluded from the medical dorm: they are either left in the HIV dorm, or else housed in the "healthcare unit" which is a unit used primarily to house prisoners with HIV in disciplinary segregation, protective custody, or isolation.
Exclusion of Prisoners with HIV from the Tutwiler Faith-Based Honor Dorm 75. The Faith-Based Honor Dorm at Tutwiler is a residential program designed to
help prisoners develop life skills, personal growth, and accountability with outcomes of positive personal, family, institutional, and community relationships. The objective of the Faith-Based Honor Dorm is to provide prisoners the opportunity to demonstrate their willingness to pursue positive productive change in an atmosphere conducive to this change. The goal of the FaithBased Honor Dorm is to reduce recidivism, provide a program based on opportunity and responsibility for those inmates willing to make a productive change in their lives, and provide a safe, secure, and healthy environment which can be supervised with minimal security. On information and belief, ADOC and the Parole Board view participation in the Faith-Based Honor Dorm favorably in determining security classification, risk assessment, job placement, classification review, and parole eligibility. Otherwise qualified prisoners with HIV are
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categorically excluded from the Faith-Based Honor Dorm.
Exclusion of Prisoners with HIV from the Residential Component of the Tutwiler Substance Abuse Dormitory
76. The substance abuse dorm houses general population prisoners who are participating in the 8-week Substance Abuse Program ("SAP"), and also in the six-month Crime Bill Substance Abuse Program ("CB SAP"), which is funded by the federal government. Prisoners with HIV are categorically excluded from the residential component of these programs. They are allowed to participate for instruction but must return to the HIV dormitory to sleep— and even to use the bathroom. Plaintiff Ashley Dotson is otherwise eligible to participate in the residential component of this program, but is excluded solely because of her HIV status.
Exclusion of Prisoners with HIV from Tutwiler Kitchen Jobs 77. Otherwise-qualified prisoners with HIV are prohibited from holding jobs in the
kitchen and the laundry, solely because they have HIV. Exclusion of Prisoners with HIV from Community Corrections
78. The Community Corrections Program ("CCP") offers prisoners who can be safely monitored in the local community the opportunity to work in the community during the day, returning at night to a county jail. There are currently 34 community corrections programs in Alabama. According to statistics compiled by the ADOC, it costs only about $13 per day to supervise and house a person in the CCP, compared to $4 1.47 per day for incarceration in an ADOC prison. On information and belief, all qualified prisoners with HIV are categorically excluded from the CCP. The institutional diversion officer at Houston County Community Corrections told a prisoner with HIV who is otherwise eligible for CCP, "due to your medical condition and disability HCCC is not going to be able to accept you in any of our programs."
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This prisoner does not have any medical condition or disability other than HIV.
Discrimination Against Prisoners with HIV in Work Release 79. ADOC has a work release program, which offers prisoners the opportunity to reside in low security facilities while working for either a state or a private employer. Prisoners are permitted to keep a percentage of their wages while demonstrating responsibility and establishing a relationship that might lead to employment when their sentence is complete. 80. According to ADOC's Work Release policy, "The fundamental purposes of Alabama's work release program are to assist selected prisoners in preparing for release and to aid in making the transition from a structured institutional environment back into the community." 81. Although there are eleven work release centers in Alabama— nine for men, two for women—ADOC permits men with HIV to be assigned only to the center in Decatur and women to be assigned only to the work release center at the Montgomery Women's Facility. General-population prisoners with a six month clear record are eligible to apply for a lateral transfer. Lateral transfers are granted to general-population prisoners in order to place the prisoners closer to their families and to increase their job opportunities. Prisoners with HIV are categorically ineligible for lateral transfers to other work-release centers. Restriction to a single center unnecessarily limits their job opportunities and prevents prisoners with HIV from getting a job near their home and family. 82. For example, Plaintiff Roosevelt James could have a job in Birmingham or Mobile applying his skills in upholstery/automotive interior and trim. Instead, he is kept at Decatur Work Release where he has only had a few short-term jobs since his arrival in May 2010. Limitation to a single facility may also limit the number of prisoners with HIV who can
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participate in work release once the single center reaches its capacity. 83. Even when prisoners with HIV are admitted to the work release program, ADOC
discriminates against them in job placement. ADOC refuses to place prisoners with HIV in food service jobs, which constitute the majority of jobs available to prisoners placed at the Montgomery Women's Facility and a substantial number of the jobs available at Decatur Work Release. Jobs with a paper company are also available to women in Montgomery Women's Facility who do not have HIV; ADOC either discriminatorily refuses to place prisoners with HIV with the paper company, or else acquiesces in the discriminatory refusal of the paper company to accept women workers with HIV. A correctional officer told a woman with HIV that she could not work in the paper factory because she might get a paper cut.
84. Because of ADOC's policy of segregation, the other prisoners at Decatur Work Release and Montgomery Women's Facility already know the HIV status of newly-arriving prisoners. Around June 2010, an inmate from Limestone Correctional Facility disclosed Plaintiff Hicks' HIV status to all of the other inmates at Decatur Work Release. Correctional officers at Decatur Work Release also know which inmates have HIV. A correctional officer at Montgomery Women's Facility told one inmate with HIV not to touch him because she had "that stuff." Another prisoner with HIV at Montgomery Women's Facility believes that she was never assigned a job because of status-based discrimination by Warden Ellington; he told her that he was concerned other prisoners would talk about her HIV status on the job, and that this would end up adversely affecting ADOC.
85. ADOC's work release policy for prisoners with HIV also imposes unnecessarily restrictive medical clearance criteria. If not taking HIV medications, prisoners with HIV must have "a viral load of less than 1,000 and a CD4 count greater than 700." This arbitrarily high
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threshold prevents otherwise qualified prisoners with HIV from participating in work-release programs, without medical justification. Furthermore, prisoners who are on HIV medication must have successfully participated in the Keep On Person ("KOP") medication program for six consecutive months or more prior to going to work release, and have a viral load of "less than 48 for four consecutive readings, and a CD4 count greater than 450" to be eligible for work release. The HIV specialist for Limestone and Tutwiler comes to each of the facilities approximately once every three months. In other words, it could take up to a year before a prisoner on HIV medication has had the four consecutive readings necessary to become eligible for work release. For example, one prisoner with HIV at Tutwiler has been eligible for work release since July 2010, but was not medically cleared until January 2011.
86. As a result of the arbitrary thresholds for those who do not need medication, some prisoners with HIV are excluded from work release because, paradoxically, they are too healthy to need HIV medications. This forces individuals like Plaintiff Darrell Robinson to choose between foregoing work-release or undergoing premature, medically unnecessary HIV treatment. Defendants' HIV specialist has decided that Mr. Robinson has no current medical need for HIV medications, because his CD4 court is between 600 and 700, and his viral load is stable at 3000. To meet ADOC's eligibility requirements for work release, however, Mr. Robinson would have to take HIV medications, despite the lack of medical need, long enough to meet the 6-month KOP program participation requirement and have four viral load readings taken. This means that he would be prematurely subjecting himself to the risks of potent HIV medications not just during work-release, but also for six months or perhaps a year before even being cleared.
87. Before Plaintiff Albert Knox came to prison, he worked in a full-time managerial position and never required HIV medication. But he has been told that he will not be medically
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cleared until he begins taking HIV medication. Similarly, Plaintiff Ashley Dotson has been and will continue to be held at a high security facility as a result of this arbitrary HIV medical policy, even though she has been otherwise eligible for work release since she arrived at Tutwiler in December 2010.
88. ADOC's arbitrary medical clearance policy affects not only eligibility for work release, but also custody levels more generally. Prisoners with HIV who would otherwise be eligible for the least restrictive custody levels, minimum-out or minimum-community, instead receive the more restrictive custody level of medium-in, solely because they have not been medically cleared for work release.
89. Furthermore, on information and belief, prisoners with HIV who meet the ADOC eligibility criteria for work release are often barred from transfer to work release centers for no reason other than their HIV status. Upon information and belief, ADOC has never admitted more than a handful of men with HIV to the work release—perhaps fewer than ten in total. ADOC recently allowed one prisoner with HIV to be transferred to the Decatur Work Release Center. Before that, it had been almost a year since ADOC had placed any men with HIV in the Decatur Work Release Center, even though several men with HIV were eligible for placement in work release, including Plaintiffs Louis Henderson, Dwight Smith, and Darrell Robinson. During that time, general population inmates continued to be placed in the Decatur Work Release Center. Upon information and belief, HIV status discrimination, not a lack of bed space, is the reason for this disparity; there is bed space for at least fifteen other prisoners in the dorm where Plaintiffs Joim Hicks and Roosevelt James are housed, in addition to space in the other dormitories at Decatur Work Release Center.
90. ADOC has similarly not transferred any women with HIV to the Montgomery
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Women's Facility for work release since approximately August 2009. Upon information and belief, only four women with HTV have ever been sent to Montgomery Women's Facility.
Discriminatory Exclusion of Prisoners with HIV from Other ADOC Facilities 91. Limestone is one of approximately 27 prisons that ADOC maintains for male prisoners. Some offer unique programs, privileges, services and activities that are unavailable at Limestone. General-population prisoners with a six month clear record are eligible to apply for a lateral transfer. Lateral transfers are granted to general-population prisoners in order to place the prisoners closer to their families and to allow them to participate in programs, services, and activities not offered at their current institution. Yet all male prisoners with HTV, even if they are otherwise eligible and qualified, are categorically excluded from transferring to those facilities and participating in the programs, services, and activities offered there. 92. For example, prisoners with HTV are excluded from the Frank Lee Youth Center in Deatsville, Alabama. The Youth Center is a minimum-security facility, intended to architecturally resemble a school rather than a prison. Frank Lee houses first offenders who are forty years old or less; have never committed a sex offense or a violent offense involving serious injury to the victim; have a sentence of 20 years or less; and are eligible for minimum-out custody. Prisoners assigned to the Youth Center on a long-term basis are eligible to attend a trade school for vocational training or GED and perform free labor in community work squads with neighboring municipalities. Frank Lee Youth Center offers trade classes in cabinet making, carpentry, commercial foods, electrical technology, furniture restoration, and plumbing. None of these trades are available to the men at Limestone. 93. Prisoners with HTV are also categorically excluded from the Alabama Therapeutic Education Center ("ATEF") in Thomasville, Alabama and Columbiana, Alabama, which offer
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special vocational classes. ATEF trains inmates to be placed in skilled jobs once they are released into society or are eligible for work release. The trades taught at these prisons include carpentry, roofing, dry wall, painting, framing, electrical, plumbing, tile and masonry, fork lift operator, cabinet making, and barbering. Not all of these trades are taught at Limestone. Participation in trades improves the job possibilities for inmates upon release and the classification and parole boards look favorably upon it.
94. Prisoners with HIV are categorically excluded from Ventress Correctional Facility, located in Clayton, Alabama. Ventress houses prisoners with medium-custody or below, and makes available a number of substance abuse programs including a secular eightweek treatment class, and a 15-week program for inmates with dual disorders, neither of which is offered at Limestone. Ventress also offers academic and vocational educational programs, including heatmg and air conditioning and small engine repair, which are provided by the nearby Sparks Tecimical College and are not available at Limestone. In addition, Ventress provides conimunity services to city, county and state agencies—opportunities tht are not available at Limestone.
95. Prisoners with HIV are categorically excluded from St. Clair Correctional Facility in Springville, Alabama. St. Clair makes available a Therapeutic Community Substance Abuse Program that is not available at Limestone. The Alabama Correctional Industries operates a vehicle restoration facility and a chemical plant inside St. Clair. The facility provides on-site classroom settings for academic/vocational educational programs, including electrical tecimology and furniture restoration, which are provided by Gadsden State Community College and are not available at Limestone. St. Clair also provides a total care medical infirmary with complete dental care, dialysis, a cancer unit, emergency room, and diagnostic services that are
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not available at Limestone. 96. Prisoners with HIV are categorically excluded from the Hamilton Aged and
Infirmed Center ("HAIC"), located in Hamilton, Alabama. HAIC has approximately five acres within a security fence, and houses minimum and medium custody inmates who are aged or infirm. A staff of minimum custody inmates provide facility upkeep and community work.
97. Prisoners with HIV are categorically excluded from Elmore Correctional Facility, located just north of Montgomery. Elmore is the recycling headquarters for ADOC and also maintains compost for the local area. Inmates classified as minimum-in custody work upon the institution's property while under the supervision of ADOC employees; minimum-out inmates may work off the property under free-world supervision. Inmates employed on renovation crews of the Alabama Correctional Industries are housed at their work sites until weekends and holidays when they are returned to the institution. Elmore provides trade classes in barbering, cabinet making, carpentry, commercial foods, electrical technology, furniture restoration, and plumbing, which are not available at Limestone.
98. Prisoners with HIV are categorically excluded from the Farquhar Cattle Ranch is located approximately eight miles east of Greensboro. The Ranch houses minimum-custody inmates, who, when not working on the Ranch, work on community work projects for county, city, and other government agencies.
99. Prisoners with HIV are categorically excluded from Donaldson Correctional Facility, located just west of Birmingham. Donaldson offers trade classes in barbering, carpentry, electrical technology, plumbing, and special education. These classes are not offered at Limestone.
100. Prisoners with HIV are categorically excluded from Draper Correctional Facility,
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located just north of Montgomery. Draper's stated goal is to maintain an appropriate level of security that will eliminate escapes and present no dangerous threats to the community, while at the same time providing adequate housing, education and productive work for the inmates. Each inmate has an assigned job within the institution, on a large farming operation, a furniture plant, or a vehicle garage. Draper offers trade school programming in barbering, cabinet making, carpentry, commercial foods, electrical technology, furniture restoration, plumbing, and special education, which are not available at Limestone.
101. Prisoners with HIV are categorically excluded from JO Davis Correctional Facility ("Fountain"), located about seven miles north of Atmore on State Highway 21. Fountain maintains cattle, agricultural operations, and vegetable gardens. Additionally, the facility offers vocational programs through the nearby Jefferson Davis Community College, including barbering, cabinet making, commercial foods, plumbing, and small engine repair. These vocational programs are not available at Limestone. Fountain also offers a Relapse Treatment program designed for inmates who have completed one of the other ADOC drug treatment programs and have experienced relapse, either by a failure to remain abstinent or by failing to remain engaged in the recovery process. Utilizing evidence-based practices, the relapse treatment program focuses on post-acute withdrawal recognition and management, relapse warning sign identification and analysis, development of refusal skills, high risk situation identification and management, relapse prevention strategies, and relapse plan development. A relapse program is not available at Limestone.
102. Prisoners with HIV are categorically excluded from Staton Correctional Center, located just north of Montgomery. Staton offers courses in Adult Basic Education, literacy, and special education, college classes, and vocational training programs in auto body and heavy
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equipment repair, barbering, commercial food service, cabinet making, electrical technology, furniture restoration, and plumbing. None of these trade school courses are available at Limestone. Staton offers an eight-week matrix stimulant program, which targets the needs of prisoners with a history of methamphetamine and other stimulant dependency. This substance abuse program is not available at Limestone.
103. Prisoners with HIV are categorically excluded from Easterling Correctional facility is located near Clio on Highway 10. Easterling has a dorm dedicated to drug treatment for prisoners who have a history of substance abuse. The program includes a six month secular substance abuse program and secular aftercare. Secular treatment and aftercare is not available at Limestone. Easterling also provides vocational and educational programs through Sparks State Technical College, where prisoners can learn such trades as industrial electricity, cabinet making, and plumbing. Programs for learning these trades are not available at Limestone.
104. Many states have shown that HIV care can be distributed throughout a correctional system without incurring undue expense. For instance, in many states where prisons are located remotely from the urban centers where HIV specialists are typically located, telemedicine has been effectively used to ensure adequate health care irrespective of location. In other states, centers of excellence are created near the urban centers where HIV specialists work. In this way, HIV specialists may be contracted on a part-time basis to provide care within each geographical locale. These models are most effective when experienced HIV specialists provide clear and standardized guidelines for routine care, monitoring, follow-up and regular review.
HIV is a Disability Within the Meanin2s of the ADA and the Rehabilitation Act 105. HIV is an impairment of the immune system that substantially limits a person
with HIV in one or more major life activities. It is therefore a disability within the meanings of
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42 U.S.C. § 12102(l)(A) and 29 U.S.C. § 705(9)(B).
Federal Financial Funding 106. ADOC receives federal financial assistance. This assistance includes grants from the U.S. Department of Justice and the U.S. Department of Energy.
Class Action Alle2ations 107. Each of the named plaintiffs is a prisoner with HIV in the custody of ADOC, who brings this action on their own behalf and on behalf of all other prisoners with HIV in the custody of ADOC, now and in the future. 108. The class is so numerous that joinder of all members is impractical. ADOC currently has approximately two hundred sixty prisoners with HIV in its custody. The class also includes many future members as the facility regularly admits new prisoners with HIV. 109. There are questions of law and fact common to all class members, including but not limited to the following: whether the rights of Alabama prisoners with HIV under Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. §794, to be free of HIV-based discrimination, are violated by Defendants' policy and practice of segregating prisoners with HIV, excluding them on the basis of their HIV status from prison programs, jobs, activities and privileges, and publicly disclosing their HIV status. 110. Because the policies and practices challenged in this Complaint apply with equal force to the named Plaintiffs and the other members of the class, the claims of the named Plaintiffs are typical of the class in general. 111. The named Plaintiffs will fairly and adequately represent the interests of the class. They possess a strong personal interest in the subject matter of the lawsuit and are represented by
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experienced counsel with expertise in class action prison-conditions litigation in federal court, including class action litigation on the subject matter of this lawsuit. Plaintiffs' counsel has the legal knowledge, experience and resources to fairly and adequately represent the interests of all class members in this action.
112. Defendants have acted or refused to act on grounds generally applicable to the class. Their policies, practices, acts and omissions have affected all class members. Accordingly, final injunctive and declaratory relief is appropriate to the class as a whole.
CAUSE OF ACTION 113. Defendants are violating Plaintiffs' rights under Title II of the ADA and Section 504 of the Rehabilitation Act, by subjecting them to discrimination solely on the basis of their testing HIV-positive, and by excluding them from participation in, or denying them the benefits of, ADOC services, programs or activities for which Plaintiffs are qualified, because they have HIV. The actions and omissions which violate Plaintiffs' rights under these statutes include the following: a) Denying Plaintiffs the opportunity to participate in or benefit from services, facilities, privileges and advantages for which they are qualified, because they have HIV; b) Denying Plaintiffs equal opportunity to participate in or benefit from services, facilities, privileges and advantages for which they are qualified, because they have HIV; c) Providing Plaintiffs with benefits or services that are not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to prisoners who do not have HIV;
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d) Applying eligibility criteria that screen Out prisoners who are HIV seropositive from fully and equally enjoying services, facilities, privileges, advantages, and accommodations provided by ADOC to prisoners who do not have HIV;
e) Failing to make reasonable accommodations in policies, practices, and procedures when the modifications are necessary to avoid discrimination on the basis of disability;
f) Failing to administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified prisoners with HIV;
g) Depriving prisoners with HIV of visitation by family members by placing them in distance facilities where they would not otherwise be housed;
h) Denying prisoners with HIV the opportunity to equally participate in or benefit from work-release programs through its arrangements with work-release employers;
i) Through contractual or other arrangements with work-release employers, utilizing criteria or methods of administration that have the effect of subjecting qualified individuals with HIV to discrimination on the basis of their HIV status;
j) Aiding or perpetuating discrimination against prisoners with HIV, by providing significant assistance to work-release employers that discriminate on the basis of HIV status.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that the Court:
a) Certify, pursuant to Fed. R. Civ. P. 23(b)(2), a class consisting of all prisoners in the custody of the Alabama Department of Corrections, now and in the future, who have tested positive for HIV;
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b) Declare that ADOC's HIV segregation policy violates Title II of the ADA and Section
504 of the Rehabilitation Act;
c) Enjoin Defendants, their officers, agents, employees and all other persons in active
concert and participation with Defendants from engaging in discriminatory policies and
practices against Plaintiffs on the basis of their HIV status;
d) Grant reasonable attorney's fees and litigation costs pursuant to 42 U.S.C. § 12205 and
other applicable law;
e) Order such other and further relief as the interests of justice require.
RESPECTFULLY SUBMITTED:
LLISONE.NEAL (AOC #NEA008) AMERICAN CIVIL LIBERTIES UNION OF ALABAMA FOUNDATION 207 Montgomery Street, Suite 910 Montgomery, Al 36104 Phone: (334) 265-2754 Ext. 203 Fax: (334) 269-5666
MARGARET WINTER (DC Bar No.174805) mwinternpp-aclu.org CARL TAKEI (DC Bar No. 987672) ctakeinpp-ac1u.org THE NATIONAL PRISON PROJECT OF THE ACLU FOUNDATION, INC. 915 15th Street, N.W., Seventh Floor Washington, D.C. 20005 Tel. (202) 393-4930; fax (202) 393-4931
ROSE SAXE (SDNY No. RS 0463) rsaxeac1u.org THE AIDS PROJECT OF THE ACLU FOUNDATION, INC.
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Case 2:11-cv-00224-MHT-WC Document 1 Filed 03/28/11 Page 38 of 39 125 Broad Street, Eighteenth Floor New York, N.Y. 10004 Tel. 212-549-2500; fax 212-549-2650 ROBERT D. SEGALL (ASB-7354-E68R) segall@copelandfranco.com COPELAND, FRANCO, SCREWS & GILL, P.A. P.O. Box 347 Montgomery, Alabama 36101-0347 Tel. (334) 834-1180; fax (334) 834-3172
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CERTIFICATE OF SERVICE
I hereby certify that on this 28th day of March 2011, I have served the foregoing complaint by delivering a pre-addressed, postage pre-paid copy to the clerk's office to be served by certified mail, and properly addressed as follows:
Warden Bettina Carter Decatur WR / CWC 1401 Highway 20 West Decatur, AL 35601 Warden Edward Ellington Montgomery Women's Facility P.O. Box 75 Mt. Meigs, AL 36057 Warden Frank Albright Tutwiler Prison for Women 8966 US Hwy 231 N Wetumpka, AL 36092
Warden Billy Mitchem Limestone Correctional Facility 28779 Nick Davis Rd Harvest, AL 35749
Kim Thomas, Commissioner Alabama Department of Corrections 301 5. Ripley Street P.O. Box 301501 Montgomery, AL. 36130-1501 Robert Bentley, Governor State Capitol 600 Dexter Avenue Montgomery, Alabama 36130
ALLISON E. NEAL
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 Case 2:11-cv-00224-MHT-WC Document 31 Filed 05/11/11 Page 1 of 39

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

LOUIS HENDERSON, DANA HARLEY, DARRELL ROBINSON, DWIGHT SMITH, ALBERT KNOX, JOHN HICKS, DAVID SMITH, JAMES DOUGLAS, and MELINDA WASHINGTON, on behalf of themselves and of all those similarly situated,

Civil Case No. 2:11cv224-MHT

Plaintiffs,

v.

ROBERT BENTLEY, Governor of Alabama; KIM THOMAS, Commissioner, Alabama Department of Corrections; BILLY MITCHEM, Warden, Limestone Correctional Facility; FRANK ALBRIGHT, Warden, Julia Tutwiler Prison for Women; BETTINA CARTER, Warden, Decatur Work Release/Community Work Center; EDWARD ELLINGTON, Warden, Montgomery Women’s Facility, in their official capacities,

FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

Defendants.

FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Introduction 1. Upon entering the state prison system in Alabama, each prisoner must submit to a test for the Human Immunodeficiency Virus (“HIV”). A positive test result will determine almost every aspect of that person’s life for as long as he or she is in prison. More than the severity of their crime, the length of their sentence, or almost any other factor, the HIV test will determine where the prisoner will be housed, eat, and recreate; his or her access to in-prison vocational, rehabilitative and faith-based programs; and whether he or she will have the

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opportunity for supervised work in the community, which is often the key to successful transition after release from prison. Prisoners diagnosed with HIV are segregated from all other prisoners and cannot keep their HIV status confidential. Every male prisoner who tests positive for HIV is required to wear an armband publicly identifying him as a person with HIV.
2. Alabama’s segregation policy, as described below, excludes Plaintiffs from a wide range of critically important prison programs and jobs, and denies them equal access to rehabilitative and community re-entry opportunities. This exclusion denies prisoners with HIV equal opportunities for personal rehabilitation and may result in prisoners serving longer sentences simply because they have HIV. Alabama’s policies and practices also result in involuntary public disclosure of the prisoners’ HIV status, in violation of medical ethics and international human rights law, and result in permanent stigmatization, causing prisoners with HIV to suffer severe emotional distress and impairing their opportunities for employment upon release from prison.
3. Alabama’s policies originated in the mid-1980s, when a tidal wave of public fear over the HIV/AIDS epidemic led a majority of state correctional systems to adopt policies requiring the segregation of prisoners with HIV. These policies were the product of a time when widespread popular confusion existed over the methods of HIV transmission, treatment options were virtually nonexistent, and HIV was considered a death sentence.
4. By the mid-1990s, however, new classes of antiretroviral medications proved extremely effective at suppressing the virus. These medications have changed HIV from a fatal disease to a chronic condition that can be successfully treated. Nowadays, people with HIV who receive appropriate treatment can look forward to a normal lifespan.
5. Also by the mid-1990s, the methods of HIV transmission had been clearly
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established, and myths that HIV could be transmitted through casual contact (such as handshakes, hugs, sharing food, or using the same toilet seats) had been widely debunked. Prison systems throughout the nation decided that HIV segregation was neither sound correctional policy nor justified by legitimate public health considerations. By 1994, only six prison systems had segregation policies. By 2003, that number had dwindled to three states— Alabama, South Carolina, and Mississippi. In 2010, the Mississippi Department of Corrections terminated its segregation policy.
6. Today, Alabama is one of only two states in the nation—South Carolina is the other—that continues to segregate all prisoners with HIV in separate, specially designated housing units.
7. Alabama insists that segregation is justified by the need to provide medical care and to prevent HIV transmission in prison. Prison systems throughout the United States have shown, however, that the states can meet their obligations to incarcerate prisoners safely and to provide them with necessary medical care without requiring prisoners with HIV to forfeit their right to be free from disability -based discrimination.
8. Plaintiffs are prisoners with HIV in the custody of the Alabama Department of Corrections (“ADOC”) who bring this action on their own behalf and on behalf of the approximately 250 other prisoners in ADOC custody who have tested positive for HIV. They seek declaratory and injunctive relief against the Alabama Department of Corrections for discriminating against them on the basis of their HIV status and excluding them from participation in, or denying them the benefits of, ADOC services, programs, or activities for which they are qualified, because they have HIV, in violation of Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq, and Section 504 of the Rehabilitation Act.
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Jurisdiction and Venue 9. This Court has jurisdiction over this action pursuant to 28 USC §1331. 10. Venue is proper in this District pursuant to 28 U.S.C. §1391 because the Alabama Department of Corrections is headquartered in Montgomery, Alabama, Defendants Bentley and Thomas have their offices there, and a substantial part of the events or omissions giving rise to this claim occurred in this District.
Parties Defendants
11. Defendant Robert Bentley is the Governor of the State of Alabama. The Governor is vested with ultimate authority and responsibility over the corrections system. Ala. Code 1975 § 14-1-15 (2010). The Governor has the authority to promulgate rules and regulations necessary to the management and security of all prisons and jails. Ala. Code 1975 § 14-1-8 (2010). Governor Bentley is sued in his official capacity.
12. Defendant Kim Thomas is the Commissioner of the Alabama Department of Corrections. The Commissioner is responsible for heading the Department of Corrections, for the independent direction, supervision and control of the Department of Corrections, and for approving and issuing administrative regulations and changes. Ala. Code. 1975 § 14-1-1.3 (2010). He is sued in his official capacity.
13. Defendant Billy Mitchem is the warden at Limestone Correctional Facility (“Limestone”). He is responsible for the day-to-day operation and management of Limestone. He is sued in his official capacity.
14. Defendant Frank Albright is the warden at Julia Tutwiler Prison for Women (“Tutwiler”). He is responsible for the day-to-day operation and management of Tutwiler. He is
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sued in his official capacity. 15. Defendant Bettina Carter is the warden at Decatur Work Release/Community
Work Center (“Decatur Work Release”). She is responsible for the day-to-day operation and management of Decatur Work Release. She is sued in her official capacity.
16. Defendant Edward Ellington is the warden at the Montgomery Women’s Facility. He is responsible for the day-to-day operation and management of Montgomery Women’s Facility. He is sued in his official capacity.
Plaintiffs Plaintiff Louis Henderson
17. Louis Henderson is a person with HIV. He is a prisoner housed in a segregated dormitory at Limestone. He is serving a twenty-five year sentence for Theft of Property I. Mr. Henderson has remained free of disciplinary violations (“disciplinary free”) for at least four years. His custody level is minimum-in. Minimum-in custody prisoners are eligible to work in jobs outside the perimeter of the prison, when supervised by a correctional officer.
18. In August 2009, Limestone’s classification team recommended that Mr. Henderson’s custody be lowered to minimum-out, making him eligible for work assignments outside the prison and without the direct supervision of a correctional officer, and that he be moved to Decatur Work Release. In July 2010, Limestone’s classification team recommended that Henderson’s custody be lowered further, to minimum-community, and again recommended that he be moved to Decatur Work Release. He has been medically cleared for work release. Despite the classification team’s recommendations, ADOC has not lowered his custody level and he remains at Limestone.
19. Mr. Henderson is qualified for a number of ADOC programs, privileges,
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activities, and services, including, for example, residence in the Faith-Based Honor Dorm at Limestone; transfer to a lower security level facility; transfer to a facility providing vocational training in heating and air, small engine repair, and information systems; transfer to a ADOC facility closer to his home in Mobile; and work release. Defendants exclude him from all of these programs and services solely because he has HIV.
Plaintiff Darrell Robinson 20. Darrell Robinson is a person with HIV. He is a prisoner housed in a segregated
dormitory at Limestone Correctional Facility. He arrived at Limestone Correctional Facility in 2009 for a probation violation. His end of sentence (“EOS”) date is August 17, 2012. He has remained disciplinary free since arriving at Limestone. His current custody level is minimumout.
21. Mr. Robinson is qualified for many important programs from which ADOC excludes him solely because he has HIV. At Limestone, he is excluded from the Faith-Based Honor Dorm and the senior dorm. He wants to participate in furniture restoration and cabinet making programs, which are available at other ADOC facilities but not at Limestone. He would like transfer to a lower security facility, or to an ADOC facility closer to his home in Mobile. He would like the opportunity to participate in work release. ADOC’s HIV policy excludes him from all of these important programs solely because he has HIV.
22. In 2009, the Limestone classification team recommended that Mr. Robinson be moved to Decatur Work Release. ADOC’s HIV specialist determined that Mr. Robinson did not need to be on any HIV medication, and did not prescribe HIV medication for him. Nevertheless, ADOC will not medically clear him for work release because he does not meet ADOC’s arbitrary medical eligibility criteria for work release for prisoners with HIV. Under
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these criteria, prisoners with HIV who are not prescribed HIV medication must have a viral load below 1000 and a CD4 number greater than 700 or CD4 % above 35. Even though ADOC designates Mr. Robinson as medically ineligible for work release, it has assigned him for the past year to work on an outdoor clean-up squad involving many hours of hard labor in the sun and he has performed these duties without medical problems.
Plaintiff John Hicks 23. John Hicks is a person with HIV. He is a prisoner housed at Decatur Work
Release. Mr. Hicks is prohibited by ADOC from working in food services jobs solely because he has HIV. Mr. Hicks is a certified welder, and would like to transfer to a facility where he can apply those skills, but is prohibited from transferring to another facility solely because of his HIV status. In or around June 2010, a former Limestone inmate disclosed Mr. Hicks’ HIV status to all the inmates at the Decatur Work Release. This prisoner knew that Mr. Hicks has HIV because of ADOC’s HIV segregation policy. Mr. Hicks is afraid that other inmates will disclose his status to potential employers.
Plaintiff Albert Knox 24. Albert Knox is a person with HIV. He is a prisoner housed in a segregated
dormitory at Limestone Correctional Facility. He has been at Limestone for approximately two years for drug possession. His EOS date is March 12, 2013. Mr. Knox is qualified for a number of ADOC programs, privileges, activities, and services, including residence in the Faith-Based Honor Dorm and the senior dorm, from which Defendants exclude him solely because he has HIV.
25. On January 22, 2010, while Mr. Knox was participating in the eight-week Substance Abuse Program (“SAP”), he received two disciplinary reports for eating his lunch
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meal in the Population Chow Hall with the other SAP participants, who do not have HIV. The disciplinary reports charged him with being in an unauthorized area and intentionally creating a security, safety, or health hazard. The second charge was eventually dropped. For simply eating lunch with the other SAP participants, Mr. Knox was dropped from the program and spent 45 days of a 90 day sentence in a disciplinary segregation cell. Mr. Knox has been disciplinary free for approximately nine months, and is once more participating in the substance abuse program. However, solely because he has HIV, he is still prohibited from residing in the SAP dormitory or eating with the other program participants.
Plaintiff Dwight Smith 26. Dwight Smith is a person with HIV. He is a prisoner housed in a segregated
dormitory at Limestone Correctional Facility. Mr. Smith has been at Limestone for five years. His EOS date is January 11, 2013. Mr. Smith has a clear disciplinary record. His custody level is minimum-out, and he has been medically cleared for work release. Limestone’s classification team has recommended him for work release two or three times, but ADOC has yet to approve his transfer to Decatur Work Release Center. On information and belief, ADOC has not approved his transfer solely because he has HIV.
27. Besides work release, Mr. Smith is qualified for a number of other ADOC programs, privileges, activities, and services, including the Faith-Based Honor Dorm and the senior dorm at Limestone; transfer to a lower security level facility; transfer to the Alabama Therapeutic Education Center; transfer to a facility providing vocational training such as barbering; and transfer to an ADOC facility closer to his home in Atlanta. Defendants exclude him from all of these programs and services solely because he has HIV.
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Plaintiff James Douglas 28. James Douglas is a person with HIV. He is a prisoner housed in a segregated
dormitory at Limestone Correctional Facility. Mr. Douglas has been at Limestone for over five years. His EOS date is September 14, 2015.
29. Mr. Douglas is qualified for a number of ADOC programs, privileges, activities, and services, including residence in the Faith-Based Honor Dorm and the senior dorm at Limestone; transfer to a lower security facility; transfer to a facility providing vocational training such as heating and air or electrical technology; and transfer to an ADOC facility closer to his home in Mobile. Defendants exclude him from all of these programs and services solely because he has HIV.
30. Mr. Douglas is also eligible for work release. He was medically cleared for work release and in October 2009 a classification specialist recommended that Mr. Douglas be moved to Decatur Work Release. Nevertheless, ADOC arbitrarily refuses to place him in work release because he has HIV.
Plaintiff David Smith 31. David Smith is a person with HIV. He is a prisoner housed in a segregated
dormitory at Limestone Correctional Facility. Mr. Smith has been at Limestone for approximately three years. His EOS date is August 28, 2011.
32. Mr. Smith is qualified for a number of ADOC programs, privileges, activities, and services, including residence in the pre-release dorm and the senior dorm at Limestone; transfer to a lower security facility; transfer to a facility providing vocational training such as plumbing or electrical technology; and transfer to an ADOC facility closer to his home in Auburn.
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Defendants exclude him from all of these programs and services solely because he has HIV. Mr. Smith is also qualified for work release, and at least since September 10, 2010 has met ADOC’s highly restrictive medical criteria for work release. ADOC nevertheless arbitrarily refuses to place him in work release
Plaintiff Dana Harley 33. Dana Harley is a person with HIV. She is a prisoner housed in a segregated
dormitory at Julia Tutwiler Prison for Women. In the fall of 2010, Defendant Warden Albright learned that Ms. Harley was in a consensual relationship with a general population prisoner, “Jane Doe.” Warden Albright telephoned that prisoner’s mother, “Mrs. Smith,” and determined that Mrs. Smith knew Plaintiff Harley but did not know Harley’s medical status. Warden Albright ordered Jane Doe to immediately disclose Harley’s HIV status to Mrs. Smith, warning Jane Doe that if she did not tell her mother, he would do so. Jane Doe complied. By ordering the completely gratuitous disclosure of Plaintiff Harley’s HIV status to a person in the free-world community, Warden Albright caused Harley anxiety, humiliation and distress.
Plaintiff Melinda Washington 34. Melinda Washington is a person with HIV. She is a prisoner housed in a
segregated dormitory at Julia Tutwiler Prison for Women. She has been subjected to harsher punishment and denied access to programs solely because she has HIV.
ADOC Policy on HIV Segregation 35. Alabama law mandates HIV testing of all prisoners coming into ADOC’s custody.
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Ala. Code § 22-11A-17, 38 (2008). The law does not require segregation of prisoners with HIV. As a matter of administrative practice and policy, however, ADOC immediately segregates all prisoners who test positive for HIV and houses them separate and apart from all other prisoners for the duration of their prison confinement.
36. Appropriate prisoner classification is the backbone of the security program of any prison or jail. Like virtually every other prison system in the nation, ADOC uses an objective classification system to assign prisoners to appropriate custody levels. These classifications are based on the level of security and supervision the prisoner requires and the prisoner’s program needs, including consideration of which prisoners can be safely housed together; the degree of restrictiveness of confinement necessary to protect the safety of other prisoners, prison staff, and the public; and the extent to which a particular classification will interfere with a prisoner’s access to medical, mental health, educational, and other programs. Prison classification experts use standardized risk instruments and evidence-based judgments to make these decisions.
37. ADOC classifies all prisoners as close-custody, medium-, or minimum-custody. Close-custody is the most restrictive custody to which a prisoner may be assigned, and is reserved for prisoners who have demonstrated severe behavioral problems, some prisoners sentenced to life without parole, and some detainees awaiting trial or sentencing for capital offenses. Close-custody prisoners are usually housed in single cells at a close-security institution.
38. Medium-custody prisoners are eligible for assignment to formalized institutional treatment programs or work assignments within the confines of a secure institution. They may be housed in dormitories or double-occupancy cells at a medium- or close-security institution. When outside the institution, medium-security prisoners must be accompanied by an armed
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correctional officer. 39. Minimum-custody is the lowest custody designation. There are three levels of
minimum- custody: minimum-in, minimum-out, and minimum-community. Minimum-in custody prisoners may receive work assignments inside a medium- or close-custody facility, or off-property when supervised by a correctional officer. Minimum-out custody prisoners are eligible for work assignments off-property without the direct supervision of a correctional officer. They may be placed at community work centers or minimum security camps. Minimum-community custody prisoners are at the lowest custody level and are typically approaching the final stage of incarceration. They are supervised during their time spent at work release centers and while participating in facility activities, but need not be directly supervised at other times.
40. ADOC’s segregation policy trumps all the usual considerations that prison officials take into account in making classification decisions, and results in prisoners at different custody levels being housed together for no reason other than that they have HIV. This automatic override of standard classification principles negatively impacts prisoners’ safety and security, and denies prisoners with HIV the same opportunity afforded other prisoners to earn greater liberty and privileges through good behavior.
Current Medical Consensus Concerning Treatment of Prisoners with HIV 41. The health status of people with HIV varies widely, as does their need for medical attention. Many people who test positive for HIV remain asymptomatic for many years. Current guidelines suggest that some people with HIV may not require treatment with antiretroviral medication. These people usually require no special medical attention, other than quarterly
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blood tests to verify that the disease is has not progressed. 42. The Centers for Disease Control, the U.S. Department of Health and Human
Services, and the International AIDS Society have issued national consensus guidelines on the treatment of HIV. According to these guidelines, when blood tests show that the concentration of the virus in a patient’s blood has increased and the immune system has declined to certain levels, patients should consult with an HIV specialist to decide on an individualized medication regimen. Once a patient is clinically stable on a medication regimen, however, he or she will generally have a markedly reduced need for care by an HIV specialist other than a check-up once every few months, to determine whether the medication regimen needs any modification. Where services are decentralized, many correctional systems have implemented telemedicine to overcome obstacles to providing on-site medical care for HIV treatment. In other settings, providers and consultants near to the correctional facility have successfully provided comprehensive HIV care.
43. There is a broad national consensus in the medical-correctional community that segregation of prisoners merely because they test positive for HIV is unnecessary and potentially harmful. The National Commission on Correctional Health Care (“NCCHC”) counsels that medical management of prisoners with HIV should parallel that offered to persons in the community. NCCHC explains as follows:
Decisions on housing HIV-positive inmates should be based on what is appropriate for their age, gender, and custody class. NCCHC opposes routine segregated housing for HIV-positive inmates. HIV-positive inmates, like any other inmate, may require a higher level of care that may not be available at all institutions. This is a clinical judgment, based upon the acuity of care required for the patient. Patients with HIV infection may require isolation if, for example, they have pulmonary tuberculosis. HIV patients should not be medically isolated solely because of their HIV status.
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Nat’l Com’n on Corr. Health Care, Position Statement: Administrative Management of HIV in Correctional Institutions, (rev. Oct. 8, 2005), available at http://www.ncchc.org/resources/statements/admin_hiv2005.html.
44. Isolation of prisoners with HIV may harm the treatment outcomes for those people. People with HIV and particularly prisoners with HIV already suffer from an increased prevalence of depressive symptoms. See Springer SA & Altice FL, Managing HIV/AIDS in correctional settings, 2 Curr HIV/AIDS Rep 165-70 (2005); Altice FL, Kamarulzaman A, Soriano VV, Schechter M, Friedland GH, Treatment of medical, psychiatric, and substance-use comorbidities in people infected with HIV who use drugs, 376 Lancet 59-79 (2010). Segregating these individuals into dedicated HIV units is stigmatizing and humiliating. Imposing greater stigmas on them, particularly through forced disclosure of their HIV status, can compound their depressive symptoms. These depressive systems are in turn associated with worse HIV treatment outcomes.
45. Providing HIV treatment without also providing other evidence-based re-entry interventions adds to the many obstacles that individuals with HIV face upon release from prison. Re-entry to the community is a complex process that requires addressing a number of educational, vocational, psychosocial, substance abuse treatment, and medical needs, especially for those with HIV. Failing to address those needs while the person is incarcerated can ultimately lead to worse health outcomes upon release from prison. For example, a prisoner with HIV might benefit most by having access to education and vocational training programs so that he might gain reasonable access to employment on release. Alternatively, effective drug treatment may be critical to a person’s optimal HIV treatment outcome; treating the HIV but excluding him from this program will have dire consequences.
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Discrimination Against Prisoners with HIV at Limestone Segregation of Prisoners with HIV at Limestone
46. Limestone is divided into three sections: A-side, B-side, and C-side. B-side, with a population capacity of over 1,000, houses general population prisoners. C-Side, with a capacity of 700, houses the Faith-Based Honor Dorm and pre-release prisoners. A-side, with a capacity of 637, contains the HIV living area, the senior dormitory, the healthcare unit, and the segregation cells for dangerous or difficult-to-manage prisoners and those in protective custody.
47. Prisoners who test positive for HIV are categorically excluded from the general population dormitories and are housed together in a single HIV living area on the A-side of Limestone, whatever their custody level.
Public Disclosure and Stigmatization at Limestone 48. Defendants publicly disclose prisoners’ HIV status to all other prisoners, prison
staff, and free-world visitors at Limestone, in a variety of ways. Prisoners with HIV are required to wear white armbands signifying their assignment to the HIV living area at all times, even when the prisoners are working outside the prison gates. When free-world people take tours of Limestone, correctional officers point out the prisoners with HIV and disclose their HIV status. Some family members have learned that their loved ones have HIV through these various stigmatizing practices. The stigmatization follows the prisoners into the free world, and the widespread knowledge of their medical condition may result in potential employers refusing them jobs.
49. There are two exercise yards at Limestone, A-side and B-side. Prisoners who do not have HIV are allowed to use both sides of the yard, but prisoners with HIV are restricted to recreation on the A-side of the yard. As a matter of official policy, ADOC allows prisoners with
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HIV and prisoners who do not have HIV to recreate together on the A-side of the yard. In practice, when prisoners who do not have HIV arrive at Limestone and go through an orientation process, security staff warns them that they should stay away from the A-side of the yard unless they want to get HIV.
Exclusion from Limestone Senior Housing 50. General-population prisoners at Limestone who are at least forty years old and
older are eligible for housing in a seniors’ dormitory. Prisoners with HIV, however, are excluded from senior housing even if they otherwise meet the criteria. Louis Henderson, Dwight Smith, Albert Knox, James Douglas, David Smith, and Darrell Robinson are otherwise eligible to reside in the senior dorm, but are excluded solely because of their HIV status.
Exclusion from Limestone Residential Substance Abuse Treatment Program 51. One of the dormitories at Limestone houses a residential substance abuse
treatment program (“SAP”). The residential component is an important part of substance abuse treatment programs. Experts view residential therapeutic treatment programs as among the most effective models for in-prison substance abuse treatment. See Nat’l Inst. On Drug Abuse, Research Report Series: Therapeutic Community, NIH Pub. No. 02-4877 (Aug. 2002), available at http://drugabuse.gov/PDF/RRTherapeutic.pdf. Defendants permit some prisoners with HIV to participate in classes in the residential substance abuse program at Limestone. However, Defendants exclude those prisoners from living in the dormitory with the other participants, even though the residential component is important to the efficacy of the program.
52. As noted above, Albert Knox is currently participating in the residential substance abuse program, but is prohibited from living or taking meals with other program participants solely because he has HIV, and was disciplined for having lunch with his fellow participants.
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Prisoners with HIV are also excluded from participating in pre-treatment and aftercare with the other participants.
53. Currently there are only three prisoners with HIV participating in the SAP program. Upon information and belief, ADOC allows only a few prisoners with HIV to participate in the SAP classes at a time, regardless of how many are qualified to participate.
54. On information and belief, prisoners without HIV may become eligible for important benefits, including placement in a work release center, once they complete the SAP program. Prisoners with HIV do not become eligible for these benefits upon completion of the program even if otherwise qualified.
Exclusion from Limestone Residential Pre-release Unit 55. General-population prisoners who are near the end of their sentence or have been
granted parole are housed in a pre-release dormitory for ninety days to participate in residential programming, intended to prepare prisoners for release by providing the life skills they will need to successfully transition from prison to the community. David Smith is otherwise eligible for participation in residential programming, but is excluded solely because he has HIV. Prisoners with HIV attend pre-release programming only for a few weeks and even then only for a few hours a day.
Exclusion from Limestone Faith- Based Honor Dormitory 56. Limestone prisoners with good disciplinary records are eligible for housing in the
Faith-Based Honor Dorm, where they have access to coveted benefits and privileges. On information and belief, the goal of the Faith-Based Honor Dorm is to reduce recidivism, provide a program based on opportunity and responsibility for those inmates willing to make a productive change in their lives, and to provide a safe, secure, and healthy environment. On
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information and belief, ADOC views positively a prisoner’s participation in the Faith-Based Honor Dorm in determining his security classification, risk assessment, and job placement. On information and belief, the Parole Board also views such participation favorably in determining parole eligibility. Prisoners receive other benefits as well. For example, approximately every six months families of the prisoners housed there are permitted to visit and bring food and other items to their loved ones.
57. Prisoners with HIV are categorically excluded from the Faith-Based Honor Dorm. One of the segregated HIV dorms contains an area informally dubbed an “honor dorm” but the so-called HIV “honor dorm” offers none of the amenities and privileges offered to prisoners in the general population Faith-Based Honor Dorm. Louis Henderson, Dwight Smith, Albert Knox, and Darrell Robinson are otherwise eligible to participate in the general population Faith-Based Honor Dorm, but are prohibited solely because they have HIV. Exclusion from Kitchen Jobs and Other Jobs at Limestone
58. Qualified general-population prisoners at Limestone are eligible for jobs in the prison kitchen or dining room, preparing and serving meals to the prisoner population. These jobs are generally considered extremely desirable because they allow prisoners to gain marketable work skills and experience. ADOC categorically excludes prisoners with HIV from kitchen jobs. There is no medical justification for this policy, which has been expressly rejected by the scientific community. The US Centers for Disease Control and Prevention (“CDC”) states:
There is no known risk of HIV transmission to co-workers, clients, or consumers from contact in industries such as food-service establishments. Food service workers known to be infected with HIV need not be restricted from work unless they have other infections or illnesses (such as diarrhea or hepatitis A) for which any food-service worker, regardless of HIV infection status, should be restricted.
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CDC, “HIV and Its Transmission” (July 1999). 59. Similarly, in its compliance guidelines for restaurants and other food service
employers, the Equal Employment Opportunity Commission (“EEOC”) states there is no medical basis for categorically excluding people living with HIV from jobs in the food service industry. See EEOC, “How to Comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employers” (2004), available at http://www.eeoc.gov/facts/restaurant_guide.html.
60. Likewise, the CDC excludes HIV from the list of diseases that can be transmitted through the food supply. See 74 Fed. Reg. 61152-53 (Nov. 23, 2009). See also Ala. Dep’t of Public Health, Fact Sheet: Basic Facts About HIV and AIDS (undated), available at http://adph.org/aids/assets/HIVAIDSFactSheet.pdf (noting that HIV cannot be transmitted from “drinking glasses, eating utensils or towels,” or “coming into contact with . . . sneezes, coughs, tears or sweat.”).
61. The ADOC Commissioner conceded in 2010 that there is no medical rationale for the policy, and stated that the only reason ADOC excludes prisoners with HIV from food service jobs is that it believes other prisoners would dislike eating food prepared by them. Even if some prisoners were opposed to allowing people with HIV to work in food service, ADOC’s decision to base its classification policy on prisoners’ unfounded fears and prejudices lacks any legitimate penological justification and is completely at odds with basic principles of prison classification. Moreover, by deferring to prisoners’ unfounded fears and prejudices about HIV, prison officials reinforce those purported fears and prejudices.
62. ADOC’s decision to reinforce prisoners’ unfounded fears is all the more harmful because ignorance about the disease is a major contributing factor to the HIV/AIDS epidemic in
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the South. The shame and stigma attached to a disease that many people connect with behaviors deemed objectionable, such as homosexuality and extra-marital sex, discourages many people from being treated—or even tested—for HIV/AIDS, lest their neighbors find out. Lani Luciano, Southern Discomfort—Coping with HIV/AIDS in the South Poses Challenges (Dec. 11, 2002) available at http://www.kaisernetwork.org/daily_reports/rep_index.cfm?DR_ID=15025.
63. ADOC also excludes prisoners with HIV from a variety of other jobs at Limestone, including receiving runner, administrative runner, Calhoun College runner, and jobs in the store, the canteen, the hospital, the healthcare unit, farm squad, and the visitation yard. Prisoners with HIV who are assigned yard maintenance or sanitation jobs are allowed to work only on the side of the prison where prisoners with HIV are housed, whereas other population prisoners assigned to those jobs work in both yards.
Exclusion from Limestone Dining Hall 64. The dining hall at Limestone is located on the B-side of the Limestone facility,
and all General-population prisoners housed on the B-side have their meals in the dining room. General-population prisoners housed on A-side who do not have HIV also have their meals in the dining room. Meanwhile, prisoners with HIV are categorically excluded from the dining room. There are too few dining tables in the HIV dorm to accommodate all the prisoners who live there, so some must eat inside their cells or sit outside the dorm, with no access to a sanitary eating area.
Disparate Punishment at Limestone of Prisoners with HIV 65. ADOC generally manages irresolvable serious personal conflicts among general
population prisoners at Limestone by housing the prisoners in separate dorms. However, this option is unavailable for prisoners with HIV because they are relegated to a single segregated
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housing area. Consequently, when to prisoners with HIV have a personal conflict with each other, ADOC resorts to locking one or both of them in isolation cells.
66. Prisoners with HIV receive disciplinary citations for appearing without the white armbands that identify them as living in the HIV dormitory. Most general population inmates are not required to wear armbands identifying their dorms, and those few who are required to wear such armbands—for example, prisoners in the Faith-Based Honor Dorm are supposed to wear orange armbands—are either not punished or receive only mild punishment for appearing without these armbands.
Discrimination Against Prisoners with HIV at Tutwiler Segregation of Prisoners with HIV at Tutwiler
67. Of the 15 housing units at Tutwiler, prisoners with HIV are excluded from all but two: an HIV dormitory housing all custody levels together, and the “healthcare unit.” The socalled “healthcare unit” contains five holding cells, two isolation rooms used primarily to house prisoners with HIV in disciplinary segregation or isolation, and eight infirmary beds.
Public Disclosure and Stigmatization of Prisoners with HIV at Tutwiler 68. Upon arriving at Tutwiler, all prisoners are placed in the receiving unit and tested
for HIV. Those prisoners who test positive for HIV are placed in a solitary confinement cell in the so-called HIV “healthcare unit,” where they may remain for weeks. Some of these women have just learned their HIV status for the first time. Solitary confinement is in itself a traumatic experience. For a person to be moved into solitary confinement immediately after being told she has HIV can be emotionally devastating.
69. The conditions in solitary confinement for women with HIV are extremely punitive. Enforced isolation and idleness for months at a time is in itself traumatizing, and the
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conditions in the HIV solitary confinement cells are particularly harsh. Opportunities for showers and exercise are meager; the cells themselves are filthy, with leaking toilets and spider infestations; and prisoners in solitary confinement are exposed day and night to the screaming, raving and other outbursts of seriously mentally ill prisoners who are also housed in the so-called “healthcare unit.” Ashley Dotson, for example, was placed in an isolation room one for three and a half weeks. In that time, her clothes were never laundered and she was not allowed to leave isolation for any reason. The window in her isolation cell leaked whenever it rained. On one occasion, an officer saw her looking out of the window in her isolation room. He warned her that she was not allowed to look out the window, and that if she was caught again she would be charged with attempting to escape.
70. Because of ADOC’s policy of segregating all prisoners with HIV, everyone at Tutwiler knows about their medical status. Correctional officers often do not refer to prisoners with HIV by their name or institutional numbers as they do for other prisoners, but simply as “E Dorm” (which everyone knows is the dormitory where prisoners with HIV are housed). One prisoner with HIV was forced to tell her two oldest children about her HIV status after two women who had been at Tutwiler told people in her small town about her HIV status.
71. Correctional staff openly express their hostility to and fear and of people with HIV, and their ignorance of the ways in which the disease can be transmitted. They refer to the women with HIV as “AIDS bitches” or “AIDS people,” or “AIDS ass,” and state that they fear contracting AIDS if they enter the HIV dormitory without face mask and gloves.
Disparate Punishment at Tutwiler of Prisoners with HIV 72. ADOC generally manages irresolvable personal conflicts among general
population prisoners at Tutwiler by housing the prisoners in separate dorms. Because there is
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only one dorm designated for all prisoners with HIV, ADOC cannot assign the prisoners to separate dorms, and instead often resorts to sending to solitary confinement one or the other of the women involved in the conflict.
73. Defendant Albright has designated Melinda Washington and “Sally Roe,” another prisoner with HIV, as enemies. Rather than house them in separate dormitories, as he would if they were HIV-negative, he keeps one in solitary confinement and the other in the HIV dorm, rotating them once every ninety days. This practice makes it impossible for Ms. Washington to participate in programs for which she is otherwise qualified. For example, on February 16, 2011, Ms. Washington began the 8-week substance abuse program. On March 14, 2011, however, ADOC removed her from the eight-week substance abuse program and returned to solitary, for the sole reason that it was “her turn” to be housed there.
74. Similarly, Warden Albright has designated Dana Harley and fellow prisoner with HIV “Mary Jones” as enemies, and instead of assigning them to separate dormitories he keeps one prisoner in solitary confinement and the other in the HIV dorm, rotating them about once every ninety days.
Exclusion of Prisoners with HIV from the Tutwiler Medical Dormitory 75. On information and belief, women with serious medical needs requiring nursing
care or in-patient care are housed in the Medical Dorm—so long as they do not have HIV. Prisoners with HIV who have comparable medical needs are categorically excluded from the medical dorm: they are either left in the HIV dorm, or else housed in the “healthcare unit” which is a unit used primarily to house prisoners with HIV in disciplinary segregation, protective custody, or isolation.
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Exclusion of Prisoners with HIV from the Tutwiler Faith-Based Honor Dorm 76. The Faith-Based Honor Dorm at Tutwiler is a residential program designed to
help prisoners develop life skills, personal growth, and accountability with outcomes of positive personal, family, institutional, and community relationships. The objective of the Faith-Based Honor Dorm is to provide prisoners the opportunity to demonstrate their willingness to pursue positive productive change in an atmosphere conducive to this change. The goal of the FaithBased Honor Dorm is to reduce recidivism, provide a program based on opportunity and responsibility for those inmates willing to make a productive change in their lives, and provide a safe, secure, and healthy environment which can be supervised with minimal security. On information and belief, ADOC and the Parole Board view participation in the Faith-Based Honor Dorm favorably in determining security classification, risk assessment, job placement, classification review, and parole eligibility. Otherwise qualified prisoners with HIV are categorically excluded from the Faith-Based Honor Dorm.
Exclusion of Prisoners with HIV from the Residential Component of the Tutwiler Substance Abuse Dormitory
77. The substance abuse dorm houses general population prisoners who are participating in the 8-week Substance Abuse Program (“SAP”), and also in the six-month Crime Bill Substance Abuse Program (“CB SAP”), which is funded by the federal government. Prisoners with HIV are categorically excluded from the residential component of these programs. They are allowed to participate for instruction but must return to the HIV dormitory to sleep— and even to use the bathroom. Exclusion of Prisoners with HIV from Tutwiler Kitchen Jobs
78. Otherwise-qualified prisoners with HIV are prohibited from holding jobs in the kitchen and the laundry, solely because they have HIV.
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Exclusion of Prisoners with HIV from Community Corrections 79. The Community Corrections Program (“CCP”) offers prisoners who can be safely monitored in the local community the opportunity to work in the community during the day, returning at night to a county jail. There are currently 34 community corrections programs in Alabama. According to statistics compiled by the ADOC, it costs only about $13 per day to supervise and house a person in the CCP, compared to $41.47 per day for incarceration in an ADOC prison. On information and belief, all qualified prisoners with HIV are categorically excluded from the CCP. The institutional diversion officer at Houston County Community Corrections told a prisoner with HIV who is otherwise eligible for CCP, “due to your medical condition and disability HCCC is not going to be able to accept you in any of our programs.” This prisoner does not have any medical condition or disability other than HIV.
Discrimination Against Prisoners with HIV in Work Release 80. ADOC has a work release program, which offers prisoners the opportunity to reside in low security facilities while working for either a state or a private employer. Prisoners are permitted to keep a percentage of their wages while demonstrating responsibility and establishing a relationship that might lead to employment when their sentence is complete. 81. According to ADOC’s Work Release policy, “The fundamental purposes of Alabama’s work release program are to assist selected prisoners in preparing for release and to aid in making the transition from a structured institutional environment back into the community.” 82. Although there are eleven work release centers in Alabama— nine for men, two for women—ADOC permits men with HIV to be assigned only to the center in Decatur and women to be assigned only to the work release center at the Montgomery Women’s Facility.
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General-population prisoners with a six month clear record are eligible to apply for a lateral transfer. Lateral transfers are granted to general-population prisoners in order to place the prisoners closer to their families and to increase their job opportunities. Prisoners with HIV are categorically ineligible for lateral transfers to other work-release centers. Restriction to a single center unnecessarily limits their job opportunities and prevents prisoners with HIV from getting a job near their home and family. Limitation to a single facility may also limit the number of prisoners with HIV who can participate in work release once the single center reaches its capacity.
83. Even when prisoners with HIV are admitted to the work release program, ADOC discriminates against them in job placement. ADOC refuses to place prisoners with HIV in food service jobs, which constitute the majority of jobs available to prisoners placed at the Montgomery Women’s Facility and a substantial number of the jobs available at Decatur Work Release. Jobs with a paper company are also available to women in Montgomery Women’s Facility who do not have HIV; ADOC either discriminatorily refuses to place prisoners with HIV with the paper company, or else acquiesces in the discriminatory refusal of the paper company to accept women workers with HIV. A correctional officer told a woman with HIV that she could not work in the paper factory because she might get a paper cut.
84. Because of ADOC’s policy of segregation, the other prisoners at Decatur Work Release and Montgomery Women’s Facility already know the HIV status of newly-arriving prisoners. Around June 2010, an inmate from Limestone Correctional Facility disclosed Plaintiff Hicks’ HIV status to all of the other inmates at Decatur Work Release. Correctional officers at Decatur Work Release also know which inmates have HIV. A correctional officer at Montgomery Women’s Facility told one inmate with HIV not to touch him because she had “that
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stuff.” Another prisoner with HIV at Montgomery Women’s Facility believes that she was never assigned a job because of status-based discrimination by Warden Ellington; he told her that he was concerned other prisoners would talk about her HIV status on the job, and that this would end up adversely affecting ADOC.
85. ADOC’s work release policy for prisoners with HIV also imposes unnecessarily restrictive medical clearance criteria. If not taking HIV medications, prisoners with HIV must have “a viral load of less than 1,000 and a CD4 count greater than 700.” This arbitrarily high threshold prevents otherwise qualified prisoners with HIV from participating in work-release programs, without medical justification. Furthermore, prisoners who are on HIV medication must have successfully participated in the Keep On Person (“KOP”) medication program for six consecutive months or more prior to going to work release, and have a viral load of “less than 48 for four consecutive readings, and a CD4 count greater than 450,” to be eligible for work release. In practice, this means that it can take up to a year for a prisoner to obtain the requisite four consecutive readings to become eligible for work release since ADOC provides readings only at three-month intervals.
86. As a result of the arbitrary thresholds for those who do not need medication, some prisoners with HIV are excluded from work release because, paradoxically, they are too healthy to need HIV medications. For example, Plaintiff Darrell Robinson has been made to choose between foregoing work-release and undergoing premature, medically unnecessary HIV treatment. Defendants’ HIV specialist decided that Mr. Robinson has no current medical need for HIV medications, because his CD4 court is between 600 and 700, and his viral load is stable at 3000. Yet ADOC’s arbitrary medical eligibility criteria for work release require Mr. Robinson to start taking HIV medications, with all their potential risks and side effects, despite the lack of
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medical need. Similarly, Plaintiff Albert Knox has been told that he will not be medically cleared until he begins taking HIV medication, even though he has never medically required HIV medication The impact of ADOC’s arbitrary HIV medical criteria for work release has been even more severe since the beginning of 2011. ADOC has apparently been without an HIV specialist since January or February 2011, and from that time to the present Limestone has been refusing to medically clear any prisoner with HIV for the work release program – even those prisoners, including Plaintiffs David Smith and James Douglas, who are qualified and have met the medical clearance criteria.
87. ADOC’s arbitrary medical clearance policy affects not only eligibility for work release, but also custody levels more generally. Prisoners with HIV who are qualified for the least restrictive custody levels, minimum-out or minimum-community, instead receive the more restrictive custody level of medium-in, solely because they have not been medically cleared for work release.
88. Furthermore, prisoners with HIV who meet the ADOC eligibility criteria for work release are often barred from transfer to work release centers for no apparent reason other than their HIV status. Upon information and belief, ADOC has never admitted more than a handful of men with HIV to the work release—perhaps fewer than ten in total. ADOC recently allowed one or two prisoners with HIV to be transferred to the Decatur Work Release Center. Before that, it had been almost a year since ADOC had placed any men with HIV in the Decatur Work Release Center, even though several men with HIV were eligible for placement in work release, including Plaintiffs Louis Henderson, Dwight Smith, and Darrell Robinson. During that time, general population inmates continued to be placed in the Decatur Work Release Center. Upon information and belief, HIV prejudice, not a lack of bed space, is the reason for this disparity;
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there is bed space for at least fifteen other prisoners in the dorm where Plaintiff John Hicks is housed, in addition to space in the other dormitories at Decatur Work Release Center.
89. ADOC has not transferred any women with HIV to the Montgomery Women’s Facility for work release since approximately August 2009. Ashley Dotson was otherwise eligible for work release from December 2010 until her release from ADOC custody on parole in May 2011. When she was medically cleared for work release in late March 2011 correctional officers told her that because of her HIV status she would not be transferred to the Montgomery Women’s Facility. Upon information and belief, only four women with HIV have ever been sent to Montgomery Women’s Facility.
Discriminatory Exclusion of Prisoners with HIV from Other ADOC Facilities 90. Limestone is one of approximately 27 prisons that ADOC maintains for male prisoners. Some offer unique programs, privileges, services and activities that are unavailable at Limestone. General-population prisoners with a six month clear record are eligible to apply for a lateral transfer. Lateral transfers are granted to general-population prisoners in order to place the prisoners closer to their families and to allow them to participate in programs, services, and activities not offered at their current institution. Yet all male prisoners with HIV, even if they are otherwise eligible and qualified, are categorically excluded from transferring to those facilities and participating in the programs, services, and activities offered there. 91. For example, prisoners with HIV are excluded from the Frank Lee Youth Center in Deatsville, Alabama. The Youth Center is a minimum-security facility, intended to architecturally resemble a school rather than a prison. Frank Lee houses first offenders who are forty years old or less; have never committed a sex offense or a violent offense involving serious injury to the victim; have a sentence of 20 years or less; and are eligible for minimum-out
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custody. Prisoners assigned to the Youth Center on a long-term basis are eligible to attend a trade school for vocational training or GED and perform free labor in community work squads with neighboring municipalities. Frank Lee Youth Center offers trade classes in cabinet making, carpentry, commercial foods, electrical technology, furniture restoration, and plumbing. None of these trades are available to the men at Limestone.
92. Prisoners with HIV are also categorically excluded from the Alabama Therapeutic Education Center (“ATEF”) in Thomasville, Alabama and Columbiana, Alabama, which offer special vocational classes. ATEF trains inmates to be placed in skilled jobs once they are released into society or are eligible for work release. The trades taught at these prisons include carpentry, roofing, dry wall, painting, framing, electrical, plumbing, tile and masonry, fork lift operator, cabinet making, and barbering. Not all of these trades are taught at Limestone. Participation in trades improves the job possibilities for inmates upon release and the classification and parole boards look favorably upon it.
93. Prisoners with HIV are categorically excluded from Ventress Correctional Facility, located in Clayton, Alabama. Ventress houses prisoners with medium-custody or below, and makes available a number of substance abuse programs including a secular eightweek treatment class, and a 15-week program for inmates with dual disorders, neither of which is offered at Limestone. Ventress also offers academic and vocational educational programs, including heating and air conditioning and small engine repair, which are provided by the nearby Sparks Technical College and are not available at Limestone. In addition, Ventress provides community services to city, county and state agencies—opportunities not available at Limestone.
94. Prisoners with HIV are categorically excluded from St. Clair Correctional Facility in Springville, Alabama. St. Clair makes available a Therapeutic Community Substance Abuse
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Program that is not available at Limestone. The Alabama Correctional Industries operates a vehicle restoration facility and a chemical plant inside St. Clair. The facility provides on-site classroom settings for academic/vocational educational programs, including electrical technology and furniture restoration, which are provided by Gadsden State Community College and are not available at Limestone. St. Clair also provides a total care medical infirmary with complete dental care, dialysis, a cancer unit, emergency room, and diagnostic services that are not available at Limestone.
95. Prisoners with HIV are categorically excluded from the Hamilton Aged and Infirmed Center (“HAIC”), located in Hamilton, Alabama. HAIC has approximately five acres within a security fence, and houses minimum and medium custody inmates who are aged or infirm. A staff of minimum custody inmates provide facility upkeep and community work.
96. Prisoners with HIV are categorically excluded from Elmore Correctional Facility, located just north of Montgomery. Elmore is the recycling headquarters for ADOC and also maintains compost for the local area. Inmates classified as minimum-in custody work upon the institution’s property while under the supervision of ADOC employees; minimum-out inmates may work off the property under free-world supervision. Inmates employed on renovation crews of the Alabama Correctional Industries are housed at their work sites until weekends and holidays when they are returned to the institution. Elmore provides trade classes in barbering, cabinet making, carpentry, commercial foods, electrical technology, furniture restoration, and plumbing, which are not available at Limestone.
97. Prisoners with HIV are categorically excluded from the Farquhar Cattle Ranch is located approximately eight miles east of Greensboro. The Ranch houses minimum-custody inmates, who, when not working on the Ranch, work on community work projects for county,
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city, and other government agencies. 98. Prisoners with HIV are categorically excluded from Donaldson Correctional
Facility, located just west of Birmingham. Donaldson offers trade classes in barbering, carpentry, electrical technology, plumbing, and special education. These classes are not offered at Limestone.
99. Prisoners with HIV are categorically excluded from Draper Correctional Facility, located just north of Montgomery. Draper’s stated goal is to maintain an appropriate level of security that will eliminate escapes and present no dangerous threats to the community, while at the same time providing adequate housing, education and productive work for the inmates. Each inmate has an assigned job within the institution, on a large farming operation, a furniture plant, or a vehicle garage. Draper offers trade school programming in barbering, cabinet making, carpentry, commercial foods, electrical technology, furniture restoration, plumbing, and special education, which are not available at Limestone.
100. Prisoners with HIV are categorically excluded from JO Davis Correctional Facility (“Fountain”), located about seven miles north of Atmore on State Highway 21. Fountain maintains cattle, agricultural operations, and vegetable gardens. Additionally, the facility offers vocational programs through the nearby Jefferson Davis Community College, including barbering, cabinet making, commercial foods, plumbing, and small engine repair. These vocational programs are not available at Limestone. Fountain also offers a Relapse Treatment program designed for inmates who have completed one of the other ADOC drug treatment programs and have experienced relapse, either by a failure to remain abstinent or by failing to remain engaged in the recovery process. Utilizing evidence-based practices, the relapse treatment program focuses on post-acute withdrawal recognition and management, relapse
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warning sign identification and analysis, development of refusal skills, high risk situation identification and management, relapse prevention strategies, and relapse plan development. A relapse program is not available at Limestone.
101. Prisoners with HIV are categorically excluded from Staton Correctional Center, located just north of Montgomery. Staton offers courses in Adult Basic Education, literacy, and special education, college classes, and vocational training programs in auto body and heavy equipment repair, barbering, commercial food service, cabinet making, electrical technology, furniture restoration, and plumbing. None of these trade school courses are available at Limestone. Staton offers an eight-week matrix stimulant program, which targets the needs of prisoners with a history of methamphetamine and other stimulant dependency. This substance abuse program is not available at Limestone.
102. Prisoners with HIV are categorically excluded from Easterling Correctional facility is located near Clio on Highway 10. Easterling has a dorm dedicated to drug treatment for prisoners who have a history of substance abuse. The program includes a six month secular substance abuse program and secular aftercare. Secular treatment and aftercare is not available at Limestone. Easterling also provides vocational and educational programs through Sparks State Technical College, where prisoners can learn such trades as industrial electricity, cabinet making, and plumbing. Programs for learning these trades are not available at Limestone.
103. Many states have shown that HIV care can be distributed throughout a correctional system without incurring undue expense. For instance, in many states where prisons are located remotely from the urban centers where HIV specialists are typically located, telemedicine has been effectively used to ensure adequate health care irrespective of location. In other states, centers of excellence are created near the urban centers where HIV specialists work.
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In this way, HIV specialists may be contracted on a part-time basis to provide care within each geographical locale. These models are most effective when experienced HIV specialists provide clear and standardized guidelines for routine care, monitoring, follow-up and regular review.
HIV is a Disability Within the Meanings of the ADA and the Rehabilitation Act 104. HIV is an impairment of the immune system that substantially limits a person with HIV in one or more major life activities. It is therefore a disability within the meanings of 42 U.S.C. § 12102(1)(A) and 29 U.S.C. § 705(9)(B).
Federal Financial Funding 105. ADOC receives federal financial assistance. This assistance includes grants from the U.S. Department of Justice and the U.S. Department of Energy.
Class Action Allegations 106. Each of the named plaintiffs is a prisoner with HIV in the custody of ADOC, who brings this action on their own behalf and on behalf of all other prisoners with HIV in the custody of ADOC, now and in the future. 107. The class is so numerous that joinder of all members is impractical. ADOC currently has approximately two hundred sixty prisoners with HIV in its custody. The class also includes many future members as the facility regularly admits new prisoners with HIV. 108. There are questions of law and fact common to all class members, including but not limited to the following: whether the rights of Alabama prisoners with HIV under Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. §794, to be free of HIV-based discrimination, are violated by Defendants’ policy and practice of segregating prisoners with HIV, excluding them on the basis
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of their HIV status from prison programs, jobs, activities and privileges, and publicly disclosing their HIV status.
109. Because the policies and practices challenged in this Complaint apply with equal force to the named Plaintiffs and the other members of the class, the claims of the named Plaintiffs are typical of the class in general.
110. The named Plaintiffs will fairly and adequately represent the interests of the class. They possess a strong personal interest in the subject matter of the lawsuit and are represented by experienced counsel with expertise in class action prison-conditions litigation in federal court, including class action litigation on the subject matter of this lawsuit. Plaintiffs’ counsel has the legal knowledge, experience and resources to fairly and adequately represent the interests of all class members in this action.
111. Defendants have acted or refused to act on grounds generally applicable to the class. Their policies, practices, acts and omissions have affected all class members. Accordingly, final injunctive and declaratory relief is appropriate to the class as a whole.
CAUSE OF ACTION 112. Defendants are violating Plaintiffs’ rights under Title II of the ADA and Section 504 of the Rehabilitation Act, by subjecting them to discrimination solely on the basis of their testing HIV-positive, and by excluding them from participation in, or denying them the benefits of, ADOC services, programs or activities for which Plaintiffs are qualified, because they have HIV. The actions and omissions which violate Plaintiffs’ rights under these statutes include the following: a) Denying Plaintiffs the opportunity to participate in or benefit from services, facilities, privileges and advantages for which they are qualified, because they have HIV;
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b) Denying Plaintiffs equal opportunity to participate in or benefit from services, facilities, privileges and advantages for which they are qualified, because they have HIV;
c) Providing Plaintiffs with benefits or services that are not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to prisoners who do not have HIV;
d) Applying eligibility criteria that screen out prisoners who are HIV seropositive from fully and equally enjoying services, facilities, privileges, advantages, and accommodations provided by ADOC to prisoners who do not have HIV;
e) Failing to make reasonable accommodations in policies, practices, and procedures when the modifications are necessary to avoid discrimination on the basis of disability;
f) Failing to administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified prisoners with HIV;
g) Depriving prisoners with HIV of visitation by family members by placing them in distance facilities where they would not otherwise be housed;
h) Denying prisoners with HIV the opportunity to equally participate in or benefit from work-release programs through its arrangements with work-release employers;
i) Through contractual or other arrangements with work-release employers, utilizing criteria or methods of administration that have the effect of subjecting qualified individuals with HIV to discrimination on the basis of their HIV status;
j) Aiding or perpetuating discrimination against prisoners with HIV, by providing significant assistance to work-release employers that discriminate on the basis of HIV status.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that the Court:
a) Certify, pursuant to Fed. R. Civ. P. 23(b)(2), a class consisting of all prisoners in the
custody of the Alabama Department of Corrections, now and in the future, who have
tested positive for HIV;
b) Declare that ADOC’s HIV segregation policy violates Title II of the ADA and Section
504 of the Rehabilitation Act;
c) Enjoin Defendants, their officers, agents, employees and all other persons in active
concert and participation with Defendants from engaging in discriminatory policies and
practices against Plaintiffs on the basis of their HIV status;
d) Grant reasonable attorney’s fees and litigation costs pursuant to 42 U.S.C. § 12205 and
other applicable law;
e) Order such other and further relief as the interests of justice require.
RESPECTFULLY SUBMITTED:
/s/_Allison E. Neal______________________ ALLISON E. NEAL (AOC #NEA008) AMERICAN CIVIL LIBERTIES UNION OF ALABAMA FOUNDATION 207 Montgomery Street, Suite 910 Montgomery, Al 36104 Phone: (334) 265-2754 Ext. 203 Fax: (334) 269-5666
MARGARET WINTER (DC Bar No.174805) mwinter@npp-aclu.org CARL TAKEI (DC Bar No. 987672) ctakei@npp-aclu.org THE NATIONAL PRISON PROJECT OF THE ACLU FOUNDATION, INC.
37

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915 15th Street, N.W., Seventh Floor Washington, D.C. 20005 Tel. (202) 393-4930; fax (202) 393-4931

ROSE SAXE (SDNY No. RS 0463) rsaxe@aclu.org THE AIDS PROJECT OF THE FOUNDATION, INC. 125 Broad Street, Eighteenth Floor New York, N.Y. 10004 Tel. 212-549-2500; fax 212-549-2650

ACLU

ROBERT D. SEGALL (ASB-7354-E68R) segall@copelandfranco.com COPELAND, FRANCO, SCREWS & GILL, P.A. P.O. Box 347 Montgomery, Alabama 36101-0347 Tel. (334) 834-1180; fax (334) 834-3172

38

Case 2:11-cv-00224-MHT-WC Document 31 Filed 05/11/11 Page 39 of 39 CERTIFICATE OF SERVICE
I hereby certify that on this 11th day of May 2011, I filed a true copy of the foregoing First Amended Class Action Complaint for Declaratory and Injunctive Relief with the Court using the CM/ECF electronic filing system, which will automatically forward a copy to counsel for the Defendant, Scott L. Rouse.
/s/ Allison E. Neal___________________ ALLISON E. NEAL
39

 
 Case 2:11-cv-00224-MHT-WC Document 250 Filed 12/21/12 Page 1 of 2

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

LOUIS HENDERSON, DANA

)

HARLEY, DWIGHT SMITH,

)

ALBERT KNOX, JAMES

)

DOUGLAS, ALQADEER HAMLET, )

and JEFFREY BEYER, on

)

behalf of themselves and )

of those similarly

)

situated,

)

)

Plaintiffs,

)

)

v.

)

)

KIM THOMAS, Commissioner, )

Alabama Department of

)

Corrections; BILLY

)

MITCHEM, Warden, Limestone )

Correctional Facility;

)

FRANK ALBRIGHT, Warden, )

Julia Tutwiler Prison

)

for Women; BETTINA CARTER, )

Warden, Decatur Work

)

Release/ Community Work )

Center; EDWARD ELLINGTON, )

Warden, Montgomery Women’s )

Facility, in their

)

official capacities,

)

)

Defendants.

)

CIVIL ACTION NO. 2:11cv224-MHT (WO)

JUDGMENT

Case 2:11-cv-00224-MHT-WC Document 250 Filed 12/21/12 Page 2 of 2
In accordance with the opinion entered this date, it is the ORDER, JUDGMENT, and DECREE of the courats follows:
(1) Judgment is entered in favor of the plaintiffs and against the defendants.
(2) It is DECLARED that, with the exception of the Alabama Department of Corrections’ work-release policy, its segregation policy with regard to HIV-positive prisoners violates Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794.
(3) The parties will be given a reasonable opportunity, jointly or separately, to propose relief to the court.
(4) By a later separate order, the court will address the unresolved challenge to the work-release policy.
DONE, this the 21st day of December, 2012.
/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

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A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1 365, 1 368 ( 11th Ci r. 1 983). A magistrate judge’s report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885- 86 (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L .Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders “granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . .” and from “[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed.” Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964). Rev.: 4/04

Case 2:11-cv-00224-MHT-WC Document 250-1 Filed 12/21/12 Page 2 of 2
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

 
 Case 2:11-cv-00224-MHT-WC Document 287 Filed 08/06/13 Page 1 of 5

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

LOUIS HENDERSON, et al.,

Plaintiffs,

v.

Civil Case No. 2:11cv224-MHT

KIM THOMAS, Commissioner,

(wo)

Alabama Department of Corrections, et

al.,

Defendants.

ORDER PRELIMINARILY APPROVING PARTIES’ PROPOSED SETTLEMENT AGREEMENT Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, the Parties jointly move the Court to grant preliminary approval to the proposed Settlement Agreement (attached as Exhibit A-1 and A-2 to this Order); to approve the form of Notice to class members of the proposed Settlement Agreement (attached as Exhibit B to this Order); and to approve the form for Objection/Comment on proposed Settlement Agreement (attached as Exhibit C to this Order). Based on the entire record before the Court, the Court finds: The proposed Settlement Agreement is the result of extensive arms-length negotiations between the Parties, after a five-week trial on the merits and the Court’s entry of its Opinion and Judgment. After reviewing the terms of the

1

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proposed Settlement Agreement in light of the record and of controlling legal authority, the Court finds the proposed Settlement is sufficiently reasonable, adequate, fair, and consistent with relevant federal law to warrant preliminary approval and provision of notice to interested parties of a fairness hearing.
The Court also finds that the form of Notice attached hereto as Exhibit B, together with a copy of the proposed Settlement Agreement (Exhibits A-1 and A2), constitutes due and sufficient notice of the proposed Settlement Agreement to all persons entitled to receive notice required by due process and Rule 23 of the Federal Rules of Civil Procedure. The Court further finds that the method of delivery of notice proposed by the Parties, namely, by hand-delivery by Defendants to each current member of the Plaintiff Class, at least thirty days before the deadline for filing objections as provided by Rule 23(e)(2), F.R. Civ. P., to be the most effective and practicable manner of notice under the circumstances. The Court also finds the form for Objection/Comment attached as Exhibit C is adequate.
IT IS THEREFORE ORDERED THAT the joint motion for preliminary approval (doc. no. 284) is granted as follows:
1. The proposed Settlement Agreement attached hereto as Exhibits A-1 and A-2 is PRELIMINARILY APPROVED. Final approval of the Settlement Agreement and entry of the Proposed Order attached thereto incorporating its
2

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terms is subject to a hearing and to review by the Court of any objections submitted by interested parties to the terms of the Settlement Agreement.
2. On or before August 2, 2013, Defendants will notify Plaintiffs of the total number of class members currently in ADOC custody. On or before August 6, Plaintiffs will provide Defendants’ counsel with copies of Exhibits A-1, A-2, B, and C for every class member in ADOC custody according to the information provided by ADOC. On or before August 9, 2013, Defendants will provide by hand delivery a copy of Exhibits A-1, A-2, B, and C to every current class member in its custody as of that date.
3. Defendants shall make arrangements to provide all class members the opportunity to meet with class counsel during the week of August 19-23, 2013.
4. Any interested party may object to the proposed Settlement Agreement by filing an objection by September 6, 2013. To be considered by the Court, any written objections to final approval of the proposed Settlement Agreement must state that the objector is a prisoner with HIV currently in the custody of the Alabama Department of Corrections, and must state the basis for the objection. The objection must be filed in writing, along with any other papers the objector wishes the Court to consider, by mailing them by September 6, 2013 to the Clerk of the United States District Court, attn.: Henderson v. Thomas Settlement, P.O. Box 711, Montgomery, AL 36101-0711.
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5. The Court will hold fairness hearings at Tutwiler Prison for Women, Wetumpka, Alabama, at 10:00 AM on September 24, 2013 and at Limestone Correctional Facility, Harvest, Alabama, at 11:00 AM on September 26, 2013, at which time the Court will hear oral argument and testimony relating to whether the settlement is fair, reasonable and adequate. In the discretion of the Court, interested persons may appear personally and be heard at the fairness hearings. Should an objector choose to be represented by counsel at the fairness hearings, he or she may do so at his or her own expense. In order to be heard at the fairness hearings, any attorney representing an objector must file a Notice of Appearance with the Court and serve counsel for all parties at least ten calendar days before the fairness hearing. The Court will not permit anyone who fails to timely file and serve a written objection to raise such objection at the fairness hearings, except for good cause shown. Anyone who fails to object in the manner prescribed herein shall be deemed to have waived any such objection.
6. If objections are filed, the Parties’ counsel may engage in discovery concerning the objections prior to the fairness hearing.
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7. The Parties’ counsel shall serve on each other and file with the Court, at least three calendar days prior to the fairness hearing, any further documents in support of the proposed Stipulated Order, including responses to any papers filed by interested parties.
IT IS SO ORDERED, this 6th day of August, 2013. /s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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Exhibit “A-1”
Settlement Agreement

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Exhibit “A-2”
Private Agreement

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Case 2:11-cv-00224-MHT-WC Document 287-3 Filed 08/06/13 Page 1 of 6
Exhibit “B”
NOTICE OF PROPOSED SETTLEMENT AGREEMENT IN CLASS ACTION LAWSUIT

Case 2:11-cv-00224-MHT-WC Document 287-3 Filed 08/06/13 Page 2 of 6
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
NOTICE OF PROPOSED SETTLEMENT AGREEMENT IN CLASS ACTION LAWSUIT
Henderson v. Thomas, No. 2:11-cv-224-MHT
READ THIS NOTICE AND THE ATTACHED DOCUMENTS CAREFULLY! THESE DOCUMENTS MAY AFFECT YOUR LEGAL RIGHTS
Why did I get this notice?
This Notice concerns a class-action suit called Henderson v. Thomas, filed on behalf of all prisoners with HIV currently in the custody of the Alabama Department of Corrections.
The purpose of this Notice is to explain the current status of the lawsuit, let you know how to get answers to your questions about the proposed settlement, and explain how to send any objections to the Court. The proposed settlement documents are attached to this Notice.
What is this lawsuit about?
The Plaintiffs in this lawsuit are Alabama prisoners with HIV, and are represented by attorneys from the ACLU appointed as Class Counsel by the Court. The Defendants are the Commissioner of the Alabama Department of Corrections and the Wardens of Julia Tutwiler Prison for Women, Limestone Correctional Facility, Montgomery Women’s Facility, and Decatur Work Release.
The Plaintiffs filed this lawsuit in federal court in March 2011. The lawsuit specifically challenged the following ADOC policies: (1) excluding prisoners with HIV from assignment to all but four of the 29 prisons and work release facilities in the ADOC system; (2) requiring all prisoners with HIV at Limestone to be housed in HIV-only dorms; (3) requiring all prisoners with HIV at Tutwiler to be housed in HIV-only dorms, (4) excluding prisoners with HIV from all food-related jobs in work release and in prison; (5) excluding prisoners with HIV from residential programs at Limestone and Tutwiler that are offered to prisoners who do not have HIV; (6) requiring all prisoners with HIV at Limestone to wear white armbands, and (7) requiring all prisoners with HIV to meet certain HIV-specific medical criteria for work release.
The lawsuit asked the Court to order ADOC to end its segregation policies. The lawsuit did not ask for money damages.
What is the status of the lawsuit?
The lawsuit went to trial in September and October 2012. On December 21, 2012, Judge Thompson issued an Opinion and Judgment in favor of the Plaintiffs and against the Defendants. The Judge ruled that six out of the seven HIV-segregation policies listed above violate the rights of prisoners with HIV under the Americans with Disabilities Act and the Rehabilitation Act. The
1

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Judge did not rule on whether ADOC’s HIV work-release criteria violate the law: the Judge decided that there would need to be further proceedings in this case to decide that issue. The Judge did not decide how many (or which) of its 29 prisons and work release facilities ADOC would need to integrate. Instead, the Judge directed the parties to meet to try to agree on a remedy that would comply with his ruling.
In June 2013, lawyers for the Plaintiffs and Defendants met to try to reach an agreement on all remaining issues in the case, including how many and which prisons and work release facilities would be integrated, and when they would be integrated; whether ADOC´s work release criteria for people with HIV should be eliminated; and the amount, if any, that the ADOC should pay Class Counsel in reasonable attorneys’ fees and expenses. After weeks of negotiation, the parties reached the proposed settlement that is enclosed with this Notice.
Judge Thompson has ordered the ADOC to provide a copy of this Notice and the proposed settlement to each ADOC prisoner with HIV. The Judge will hold hearings at Tutwiler Prison for Women on September 24, 2013 at 10:00 a.m., and at Limestone Correctional Facility on September 26, 2013 at 11:00 a.m., when he will consider the comments and objections that prisoners with HIV have submitted to the Court, and will decide whether the proposed settlement is fair, reasonable, and adequate.
What are the terms of the proposed settlement?
The proposed settlement includes two separate agreements: a Primary Agreement, which can be enforced only in federal court, and a Private Agreement, which can be enforced only in state court. Here is a summary of the terms of the proposed settlement:
x The ADOC will change its policies so that as of November 2014, prisoners with HIV may be housed in general population dorms at any ADOC facility, under the same classification rules that apply to all other prisoners and without regard to HIV status. The following fourteen facilities will be integrated under the Primary Agreement: Bullock Correctional Facility, Decatur Work Release, Donaldson Correctional Facility, Elmore Correctional Facility, Fountain Correctional Facility, Limestone Correctional Facility, Loxley Work Release, Mobile Work Release, Red Eagle Work Center, Staton Correctional Facility, St. Clair Correctional Facility, Birmingham Work Release (female only), Montgomery Women’s Center (female only), and Tutwiler Prison for Women (female only). Each of the remaining fifteen facilities in the ADOC system will be integrated under the Private Agreement.
x Before any integration takes place, ADOC will take steps to make sure that integration occurs safely, that ADOC is prepared to provide appropriate HIV care at any facility to which prisoners with HIV are transferred, and to organize transfers in a way that minimizes the risk that any prisoner’s HIV status will be disclosed through the transfer process. These are the steps that ADOC must take before any integration takes place:
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¾ Commissioner Thomas will issue written directives to all classification staff, security staff, and prisoners regarding the upcoming changes. These written directives are included with the documents attached to this Notice.
¾ The Commissioner’s directives will state a policy of “zero tolerance” for any threats, abuse or violence against any prisoner because of HIV status.
¾ The Commissioner’s directives will direct all ADOC personnel to respect the confidentiality of prisoners’ health information, including HIV status, and will state that if a staff member intentionally discloses a prisoner’s HIV status without the prisoner’s approval, appropriate disciplinary action will be taken.
¾ Before any integration takes place, the ADOC will conduct mandatory education and training sessions on HIV for all correctional staff and prisoners.
¾ ADOC will also arrange for medical staff to undergo training in HIV care at the 1917 Clinic in Birmingham prior to integration. Telemedicine equipment will be installed at some of ADOC’s facilities to help make sure prisoners with HIV are able to see a physician specializing in HIV care, no matter where they are placed.
¾ The ADOC will also train all classification staff that they must not routinely include HIV status in classification records and that they must not inquire into HIV status as a part of the classification process.
x When integration takes place, all transfers of prisoners with HIV will be conducted according to a process that has been designed to protect the confidentiality of HIV status at the new facility.
x The ADOC will no longer house prisoners with HIV separately from other prisoners in any facility.
x The ADOC will end the practice of isolating newly-diagnosed prisoners with HIV at intake.
x The ADOC will eliminate or revise all of its HIV-specific policies to ensure confidentiality of HIV status and medical information. The ADOC will no longer require any prisoner to wear an arm band that directly or indirectly discloses his or her HIV status.
x The ADOC will eliminate HIV-specific work release criteria. Prisoners with HIV will be eligible for work release on exactly the same basis as prisoners who do not have HIV.
x Prisoners with HIV will no longer be excluded from food-related jobs, either within prisons or at work release.
3

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x The ADOC will maintain an Acute Care Unit at Limestone which will house prisoners whose individual medical needs require housing in an acute care setting. Except for medical isolation, disciplinary segregation, and administrative segregation, prisoners with HIV in the Acute Care Unit will be housed in dorms with prisoners who do not have HIV.
x The ADOC will pay $1.3 million in Plaintiffs’ attorneys’ fees and expenses for all of Class Counsel’s work in this lawsuit up to the entry of a final order approving the settlement.
x Both the Primary Agreement and the Private Agreement will expire on June 30, 2015, unless the Court orders this date to be extended. During the term of the agreement, the Court will retain jurisdiction to enforce the terms of the Primary Agreement, and Class Counsel will monitor ADOC’s compliance with the agreed-upon integration plan.
x Defendants and Plaintiffs waive their right to any appeal.
x The proposed settlement will not create any new right to money damages, and will have no effect on any right that any prisoner with HIV may have had, or may have in the future, to bring suit for money damages under the Americans with Disabilities Act or the Rehabilitation Act.
What if I object to the proposed settlement?
If you want to object to the proposed settlement agreement, or comment on the proposed settlement, you may mail a written objection or comment to the Court at the address below, no later than September 6, 2013:
Clerk of the United States District Court attn.: Henderson v. Thomas Settlement P.O. Box 711 Montgomery, AL 36101-0711
A pre-addressed form has been attached to the end of this Notice. While you are not required to use this form to submit your written objections or comments on the proposed settlement agreement, the Court strongly recommends you use this form rather than a blank paper.
The Court will review all objections and comments from prisoners with HIV and will hold fairness hearings at Tutwiler Prison for Women on September 24, 2013 at 10:00 a.m., and at Limestone Correctional Facility on September 26, 2013 at 11:00 a.m., to decide whether to approve the settlement.
If you want to retain your own personal lawyer to object to the proposed settlement, you may do so at your own expense. In order to be heard at the fairness hearing, any attorney representing a prisoner with HIV must file a Notice of Appearance with the Court and serve counsel for all Parties at least ten calendar days before the hearing.
4

Case 2:11-cv-00224-MHT-WC Document 287-3 Filed 08/06/13 Page 6 of 6 What if I have more questions about the proposed settlement? Class Counsel will visit Limestone, Tutwiler, Montgomery Women’s Center and Decatur Work Release later this month, to explain the settlement process and documents, and answer any questions you may have. Additionally, you may send questions in writing to:
Margaret Winter Attn: Henderson v. Thomas Settlement National Prison Project of the ACLU 915 15th Street, N.W., Seventh Floor Washington, D.C., 20005
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Case 2:11-cv-00224-MHT-WC Document 287-4 Filed 08/06/13 Page 1 of 4
Exhibit “C” Objection/Comment on Proposed Settlement
Agreement

Case 2:11-cv-00224-MHT-WC Document 287-4 Filed 08/06/13 Page 2 of 4
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
OBJECTION/COMMENT ON PROPOSED SETTLEMENT AGREEMENT IN CLASS ACTION LAWSUIT
Henderson v. Thomas, No. 2:11-cv-224-MHT While you are not required to use this form to submit your written objections or comments on the proposed settlement agreement, the Court strongly recommends you use this form rather than a blank paper. If you choose to send objections on something other than this form, make sure to write “Henderson v. Thomas, No. 2:11-cv-224-MHT” at the top of the first page. If you need more space, you may continue writing on additional sheets of paper. Make sure to follow the mailing instructions at the end of the form! Your Personal Information Name: ________________________________________________________________________ AIS number: __________________________________________________________________
 I am a prisoner with HIV who is currently in the custody of the Alabama Department of Corrections. You must check this box for the Court to consider your comments.
Your Comments ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________
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______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________
2

Case 2:11-cv-00224-MHT-WC Document 287-4 Filed 08/06/13 Page 4 of 4 Instructions If you need more space, you may continue writing on additional sheets of paper. You should send your objections or comments to the Court using the address provided below:
Clerk of the United States District Court attn.: Henderson v. Thomas Settlement P.O. Box 711 Montgomery, AL 36101-0711 To be considered by the Court, your objections or comments must be mailed no later than September 6, 2013. The Court will review all objections and comments from class members and will hold fairness hearings at Tutwiler Prison for Women on September 24, 2013 at 10:00 a.m., and at Limestone Correctional Facility on September 26, 2013 at 11:00 a.m., to decide whether to approve the settlement.
3

 
 Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 1 of 38 1

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE MIDDLE DISTRICT OF ALABAMA

3

NORTHERN DIVISION

4

5 LOUIS HENDERSON, et al.,

6

Plaintiffs,

7 Vs.

CASE NO.: 2:11-cv-224-MHT

8 KIM T. THOMAS, et al.,

9

Defendants.

10

11

* * * * * * * * * * * * * * *

12

FAIRNESS HEARING

13

* * * * * * * * * * * * * * *

14

BEFORE THE HONORABLE MYRON H. THOMPSON, UNITED STATES

15 DISTRICT JUDGE, at Julia Tutwiler Prison for Women, Wetumpka,

16 Alabama, on Tuesday, September 24, 2013, commencing at 9:41

17 a.m.

18

APPEARANCES

19 FOR THE PLAINTIFFS: 20 21 22 23 24 25

Ms. Margaret Winter Mr. Carl Takei Attorneys at Law ACLU National Prison Project 915 15th St. NW - 7th Floor Washington, DC 20005
Ms. Amanda C. Goad Attorney at Law ACLU Foundation AIDS Project 125 Broad Street, 18th Floor New York, NY 10004

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 2 of 38 2

1

APPEARANCES, continued:

2 FOR THE DEFENDANTS: 3 4

Mr. William R. Lunsford MAYNARD COOPER & GAYLE PC Attorneys at Law 655 Gallatin Street Huntsville, AL 35801

5

Ms. Anne Adams Hill

Attorney at Law

6

Alabama Department of Corrections

Legal Division

7

301 South Ripley Street

Montgomery, AL 36130

8

* * * * * * * * * * * * * *

9

Proceedings reported stenographically;

10

transcript produced by computer.

11

* * * * * * * * * * * * * *

12

EXAMINATION INDEX

13

DANA HARLEY

14

DIRECT BY MS. WINTER

15

15

UNIDENTIFIED FEMALE

16

DIRECT BY MS. WINTER

28

17

WARDEN BARRETT

18

DIRECT BY MR. LUNSFORD

32

19

* * * * * * * * * * * * * *

20

21

(The following proceedings were heard before the Honorable

22 Myron H. Thompson, United States District Judge, at Julia

23 Tutwiler Prison for Women, Wetumpka, Alabama, on Tuesday,

24 September 24, 2013, commencing at 9:41 a.m.:)

25

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 3 of 38 3

1

THE COURT: The issue before the Court is whether to

2 approve the proposed settlement. This is a fairness hearing.

3 How do the plaintiffs suggest we proceed?

4

MS. WINTER: I would propose that I give a brief

5 summary of the provisions of the agreement, especially as they

6 relate to the women plaintiffs, and that then the Court hear

7 from class representative Dana Harley. There were two other

8 class members who filed objections but who have decided that

9 they don't want to speak, so there will just be one witness from

10 the plaintiff's side.

11

THE COURT: Okay. Go ahead.

12

MS. WINTER: Excuse me, Your Honor. One of the two

13 inmates who filed objections does want to speak.

14

THE COURT: Okay. Very good.

15

MS. WINTER: Your Honor, the plaintiffs propose that

16 the settlement is fair, reasonable, and adequate; in particular,

17 the women members of the class have received through this

18 settlement essentially 100 percent of what they asked for in

19 this lawsuit, and the ADOC has already fulfilled its promise and

20 has met and even exceeded deadlines. We are told by the class

21 representative they integrated Tutwiler at the end of July,

22 before the date called for by the agreement.

23

It's our understanding that isolation on intake has

24 ceased. Women with HIV who are newly admitted to the ADO system

25 no longer go into segregation, but go directly into a general

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 4 of 38 4

1 population receiving dorm so that from henceforth, prisoners

2 with HIV will not be stigmatized. The provision means that all

3 programs from which women with HIV were previously excluded,

4 that that exclusion is gone. Furthermore, the HIV specific work

5 release criteria have been eliminated. And the ADOC carried out

6 that provision of the agreement immediately when the

7 execution -- when the agreement was executed. That means that

8 there are already many more -- many, many more people,

9 particularly among the men, who are already in work release who

10 otherwise would not have been.

11

An important part of the agreement was the ADOC would

12 conduct -- will conduct training for all prisoners, all staff,

13 security staff, and all classification staff throughout the

14 system, and all staff and inmates were given educational

15 training before the integration occurred at Tutwiler. And you

16 will hear from Ms. Harley, the class representative, about how

17 that went at Tutwiler. You will also hear from her about how

18 the integration process has gone.

19

Other important provisions of the proposed agreement

20 are the classification staff will be trained that they are not

21 to inquire into any inmates's HIV status. And furthermore, they

22 are not to add information to their classification file about

23 any inmate's HIV status. Pursuant to the agreement, the

24 commissioner, Commissioner Thomas, issued excellent directives,

25 three separate directives, to staff, to inmates, and to

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 5 of 38 5

1 classification. And under these directives, the commissioner

2 underscored a zero tolerance policy for violence, for abuse by

3 any inmate against another based on HIV status, and directed

4 staff, all security staff, about the extreme importance of HIV

5 confidentiality and that deliberate breaches of that

6 confidentiality would be subject to discipline.

7

We feel like all of these are wise and prudent

8 safeguards that were undertaken before the integration at

9 Tutwiler. And as you'll hear from Ms. Harley, the process has

10 gone very well.

11

Another important provision for the women is that the

12 other -- there are two work release facilities in the system for

13 women, and hitherto women with HIV have only been admitted to

14 Montgomery Women's Center. Under the agreement, women with HIV

15 will now also -- are now also already eligible -- if they're

16 otherwise eligible for work release, they are eligible to go to

17 Birmingham if that's the better location for them. No one has

18 yet, of the HIV positive women, gone there, but we feel

19 confident that that will happen as soon as there is a candidate

20 for whom Birmingham is the right place and when there's an open

21 bed.

22

Notice to the class was accomplished in conformity with

23 the order that you entered preliminarily approving the

24 agreement. There was hand delivery by the ADOC with a sign-off

25 to every class member, as you'll also hear Ms. Harley testify.

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 6 of 38 6

1 And there were -- there was a meeting with class counsel.

2 Myself and Mr. Takei met, were allowed to meet with the women

3 for as long as we needed to to answer all questions relating to

4 the agreement. We urged all class members if they had a problem

5 with the agreement, if they wanted to be heard by the Court, to

6 speak at this hearing and that they -- and that we believed that

7 the Court would hear them.

8

There is a provision for attorney's fees, which we

9 believe is very important relief for the plaintiffs. In part --

10 I mean, of course, in future what it means, that plaintiff's

11 counsel can continue to take meritorious cases that other

12 lawyers might not be willing to take, but it also gives

13 plaintiff's counsel the wherewithal to monitor this agreement.

14 And there is a provision for monitoring up until the agreement

15 terminates. And the monitoring will -- according to the

16 monitoring provisions, the ADOC will provide plaintiff's counsel

17 with certain agreed-upon data points periodically that will

18 allow us then to communicate with class members and to be sure

19 that the provisions that are agreed upon are actually being

20 carried through. The parties have stipulated that the relief

21 that is -- that was negotiated and that we present to the Court

22 is the most closely, narrowly tailored relief that is needed to

23 address the violations that plaintiffs alleged in their lawsuit,

24 and the parties have stipulated to that as a fact.

25

I think that those are the salient points with regard

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 7 of 38 7

1 to the women. And from the meeting that Mr. Takei and I had had

2 with the women and correspondence with them, it is our strong

3 impression that the women very, very much favor the agreement,

4 and that at this point, there is -- so far as we know, no

5 opposition to the agreement from the members of the class at

6 Tutwiler.

7

THE COURT: All right. Now, I understand there are two

8 agreements?

9

MS. WINTER: Yes. There is the agreement that we've

10 asked this Court to enter as an order. There's also a private

11 agreement that is attached as an exhibit to the proposed order

12 that we gave you.

13

There is really only one reason why there is a private

14 agreement, and that is that the ADOC was unwilling to integrate

15 all 29 facilities under a federally enforceable agreement. They

16 were willing to have 14 facilities covered by the federally

17 enforceable agreement, and we carefully negotiated over which 14

18 facilities so that we thought it would cover a good geographic

19 distribution; a good distribution of programs. Some of them

20 were desirable facilities regarding programs, and the geographic

21 locations that we wanted to make sure were covered by the

22 federal agreement were based on a poll that we did in which we

23 attempted to find out the current county of commitment of most

24 of the class. Because our whole effort here is to have members

25 of the class be eligible to be assigned to facilities near their

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 8 of 38 8

1 families, which is -- it's been one of the most difficult things

2 for prisoners under the old regime.

3

THE COURT: What about the sunset provision? Does it

4 apply to both agreements?

5

MS. WINTER: Yes. The sunset -- under the sunset

6 provision, on June 15th, 2015, the agreement will terminate

7 unless there is then a pending motion to enforce or for

8 contempt. In that case, the agreement will continue until the

9 motion is resolved.

10

THE COURT: But as to the private agreement, I would

11 not have any responsibility for terminating that or enforcing it

12 or anything?

13

MS. WINTER: No. This Court will have no

14 responsibility for the private agreement. We were concerned

15 about the private agreement. It will have no effect on the

16 women, because Birmingham work release is the only other

17 facility to which they would be eligible in any event, and

18 that's covered by this agreement.

19

Our understanding is that -- we were very concerned not

20 to have all facilities covered, but we really do believe that

21 this is good faith on the part of the Alabama Department of

22 Corrections; that their motive in having a private agreement

23 covering 15 of the facilities was not so that they could evade

24 it or to make us go into state court to enforce it, but simply

25 because they were not willing to say that it was the most

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 9 of 38 9

1 narrow, least intrusive remedy to integrate all 29 facilities.

2 And we did think that stipulation was extremely important.

3

THE COURT: Is the private agreement subject to the

4 PLRA?

5

MS. WINTER: The private agreement is not subject to

6 the PLRA.

7

THE COURT: So I shouldn't analyze it under the PLRA at

8 all?

9

MS. WINTER: No. The Court does not need to analyze it

10 under the PLRA.

11

I believe that those are the salient features of the

12 agreement. And at this point, unless, of course, you have other

13 questions for me now, we could hear from class representative

14 Dana Harley.

15

THE COURT: Let me hear from defense counsel, if you

16 have any opening statements, before we hear from any witnesses.

17

MR. LUNSFORD: Your Honor, I was thinking I might speak

18 after the testimony, but I'll go ahead and just provide --

19

THE COURT: If you want to, that's fine, too.

20

MR. LUNSFORD: I'll go ahead and provide our comments

21 now.

22

Obviously, we're here today to discuss the settlement

23 agreement as applies to Tutwiler. And what's interesting -- you

24 were asking about the private settlement agreement and the other

25 settlement agreement or the primary settlement agreement. The

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 10 of 38 10

1 private settlement agreement in many respects doesn't even apply

2 to the women. So for today's purposes, it's a wholly separate

3 document. And I agree wholeheartedly with Ms. Winter's comments

4 that it is not subject to the PLRA. It's a private agreement

5 that would fall outside of its scope.

6

Your Honor, as you know from six weeks of trial

7 testimony, circumstances presented by HIV positive women in the

8 Alabama Department of Corrections system has always been a

9 different equation. It's very different from the men. They've

10 always been different. There are fewer women. As you notice,

11 today we have approximately, I believe, eight in the room with

12 us. At any point in time, just looking at the time the Court

13 has seen this population, when you toured the facility, there

14 were five. There have been as many as ten. That gives the

15 department a lot different ability to make adjustments and

16 changes to the way those individuals are housed than it would

17 with regard to the men, which we're going to talk about later

18 this week.

19

But I think it's important to recognize the difference,

20 not only in the population itself, but also in the facilities

21 where they're housed. We have one major female facility. We

22 have two work release facilities where women are housed in

23 Alabama. There are ten -- 20 times as many facilities and ten

24 times or 20 times as many men in the state at any given point in

25 time which, naturally, makes it more complicated. And that was

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 11 of 38 11

1 a challenge that, obviously, we felt we could take on and did

2 take on.

3

The differences in the population between the female

4 inmates with HIV and male inmates with HIV is reflected in the

5 settlement agreement as well. It was easy to compress the

6 timetable here. We heard loud and clear the Court's

7 encouragement to proceed with alterations in the housing, and we

8 did that, even before the settlement has been -- even before the

9 settlement has been approved, because we understood how

10 important that was. We wanted to go ahead and do that, and by

11 all accounts it has been a successful transition, due in large

12 part to the correctional staff here at Tutwiler.

13

As you will see, the structure of the settlement

14 agreement, regardless of whether it is being applied to the male

15 inmates or female inmates, is essentially the same, which is

16 that we have set up a process, and that process begins with,

17 one, training. That training is for inmates. That training is

18 for officers and DOC staff.

19

There is an additional training component that will be

20 more important when we talk about the men, but there's also a

21 medical training component. We believed it was very important

22 that before we made any specific alterations to any of the

23 housing arrangements that that training be completed. And that

24 training has been completed here at Tutwiler. It's also been

25 completed at Montgomery Women's Facility.

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 12 of 38 12

1

That training, essentially, says this: That we're

2 going to have UAB come in and train all of the officers. I've

3 sat through that training. The commissioner has sat through

4 that training. I know general counsel for the department has

5 sat through that training. And that training has been well

6 received among the correctional staff. It goes to some of the

7 issues that the Court expressed concern about during the course

8 of the trial or in its opinion, and we believe that training is

9 going to be effective. The Department of Corrections is

10 providing training to inmates. That training has also been well

11 received. While it does address HIV, it's also an opportunity

12 for us to address other critical issues that relate to sexually

13 transmitted diseases.

14

With regard to the women at Tutwiler, I think it's

15 important to recognize that while they have moved beds and are

16 housed in different dormitories, they are eating in the same

17 chow hall. They're seeing the same correctional staff. They

18 are seeing the same medical staff on a day in, day out basis.

19 That is a critical difference from the male inmates, which,

20 again, we're going to talk about later this week; but I think

21 that made this a perfect situation for us to compress the time

22 table and move forward. And by all accounts, I think we can

23 take what has occurred here at Tutwiler and apply it elsewhere

24 and, hopefully, see the same success at other facilities.

25

THE COURT: Thank you. Now, these settlement

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 13 of 38 13

1 agreements in no way compromise the treatment, if needed, for

2 inmates who are HIV positive; is that right? The medical

3 treatment?

4

MS. WINTER: The agreement provides two things

5 regarding medical treatment. One is that system wide, all staff

6 who are going to be providing primary care to prisoners with HIV

7 will receive preceptorships at UAB's 1917 Clinic. So we're

8 talking about very top-of-the-line training. And ADOC will

9 figure out who needs to or who should have that training. That

10 training will be provided by the Alabama AIDS Training and

11 Education Center, AATEC, which you've heard testimony about and

12 mentioned in your opinions. So we think that's important.

13 That's a part of the agreement.

14

The agreement also includes a provision that where

15 necessary to provide HIV specialty care, the department will

16 install telemedicine units at each facility where they believe

17 that that's needed to insure HIV specialty care.

18

There is a provision regarding monitoring, that if

19 prisoners do not receive their medication as prescribed,

20 plaintiff's counsel can communicate immediately with defendant,

21 with ADOC's counsel, with Ms. Hill. So it's like a direct

22 attorney-to-attorney communication so that we can make sure any

23 slip-ups are addressed right away.

24

There is -- of course, there can't be any guarantee

25 that medical care will be either as good as it is now at the

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 14 of 38 14

1 other facilities or that it will be the same. It could be

2 better. We don't know. This is not a medical case, of course.

3 If by any chance medical care is not adequate, which we don't at

4 all anticipate, there will no doubt be lawyers who will want to

5 help the plaintiffs make sure that medical care is

6 constitutionally adequate.

7

THE COURT: I guess because everyone here at Tutwiler

8 is concentrated in one facility, it's probably not going to be

9 as big an issue, I would think.

10

MS. WINTER: I don't think it's a big issue here, so I

11 didn't really address it in my opening. I think it's much more

12 of an issue with the men. But the women can be confident that

13 they will continue to get the same care that they have gotten.

14 And if there's any problems, they will communicate with counsel

15 and counsel will communicate with ADOC's counsel. We think that

16 there will be seamless continuity for the women.

17

THE COURT: I think at Tutwiler here, there's probably

18 not even any dramatic change in the delivery of medical care,

19 because everyone is at the same place and it's just a matter of

20 being in the general population rather than in one room.

21

MS. WINTER: I think that's right. Ms. Harley can

22 speak to that.

23

THE COURT: Right. I'll hear from Ms. Harley -- from

24 your witness.

25

DANA HARLEY

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 15 of 38 15

1

The witness, having first been duly sworn to speak the

2 truth, the whole truth and nothing but the truth, testified as

3 follows:

4

DIRECT EXAMINATION

5 BY MS. WINTER:

6 Q. Ms. Harley, are you a class representative for the plaintiff

7 class in this case?

8 A. Yes, I am.

9 Q. Could you describe briefly what your responsibilities have

10 been as class representative.

11 A. To relay information that I receive from you to the inmates

12 in the dorm; get issues or statements from them and send them to

13 you; keep them updated on changes or anything that's occurring

14 with the lawsuit.

15 Q. And are you continuing to carry out these responsibilities?

16 A. As much as possible.

17 Q. You attended the trial?

18 A. Yes, I did.

19 Q. And you testified?

20 A. Yes, ma'am.

21 Q. After the trial and after Judge Thompson issued his decision

22 in favor of the plaintiffs in December of 2012, did you attend a

23 mediation sessions with the parties' lawyers before Magistrate

24 Capel?

25 A. Yes, I did.

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 16 of 38 16
1 Q. And during the mediation -- that went on over a number of 2 days, didn't it? 3 A. Yes, ma'am. 4 Q. And over the course of that mediation, were you returning to 5 the prison in the evening after the mediation? 6 A. Yes, ma'am. 7 Q. During the mediation, were you communicating daily with the 8 other class members at Tutwiler about what was happening in the 9 mediation? 10 A. Yes, ma'am. 11 Q. And were you advising plaintiff's counsel on the positions 12 of the women regarding the settlement? 13 A. Yes, I were. 14 Q. Ms. Harley, did you ever receive a copy of the final, signed 15 settlement agreement and a notice to the class? 16 A. Yes, ma'am, I did. 17 Q. Could you tell the Court how you received that -- a copy of 18 that agreement and notice. 19 A. Warden Barrett called the dorm to the old dining room. And 20 he was in the classroom or group room, and he called us in one 21 by one and issued it to us. 22 Q. So you're aware that the other women also received their 23 copy? 24 A. Yes, ma'am, they did. 25 Q. After getting the notice and the copy of the settlement
PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 17 of 38 17
1 agreement, did you have any discussions among yourselves with 2 the other members of the class at Tutwiler? 3 A. We talked about it. 4 Q. Did you ever have a meeting with Mr. Takei and me about the 5 settlement agreement? 6 A. About a month ago. August. 7 Q. That was after you received the notice and the copy of the 8 proposed agreement? 9 A. Yes. 10 Q. And could you tell the Court what that meeting was about 11 generally. 12 A. Well, we met in here. It was everybody that's in here now. 13 And it gave all of us a chance to voice any objections or 14 anything we didn't like about the settlement agreement, and all 15 of us were pretty much on one accord. So it gave us an 16 opportunity. 17 Q. Was there any discussion about whether class members could 18 file objections or testify in court if they wanted to? 19 A. Filing objections -- because we had the paper that came with 20 the settlement agreement. We had the objection papers separate. 21 So if we chose to fill them out, we could. If we didn't have 22 any objections, we didn't have to. 23 Q. To your knowledge, has HIV segregation ended at Tutwiler? 24 A. It has here at Tutwiler. 25 Q. When did that happen?
PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 18 of 38 18

1 A. July, I want to say, 24th.

2 Q. Was that ahead of the schedule that you read in the

3 settlement agreement?

4 A. Yes, ma'am, because it said on or before August 1st.

5 Q. Could you describe to the judge how that process proceeded,

6 how --

7 A. The integration?

8 Q. How integration actually happened.

9 A. Well, they called us to ICS, gave us a bed number, and said,

10 move to a dorm. The first day they moved four of us out, and

11 the next day they moved the remaining people in the dorm out.

12 So we just received a bed number, a dorm and a bed number, and

13 moved.

14 Q. Did you experience any problems -- have you experienced any

15 problems with general population inmates since integration took

16 place?

17 A. I haven't with general population. Which here at Tutwiler,

18 we really never had a problem, because most everybody is

19 familiar with all of us anyway, so it was never a problem with

20 general pop. It was just a couple of issues. When A.D. moved

21 to a dorm, K dorm, you had some uneducated people --

22 Q. Before you go on, just for one second.

23

MS. WINTER: Could we have the -- could we have the

24 record refer to that inmate by the initials A.D.?

25

THE COURT: Very good.

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 19 of 38 19
1 Q. Is this an inmate who you testified about at trial -2 A. Yes, ma'am. 3 Q. -- who had certain problems? 4 A. She had -- A.D., over the years, she has had history of 5 mental illness, and she was moved into a dorm by herself, in K 6 dorm. It's a pretty rough dorm. And she was having some 7 issues, and she -- I talked to a couple of people about it. And 8 just one of the comments I got from one of the officers were, 9 you asked to be put in population. And I was just explaining to 10 them, it's not about being in population; it's about being 11 treated right. So with her mental illness and some of the stuff 12 that she was hearing from the dorm, she just really didn't need 13 to be in a dorm, but Warden Barrett made her just be moved out. 14 Q. So she is -- do you have any information as to whether she's 15 doing well in the dorm she's in now? 16 A. She's doing exceptionally well. She's trying. So she's 17 doing good. 18 Q. Before the move actually occurred, what -- did you 19 participate in any training or education on HIV that was offered 20 by the ADOC? 21 A. They offered a training session. One was in the chapel, and 22 the second one was in the old dining room. They split us up. 23 They put -- let some go to the chapel for the training, and some 24 of us went to the old dining room. But the one I went to, it 25 was excellent.
PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 20 of 38 20

1 Q. I used the word "offered," but actually, that education

2 session was mandatory, was it not?

3 A. Uh-huh. Mandatory.

4 Q. And when you say you were split into groups, you don't mean

5 according to HIV and not?

6 A. Oh, no, ma'am. It was by dorms.

7 Q. What was the training about?

8 A. HIV, hepatitis C, genital herpes, syphilis, gonorrhea,

9 trichomonas. It was STD training.

10 Q. And you said that the information offered was excellent?

11 A. It was good.

12 Q. Since the integration process, are you aware of any problems

13 other than what you've mentioned about inmate A.D.?

14 A. It's an issue, but I think as we go on, it will get ironed

15 out; but the way that we're called or we're put on -- and I got

16 the newsletter in my pocket. The way we're grouped in the

17 newsletter for the HIV specialist -- which she's an infectious

18 disease specialist, too, and she treats hepatitis C, but

19 everybody knows all of us. So when we're put on the newsletter

20 to see Dr. Truett, they already know we go for HIV treatment.

21

Okay. Recently they had us -- got us on this

22 newsletter, and they have two other inmates that's in A dorm.

23 We don't even know them. But by them being on the newsletter

24 group with us to see Dr. Truett, I mean, that's exposing status

25 automatically.

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 21 of 38 21

1 Q. Is this a document that you just got?

2 A. I took it out of the daily newsletter.

3

MS. WINTER: We're just learning about this, Your

4 Honor. May I show this to Mr. Lunsford?

5

THE COURT: Yes.

6

(Brief pause in the proceedings)

7

MS. WINTER: Your Honor, may I hand you this document?

8

THE COURT: Yes. I don't understand the point.

9

MS. WINTER: I think the point Ms. Harley is making is

10 this. And it's not anything that we've raised to ADOC, so my

11 feeling is if there is a problem here, there would be a way to

12 address it. This list of inmates and the specialists they see

13 is issued to the entire prison population at Tutwiler, so

14 everybody sees that a certain number of inmates are -- have

15 specialty appointments with Dr. April Truett, who is known to be

16 the HIV specialist. And all of the women who are grouped

17 together as seeing Dr. Truett are -- most of those people are

18 already known to have HIV, but there are now more women coming

19 into the system who aren't stigmatized as having HIV. And

20 Ms. Harley's concern is that having a newsletter like this go

21 out to the entire inmate population, the entire population, not

22 just inmates --

23

THE WITNESS: Because actually, general population

24 inmates brought it to my attention. That's why I looked in the

25 newsletter, and I took it out.

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 22 of 38 22

1

THE COURT: This is not a newsletter, is it?

2

THE WITNESS: It's more than one page. We get a

3 newsletter, inmate newsletter, every day. It's about eight

4 pages.

5

THE COURT: Oh, and it says the daily appointment

6 schedule?

7

THE WITNESS: Yes, sir. That was just the page I tore

8 out.

9

MR. LUNSFORD: Your Honor, can I briefly explain kind

10 of the origination of this document? Because you are actually

11 familiar with where it probably began. This document arose

12 during the course of the Laube settlement. And the notion --

13

Well, first of all, let me clear one thing up. If

14 everyone thinks that Dr. Truett only treats HIV patients, that

15 is just not true. Dr. Truett is board certified in infectious

16 disease. And by virtue of the fact that we have a captive

17 population, infectious disease in our environment can be

18 serious, and is probably one of the most challenging issues we

19 face on a daily basis. MRSA can be a major issue, as well as

20 hep C, hepatitis C. So as Ms. Harley's already testified, there

21 are individuals on that list who do not have HIV.

22

And what is important, and what we understood as a

23 result of Laube, was that there would be occasions when an

24 inmate, for instance, saw -- let's say they went through the

25 sick call process, and they had a cold and received cold

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 23 of 38 23

1 medication. And they also had COPD, and therefore the nurse

2 practitioner or the RN at the time would say, if you're still

3 having symptoms a week from now, you need to see the physician.

4 So I'm going to put you in, and you'll see it in the newsletter

5 to see the physician. Then the newsletter would go out. And if

6 that particular inmate did not want to see the physician or did

7 not have symptoms, they would simply be taken off the list.

8

So the notion was a matter of efficiency more than

9 anything else to communicate to inmates, hey, if you have a

10 meeting with your classification specialist, you need to know

11 that this is an appointment. And there was confusion -- the

12 reason it arose in Laube was because there was confusion over

13 those appointments with the general practitioner or with the

14 OB-GYN that would sometimes come in. And so the decision was

15 made during that point in time that if there's an appointment,

16 we're going to let people know exactly who that appointment is

17 with.

18

So it's not -- A, it's not a disclosure of anyone's HIV

19 status simply because they're seeing Dr. Truett; B, that clearly

20 was not the intent at all. The intent was simply to insure that

21 inmates understood, you have an appointment with this particular

22 individual on this date. So if you have something else

23 scheduled, we need to work around it.

24

For example, I mean, a general practitioner appointment

25 for any one of these inmates is different than, obviously, if

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 24 of 38 24

1 the HIV specialist is here, because she's not here every day.

2 And so those have different importance. And we -- again, this

3 is the most efficient way we know to schedule those appointments

4 and to notify inmates that they're being scheduled.

5

MS. WINTER: Well, Your Honor, I -- my apologies to

6 Mr. Lunsford. We did not mean to blindside him with this. We

7 are just -- there literally was not a second to discuss it with

8 him. It just came up. And I'm quite sure that the intention of

9 this is not to disclose anybody's HIV status. There's no

10 question in my mind that is not why we have this list.

11

THE COURT: You can take it back.

12

MS. WINTER: Yes. It seems to me that there --

13

THE COURT: I think that's something that you-all are

14 going to work out. And I recognize that in setting up

15 appointments, you know, sometimes it's just evident that you're

16 going to a doctor for a certain reason.

17

MS. WINTER: It may be or it may not be that there is

18 some other way to do this, but that's something that I'm sure

19 the agency will be able to discuss with us.

20 BY MS. WINTER:

21 Q. Ms. Harley, I told the Court that I wasn't aware that

22 anyone, any class member has yet been assigned to Birmingham

23 work release. Do you know whether that's the case?

24 A. Yes, ma'am.

25 Q. Has someone been assigned there?

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 25 of 38 25

1 A. Somebody is in Birmingham.

2 Q. Pardon?

3 A. Yes, ma'am. One is in Birmingham now.

4 Q. That's good.

5

And one other question. There was a class member filed an

6 objection that she had not been admitted to the work release

7 program, even though she should be eligible for it, and she

8 wanted to know why the old -- she believed the old criteria were

9 being applied to her. Do you know whether that class member was

10 actually admitted to work release in Montgomery Women's Center

11 after she filed that?

12 A. Yes, ma'am. She went last week. She went Tuesday, came

13 back -- well, Monday and came back Thursday.

14 Q. To the best of your knowledge, did she come back of her own

15 free will?

16 A. Her own will.

17 Q. Okay. And was that -- and that was an inmate who had filed

18 an objection?

19 A. Yes.

20 Q. Okay. Is there anything else that you would like to say? I

21 don't have any other questions for you, but is there anything

22 else that you want to tell the Court about the basis for your

23 belief that this is a fair and adequate settlement of the class?

24 A. Because everything that me and the others have been fighting

25 for for years, we're getting it all, basically. And the

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 26 of 38 26

1 transition in the population, integrating the population, is

2 smooth due to mainly the inmates. Because we know each other.

3 We've been knowing each other for years. I know it's different

4 from us and the men. Like Mr. Lunsford said, it's that way, and

5 that's the way it's always going to be. But for the women,

6 we've been waiting for this for a long time. We've talked about

7 it over the years. And just being able to be looked at as an

8 individual and not based on where I live or where I sleep or

9 where I work due to my HIV status, that's a big change. And the

10 change from when I first got here in 2002, it's a change in the

11 correctional staff. Because the comments that I heard in 2002,

12 we still hear comments today, but it's nothing like it was in

13 '02 when we were segregated in the back of the medical unit and

14 everybody had a perception that something has to be wrong

15 because you're segregated. That's what was stuck in their

16 heads. Now it's so much easier with the change in

17 administration, and that's due to Warden Barrett and Deputy

18 Warden Tarrance. They are wardens that you can communicate

19 with. If you have a problem, Warden Barrett can't solve it,

20 then he'll tell you, okay, I'm going to look into it. And you

21 don't have to go on for days or weeks and wait. So with the

22 change in administration, it's making everything a lot easier

23 for the females.

24

We just want to thank you, Judge Thompson.

25

MS. WINTER: We have no further questions.

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 27 of 38 27

1

THE COURT: Do you have any questions, Mr. Lunsford?

2

MR. LUNSFORD: No.

3

THE COURT: How much time do you have left?

4

THE WITNESS: Parole, March 2015.

5

THE COURT: What are you going to do after that?

6

THE WITNESS: When I parole out? Living in -- I'll be

7 living in the Birmingham area. And I hope to start a

8 youth-based organization, youth accidents and prevention for HIV

9 and STD education and go from there.

10

THE COURT: Okay. The reason I was asking is,

11 obviously, I've heard you testify in court, and I've observed

12 you in court throughout the proceedings, and I'll have to say,

13 you're an incredibly impressive person.

14

THE WITNESS: Thank you.

15

THE COURT: And for you not to make something of

16 yourself would be such a waste and a loss to all of us. Thank

17 you.

18

THE WITNESS: Yes, sir. Thank you.

19

MS. WINTER: Your Honor, I believe that one of the

20 other inmates does -- Would you like to testify?

21

THE COURT: Certainly. I would like to hear from her.

22 Yes.

23

UNIDENTIFIED FEMALE

24

The witness, having first been duly sworn to speak the

25 truth, the whole truth and nothing but the truth, testified as

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 28 of 38 28

1 follows:

2

EXAMINATION

3 BY MS. WINTER:

4 Q. Did you file an objection in this case?

5 A. Yes, ma'am. I was telling Dana, I think I've got a

6 misunderstanding. I was just commenting about what my

7 classification officer, Ms. Johnson, said that we still had the

8 same old criteria.

9 Q. But you support the settlement?

10 A. Yes, ma'am.

11 Q. Is there anything -- and did you go to Montgomery last week,

12 Montgomery Women's Facility, to work release?

13 A. Yes, ma'am, I did.

14 Q. And then did you return voluntarily?

15 A. I came back on suicide watch.

16 Q. I see. Is there anything that you wanted to say to the

17 Court about the settlement?

18 A. Yes. I'm one of the ones who been doing time with Dana over

19 the years. And we've had to struggle with officers and, you

20 know, certain wardens and stuff, being harassed and everything,

21 and I support the lawsuit. And I want to thank you.

22

THE COURT: Thank you.

23 A. And Warden Barrett and Warden Tarrance has been great, too.

24

THE COURT: Thank you very much. I appreciate your

25 comments.

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 29 of 38 29

1

MS. WINTER: I'm hearing from a class member who did

2 not file an objection that she would like to be heard in support

3 of the settlement.

4

THE COURT: That's up to you and the counsel. I think

5 we said that if you didn't file an objection, you wouldn't be

6 heard, but it's up to you.

7

(Unidentified female was sworn)

8

UNIDENTIFIED FEMALE: Well, I appreciate everyone for

9 coming. I want to say one thing about HIV status inmates. We

10 were located in the chapel, and it was perfect. And after that,

11 I went to my dorm party and requested an officer to -- and

12 request something for me from the shift office. Instead, he

13 asked me, I hear that you are HIV positive. I'm from Kenya,

14 Africa. He asked me, did you come with it from Africa? I felt

15 so hot, because I was raped five times in Birmingham, and that's

16 how I contracted HIV. I found out on my free will because I had

17 trouble with sinus and allergy, and I went to one medical

18 center. I lived in Birmingham in Homewood. I went to one

19 medical center, and they drew blood after they treated me from

20 sinus and told me they are going to send it to Montgomery. Then

21 after two weeks, they called me and they followed me to UAB 1917

22 Clinic. So that's where I was going for my medical. I went

23 four times. And before I was arrested, they had sent my blood

24 to California for more studies. And I had an appointment, so --

25

MS. WINTER: Your Honor, may I interrupt the witness

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 30 of 38 30

1 for a moment?

2

I don't like to cut you off, but a special exception is

3 being made for you to testify because you didn't file an

4 objection. So my understanding was you wanted to speak briefly

5 in favor of the settlement. Would you like to do that?

6

UNIDENTIFIED FEMALE: Yes. I'm saying after that,

7 there's another officer who called me, not last Friday but

8 before, and he asked me, I hear there's an officer who is

9 minding about your business. Who is he? And I wrote to Warden

10 Barrett, and he replied back. He asked me who he was, and he

11 said he's trying his best to educate them. And I feel this is

12 very, very -- it's very respectable.

13

And then in my dorm, girls started picking me. Because

14 I went to take a shower, and I was on my cycle, all the shower,

15 and some blood flew to the drainage. And I tried myself to

16 clean it, and they called me back and I was made to clean all

17 the walls, everything, all the shower, for one and a half hour.

18

On Saturday one of the girls found me in the shower.

19 She came, threw water all -- and threw water to me when I was

20 already dressing. So I would like that to be considered.

21

MS. WINTER: You want that to be considered in support

22 of the settlement?

23

UNIDENTIFIED FEMALE: Yes.

24

MS. WINTER: Okay. Thank you.

25

UNIDENTIFIED FEMALE: Thank you.

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 31 of 38 31

1

MS. WINTER: We have no further witnesses.

2

MR. LUNSFORD: Your Honor, we would like to briefly

3 call -- you said you had someone else back there?

4

UNIDENTIFIED FEMALE: I had written just a letter to

5 you. Just if you could read my letter.

6

THE COURT: Do you want me -- you mean the objection?

7 The letter you wrote on the paper?

8

MS. WINTER: This class member did not file an

9 objection. So I believe that the issue that you raise doesn't

10 relate to the settlement. And that's what the judge is here

11 today --

12

THE COURT: That's right. I'm only here on this

13 matter.

14

THE WITNESS: On this matter?

15

THE COURT: Yes. That's it.

16

THE WITNESS: On this matter is -- it relates to me,

17 because I was given -- I was given the papers for it. As far as

18 what I've experienced was just police brutality that has gone

19 on. And I'm still sitting there without knowing when I could

20 parole out or when I could EOS --

21

THE COURT: I wouldn't have any control over that.

22 Thank you.

23

MS. WINTER: So we have no other witnesses, Your Honor.

24

MR. LUNSFORD: Your Honor, we would like to briefly

25 call Warden Barrett to address the notice issue.

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 32 of 38 32

1

WARDEN BARRETT

2

The witness, having first been duly sworn to speak the

3 truth, the whole truth and nothing but the truth, testified as

4 follows:

5

DIRECT EXAMINATION

6 BY MR. LUNSFORD:

7 Q. Warden Barrett, would you please introduce yourself to the

8 Court.

9 A. Bobby Barrett. I'm Warden 3 at Tutwiler.

10 Q. And warden, how long have you been the warden at Tutwiler

11 prison for women?

12 A. Ten months.

13 Q. And at some point during the last ten months, Warden

14 Barrett, were you asked to assist in the process of providing

15 the class members in this case with documents pertaining to the

16 settlement?

17 A. I was.

18 Q. Okay.

19

MR. LUNSFORD: Margaret, let me ask also for the

20 record. I brought two copies of the signed documents. One is

21 redacted and one is not. Because the redacted version is really

22 useless -- it's hard to redact this and keep enough information

23 to make it --

24

THE COURT: Do you want to file it under seal?

25

MR. LUNSFORD: Yes, sir.

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 33 of 38 33

1

THE COURT: Mark it, and it's filed under seal.

2

MR. LUNSFORD: I'm going to mark this as Defendant's

3 Exhibit 1.

4

THE COURT: Very good.

5

MR. LUNSFORD: May I approach?

6

THE COURT: Yes.

7 Q. Warden Barrett, do you recognize what I've handed you that's

8 marked as Defendant's Exhibit 1?

9 A. I do.

10 Q. And what is that document?

11 A. That's the signature sheet that I -- the inmates

12 acknowledged that I handed them the packet, and I witnessed it

13 and dated it.

14 Q. Who provided you with these sheets, if you recall?

15 A. The actual form?

16 Q. Yes, sir.

17 A. ADOC legal.

18 Q. And so you went around to each of the inmates whose

19 signatures appear in Defendant's Exhibit 1 and handed them a

20 copy of a packet; is that correct?

21 A. Marshalled them up in the dining hall and called them

22 individually one by one and handed them the packet.

23 Q. And at the time that they received the packet, did you have

24 them sign what's been marked as Defendant's Exhibit 1?

25 A. I did.

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 34 of 38 34

1 Q. And did you also witness that signature?

2 A. I did.

3 Q. Warden Barrett, during the course of that, did you have any

4 inmate refuse to accept the notification that had been prepared

5 by plaintiff's counsel?

6 A. No, sir.

7 Q. Did you have any problems of any kind in distributing what's

8 been marked -- well, in distributing the packets?

9 A. Not distributing the packets.

10

MR. LUNSFORD: Your Honor, we would offer Defendant's

11 Exhibit 1.

12

THE COURT: I think I've already admitted it.

13

MR. LUNSFORD: Any objection? I just want to make

14 sure --

15

MS. WINTER: That's fine.

16

MR. LUNSFORD: Your Honor, at this time we would also

17 offer -- well, let me back up.

18 Q. Warden Barrett, at any point in time did you actually see

19 the contents of the documents or the contents of the envelope

20 that you handed to the class members?

21 A. No, sir.

22

MR. LUNSFORD: Your Honor, just for the record,

23 plaintiff's counsel and defense counsel worked together to

24 obtain copies of a notice packet that I think is going to be

25 admitted by stipulation. May I approach?

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 35 of 38 35

1

THE COURT: Yes.

2

MR. LUNSFORD: It's marked as Defendant's Exhibit 2.

3

THE COURT: It's admitted.

4

MR. LUNSFORD: And that is the -- that's the Court --

5 that's the notice that was agreed upon as far as the

6 settlement. It includes, just for the record, a written notice

7 that was drafted by -- or with agreement of counsel, as well as

8 the primary settlement agreement dated July 30, 2013, and the

9 private settlement, as well as all exhibits thereto.

10

THE COURT: Okay.

11

MR. LUNSFORD: That's all we have at this time.

12

THE COURT: Let me just ask you this. And I don't know

13 if the warden can answer the question or not. What is your

14 turnover here with regard to guards? Is it pretty frequent?

15

THE WITNESS: When I first got here, we had several

16 that retired. As far as turnover, we are just trying to catch

17 up with where we need to be.

18

THE COURT: I know there's always a shortage.

19

THE WITNESS: Yes, sir.

20

THE COURT: I'm very aware of that.

21

THE WITNESS: Yes, sir.

22

THE COURT: As far as training goes, what are the plans

23 for making sure that the people who arrive after this initial

24 round of training are trained as well?

25

THE WITNESS: We give them -- we're going to make sure

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 36 of 38 36

1 that in orientation it's discussed and acknowledged by them and

2 about the zero tolerance for any discrimination or harassment

3 based on medical status.

4

THE COURT: Anything else?

5

MR. LUNSFORD: Your Honor, just to add to that

6 comment. Warden Barrett wouldn't be involved in this, but

7 there's a training component at the academy where officers

8 receive training on all kinds of issues, including HIV. We

9 have -- we videotaped the UAB training session so that if we had

10 officers -- for example, we still have a good number of officers

11 that are still serving overseas. And so when they come back,

12 they can receive -- they can watch the DVD, and it's essentially

13 the same training that everyone else will have received. But

14 there's an ongoing process of evaluating what's going on at the

15 academy to insure that all of the staff, not just the staff,

16 obviously, at Tutwiler, but across the state, will receive the

17 HIV specific component of training.

18

THE COURT: Anything else, counsel?

19

MS. WINTER: No. I would only like to add that from

20 everything we've seen about the integration process at Tutwiler,

21 it speaks to the good faith of the Department of Corrections and

22 Commissioner Thomas in everything getting done when it should be

23 done and even ahead of schedule and done very, very well; very

24 professionally. And I think you can hear from the testimony of

25 Ms. Harley and Ms. Graham that they are well pleased with how

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 37 of 38 37

1 things are going.

2

THE COURT: I can't remember. I was here in the Laube

3 case how many years ago?

4

MR. LUNSFORD: I went back to your opinion on the

5 fairness hearing, and I believe it was dated 2004.

6

THE COURT: 2004?

7

MR. LUNSFORD: And Judge Coody --

8

THE COURT: I was thinking about when I made a visit up

9 here.

10

MR. LUNSFORD: It was 2004.

11

THE COURT: It was 2004.

12

MR. LUNSFORD: It was the same year -- in fact, I think

13 within one year, you had the distinct honor of approving both

14 the Gaddis and the Laube settlements.

15

THE COURT: Right. I just remembered coming here. I

16 was going to mention this to the warden. And this was not a

17 part of the Laube issue; but at one point during the visit, an

18 inmate who was HIV positive had to come down the hall, and the

19 hall had to be cleared. I don't know if you remember that or

20 not. The entire hall was cleared. It's been a dramatic change

21 since then.

22

WARDEN BARRETT: Yes, sir.

23

THE COURT: And you're due a lot of credit. Thank you.

24

MS. WINTER: Plaintiffs have nothing else.

25

THE COURT: Anything else?

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

Case 2:11-cv-00224-MHT-WC Document 312 Filed 12/02/14 Page 38 of 38 38

1

MR. LUNSFORD: Nothing further, Your Honor.

2

THE COURT: All right. And I want to thank the

3 commissioner, too. I'm very much aware of the good faith you've

4 put into this.

5

COMMISSIONER KIM THOMAS: Thank you.

6

THE COURT: And it's clear that you have sincerely

7 tried to do what the law required, and I really do thank you for

8 it. Thank you. Anything else?

9

MS. WINTER: Nothing, Your Honor.

10

THE COURT: Thank you. Court's in recess.

11

(Proceedings concluded at 10:42 a.m.)

12

* * * * * * * * * * * * *

13

COURT REPORTER'S CERTIFICATE

14

I certify that the foregoing is a correct transcript

15 from the record of the proceedings in the above-entitled matter.

16

This 2nd day of December, 2014.

17

18

/s/ Patricia G. Starkie

Official Court Reporter

19

20

21

22

23

24

25

PATRICIA G. STARKIE, OFFICIAL COURT REPORTER U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, AL 36104 334.262.1221

 
 Case 2:11-cv-00224-MHT-WC Document 313 Filed 12/12/14 Page 1 of 114 1

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE MIDDLE DISTRICT OF ALABAMA

3

NORTHERN DIVISION

4

5 LOUIS HENDERSON, et al.,

6

Plaintiffs,

7

vs.

CASE NO.: 2:11cv224-MHT

8 KIM TOBIAS THOMAS, et al.,

9

Defendants.

10

11

* * * * * * * * * * *

12

EVIDENTIARY HEARING

13

* * * * * * * * * * *

14

BEFORE THE HONORABLE MYRON H. THOMPSON, UNITED STATES

15 DISTRICT JUDGE, at Limestone Correctional Facility, Harvest,

16 Alabama, on Thursday, September 26, 2013, commencing at 11:03

17 a.m.

18 APPEARANCES:

19 FOR THE PLAINTIFFS: 20 21 22 23 24 25

Ms. Margaret Winter, Associate Director Mr. Carl Takei, Staff Attorney AMERICAN CIVIL LIBERTIES UNION NATIONAL PRISON PROJECT 915 15th Street NW, Seventh Floor Washington, DC 20005
Ms. Amanda C. Goad Staff Attorney AMERICAN CIVIL LIBERTIES UNION AIDS PROJECT 125 Broad Street, 18th Floor New York, New York 10004

Risa L. Entrekin, RDR, CRR, Official Court Reporter U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, Alabama 36104 * 334.240.2405

Case 2:11-cv-00224-MHT-WC Document 313 Filed 12/12/14 Page 2 of 114 2

1 FOR THE DEFENDANTS: 2 3 4 5 6 7

Mr. William Richard Lunsford Mr. David Berman Block Attorneys at Law MAYNARD COOPER & GALE PC 655 Gallatin Street Huntsville, Alabama 35801
Ms. Anne Adams Hill General Counsel STATE OF ALABAMA DEPARTMENT OF CORRECTIONS 301 South Ripley Street Montgomery, Alabama 36130

8

Proceedings reported stenographically;

transcript produced by computer.

9

* * * * * * * * * * *

10

INDEX

11

OPENING STATEMENT

12

MS. WINTER

4

MR. LUNSFORD

17

13

STATEMENTS TO THE COURT

14

DP

32

JT

46

15

MH

52

RT

61

16

JY

82

17 JB#1

DIRECT BY MS. WINTER

101

18

GUY NOE

19

DIRECT BY MR. LUNSFORD

109

20

* * * * * * * * * * *

21

22

23

24

25

Risa L. Entrekin, RDR, CRR, Official Court Reporter U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, Alabama 36104 * 334.240.2405

Case 2:11-cv-00224-MHT-WC Document 313 Filed 12/12/14 Page 3 of 114 3

1

(The following proceedings were heard before the Honorable

2

Myron H. Thompson, United States District Judge, at

3

Limestone Correctional Facility, Harvest, Alabama, on

4

Thursday, September 26, 2013, commencing at 11:03 a.m.:)

5

(Call to Order of the Court)

6

(The names of class members have been substituted with their

7

initials pursuant to oral order of the Court. When two

8

class members share the same initials, they are further

9

differentiated by a number following the initial.)

10

THE COURT: The Court calls the case of Henderson

11 versus Thomas, Civil Action Number 11-224.

12

Who do we have representing the plaintiffs?

13

MS. WINTER: Margaret Winter, Carl Takei, and Amanda

14 Goad, Your Honor.

15

THE COURT: And I'm having some difficulty hearing you.

16

MS. WINTER: It's the fan.

17

THE COURT: I think it's that fan.

18

MS. GOAD: Use the mike.

19

MS. WINTER: Margaret Winter, Carl Takei, and Amanda

20 Goad for the plaintiffs.

21

THE COURT: And for the defendants?

22

MR. LUNSFORD: Bill Lunsford, Anne Hill, and David

23 Block.

24

THE COURT: Ms. Winter, how do you suggest we proceed

25 here today?

Risa L. Entrekin, RDR, CRR, Official Court Reporter U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, Alabama 36104 * 334.240.2405

Case 2:11-cv-00224-MHT-WC Document 313 Filed 12/12/14 Page 4 of 114 4

1

MS. WINTER: I would like to give a summary of the

2 objections. And we spent several hours yesterday again with

3 the class members that you see here today, and I think we

4 have -- we'll be able to present more clearly what the

5 objections are.

6

At some point, we have approximately ten of -- no more

7 than ten of the inmates who are present today who will be

8 testifying. And it would be helpful if we knew before we

9 started giving our presentation who is here from the ADOC,

10 because I believe that it will be helpful -- the inmates will

11 have certain questions that probably the ADOC will be able to

12 address. And so we could -- our hope is that there may be time

13 for a little bit of dialogue in that the inmates who testify may

14 have particular questions that possibly, on the spot, the folks

15 from ADOC may be able to address.

16

THE COURT: Okay. Do you want to make an opening

17 statement now?

18

MS. WINTER: Yes, I would.

19

THE COURT: Okay. Go ahead.

20

MS. WINTER: And we have one request. When we call the

21 inmates, we'd like, in this context, to be able to simply use

22 their names but to ask the court reporter to only use their

23 initials in the official transcript.

24

THE COURT: Very good.

25

MS. WINTER: Your Honor, 21 class members at Limestone

Risa L. Entrekin, RDR, CRR, Official Court Reporter U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, Alabama 36104 * 334.240.2405

Case 2:11-cv-00224-MHT-WC Document 313 Filed 12/12/14 Page 5 of 114 5

1 filed objections to certain features of the settlement. Class

2 members have raised specific questions that they would like to

3 address to the ADOC relating to these concerns. And we believe

4 that the representatives who are here today we think from

5 classification, medical, security, and the administration may be

6 able to respond to these questions. And this may possibly allay

7 the fears and concerns of the class.

8

The class members' objections fall into six broad

9 categories that I'll briefly summarize. And I should say that

10 we believe that all of their objections, apart from the

11 objection regarding money damages, which we don't believe is

12 rational, that all of the other objections are legitimate. And

13 they are all issues that we anticipated and were informed of by

14 the class during the negotiations. And the bottom line is we

15 negotiated very hard, with good faith on both sides, and this is

16 the best that we could do for the class. We could not do -- we

17 could not extract more.

18

And it was our understanding based on the class members

19 who told us how they were feeling that the overwhelmingly

20 important thing for the men at Limestone was that all facilities

21 be integrated, all of them. And it was also extraordinarily

22 important that the arbitrary work release, HIV-specific work

23 release criteria, go away. We were able to achieve that on work

24 release and we were able to achieve full integration, but the

25 cost of that was that this is the agreement. We could not do

Risa L. Entrekin, RDR, CRR, Official Court Reporter U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, Alabama 36104 * 334.240.2405

Case 2:11-cv-00224-MHT-WC Document 313 Filed 12/12/14 Page 6 of 114 6

1 better. We could not do better in the negotiations.

2 Nevertheless, that doesn't mean -- and we very much support this

3 agreement, because we think that the bottom line is that it's

4 excellent, an excellent outcome for the class. But

5 nevertheless, the objections that you'll hear today are very,

6 very legitimate and well-founded.

7

So here are the six broad categories that the

8 complaints fall into. First, the class members state: The

9 commissioner has issued directives to staff and inmates

10 committing to a policy of zero tolerance for abuse and violence.

11 But class members question how the ADOC is going to demonstrate

12 the commissioner's commitment to zero tolerance. How is that

13 going to play out in real life? How will senior staff and the

14 warden react if significant problems do occur at some other

15 facility? The class members understand very well that there is

16 provision in the settlement agreement for a training session for

17 inmates and for staff, but they point out that a single

18 classroom session can only do so much to overcome years of

19 intrenched HIV prejudice. And these class members strongly

20 believe that a great deal of active hard work and commitment on

21 the ADOC's part will be required, more than those one-time

22 education sessions provided for in the settlement, to overcome

23 intrenched prejudices.

24

Class members question why there's no specific

25 mechanism for getting help from the ADOC administration if

Risa L. Entrekin, RDR, CRR, Official Court Reporter U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, Alabama 36104 * 334.240.2405

Case 2:11-cv-00224-MHT-WC Document 313 Filed 12/12/14 Page 7 of 114 7

1 significant problems occur. And we hope that the ADOC will be

2 able to respond to some of the class members' testimony on this

3 point and their response might be able to provide some assurance

4 and clarification.

5

The second main area of concern has to do with the

6 class members' belief that there is an insufficiently robust

7 plan to ensure medication continuity when class members arrive

8 at new facilities. They cite the lack of a specific provision

9 to get immediate help if there's a lapse in medication. There's

10 one provision in the agreement that addresses this concern, and

11 that provision is that class counsel can communicate directly by

12 e-mail to Anne Hill, the ADOC's counsel. But class members

13 say -- tell us they think this is inadequate because it could

14 take days for their letter to reach us and then for us, in turn,

15 to e-mail Ms. Hill. And a lapse of even a couple days, let

16 alone three, four days, is too much.

17

The third major area of concern: Class members at

18 Limestone are going to be segregated for approximately another

19 year. The integration at Limestone -- the integration of the

20 class members at Limestone is not going to occur until -- it

21 will start in June 2014 and be completed November 2014. Class

22 members object to what they see as a completely unnecessary

23 delay in integrating Limestone and that this delay is resulting

24 in ongoing and very significant ongoing injury. The class

25 members say: We understand why it would take many months to get

Risa L. Entrekin, RDR, CRR, Official Court Reporter U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, Alabama 36104 * 334.240.2405

Case 2:11-cv-00224-MHT-WC Document 313 Filed 12/12/14 Page 8 of 114 8

1 the facilities throughout the system trained up and ready, but

2 why Limestone? Everybody at Limestone is ready now, as soon as

3 you give us -- you provide to staff and inmates the training

4 sessions that you've already done at Tutwiler. Why should it

5 take a year or 14 months to do that training? Why doesn't the

6 ADOC carry out the educational training for staff and inmates at

7 Limestone now and then gradually, over the months, proceed to

8 integrate Limestone just as Tutwiler is already integrated?

9 That shouldn't take a year, they say.

10

The -- you'll hear -- these men at Limestone see

11 themselves correctly as the members of the class who are most

12 injured. You will hear testimony that they still have to wear

13 armbands that identify them plainly to everyone in the camp as

14 having HIV. And this situation is somewhat in tension with

15 paragraph II.I of the settlement agreement which provides that

16 the ADOC may use armbands to identify housing unit assignments,

17 quote, so long as the use of armbands does not result in a

18 direct or indirect means of disclosure of the inmate's

19 HIV-positive status.

20

You'll hear testimony that the inmates are still

21 excluded from chow hall and why that's a real hardship, that

22 they're still excluded from the honors dorm, from the

23 residential substance abuse dorm, from the prerelease dorm. And

24 they will testify that they don't see that these exclusions

25 serve any useful purpose for ADOC at this point. They will

Risa L. Entrekin, RDR, CRR, Official Court Reporter U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, Alabama 36104 * 334.240.2405

Case 2:11-cv-00224-MHT-WC Document 313 Filed 12/12/14 Page 9 of 114 9

1 testify that when a class member was recently returned from

2 Decatur Work Release to Limestone, he went into general

3 population at Limestone. He went -- he was at Decatur; he came

4 back to Limestone; he went into general population. Why

5 shouldn't others who are trustworthy go into general population?

6

Class members are currently being housed in the acute

7 care unit at Limestone along with general population inmates.

8 If that's okay, why can't the ADOC integrate the specialty

9 dorms? SAP is already a structured program. There are norms of

10 behavior there. It's a therapeutic community. There's also

11 norms of behavior in the honors dorm. They say: Why do we have

12 to wait a year to integrate those program dorms? And after

13 doing that, can't the ADOC step up the program just a little

14 bit, just the way that they've -- and they have already

15 anticipated certain deadlines. The inmates understand it's not

16 required by the agreement for them to do this, but couldn't they

17 start now to integrate the specialty dorms and then gradually

18 integrate the rest of the camp without waiting till 2014?

19

The fourth major of area of concern for a few inmates

20 is going to be, in their view, a tremendous hardship to leave

21 Limestone, to be transferred to another prison. Class members

22 believe that after all they have already suffered under the

23 segregation policy, now at least that the policy has been

24 declared illegal, the ADOC should at least commit to honoring

25 their requests to stay at Limestone if they have serious

Risa L. Entrekin, RDR, CRR, Official Court Reporter U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, Alabama 36104 * 334.240.2405

Case 2:11-cv-00224-MHT-WC Document 313 Filed 12/12/14 Page 10 of 114 10

1 concerns about safety or some other compelling reason for not

2 wanting to transfer to another camp.

3

Under the current agreement, ADOC has committed to

4 giving the same consideration to an inmate's request for a

5 particular facility on the same basis as all general population

6 inmates' requests can be considered at certain points in time.

7 That is, under the classification manual provision, they will

8 consider during a reclassification an inmate's request for

9 assignment to, quote, an institution that is closer to home or

10 for program participation. That's paragraph II.7 of the

11 settlement agreement. But their question is, shouldn't they

12 have a little special -- aren't they -- shouldn't a little

13 special effort be made to accommodate the few class members who,

14 for good reason, really are terribly worried about moving to

15 another prison? And a few inmates will testify briefly on this

16 point.

17

The fifth area of concern: How will the transfers from

18 Limestone to the new facilities take place? And the agreement

19 doesn't specify. It just says that the reassignment of class

20 members at Limestone will occur between June 1st and November

21 1st, 2014. That's paragraph II.F of the settlement agreement.

22

During the settlement agreement -- during the

23 settlement negotiations that went on for quite a while, the ADOC

24 earlier explained to us that the plan was -- the intention

25 was --

Risa L. Entrekin, RDR, CRR, Official Court Reporter U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, Alabama 36104 * 334.240.2405

Case 2:11-cv-00224-MHT-WC Document 313 Filed 12/12/14 Page 11 of 114 11

1

MR. LUNSFORD: Judge, excuse me. I --

2

MS. WINTER: Yes.

3

MR. LUNSFORD: This is an issue that I was going to

4 raise later; but before she goes into this issue, I don't want

5 to waive any objection we have. This was a mediation process.

6

THE COURT: Right.

7

MR. LUNSFORD: And we object to the disclosure of any

8 comments that were made in the course of the mediation that were

9 not ultimately reduced to writing in the settlement agreement.

10

THE COURT: Well, I'm not following you. Is Ms. Winter

11 disclosing something?

12

MR. LUNSFORD: Well, I'm anticipating that what's going

13 to happen here is this relates back to certain objections that

14 were made about statements that were -- discussions that were

15 had during mediation about possible scenarios as it relates to

16 how certain provisions of the settlement agreement would be

17 carried out if an agreement was reached. And those, obviously,

18 were not reduced to writing and were not included in the actual

19 final settlement agreement that's before the Court for approval

20 today.

21

THE COURT: I don't see Ms. Winter as relating what was

22 said during the settlement agreement. I thought she was just

23 posing questions as to what would be done prospectively now.

24

MR. LUNSFORD: She said during the course -- and we can

25 go back and look at what the transcript said, but what I believe

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1 she said was that during the course of mediation, ADOC counsel

2 indicated, and then was about to go into that. And that's why I

3 waited until when I did to object.

4

THE COURT: Ms. Winter?

5

MR. LUNSFORD: I'm not trying to make this difficult,

6 and I understand Ms. Winter is not attempting to violate

7 anything about mediation confidentiality. But I do want to

8 preserve the objection.

9

THE COURT: Right.

10

MS. WINTER: I think this is putting form over

11 substance. The reality is that during the course of these

12 prolonged negotiations, we kept the class informed of the -- of

13 those who were involved, we kept them informed of the

14 negotiations. And once we got an agreement, we kept them

15 informed -- they had questions, and we asked ADOC what does the

16 agreement mean.

17

As Your Honor knows from reading the objections,

18 there's many people -- many class members have posed objections

19 because they are concerned that they will transfer through

20 Kilby. And we want to -- they want to speak on that, and we

21 want to speak on that on their behalf. It doesn't so much

22 matter what was said in the settlement agreements. What matters

23 is what's actually being contemplated.

24

THE COURT: Right. Well, that's what I understood. So

25 go ahead.

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1

MS. WINTER: And so our understanding or our

2 understanding was at a certain point that what was contemplated

3 was that every class member at Limestone would transfer through

4 Kilby before arriving at their final destination. They would

5 spend a period of months, some period of months between June 1st

6 and November 1st, 2014, in a general population dorm at Kilby

7 and from thence be -- during that time frame, they would be

8 dispersed to their final destination, wherever the ADOC had

9 decided to assign them. The class members are terribly,

10 terribly concerned -- that is one of the provisions -- it's not

11 in the settlement agreement, but they're terribly worried that

12 that will happen for reasons that they want to testify about.

13

Now, ADOC's counsel has been extraordinarily

14 cooperative following the signing of the agreement in having

15 ongoing discussions with us about what ADOC contemplates and

16 what's really going to happen. This has been terribly helpful.

17 My current understanding -- and, you know, we want -- we want it

18 to be corrected. If I'm saying anything that's wrong, we hope

19 ADOC will respond correctly on this. But my current

20 understanding from our most recent discussions with Mr. Lunsford

21 and Ms. Hill is that the ADOC makes no guarantees and no

22 promises, but they are going to make every effort not to have

23 any unnecessary transfer through Kilby; that is, where at all

24 practicable, an inmate will go -- a class member will be -- ADOC

25 will decide what their new facility is going to be, and the

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1 transfer will take place from Limestone to the new facility

2 without an interim stay at Kilby. So many class members --

3 there's almost universal sentiment that this is a big, big

4 anxiety, going through Kilby, for reasons you will hear.

5

THE COURT: But you realize and I hope the class

6 realizes that that's not a part of the settlement agreement.

7

MS. WINTER: Yes, we do. We realize it.

8

THE COURT: And I don't want promises to be made --

9

MS. WINTER: No.

10

THE COURT: -- that the class may understand that I can

11 enforce when in fact there's nothing I can do.

12

MS. WINTER: We understand that. And we have explained

13 to the class that this agreement is take it or leave it.

14

THE COURT: Right.

15

MS. WINTER: It's not that you are going to be

16 rewriting the agreement. And I believe everybody understands

17 that.

18

The reason why they, nevertheless, want to raise their

19 concerns and explain their concerns is, in part, because they

20 want to ask ADOC is there some other way. And our belief from

21 how the discussions have been going and the things that the

22 commissioner has been doing have demonstrated their interest in

23 making this go well for everybody.

24

So my belief is, from what I see, that if there is a

25 way to do it, they will do it. But it would be good if there

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1 would be people from ADOC who could speak to this, what the

2 current intention is. But I believe that the class members

3 understand completely that you are not going to be rewriting

4 this agreement, no matter what happens today. It will be -- the

5 Court will approve it or will not approve it, but it's not going

6 to be rewritten.

7

There is one final objection that has been voiced by a

8 small number of class members, and that is that the settlement

9 has no provision for money damages. The settlement speaks in

10 paragraph II.A to the issue of money damages -- or actually, I

11 think that's III.A.

12

We already discussed at some length that at Tutwiler

13 why we, as class counsel, don't believe that this is a rational

14 objection to the settlement. We've explained this at great

15 length to the class, really have spent, I think we could fairly

16 say, hours discussing this with the class over a period of --

17 several meetings and letters. And what we've explained is the

18 settlement does not affect whatever rights they might have had

19 in the past, present, or future as individuals to bring damage

20 claims under the ADA. One class member was going to testify

21 very briefly on this point, but I believe he opted not to

22 testify after the discussion yesterday. So I think there will

23 be no inmate who chooses to testify on the question of damages.

24

Finally, just to make one quick point for the record,

25 after we signed the settlement agreement, when the class members

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1 were pressing us for details on how the integration would be

2 carried out, we asked -- when we were asking the ADOC for

3 further clarification, we misunderstood ADOC's counsel's

4 explanation. What we thought they were saying and what we

5 communicated to the class was that when the ADOC was

6 transferring all the Limestone inmates to Kilby, they would be

7 treated at Kilby as new admissions. And that has caused more

8 anxiety than anything else. But since then, Mr. Lunsford has

9 assured us that this was a misunderstanding on our part.

10 Current class members will not be treated as newly entering the

11 system. The very same classification procedures that are

12 applicable to all other inmates will apply to the Limestone

13 inmates.

14

And one other very small point. The Court raised with

15 us before we got started whether we were going to address

16 telemedicine, the concern about telemedicine. Actually, I was

17 reminded that the discussion that came up yesterday with class

18 members was won't people know, simply from the fact that we have

19 a telemedicine appointment, that we have HIV, to which we

20 responded, no. We were virtually positive that the ADOC intends

21 to use their telemedicine system very widely. Whenever they

22 need a specialty consult at a distance, that telemedicine is

23 what they will use. And Mr. Lunsford confirmed that this

24 morning. And so that should not be a concern.

25

The -- Mr. -- class representative JB#1 is -- will

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1 testify at the end of our witnesses about his -- about being

2 class representative and the class receiving notice of the

3 settlement.

4

THE COURT: Do you have anything else, Mr. Lunsford?

5

MR. LUNSFORD: Thank you, Your Honor.

6

Your Honor, I thought it was important for me to

7 address the Court at this point and provide some context for

8 some of the testimony that you may hear in the coming moments,

9 but I wanted to start with this. The plaintiff class in this

10 case may believe that the biggest strategic advantage they had

11 coming into this case was changes in science, the successful

12 treatment of HIV within the department, or changes in the law.

13 But that's simply not the case. The fact is that the one thing

14 that was working to the advantage of the class before this case

15 even appeared before you for trial was the fact that the current

16 Department of Corrections commissioner has been part of this

17 ongoing litigation for more than 30 years. And before we

18 darkened your doors on the first motion to dismiss, we addressed

19 issues related to class certification, or tried this case, the

20 commissioner was clear in his intention to us. And that was he

21 wanted this litigation over.

22

The settlement in this case was not intended simply to

23 comply with your opinion. It was intended to go far beyond what

24 was required in your opinion. And that's why we have two

25 settlement agreements, one which will be enforced by this Court

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1 and one which is beyond the reach of this Court in terms of its

2 enforcement. The Court was very clear throughout the process on

3 two things. When it reached its decision in December of 2012,

4 the Court clearly stated that it was not the Court's directive

5 to undertake a specific set of tasks to achieve compliance but

6 that compliance was somewhere between housing HIV-positive

7 inmates in multiple facilities, five, six, but definitely not

8 every single facility within the department.

9

The problem with that, though, is that left the

10 department in a very difficult quandary. If we limited HIV

11 inmates to any set of facilities, we were necessarily still

12 making decisions based on HIV status. And the commissioner, in

13 what I believe is in his infinite wisdom, directed us: I want

14 the litigation over, and I want there to be no distinction. And

15 throughout the process, we believe that that was reflected in

16 the mediation and how that it proceeded. We believe it's

17 reflected in the agreement. It was very intentional. It was

18 forward-thinking in my mind, but there are definitely

19 challenges, challenges that will stretch our staff, challenges

20 that will require significant changes, significant changes to

21 the structural makeup of facilities, to the manner in which we

22 provide medical care, and changes that will cost us significant

23 amounts of money.

24

Because of those changes, it was necessary that we have

25 a negotiation. I think the Court is well aware that from the

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1 outset of this case, the department was always, always willing

2 to discuss this issue, always willing to decide and to evaluate

3 better ways to do things. And we think we've done that.

4

As I mentioned to you at Tutwiler, Your Honor, there

5 was a process that we went through in terms of identifying how

6 do we move forward and what are the next steps. And that

7 process of discussion involved all levels of the Department of

8 Corrections. And as a result of those discussions, we reached

9 what we believed was a phased process whereby the department

10 could successfully disband the housing practices as they related

11 to HIV-positive inmates.

12

And as I mentioned to you earlier, that process first

13 involved training, the training of staff, the training of

14 inmates, the training of medical personnel. It also involved

15 structural changes to the way we delivered medicine. It

16 involved the renegotiation of a medical services contract that

17 involves the provision of telemedicine. One of the things

18 that's actually not in the agreement that's part and parcel to

19 telemedicine is -- as you know from the trial testimony, one of

20 the obstacles the department has always faced is the location

21 where facilities are located and getting the necessary

22 components in those locations in terms of electronic data

23 communication in order to serve telecommunication --

24 telemedicine.

25

So as part of this, the ADOC is also implementing a

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1 system-wide electronic medical administration record which will

2 allow medical staff to remotely track medication compliance for

3 not just HIV-positive inmates, but for every inmate within the

4 system. It involved preparation for a pharmacy, which is

5 ongoing and has and will continue to be ongoing through the date

6 of the transfers. It involved the training and preparation of

7 classification personnel to disband a classification system

8 that's been in existence since the 1980s. It also involved the

9 training of staff for preparing for transfers.

10

But I want this to be clear, Your Honor. In going

11 through this process, it was never the intent of the Department

12 of Corrections to create an artificial, one-time classification

13 system. When the process was outlined the first time and the

14 first time I heard a process for redesignating the housing

15 locations for these inmates, it was always intended that these

16 HIV-positive inmates would be plugged in to the existing

17 classification system, not that we would create a one-time

18 system that only applied in this instance. Because to do so

19 would be ineffective, and it would be contrary to the Court's

20 very directive, which was undertake an individualized assessment

21 of each HIV-positive inmate within the confines of your existing

22 system. And that's what we understood, and that's what we

23 intended to do.

24

There has already been reference to some discussion

25 which has been had about a phased movement integrating Limestone

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1 or doing this or doing that. The fact is that the process that

2 has been outlined in the settlement agreement is very

3 intentional. It is not like Mississippi, because we're not

4 Mississippi. Mississippi had five facilities. We have 29. It

5 was simply not viable to do a phased system which would require

6 essentially duplication of effort every three months. It did

7 not move the ball at all. Our goal was always to establish a

8 process whereby after training, after the preparations were made

9 structurally to all the facilities to house HIV inmates there,

10 that we would have a one-time process where this group of

11 inmates was essentially reclassified, redesignated, and then

12 transferred just as if they were arriving for the first time

13 into our system.

14

As the Court said throughout the course of trial, the

15 Court always was clear with the parties that if the Court

16 concluded there was an ADA violation, that it would be up to the

17 department to decide what happened next, that the department

18 would have the first opportunity to present to the Court a plan.

19 And we believe the Court understands that the department is in

20 the best situation to evaluate the most efficient and effective

21 and cost-effective manner in which to do this in a timely

22 fashion. And we believe we've done that.

23

I would like to spend just a brief moment addressing

24 some of the issues that have already been raised. As Ms. Winter

25 pointed out, only ten witnesses are going to appear today for

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1 the class. That's an important number, I believe, simply

2 because we have a class of over 200 inmates. And essentially,

3 we have been through three decades of litigation to get to a

4 resolution today where less than five percent of the class is

5 objecting to what's being said. And many of those are not

6 necessarily objections to the contents of the settlement

7 agreement but to what I believe are misunderstandings.

8

Your Honor, you've been through this before; and you

9 know oftentimes inmates simply don't understand that in this

10 type of injunctive relief class action, there are no claims for

11 money damages. And that's been an issue that's obviously arisen

12 here, just like it's arisen in Gaddis and Laube. And I know

13 you've issued opinions on that very issue. We believe those

14 objections should be cast aside out of hand.

15

The second issue that has been raised today is

16 medication. And I'll simply say this on the issue of medication

17 and transfers. One of the most expensive parts of running a

18 department of corrections is the transfer process, vans running

19 here and there. And as you know, our department is at capacity

20 in terms of its housing. Inmates are being moved on a daily

21 basis because of fights, because of enemies, because of housing

22 needs. The medical staff that exists within the Department of

23 Collections operates under an agreement whereby they are

24 required -- and the agreement is in fact before the Court in the

25 evidentiary record that was presented at the trial. The medical

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1 provider is required to provide medications. They're required

2 to maintain medications for various chronic needs, including

3 HIV, and preparations are being made to ensure that happens.

4 You're going to hear testimony that if an HIV inmate is

5 transferred from this location, they will take with them certain

6 medication. And the medical staff where they are going will be

7 notified that they are on the way, and medication will be

8 available when they get there. This is something the department

9 deals with every day for other chronic conditions, and we're

10 going to deal with it in a similar fashion here.

11

There have been additional objections lodged with

12 respect to confidentiality. And to be candid, Your Honor, some

13 of those objections are hard to -- are hard to understand.

14 Plaintiffs' counsel was clearly concerned throughout the

15 discussion process about confidentiality and how the department

16 would, in and of itself, address issues of confidentiality.

17

The simple fact is this. There's an old saying that

18 there are no secrets in prison. That saying wasn't created

19 simply because it wasn't true; it plays out every day in our

20 department. The question is what is the department going to do

21 about it. Well, it's no different than any other scenario. The

22 Department of Corrections can create rules. It can't guarantee

23 that every individual complies by those rules all the time in

24 every scenario. The department can only guarantee that when

25 there are occasions when those rules are broken and the

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1 department is notified of those violations, that the department

2 takes action. And that's exactly what we have agreed to do

3 here.

4

But what's more important is not necessarily that we've

5 created rules and we've expressed a commitment to follow those

6 rules and intend to do so, we've actually gone beyond creating

7 rules in this case. There have been numerous instances already,

8 prior to today, that were required under the terms of the

9 settlement where the commissioner has directed every person at

10 every level of the Department of Corrections about a

11 zero-tolerance policy. There's no precedent for any

12 communication like that in the past in the Department of

13 Corrections, a zero-tolerance policy with regard to the

14 confidentiality of an inmate's status as an HIV-positive inmate.

15 That's never been done before.

16

So beyond creating rules and ensuring their compliance

17 and encouraging every person at every level of the department to

18 follow those rules, it's difficult for the department to say

19 much more on this issue. As the Court knows from trial, the

20 issues of prejudice and discrimination as they relate to HIV are

21 not simply issues that arise in a correctional context. They

22 are issues that are present in everyday life. They're present

23 throughout every level of our community. Simply because

24 something happens within the four walls of a correctional

25 facility doesn't make it necessarily all that different than

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1 society. But the Department of Corrections can only act if it

2 knows when it occurs. And the department, again, has done all

3 it can do to ensure that every single individual working within

4 this department knows that confidentiality is of the utmost

5 importance.

6

I do want to address one issue that was raised before

7 we started today, and that's telemedicine. The Court may not be

8 aware because it was not discussed during trial, but

9 telemedicine has been implemented already in certain respects

10 within the Department of Corrections. April Truett, who is the

11 HIV specialist on staff, is currently using telemedicine. Many

12 of the inmates who have objected have attended appointments with

13 Dr. Truett via the telemedicine system.

14

The telemedicine receiving unit here at Limestone is

15 established in Dr. Truett's examination room. That room is off

16 the hallway in the main part of the Department of Corrections --

17 or in the health care unit here at Limestone. It's simply a TV

18 hanging on a wall with a camera over the top of it, and the

19 inmate sits in the room along with a member of the nursing

20 staff. Members of the correctional staff and inmates at this

21 facility are not allowed to stand at the door. They're not

22 allowed to observe. It's not a situation where someone is

23 present, or it doesn't occur in an open setting.

24

Obviously, every single prison throughout the system is

25 different. The health care units are different. But the

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1 medical provider who is installing those units understands the

2 issues relative to confidentiality, understands how those must

3 be set up in order to preserve the confidentiality of

4 communications between the HIV specialist and the patient.

5 Additionally, I understand from what Ms. Winter already said

6 telemedicine does present the department with opportunities to

7 provide other care, whether it be orthopedic, psychiatric, or

8 any other type of speciality care that doesn't necessarily

9 require a face-to-face examination.

10

The two remaining issues I want to talk about, one is

11 the timing of the process and the other is the Kilby transfer

12 issue. Both of those are related, and I'd just like to briefly

13 discuss both of those. First of all, the timing of the process

14 is what we negotiated. It's what we specifically agreed on.

15 And the department was very clear in its intent with regard to

16 the schedule. The fact is that in the next eight months, if the

17 agreement is approved, there will be many moving parts to this

18 process. And what the department knows from experience in

19 instituting changes like this is that to the extent you can

20 limit what parts are moving in different periods of time, you

21 can eliminate problems. The goal was always to maintain the

22 population at Limestone for a period of time in order to do

23 other things elsewhere. That means at this time the agreement

24 says that HIV-positive inmates at Limestone are going to remain

25 in dorms B and C.

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1

Now, why is that so important? Well, for one, there is

2 an issue of lateral transfers; and that's discussed in the

3 settlement agreement. The current existing DOC policy is that

4 if I was an inmate in the Department of Corrections system and

5 I'm housed at a facility six months or more and I have a clear

6 disciplinary record for six months, I can then go to my

7 classification specialist without the classification specialist

8 soliciting it from me and request a lateral transfer. I can

9 fill out a sheet and submit that to the classification

10 specialist; and as you know, those aren't always honored. But

11 to the extent that they can be honored, they often are.

12

The goal was not to place the HIV-positive population

13 in a changing environment during the next six months in order to

14 give every inmate every opportunity to be disciplinary free for

15 six months, to stay in their current arrangement for six months

16 so there were no changes. They weren't interacting with any new

17 inmates. They weren't going to face any additional challenges

18 that they didn't face now. For six months, if they're

19 disciplinary free at the end of that, they're going to be able

20 to request a lateral transfer. Can they request a lateral

21 transfer back here to Limestone if they're disciplinary free?

22 Absolutely. Will that be honored? If the bed space allows it,

23 absolutely. That's why we did this.

24

There's a question about the chow hall. As we've said

25 all along, the chow hall simply will not accommodate the number

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1 of inmates that are housed at this facility. There's no way to

2 do that. And the system is set up currently to provide meals to

3 B and C. Well, the question is why don't you change that? Just

4 for a period of time, why don't you send HIV-positive inmates to

5 the chow hall? Because, again, this is built on a

6 misunderstanding.

7

At some point, dorms B and C are going to be empty.

8 And that's the intent. The intent is for us to empty B and C

9 completely. Because if we -- let's just say, for instance, we

10 attempted to move people around. There's not enough space in

11 other areas of the camp right now to move all the dorms -- to

12 clean out B and C completely. In fact, I saw the counts this

13 morning, and there's only I think approximately 40-something

14 beds that are arguably even open. The intent was to repurpose

15 dorms B and C. They're close to the medical unit. They have a

16 situation where inmates who have disabilities or have mobility

17 issues could live and feed in the same location next to a health

18 care unit. There's an RTU there that we can use for other

19 purposes.

20

Has there been a decision as to how we're going to use

21 B and C? Not exactly, but there are numerous opportunities for

22 us there. And the DOC negotiated this agreement and negotiated

23 the schedule to allow us to empty dorms B and C once the

24 HIV-positive population gets out of that dorm and then repurpose

25 the dorm, have the opportunity, which we rarely have, to empty a

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1 dorm and, if necessary, make improvements. That's the plan and

2 that's why we did it.

3

The issue of Kilby has been absolutely butchered in the

4 objections. And it goes back to the old game of tell one person

5 something and then tell them something else; and by the time it

6 gets six people down, it's a different story than when it

7 started. The intent of the Department of Corrections in the

8 transfer process, Your Honor, was always to attempt to give the

9 HIV-positive class members a fresh start, the opportunity to

10 start over. We understood the complaints, and plaintiffs'

11 counsel mentioned them repeatedly during trial about

12 confidentiality and people knowing. And the question was posed

13 at some point prior to mediation, how do you move an existing

14 HIV-positive inmate out of Limestone into the DOC system without

15 someone knowing that they're coming from the special unit at

16 Limestone? How do you do that?

17

And there was a consensus at one point in time that the

18 way you do that is you process inmates through Kilby again, not

19 that you take them through the entire intake process, but you

20 send them through the receiving facility, basically the

21 operating center where every inmate who comes into the system is

22 processed. And then you send them out from there to all the

23 other locations so that an HIV-positive inmate from Limestone,

24 when they got to St. Clair or to Draper or to Staton or to

25 Holman, when they were asked where are you coming from, they

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1 could say, I'm coming from Kilby. That was always the goal. It

2 was never an intent to take away their property or mistreat them

3 or anything like that. It was simply to give them an

4 opportunity to be processed and to be sent out from a central

5 location with other inmates who were being, just like them,

6 reassigned for the first time to a new facility.

7

Now, it appears to me -- and I don't know; this is

8 reading between the lines -- that this is an after-the-fact --

9 maybe we should have had something in the agreement saying that

10 you're not going to send any HIV-positive inmate to Kilby.

11 Well, Your Honor, we couldn't agree to that even if that was

12 proposed. And there are a number of reasons -- there's two

13 important reasons why.

14

Number one, if you're a level IV inmate in our system,

15 Kilby is a level IV facility. And at any point in time, if the

16 DOC needs to, they have to assign inmates on a permanent basis

17 to Kilby. The second reason we couldn't agree not to assign

18 someone to Kilby is because it is a long way from Limestone

19 Correctional Facility to Holman or to Atmore Work Release. It's

20 a very long way. Oftentimes the transfer van is going to stop

21 off at Kilby and leave inmates overnight. They're going to be

22 housed there. And they may stay there for a week or two; they

23 may stay there for a night. It just depends on the transfer

24 process. So Kilby is -- for lack of a better word, it's the

25 nerve center, in some ways, to the transfer process. And to say

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1 that we can't send an HIV-positive inmate through Kilby or house

2 them there on a permanent basis is not workable.

3

Again, I think it's important -- and I say this mostly

4 for the gentlemen in the back so that they understand that where

5 the HIV-positive inmates will go once we start the transfer

6 process, it's almost a perfect situation, Your Honor. We can

7 give them eight months' notice. You're going to be transferred.

8 You have eight months. Be disciplinary free, and you can

9 request a lateral transfer. If you're not disciplinary free,

10 that's your own -- that's your own issue. That's not our issue.

11 If you're not disciplinary free, we're going to treat you just

12 like every other inmate who would be transferred. We're going

13 to house you where there is a need -- where there are open beds.

14 And that's the individualized assessment the Court required us

15 to make under the opinion, and that's what we intend to do.

16

Your Honor, just in closing, I think you brought up the

17 most important point. The reason we're here today is because we

18 have agreed to a lengthy, well-negotiated settlement agreement

19 that has been rewritten -- I couldn't even estimate the number

20 of times we've revised the documents. It was revised on the eve

21 of being signed. But we're asking the Court to approve the

22 express terms of the agreement. The Department of Corrections

23 specifically negotiated this agreement in this manner to allow

24 it the freedom to do certain things that will not only provide

25 benefit for the HIV-positive inmates but also for the department

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1 as a whole going forward, important things that were part of why

2 we could do what we did when we agreed to this.

3

And again, as I began, I'll end with the same thought.

4 This settlement is not simply designed to just comply with your

5 order. It's intended to end this litigation once and for all.

6

THE COURT: Your ten witnesses, why don't you have them

7 stand. The clerk will swear them in.

8

THE CLERK: Everyone raise your right hand, please.

9

(Nine prospective witnesses are sworn)

10

THE COURT: Ms. Winter?

11

MS. WINTER: Thank you. And again, I'm going to be

12 calling the witnesses by name, but we are asking the court

13 reporter to only use initials in the transcript.

14

Plaintiffs call DP.

15

MS. WINTER: Your Honor, Mr. P's objection appeared in

16 docket number 292.

17

DP, the witness, having been duly sworn to speak the

18 truth, the whole truth, and nothing but the truth, testified as

19 follows:

20

STATEMENT TO THE COURT

21

MS. WINTER: Mr. P, could you explain to the Court what

22 the basis is of the objection that you noted about the lack of a

23 pharmacy plan and wanting more specific guarantees in advance

24 that everyone gets their proper medication.

25

THE WITNESS: Yes, ma'am.

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1

Good morning, Your Honor. I had submitted --

2

THE COURT: Can you speak into the mike?

3

THE WITNESS: Yes, sir. I submitted two objections.

4

THE COURT: I don't know. Is it on?

5

MR. LUNSFORD: Why don't we turn the microphone towards

6 you so --

7

THE COURT: Good. That's a good idea.

8

MR. LUNSFORD: If we put it on the other side, then

9 that way he can look at you.

10

THE COURT: Right.

11

(Brief interruption)

12

THE COURT: Okay. Go ahead.

13

THE WITNESS: I submitted two objections, Your Honor.

14

THE COURT: Can you hear him?

15

Why don't you hold the mike. Can you take it out or is

16 it -- very good. Now, talk into it.

17

THE WITNESS: Yes, sir. I submitted two objections,

18 Your Honor. The first one concerned the maintenance of the

19 medicine that would be included in the agreement. On May 22nd,

20 we got the original proposal in which ACLU's counterproposal

21 addressed the fact that there needed to be a pharmacy plan. And

22 when the final agreement came to us, all that I seemed to locate

23 in it was a grievance procedure in case --

24

THE COURT: You said a grievance procedure?

25

THE WITNESS: A grievance procedure in case there was a

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1 problem with the medication.

2

Now, we at Limestone, as a class, are very fortunate.

3 ADOC has provided for us extremely well. Our medication here is

4 not only kept on our person, but ADOC also maintains a supply of

5 all our medications so that in case there is a mix-up with the

6 pharmacy and something doesn't arrive, they can give us

7 medication out of their stock so that our doses are not missed,

8 which is extremely important. Overall, the care that we've

9 gotten here has improved everyone's health, and we'd like for it

10 to remain that way.

11

We, as a class, see that moving from one location to

12 many locations within the state is going to provide more of a

13 burden that possibly all those medications might not be

14 available at all locations in case the pharmacy cannot meet an

15 order on time. So it was discussed at length among several in

16 the group. And as a class, the thing we came up with was simply

17 to look at the procedure carefully. And if, for some reason,

18 the medications can't be available, don't transfer the inmate

19 until those medications can arrive.

20

But there was no plan at all detailed there except for

21 the grievance procedure. And in that procedure, as it was

22 detailed earlier, everything is done through the mails to get in

23 contact with ACLU, which will take several days. Depending upon

24 the time that it happens, it could be as much as a week before a

25 letter is even arrived detailing that some medication has been

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1 missed, at which time ACLU has a procedure to get in contact

2 with ADOC people and let them know.

3

MS. WINTER: Mr. P, did you hear Mr. Lunsford's opening

4 remarks on the subject of medicine?

5

THE WITNESS: I did. And I heard him address that the

6 people who have KOPs would be allowed to take those KOPs with

7 them. However, a lot of inmates are not on KOP medications.

8 And our concern is that with the amount of HIV medications that

9 are available and the different regimens people are on, that it

10 presents a burden that may not be met totally on ADOC's part to

11 have those medications in stock at all times.

12

MS. WINTER: Mr. P, turn -- you had some other points,

13 too, in your objection. You have worked as a runner at

14 Limestone; is that correct?

15

THE WITNESS: Yes, ma'am.

16

MS. WINTER: And you're familiar with transfer

17 paperwork?

18

THE WITNESS: Yes, ma'am, I am.

19

MS. WINTER: And you had a particular concern that you

20 wanted to raise about transfer paperwork?

21

THE WITNESS: Yes, ma'am. I wanted to clarify a point

22 first in there. As far as the class, most of the inmates who

23 have come through in past years, not recently, but four or five

24 years ago through Kilby process, suffered a rather traumatic

25 experience. It seems like some undue things were done to HIV

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1 inmates as a whole by some of the correctional officers there.

2 And I think when Kilby is mentioned, that's why those red flags

3 go up. The staff has undoubtedly changed a lot, but those same

4 attitudes may still be in existence. And so anytime Kilby is

5 mentioned as far as a transfer, people automatically revert back

6 to the treatment they got then. Like I said, we've been treated

7 very well up here at Limestone. We have no problems with that.

8

The transfer process as laid out by Mr. Lunsford seems

9 to still sound, to me personally, like going back through the

10 receiving process at Kilby. And the problem that we had with

11 that is that that's not a normal transfer from DOC. And our

12 thoughts as a class is that any transfer that's done that does

13 not conform to the norm marks us as having HIV coming from

14 Limestone. Transfers from here, as Mr. Lunsford said, they may

15 be going to Holman. They may be going to Bibb, Bullock. They

16 may go through Kilby. People leave here for ATEF are held over

17 at Kilby until bed space is available.

18

I myself have talked to other people about this, and we

19 are wondering why a classification process cannot be completed

20 here. And if we are classed to go to Bullock, transferred to

21 Kilby, on the transfer sheet that's going to Kilby the reason

22 would be listed "Bullock hold," signifying that this inmate is a

23 normal transfer going from here to Bullock being held at Kilby

24 just for transportation reasons.

25

The process, as far as intake, is handled a lot of

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1 times by inmates; and inmates are familiar with what goes on.

2 Inmates up here who work in the receiving process when people

3 come in, they know where they're coming from. They most of the

4 time know why.

5

So our problem with the whole process as it has been

6 detailed to us -- and we don't really know the exact process.

7 We've just been -- it's been alluded to in several documents

8 we've received, so we've been having to put together our own

9 kind of process for how we think it will go from that

10 information. And the main concern of the people in the class is

11 any deviation that's done to a normal transfer, that will show

12 that these guys from Limestone are being done differently than

13 other people shipped from Limestone.

14

MS. WINTER: Did you make the point a moment ago --

15 correct me if I'm misquoting you -- that if a class member is

16 sent to Kilby, the paperwork, in your view, from what you know

17 of how the paperwork usually works, should just say "hold for

18 Bullock" or "hold for Donaldson," whatever the other facility

19 is, that that's the -- that's the norm?

20

THE WITNESS: Yes, ma'am.

21

MS. WINTER: Anything else would --

22

THE WITNESS: That seems to be a common procedure

23 that's done daily.

24

MS. WINTER: You -- did you have an objection to the

25 timing of some integration at Limestone?

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1

THE WITNESS: I -- I did not have an objection, per se,

2 to the timing that was done through Kilby; however, we did want

3 to address also the option of those who wish to remain at

4 Limestone or those who wish to remain at Decatur Work Release to

5 possibly be coordinated through the ADOC system and

6 classifications to allow them the opportunity to do that when

7 transfers take place.

8

MS. WINTER: And you heard Mr. Lunsford's explanation

9 on that process --

10

THE WITNESS: I did.

11

MS. WINTER: -- that everyone will have had an

12 opportunity to express their preference.

13

THE WITNESS: Yes, I did.

14

MS. WINTER: Is there any other point that you want to

15 make before we move on to the next witness?

16

THE WITNESS: No, ma'am.

17

MS. WINTER: Thank you, Mr. P.

18

THE WITNESS: Thank you, Your Honor.

19

THE COURT: Before you leave, did you have some

20 questions? And how do we address these concerns he has raised?

21

MR. LUNSFORD: Which --

22

THE COURT: I mean I -- what do you propose that we

23 do --

24

MR. LUNSFORD: Do you want me to respond to the issues

25 he's raised?

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1

THE COURT: Yes. How do you -- I'm asking both of you.

2 How do you propose that we respond?

3

MS. WINTER: Well --

4

MR. LUNSFORD: Do you want me to go first?

5

THE COURT: There would be several different ways.

6

MS. WINTER: Yes. I think it would be helpful for

7 Mr. -- for the ADOC to respond.

8

MR. LUNSFORD: Well, on the pharmacy plan, I mean I

9 don't want to go too far into detail of what was proposed; but

10 what he said about -- and just so you know --

11

I think, Mr. P, you're on KOP meds? Is that --

12

THE WITNESS: Yes, sir.

13

MR. LUNSFORD: So if an inmate is not on KOP

14 medication, what happens is -- well, regardless, either way,

15 their medical records are copied for a certain period of time,

16 placed in a sealed envelope. Now, if you're not on KOP meds,

17 what happens is whatever medication is left remaining -- and

18 oftentimes that exceeds a 30-day supply -- goes into the medical

19 records folder too. So these are -- and I don't know if you --

20 these are huge blister packs. You may see cold medicine that

21 you punch out one by one. These are much larger than that.

22 They are cards that contain a thirty-day supply on one sheet.

23 And so a lot of times what you see is there will be two cards

24 stuffed in an envelope of medical records.

25

So, for example, when Mr. P -- let's say he goes to

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1 Bullock and he's transferred there. If he wasn't on KOP

2 medications, his medication would be stuck in with his medical

3 records and it would go with him. And when he arrived there,

4 the medical staff would open up his envelope, get out the

5 records, and then take the medication and set up a -- take the

6 existing medication administration record to the pharmacy, and

7 he would be -- he would go to pill call just as if he had been

8 there for 30 days. And then they would note what supply is

9 remaining. And if another order was required, there's a spot on

10 the card, if I remember correctly, where they reorder when you

11 get to a certain number of pills left on the card.

12

Does that make sense, Mr. P?

13

THE WITNESS: Yes, sir, it does.

14

MR. LUNSFORD: So I mean to say we need a pharmacy plan

15 doesn't really -- ignores the fact that we already have one for

16 everyone, which is if you're on chronic medications, your

17 medication, if you're transferred, goes with you.

18

And let's say there's an odd instance when someone --

19 let's say they left the envelope in the van, which I don't

20 know -- I've never heard of that ever happening. But let's say

21 it happened and they're gone and the person goes to pill call.

22 What they can do is they will literally go down the street to

23 the nearest pharmacy. Or if it's Draper or Staton, Elmore,

24 Tutwiler, one of those that's close together, they'll call

25 another facility and say do you have extra medication that we

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1 can take out of your supply. So I mean there are -- those plans

2 exist for other medication, not just HIV, and the same will be

3 done here.

4

On the issue of the Kilby transfer, as we've already

5 said, the intent is to utilize the normal transfer process. And

6 we've told plaintiffs' counsel that over and over again, and

7 this keeps on coming up like we're sending everyone to Kilby.

8 There is nothing in the agreement that requires us or that

9 allows us to transfer everyone through Kilby. That's not --

10 that's not the plan. That's not the plan at all. There was

11 some discussion about whether that was an appropriate process,

12 but that was never a finalized plan. And in fact, we've gone

13 into so much detail on the transfer process that --

14

Mr. P, have you heard of a dummy jacket before?

15

THE WITNESS: Yes, sir, I have.

16

MR. LUNSFORD: Tell the Court, if you would, what's in

17 a dummy jacket.

18

THE WITNESS: I've seen dummy files. I have not

19 examined them, because that's something that DOC keeps

20 theirselves.

21

MR. LUNSFORD: Okay. So --

22

THE WITNESS: It says dummy file on the front.

23

MR. LUNSFORD: Yes, sir. Thank you for that.

24

So what we have is we actually have -- sorry to pick on

25 you, Mr. B#1, but we've got your dummy file. It's already been

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1 done, but -- as you'll see when we talk about it later.

2

But the dummy file doesn't include anything

3 identifiable with respect to HIV. It doesn't indicate that

4 they're coming from the special unit. It just says -- it

5 essentially indicates their history. And to the extent it

6 indicates anything, it says they've been at Limestone. That's

7 it.

8

So again, this Kilby issue keeps on coming up. Inmates

9 are not going to be sent through intake like they're just

10 arriving into the system. And to the extent that inmates are

11 not assigned to Kilby, they're going to be transferred in the

12 normal course to the other facilities. The concept of ever

13 transferring them from Kilby was, again -- the intention was to

14 prevent disclosure and to allow a buffer of housing assignments

15 between where they ultimately are assigned.

16

THE COURT: Two questions. This fear of Kilby, address

17 that.

18

MR. LUNSFORD: I have -- I have always heard through

19 the prison grapevine that Kilby is -- there's a lot of talk that

20 goes on at Kilby and that there's -- and I think, frankly, part

21 of the process is there's less of a community there because

22 inmates are constantly moving in and out. It's just a constant

23 exchange of inmates, and so it's kind of this mass of people

24 moving through one facility. And I don't necessarily understand

25 it. I've seen -- I've been through the intake dorm. I've seen

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1 the intake process. There is a process, when you come in from a

2 county jail, where lots of times county jails will allow you to

3 have a lot more stuff than we will necessarily allow inmates to

4 have. And so inmates' belongings sometimes are pared down and

5 things have to be discarded. And so --

6

THE COURT: I thought, though, that he was talking

7 about some type of particular treatment that he received because

8 of his HIV status at Kilby that he found objectionable.

9

Is that what you were talking about?

10

THE WITNESS: Yes, sir, it was.

11

MR. LUNSFORD: But that -- Your Honor, that's been

12 remedied months ago.

13

THE COURT: Okay.

14

MR. LUNSFORD: I mean we're -- if you're HIV positive

15 and you arrive in our system today, you're not housed in

16 anywhere but the -- you're housed in the intake dorm just like

17 anyone else. And there are -- just so the Court's aware, there

18 are currently HIV-positive inmates today that are being held at

19 Kilby. We are no longer transferring any more inmates to

20 Limestone. We've stopped that process. They're being held in

21 the permanent party dorm or the intake dorm at Kilby.

22

MS. WINTER: Mr. P, did you have any follow-up question

23 that you wanted to ask Mr. Lunsford as a result of his

24 explanations to you?

25

THE WITNESS: No, ma'am, Ms. Winter. I believe he's

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1 clarified everything I had objected to.

2

MS. WINTER: Thank you.

3

THE COURT: I still have -- I didn't get to my second

4 question.

5

I don't quite understand how the confidentiality aspect

6 of the agreements is to work. And let me explain why. I know

7 that, obviously, the department is under an obligation under the

8 agreement to maintain confidentiality; but I would assume that

9 to some degree, it's going to be impossible. I mean just by

10 nature of the fact that if you have a heart problem and you go

11 see a -- well, you have a heart problem and you go see a

12 cardiologist, everyone is going to know that you have a heart

13 problem. Where is the line? It's not as if all this can take

14 place underground. Won't some revelations be made just by the

15 nature of the fact that the people are just seeking certain

16 types of treatment?

17

MS. WINTER: Some confidentiality -- no class member is

18 under any illusion that confidentiality will be absolute, in

19 part because most of them have been in the system long enough

20 that people already know that they're HIV and there's movement

21 within the system. And so somebody may be at Bullock who was at

22 Limestone and who saw them in the special unit. That's part of

23 the reason why I think they are so concerned that they remain in

24 the special unit, because with every passing day and month,

25 there's another person who comes in from Staton or Donaldson or

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1 wherever and sees them and it gets further dispersed. The class

2 members understand there's no absolute guarantee.

3

What I believe the real concern is, is everything being

4 done to mitigate the problem that can be done. Mr. P's point

5 is -- and I think that Mr. Lunsford's explanation was helpful --

6 again, I hope it was to other class members too -- that these

7 issues are being thought of so that the paperwork is not going

8 to -- thought will be given so that the paperwork is the same,

9 that there's no inadvertent disclosure.

10

There is -- sometimes the issue of the people going to

11 see Dr. Truett -- Mr. Lunsford pointed out at Tutwiler that

12 Dr. Truett is an infectious disease specialist. She doesn't see

13 exclusively HIV patients. It's true that people can get a hunch

14 or a suspicion. We can't take care of -- and everybody

15 understands for the people coming in, they're going to be in a

16 good situation. The new people who are already coming into the

17 system are in a much stronger position.

18

These men understand that you can't unring the bell and

19 there will -- their -- the knowledge of their status will be

20 known to some people. They want there to be no -- to know that

21 if there are deliberate disclosures, those disclosures will be

22 punished. They want to know that there will be no careless --

23 to the extent possible, great care will be taken to minimize

24 inadvertent disclosures through not thinking through the

25 process. And it sounds to me and I think to Mr. P from what

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1 Mr. Lunsford was saying that there has been given real thought

2 to this. And it may be that other witnesses will have more

3 follow-up questions to Mr. Lunsford.

4

THE COURT: Thank you.

5

MR. LUNSFORD: Did that answer your question, though?

6

THE COURT: Yes.

7

Do you have anything else, sir?

8

THE WITNESS: No, sir, Your Honor.

9

THE COURT: Thank you very much.

10

MS. WINTER: Plaintiff calls JT. Mr. T#1's objection

11 was filed at docket number 289 and 296.

12

THE COURT: Let him hold the mike as well.

13

JT, the witness, having been duly sworn to speak the

14 truth, the whole truth, and nothing but the truth, testified as

15 follows:

16

STATEMENT TO THE COURT

17

THE WITNESS: Your Honor, my objection is to me and the

18 Kilby situation. I have no problem with --

19

THE COURT: Would you say that again?

20

THE WITNESS: The Kilby situation. I have no problem

21 with the transfer personally. But however, I do have a problem

22 with inmates at the receiving end at Kilby processing other

23 inmates' paperwork. They -- the DOC officials do not do it.

24 They're really just a stand-in. They're not doing nothing.

25

As a matter of fact, from personal experience, when I

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1 went through Kilby in '09, I told the officer I was HIV positive

2 and I needed -- and so they didn't put me right away in

3 segregation. They put me in population. But he -- I was

4 threatened because I wouldn't tell another inmate I was HIV

5 positive. I have no problem disclosing that I'm HIV positive,

6 but I do have a problem with inmates. The only thing -- I

7 really don't think that the problem with the transfer is going

8 to be -- the major problem is not going to be the inmates. It's

9 going to be the DOC officials. I think the inmate problem going

10 to be limited. But when it comes to DOC, I think that's where

11 the major problem is going to come in.

12

THE COURT: What problems do you -- are you talking

13 about?

14

THE WITNESS: I'm talking about the problem that DOC --

15 I know they said that there will be zero tolerance. But I

16 believe DOC will tell other inmates and other people about your

17 HIV status. I believe they're going to cause more problems than

18 other inmates do. That's the first part.

19

MS. WINTER: Just to clarify something you said,

20 Mr. T#1, when you talked about your bad experience at Kilby and

21 you said you were threatened for not disclosing your HIV status

22 to another inmate, who threatened you? Was it an inmate or a

23 staff member?

24

THE WITNESS: It was actually a sergeant.

25

MS. WINTER: And he told you that you had to disclose

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1 your status to --

2

THE WITNESS: Another inmate. See, this inmate will

3 ask you during the paperwork, asking us the questions about our

4 medical status, about our medical problems.

5

MS. WINTER: So it's your testimony that an inmate was

6 processing you in to Kilby?

7

THE WITNESS: That's correct.

8

MS. WINTER: And that inmate who was doing the

9 processing asked you your HIV status?

10

THE WITNESS: Yes. And I -- at that time, I declined

11 to tell him about my HIV status.

12

MS. WINTER: And then a sergeant said something to you

13 about declining to reveal your HIV status to the inmate worker?

14

THE WITNESS: That is correct.

15

MS. WINTER: What did the sergeant say to you?

16

THE WITNESS: Well, the sergeant told me that I -- he

17 instructed me to tell this inmate that I was HIV positive. I

18 had -- prior to that, I had already told another officer and --

19 but he wanted me to tell this particular inmate about my status.

20

MS. WINTER: One second.

21

(Off-the-record discussion)

22

MS. WINTER: I think you testified this happened in

23 2009?

24

THE WITNESS: That is correct.

25

MS. WINTER: Your -- you had asked whether the

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1 paperwork, the transfer paperwork, if and when you go through

2 Kilby, will say -- whether the paperwork will say that you're

3 coming from Limestone. Is that a concern of yours?

4

THE WITNESS: Yes, it is. I believe if the paperwork

5 say we come from Limestone, everyone will automatically assume

6 that we are HIV positive.

7

MS. WINTER: But many people come from Limestone.

8 There's many more general population inmates. Did

9 Mr. Lunsford's explanation make you feel any more secure about

10 this situation?

11

THE WITNESS: It made -- somewhat, it did. I

12 believe -- I believe -- in my opinion, I don't think there's a

13 way to avoid it; but however, there is a way to limit the

14 situation.

15

MS. WINTER: And is there anything else that you can

16 think of other than --

17

THE WITNESS: The other problem is, again, about the

18 KOP. I was wondering, the ones that's on KOP now, once they are

19 transferred, will they be able to continue KOP or will they be

20 forced to give it up?

21

MS. WINTER: No. I think Mr. Lunsford --

22

THE WITNESS: Yeah.

23

MS. WINTER: -- has already explained --

24

THE WITNESS: Yeah.

25

MS. WINTER: -- that they can stay on KOP.

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1

You have raised issues about zero tolerance, because

2 you expressed concerns about officers' treatment of some

3 prisoners or a certain officer's treatment of prisoners

4 regarding food carts. Would you tell the Court about that?

5

THE WITNESS: Yes. One particular guard -- I work on

6 the chow line. And during breakfast on -- I believe it's -- on

7 one of the morning shifts, I go get the chow cart. We have an

8 officer, Officer Green. He treat us like he don't want to be

9 around us. About two hours prior to chow time, he will push the

10 carts outside the gates. Where we normally go inside the

11 kitchen area and pick them up, he'll push them out. And the

12 food be cold when we get to the dorm. It's only at breakfast.

13 It's the only officer we have a problem with.

14

MS. WINTER: And do you have reason to believe that

15 it's on the basis of your HIV status?

16

THE WITNESS: Yes. He has stated to several inmates

17 that he didn't want to deal with us.

18

MS. WINTER: Do you feel that you have some mechanism

19 whereby you can complain to the ADOC administration about this

20 officer and say that this behavior shouldn't be tolerated?

21

THE WITNESS: I don't believe nothing will come behind

22 it. At one point, there was a complaint. They removed him from

23 that particular job for about a week. They put him in the unit

24 where we actually lived in. But they put him right back.

25

MS. WINTER: How long ago was it that someone

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1 complained?

2

THE WITNESS: I'd say about two months.

3

MS. WINTER: So in July of this year?

4

THE WITNESS: Yes.

5

MS. WINTER: And finally, you have an issue or a

6 problem with the timing of the -- or with the settlement

7 agreement because of the timing of the integration at Limestone,

8 inside Limestone; is that correct?

9

THE WITNESS: That's correct. I believe -- I believe

10 that most every inmate at Limestone wants to be integrated, want

11 to start it here. I believe the population -- even the

12 population inmates, they have no problem with integration. I

13 believe that we should start here and go from there.

14

MS. WINTER: What about the armband? Do you have any

15 problems with wearing an armband?

16

THE WITNESS: Yeah. No matter what, we had white, now

17 we got red and purple. Either way, it's identifying us as HIV

18 positive. We had an officer just recently, he came up to an

19 inmate that -- he was with another staff member -- and said --

20 asked that inmate what's he doing with this particular inmate;

21 don't you see he's HIV positive. And so wherever we go, the

22 armband is still going to disclose our HIV status.

23

MS. WINTER: Did you have any other points you wanted

24 to make, Mr. T#1, or any other questions you wanted to ask

25 Mr. Lunsford?

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1

THE WITNESS: No.

2

MS. WINTER: Thank you.

3

THE COURT: Do you wish to respond?

4

Thank you very much.

5

MS. WINTER: Plaintiffs call DR.

6

(No response)

7

MS. WINTER: Is MH here?

8

Mr. H's comment is filed at docket number 297.

9

MH, the witness, having been duly sworn to speak the

10 truth, the whole truth, and nothing but the truth, testified as

11 follows:

12

STATEMENT TO THE COURT

13

THE WITNESS: My name is MH. And my concern is about

14 the overall training of all the facilities as far as the

15 officers and the general population. How does ADOC go about and

16 keep it to where people will understand -- getting the right

17 training out to all the general population mainly of the state

18 to where they would have the right understanding for the safety

19 of all the peoples that has the virus over the state over the

20 time period that they have as they implement the transfers and

21 all that stuff? I just want to get that out, because I don't

22 understand how they're going to continue to do that with the

23 turnover, with people moving back and forth a lot, and what kind

24 of training are they going to give. I know they say it's going

25 to be -- the training is coming through UAB 1917 Clinic. But

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1 you got thousands and thousands of inmates in the state of

2 Alabama. So how is that training going to be presented over the

3 state and over the time period that they have?

4

MS. WINTER: Would you like to respond?

5

MR. LUNSFORD: Well, if you'd like me to.

6

Good morning, Mr. H. We've not met. I'm Bill

7 Lunsford, and I represent the Department of Corrections. But if

8 I understand your question right, your question is how much

9 training are we going to be providing to inmates.

10

THE WITNESS: Right.

11

MR. LUNSFORD: And then as the population changes over

12 time, how are we going to continue that process.

13

THE WITNESS: Right.

14

MR. LUNSFORD: Is that a fair statement?

15

THE WITNESS: That's part of it. Right.

16

MR. LUNSFORD: Okay. Let me start there; and then if I

17 don't get to any of it, you tell me. Okay?

18

THE WITNESS: Okay.

19

MR. LUNSFORD: The first part is this. And you haven't

20 received the training yet, have you?

21

THE WITNESS: No.

22

MR. LUNSFORD: Just so you know, one of the class

23 members -- and I'm sure the Court will remember this, that one

24 of the class members from Tutwiler, Ms. H, testified that she

25 had been through the training and that she said the training was

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1 excellent. I think that's the exact word she used.

2

The training is being offered by members of the health

3 services team that basically organize medical services that

4 you've been receiving since you arrived in the system. And what

5 is happening is at every single facility in the state, this team

6 is going to go around and they're going to provide -- they're

7 going to have different sessions where every inmate is required

8 to attend. And they're going to give what is probably about an

9 hour-and-ten-minute-long training session.

10

Now, there's different parts to that training session.

11 When you get the training, you're going to be in a room with a

12 projector and a big movie screen, and they're going to shoot

13 slides up on a screen that are going to go through all the facts

14 that relate to HIV. But also -- because we didn't think it --

15 we thought it was important to not only talk about HIV, but some

16 of the other sexually transmitted diseases, like hepatitis C.

17 And then at the end of that, they're going to issue a

18 questionnaire to the inmates to see how well they're doing in

19 picking up the information that's given during the course of the

20 training. And then after that's done, they're going to ask for

21 questions, and the inmates have an opportunity to ask questions

22 about HIV or other sexually transmitted diseases.

23

And you may ask how are we going to track this. Well,

24 before we go into every facility, we get a list of inmates and

25 we have them sign off after they've received their training. So

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1 that's going to happen in every single facility. And we're also

2 going to be monitoring for transfers so if somebody misses it.

3

Now, here's the thing that's important. That

4 training -- we also anticipate at some point that we're going to

5 condense that training a little bit on sexually transmitted

6 diseases. And I don't know if you remember this because your

7 intake process in 2009 is different than the intake process now;

8 but as part of the intake process, inmates are today receiving

9 education on sexually transmitted diseases that you didn't

10 receive. And so we hope that we can effectively continue not an

11 hour-long training for every single inmate, because I think we'd

12 all agree that at some point, if enough people come through the

13 system, that probably becomes unnecessary, but an abbreviated

14 training session that as people come in, they'll address that.

15

THE WITNESS: Is it also going to address the fear?

16 Because people are still going to be ignorant to the facts, no

17 matter what, inside or outside the prison.

18

MR. LUNSFORD: You raise a very important point.

19 You're exactly right. There's a lot of misunderstanding out

20 there.

21

THE WITNESS: Right.

22

MR. LUNSFORD: And I can tell you one of the things

23 that is in the presentation is that HIV is something that you

24 can catch, but there are a lot of other things that you can

25 catch through engaging in at-risk behavior like sharing tattoo

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1 needles. But they're going to discuss -- and I think it's

2 important for us to discuss those other things in the context of

3 HIV and other things to say, hey, HIV is obviously something you

4 don't want to contract if you can avoid it, but there are other

5 things out there that are as risky or are riskier in some

6 contexts that you can also contract, and you need to know about

7 those as well. So I think your concerns about addressing the

8 myths, I think the presentation, when you see it, it will

9 address all those things.

10

Are there any other questions that you have on the

11 training aspect?

12

THE WITNESS: The other aspect is you've got one

13 infectious disease doctor for the whole state. How is that --

14 how would that keep the confidentiality of everybody with

15 infectious disease because you only have one? When you look at

16 the newsletter, when you list her name, it only has people from

17 B and C dorm that go to see her. So how do that stop your

18 confidentiality from getting out around the system?

19

MR. LUNSFORD: Well, that's true. I bet you don't know

20 that Dr. Truett, who's right over there --

21

THE WITNESS: I see her. I know her. I met her.

22

MR. LUNSFORD: I know you do. I know you do.

23 Dr. Truett, I bet you don't know she also sees patients at

24 Kilby. Did you know that?

25

THE WITNESS: Well, I --

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1

MR. LUNSFORD: In fact, of the patients she sees at

2 Kilby, over 50 percent of those don't have HIV. There are a lot

3 of infectious diseases within the Department of Corrections

4 like, for example, you've probably heard about staph infections.

5 Have you heard about those?

6

THE WITNESS: Right. Right.

7

MR. LUNSFORD: And so Dr. Truett is a valuable resource

8 for the department. And she's going to be used, because she has

9 time to do more than just simply provide HIV-specific care to

10 250 inmates.

11

THE WITNESS: Right.

12

MR. LUNSFORD: So I think the problem that you're

13 seeing right now is that the care she's providing at Limestone

14 is --

15

THE WITNESS: This is the problem that I see, is like

16 the appointments come on the newsletter, and it's only B and C

17 dorms that she's seeing at this camp. So that don't hold

18 nobody's confidentiality. It puts it out there. Do you see my

19 point now?

20

MR. LUNSFORD: Are you aware that she's seeing inmates

21 at Limestone --

22

THE WITNESS: At B and C dorm. I don't see nobody from

23 I, E, D, and F and all that on the newsletter. It's only B and

24 C. So how is that not keeping my status private?

25

MR. LUNSFORD: Well, understand that's about to change,

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1 right? You understand that. I mean there's not going to be --

2 you understand that the 200 inmates, approximately, that are at

3 Limestone right now are not going to be here come a year from

4 now.

5

THE WITNESS: I don't hope to be here neither, so.

6

MR. LUNSFORD: I know. But you understand the housing

7 is going to change.

8

THE WITNESS: I understand what you're saying.

9

MR. LUNSFORD: So, for example, if there are only 20

10 HIV-positive inmates here and she was signed up to see 30

11 people, that wouldn't necessarily disclose your status, would

12 it?

13

THE WITNESS: It already has been, so I mean --

14

MR. LUNSFORD: But it wouldn't by virtue of that

15 newsletter, would it?

16

THE WITNESS: I don't think so.

17

MR. LUNSFORD: No, sir.

18

THE WITNESS: I don't know, but I don't think so. I

19 just don't have the confidence in the ADOC. Simple as that.

20 I'll believe it when I see it happen.

21

MS. WINTER: Thank you. If you don't have any further

22 questions of Mr. Lunsford --

23

THE WITNESS: No, ma'am.

24

MS. WINTER: -- is there anything else you wanted to

25 say to the Court?

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1

THE WITNESS: No.

2

THE COURT: Thank you very much.

3

THE WITNESS: Okay.

4

MS. WINTER: Plaintiffs call --

5

THE COURT: It's now 12:30. Why don't we take about a

6 30-minute recess. Then we'll come back and hear from the other

7 inmates.

8

How long do you think your evidence will take,

9 Mr. Lunsford?

10

MR. LUNSFORD: Twenty minutes. Maybe 20.

11

THE COURT: Pardon me?

12

MR. LUNSFORD: Maybe 20 minutes.

13

THE COURT: Very good. Thank you.

14

(Recess at 12:34 p.m. until 1:18 p.m.)

15

THE COURT: Be seated. Proceed.

16

MR. LUNSFORD: Your Honor, I did want to make one

17 point. There's this question -- and I believe at least the

18 last -- one of the last two witnesses have raised it -- about

19 medication.

20

THE COURT: Right.

21

MR. LUNSFORD: And I did want to make this clear, that

22 once an inmate arrives at a facility after they're transported,

23 they don't have to write to these folks if they have medication

24 issues. There are various avenues they can proceed through if

25 they don't believe they have their medication. Number one, they

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1 can notify the shift office immediately they have an issue with

2 their medication. And the shift office at any facility will

3 immediately notify medical if there is an issue with medication.

4 The second thing they can do is depending on the time they

5 arrive, they can submit a sick call request form. And those

6 sick call request forms, based upon the processes that are

7 available throughout the state, are triaged 24/7. So it's not

8 like they have to write a letter to counsel in order to request

9 medication.

10

THE COURT: Right.

11

MR. LUNSFORD: We would encourage all of the inmates,

12 if they, on transfer, have an issue with medication, notify the

13 correctional staff if they can't notify members of the medical

14 staff first.

15

THE COURT: Good.

16

Ms. Winter?

17

(Brief pause)

18

MS. WINTER: Your Honor, may I check?

19

(Brief pause)

20

MS. WINTER: We can move along move quickly because

21 Mr. Lunsford's good explanations have satisfied some of the

22 witnesses that we now won't have to call.

23

THE COURT: Right. I thought that would probably

24 happen.

25

MS. WINTER: Yes. It's been very helpful.

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1

So we're -- plaintiffs now call RT. His objection is

2 filed at docket number 297.

3

RT, the witness, having been duly sworn to speak the

4 truth, the whole truth, and nothing but the truth, testified as

5 follows:

6

STATEMENT TO THE COURT

7

MS. WINTER: Could you explain to the --

8

THE COURT: Don't forget to take the mike.

9

THE WITNESS: I -- my only objection was that if the

10 Alabama Department of Corrections moves in a more expeditious

11 manner than what they originally thought, then some of us are

12 currently enrolled in court programs which are court ordered

13 like the crime bill program, the SAP --

14

THE COURT: Like what?

15

THE WITNESS: Like crime bill, SAP. Some people have

16 been asked by the parole board to complete trade school

17 programs, which are only offered -- some of them are only

18 offered here. And so my concern was that whenever the order

19 came or the directive came from Montgomery for us to be

20 transferred, there would be no indication for them -- there

21 would be no notation saying that we were in those programs and

22 that we might be removed from them. Personally, if I was

23 removed early, instead of me going home in February or March, I

24 would have to start over at another camp, wait in line to get

25 into the program, and then complete the program, which could

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1 prohibit me from going home for up to two years.

2

MS. WINTER: I'm hoping that Mr. -- that Mr. Lunsford

3 can address that and assure -- and assure Mr. T#2 that that

4 won't happen.

5

MR. LUNSFORD: Mr. T#2, just briefly, when you signed

6 up for crime bill, that was after you had a conversation with

7 your classification specialist. Am I correct in that?

8

THE WITNESS: I was actually signed up prior to that.

9

MR. LUNSFORD: But your classification specialist is

10 aware that you signed up for crime bill.

11

THE WITNESS: Absolutely.

12

MR. LUNSFORD: Okay. And you're scheduled to complete

13 crime bill in February of 2014, correct?

14

THE WITNESS: That is correct.

15

MR. LUNSFORD: Okay. Just to be clear, you understand

16 the settlement requires ADOC to install telemedicine units at

17 all -- at various different institutions and that that won't

18 necessarily be done until April of 2014.

19

THE WITNESS: Right. I understand that.

20

MR. LUNSFORD: Okay. So if the Department of

21 Corrections doesn't intend to transfer anyone out of Limestone

22 prior to June of 2014, you won't have any problem completing it,

23 will you?

24

THE WITNESS: Right. I do -- I do understand that. I

25 guess my concern was that they move up on the timeline, because

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1 there's nothing that prohibits them from transferring us earlier

2 than that. And also, there are other people who are required by

3 the parole board in order to complete and make parole next time

4 that are in trade school. And there's also another class of

5 crime bill participants from the special unit that will begin

6 sometime in mid-February. And so not only would that -- maybe

7 it wouldn't affect me, but it would certainly affect some other

8 people.

9

MR. LUNSFORD: But those are all -- that's -- all those

10 programs, that's all information that's provided to

11 classification, correct?

12

THE WITNESS: That's correct.

13

MR. LUNSFORD: And so if classification is aware that

14 you're involved in a program, just so you understand,

15 classification specialists have now been informed that no one is

16 supposed to be removed from a program in order to be transferred

17 unless that circumstance is unavoidable.

18

THE WITNESS: Excellent.

19

MS. WINTER: Thank you.

20

Plaintiffs call JB#2. And Mr. B#2's objection is filed

21 as docket numbers 292 and 297.

22

THE WITNESS: Good afternoon. My issue is an issue

23 that's been ongoing since I've been in prison. It is safety and

24 security.

25

THE COURT: Is what?

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1

THE WITNESS: Safety and security. And I am -- I am

2 fully behind us being desegregated and I am ready to go, to put

3 that on the record. But my issue is for the individuals that

4 get to other prisons or if they're here or anywhere in the state

5 of Alabama and they run into a situation to where they get

6 backed into a corner by an inmate or an officer or a nurse that

7 is -- what would I call it? -- violent or having malice toward

8 that person with HIV, what would be a result or a repercussion?

9 And then if -- if there is -- what kind of attention can we get

10 immediately to these types of situations? Because I have seen

11 these situations occur since I've been here in '09. And I just

12 know prison; we're going to have bad situations occur. Is there

13 any way we can implement a situation or a link that I don't have

14 to write ACLU and it take seven days for the letter to get there

15 and then seven days before a letter could get back and I'm hurt

16 or injured mentally or physically in such a way due to the

17 situation that has arose in prison, due to the ADOC not being as

18 fast at extinguishing the problem? We have a pound 77 hot line

19 for rape and sexual abuse victims here in the state; and I was

20 wondering if a pound 22 or pound 99 line can be established or

21 developed for individuals that feel like they've been

22 discriminated against or they have had acts of violence come

23 upon them from being HIV positive.

24

MS. WINTER: Mr. B#2, before you go on, is there

25 anything that's happened recently that you're -- you know, that

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1 has heightened your concern, or are you worried about bad

2 treatment in the past?

3

THE WITNESS: We can't use anyone's names. I can just

4 give hypothetical situations?

5

MS. WINTER: Pardon?

6

THE WITNESS: I'm not supposed to use inmates' names.

7

MS. WINTER: If you have something to say about another

8 inmate, we'll not use their name.

9

THE WITNESS: Hypothetical. A situation occurred about

10 a week ago. I had to go to the ACL -- ACU -- HCU, health care

11 unit, for a mental health checkup. And we have this -- we have

12 a new implementation where we don't go straight to the HCU

13 anymore. We have to go to the gym to be called to the HCU so we

14 won't have to sit out in the hallway to wait for the doctor, I

15 guess so we won't have any disclosure problems.

16

Well, I went -- I went to the HCU. And while I was

17 walking through the HCU going past the same hallway that the

18 inmates sit to go to the HIV doctor, there was an HIV doctor --

19 there was an HIV doctor there and there was an inmate in the

20 room with her -- with him; I'm sorry -- and they were discussing

21 their CD4 count and the viral load. And I was in the hallway

22 and I stopped to speak to someone else, but I heard them telling

23 that person's viral load and their CD4 count. And because I'm

24 HIV positive, I guess I knew when I heard them say "your CD4

25 count is" and "your viral load is," what that was. But their

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1 viral load was low. It was like a hundred and something. And

2 I -- in my mind, I was like, golly, you run around here like

3 you're the picture -- the picture of health, but you really

4 don't.

5

But anyway, anybody can walk past and hear these

6 conversations in the hallway if they're just walking through.

7 So that's disclosure being -- being out in the open right there.

8 So that's a situation that occurred recently.

9

MS. WINTER: I don't have any -- I'm not aware of any

10 other issue that you've raised. Is that correct, Mr. B#2?

11

THE WITNESS: No, ma'am.

12

MS. WINTER: You generally support the settlement?

13

THE WITNESS: I -- yeah. I agree with the settlement.

14

I do have one other issue, the issue about dietary,

15 dietary and food implementation. I don't know how it's going to

16 be implemented as far as lockup or -- they have also a second

17 remedy to lockup which is called house arrest. And the

18 individuals in house arrest -- whether it happens now or it

19 happens later on when we get to the other facilities, I don't

20 know if they have house arrest or not because I've never been to

21 house arrest before. This is my first time in prison.

22

But they don't eat but Wednesdays and Sundays in house

23 arrest. The only -- they eat peanut butter and jelly sandwiches

24 during the week in house arrest, two peanut butter sandwiches or

25 one peanut butter sandwich or one cheese sandwich. Sunday they

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1 go to the kitchen and eat a hot meal. So if I'm taking

2 medications, if I'm on these -- on this level with them, if I go

3 and I'm in house arrest and I'm taking -- and I take like five,

4 six pills twice a day. Is this going to be the meal that I'm

5 going to have Monday, Tuesday, Thursday, Saturday? And then

6 they don't have meals, I think, on Sunday. They don't have a

7 lunch or anything like that.

8

MS. WINTER: Is this something you can address,

9 Mr. Lunsford?

10

MR. LUNSFORD: Your Honor, I have -- I've never

11 heard -- in the last decade of working with the Department of

12 Corrections, I've never heard of house arrest or peanut butter

13 sandwiches and cheese sandwiches. I have no idea. I've never

14 heard that carried out.

15

THE WITNESS: Ma'am --

16

MR. LUNSFORD: I don't know. It sounds -- it's nothing

17 I've ever run into, ever, in any context. I'm sure --

18

THE WITNESS: And I take --

19

MR. LUNSFORD: I mean I'm getting nods from folks with,

20 you know, probably 60 years of correctional experience behind me

21 going I have no idea what that is referring to.

22

MS. WINTER: Is there any -- anyone who could respond

23 to Mr. B#2's concern about medical -- sensitive medical

24 information being publicly disclosed?

25

MR. LUNSFORD: Well, Your Honor, this goes a little bit

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1 to the point you raised, which is any policy or any issues

2 relative to confidentiality have to recognize the realities of

3 the environment in which we work. I mean the fact is that in

4 any facility like this, the medical staff are not permitted to

5 be alone with inmates. That's a security issue that's been as

6 long-standing as I can remember of any policy in the Department

7 of Corrections. In fact, it's not only common to the Alabama

8 Department of Corrections, it's common across the board. And

9 the Federal Bureau of Prisons was the original practitioner of

10 that policy, as I understand it.

11

Now, as I understand what has been done -- and there's

12 an NCCHC -- it's actually -- I believe it's an essential

13 guideline in the NCCHC guidelines that says that the obligation

14 of the practitioner is to ensure that conversations occur in a

15 setting which is beyond the sight or hearing of anyone else.

16

Obviously, the scenario that you were in, I'm not sure

17 that, A, the person knew you were there or could have done

18 anything to prevent you from walking down the hall other than

19 having someone looking down the hall at any point in time. I

20 mean we've had a scenario -- and I recall an incident when

21 someone was incapacitated in a yard and a nurse came out and

22 said, "this individual has this medical condition," and the

23 inmate sued the nurse saying you disclosed my medical condition

24 by saying, "this person had this medical condition." Obviously,

25 in the environment that we're in, we can only take certain

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1 measures.

2

At this point in time, what you're going to see when

3 you go to another unit is it's going to be set up much like --

4 this is one of the larger units in the whole system. And you're

5 going to see a telemedicine unit installed in a room, and you --

6 we're basically faced with two choices. Either, one, you put an

7 officer in the room to listen to the whole thing and you close

8 the door, which we're not going to do, or what is going to be

9 the practice, which is the door will be open, the volume will be

10 turned down to an extent that hopefully only the patient can

11 hear and the nurse that's there and there's an officer within

12 close proximity so that they can be summoned.

13

And that's the reality of the circumstances that we

14 face. We can't assure 100 percent confidentiality. And

15 unfortunately, there's going to be circumstances like your

16 medication. You take five medications. You're going to go pick

17 that up one day, and somebody somewhere is going to see your

18 medication because you're not going to keep it locked up in your

19 storage all the time. And someone may recognize that

20 medication. We can't prevent that.

21

So it's one of those situations where the department is

22 committed to ensuring that there are not egregious circumstances

23 where officers are out disclosing an inmate's HIV status. If

24 that happens, what you should do is -- you've heard of an inmate

25 request slip, right?

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1

THE WITNESS: Right. But we don't have them up here.

2

MR. LUNSFORD: Well, you should fill out --

3

THE WITNESS: They're not available.

4

MR. LUNSFORD: You should either notify whoever the

5 shift commander is or you should fill out an inmate request slip

6 if they're available at the facility where you are. You should

7 notify someone in the facility that that has occurred. Okay?

8

But, you know, Your Honor, this hits the tension that

9 you've already recognized, which is there's only a certain

10 amount we can do. To the extent -- I genuinely believe -- we

11 discussed this at length, and I believe we came up with what was

12 the best middle ground we could find.

13

MS. WINTER: I actually have a couple --

14

THE COURT: I think, though, that the real issue here

15 for him is when he witnesses this, is there a remedy.

16 Obviously, I think we both recognize there will be slipups. So

17 if someone is walking down the hall and they actually do

18 overhear this, as he says he did, whom should he call to let

19 them know so that the practitioner can know that --

20

MR. LUNSFORD: Well, A, it depends on where it occurs.

21 If it's in the medical unit, you should notify the physician or

22 you should notify the health services administrator, who you

23 know who that is. Or usually there's a sick call nurse. You

24 can notify the sick call nurse. You should notify them that

25 that happened. If it happens in a different setting out in, you

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1 know, the yard or whatever, then it's going to need to be a

2 shift commander or a warden by virtue of an inmate request slip.

3

MS. WINTER: I had a few follow-up questions myself.

4 The issue of whether there is medical confidentiality in an

5 examining room, whether it's the telemedicine room or otherwise,

6 we have inmate -- attorney-client meetings with all levels of

7 inmates, including group meetings, in which we have visual

8 supervision and audio privacy simply by virtue of a glass window

9 or door. So I'm not really understanding why an HIV

10 consultation has to happen with an open doorway. So that's one

11 question I have.

12

Another follow-up question from Mr. B#2's testimony, I

13 think the reason he was talking about the peanut butter and

14 jelly sandwiches, the concern he's trying to get at is simply

15 when someone is on a medical diet, when the class member has a

16 medically prescribed diet, are provisions going to be made to

17 make sure, whatever facility that they're at, that if they're in

18 segregation or whatever, that the correctional staff knows that

19 they need to get their supplemental food to take their

20 medication, their prescribed supplemental food.

21

Was that your question?

22

THE WITNESS: Correct. Because I'm -- I'm not keen on

23 two pieces of chicken or two pieces -- or overfeeding me. I

24 just want to get that -- the equivalent amount of food in my

25 system so I won't be dehydrated or I won't be too in flux with

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1 the medication where I'm woozy or dried out because I don't have

2 anything in my system. And I don't want to be put in that

3 situation and then, after this day passes by, I don't have

4 anyone to cry to. Because crying to the State is like crying

5 home to my mama; she can't do nothing.

6

MS. WINTER: So the agreement does say that class

7 members are entitled to get -- you know, if they don't get their

8 medically prescribed diets and they let us know, that we can

9 e-mail Ms. Hill and that she will look into it. But your --

10 your concern is what do you do meanwhile.

11

THE WITNESS: Correct.

12

MS. WINTER: I think your concern is it's about

13 correctional staff, not medical staff.

14

THE WITNESS: Correct.

15

MS. WINTER: How do they know. How does security

16 staff --

17

THE WITNESS: Correct.

18

MS. WINTER: -- know that you've got to get your -- the

19 diet that the doctor says that you need.

20

THE WITNESS: Correct.

21

Can I say one more thing when you're through?

22

The other issue that I have is the first issue when I

23 said something. I didn't hear them tell me anything about the

24 pound 22 or 99 idea that I was speaking of. And the reason why

25 I say that, honestly, I've seen a million situations to where --

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1 discrimination, just plain ol' being lowdown and mean from DOC

2 officers, supervisors, sergeants, lieutenants, captains. It

3 doesn't matter. There's a range of evil that goes through the

4 DOC just like there's a range of evil inmates that are in the

5 DOC and here in prison on their charges. There are a range of

6 officers, inmates, and administration affiliates that are here.

7 And they will smile; but then when they turn their back and

8 there's no lights on for the show, then it's cruel and unusual

9 things going on. And I was here for a punishment; and I don't

10 want to be punished double times even though, like I say,

11 sometimes the situation is going to happen where I'll have to be

12 exposed to that.

13

But when I get to another prison, I just don't want

14 anybody putting their foot on my back or any other individual's

15 back that has this virus going through their system. They

16 didn't ask for this. A lot of people did not ask to have HIV.

17 And it is so cruel for an individual to be unforgiving or

18 uncaring or just -- just don't plain care about their situation

19 and they expose it to another inmate. And a lot of times we

20 have officers that will tell inmates -- their runners or will

21 tell their friendly inmate partners that they walk with or they

22 sit in the cubes and talk to, they'll say, why are you fooling

23 around with this inmate; he got HIV. Or that sissy got HIV; why

24 are you fooling with him? Why are you talking to him? Why are

25 you communicating with him?

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1

I even had a situation where my brother that I had

2 never met before this past June came from Fountain Correctional

3 Facility. His name is Anthony Tyrone Wilson if y'all want to

4 call him in Mobile. But he came from Fountain to be in the F

5 dorm program for prerelease. And my dad and his dad -- we share

6 the same dads. We don't have the same mom. But my mom told me

7 he was up here from his sister. His mom is dead. His sister

8 told him that I was up here, and we got in touch with each other

9 by passing by. And his dorm started coming over on my side

10 frequenting our yard instead of the reverse yard that they used

11 to be on. And he used to come sit with me at exercise in

12 morning times and I would go out and talk to him.

13

I had a lieutenant come up. And he asked him, what is

14 you doing on this weight pile talking to this HIV sissy? And my

15 brother got up from lifting weights; and he was like, man, this

16 is my half brother. And he looked at him, and he just stared at

17 him in such a way, the man just left off the weight pile and

18 went on in E dormitory, which is the segregation dormitory that

19 he was headed to. He went in E dormitory and he just left. He

20 didn't even say anything else.

21

MS. WINTER: So when did that happen, Mr. B#2?

22

THE WITNESS: This was like on June 5th or 6th or 7th

23 or something like that, because -- reason I know, because it was

24 just the first of June. I remember some pictures we were

25 looking at that were dated, and they're in my room now. But I

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1 was sharing the pictures with him on the weight pile.

2

And I just don't want stuff like that to happen to

3 other people. I'm going to be open about my HIV status because

4 I've been positive since 2003 and I don't have an issue about me

5 being positive. I'm -- I'm the same person that was unpositive

6 like in 2000 or 1999. But I just don't want anybody that's

7 weaker than me to get into a situation where they get their

8 throat cut or they get beat down or they get backed into a

9 corner and they're not able to say, hey, help me, officer, or

10 hey, can you please get some help for me, and then these people

11 turn their backs.

12

Can there please be some type of phone line established

13 just like you can pick up that line and say, pound 77, he raped

14 me, or he told me he's going to jump on me? I just feel like

15 there needs to be something established so the investigation can

16 occur or something can be documented to say, hey, we're paying

17 attention to what's going on here. It doesn't even strictly

18 have to be for the HIVers. It could be just for people that

19 just don't have a link to communicate or don't have a good

20 communication or rapport with the administration at the prison

21 they're at. They could have someone that's not affiliated, like

22 the I&I investigation team or someone out from that come in and

23 investigate and see what's going on. Because we're somebody's

24 kids just like y'all. We're somebody's children. That's it.

25

MS. WINTER: Thank you, Mr. B#2.

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1

THE WITNESS: That's it.

2

MS. WINTER: Thank you.

3

THE COURT: What's the response?

4

MS. WINTER: I don't know if the -- if the ADOC would

5 respond, that would be great. I mean we were not able to get --

6 we negotiated the agreement that we could. The provisions in

7 there relating to medical care is that when they get in touch

8 with us, we can get in touch with e-mail by -- with Anne Hill.

9 There is a directive out there saying that the commissioner has

10 a zero tolerance for abuse. There is an hour, hour-and-a-half

11 training session for everybody. So these are not necessarily

12 the most robust provisions. They are what we could get.

13

Our hope is that ADOC administration is listening and

14 they may come up with an idea or they may have an idea now. We

15 would -- you know, we would be very glad to hear any ideas that

16 ADOC has. The agreement is what it is. What plaintiffs'

17 counsel intends to do is to instruct all class members. We will

18 be able to get lists of who the current class members are. We

19 will write to them. We will tell them to let us know what's

20 happening. We will do the best that we can to protest to ADOC

21 if we see more than some incidental bad behavior, if we see any

22 pattern. That's what we can do.

23

I believe that the ADOC can do more, should do more,

24 but we weren't able to get anything more into the agreement.

25 The ADOC -- the commissioner issued excellent, stern directives

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1 to staff and to inmates. They're already posted. Everybody

2 knows about those. That seems like a great start. It does seem

3 like there should be -- it would be excellent if there were a

4 more robust process for reporting and investigating complaints.

5

MR. LUNSFORD: Well, let me first respond to this idea

6 that a hot line -- of a hot line. You know, it's impracticable

7 for a number of reasons. But let's just -- let's just be frank

8 about where we are, which is this is not simply about, really,

9 HIV at the end of the day. I mean we're talking about how does

10 a department of corrections manage its staff in remote locations

11 that are responsible for overseeing the population they oversee.

12 And how does this department respond to complaints of any

13 misconduct, not just discrimination or harassment of

14 HIV-positive inmates.

15

Now, keep in mind this, Your Honor. The locations

16 where these inmates are going have never housed HIV-positive

17 inmates before. Never. So when Mr. B#2 arrives wherever he's

18 going to arrive months from now, there will be steps that have

19 been taken, intentional steps taken to prevent the inadvertent

20 disclosure of his HIV status. He will arrive with a sealed

21 envelope that contains his medical records and, presumably, his

22 medication. He will likely arrive at that facility with a group

23 of inmates that he's never seen before.

24

He will go there, he will see the medical staff, and he

25 will check in. And when he arrives at that facility, they're

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1 not going to say are you HIV positive. That's not part of the

2 process. So how in the world, first of all, is someone going to

3 know he's HIV positive? Is there an inadvertent disclosure?

4 What are the odds of that? Maybe it happens; maybe it doesn't.

5 Maybe he goes and tells someone; I don't know.

6

But in the remote instance that an officer at the

7 institution to which he is transferred finds out that he is HIV

8 positive -- and I'll say this, Your Honor. I mean we can look

9 at Mr. B#2's classification file if you would like for us to

10 present it to the Court, but Mr. B#2 has every reason not to be

11 very happy with correctional officers based on his disciplinary

12 history. His last disciplinary was less than 30 -- 60 days ago.

13 He has engaged in conduct at this facility for which other

14 inmates at other institutions have had acts of violence taken

15 against them by other inmates.

16

So the question is what is the department supposed to

17 do in this situation? Well, A, number one, there is a process

18 at every single facility for an inmate to voice a complaint

19 against an officer. It doesn't matter that it relates to HIV,

20 Your Honor. I mean you -- I mean, it's like we're not isolated

21 from the world we live in. We know the stories that have been

22 out there about allegations of misconduct by DOC officers. The

23 DOC has been vigilant, especially under this commissioner, in

24 looking into each and every allegation of misconduct and

25 attempting to take some remedial action when that comes to the

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1 department's attention. And I think that's the biggest

2 challenge presented by this department, is that it has

3 institutions across the state with hundreds of officers that it

4 has to monitor and hold to a single standard.

5

But to create -- and again, I -- it seems to me -- this

6 is the interpretation of Bill Lunsford of what I'm hearing --

7 is, you know, to create a hot line where someone can report

8 someone said something mean or inappropriate, we would spend all

9 of our time and energies investigating those reports, most

10 likely in instances when inmates were simply trying to seek

11 retribution against an officer who wrote them up for something.

12

So I think going back to the central issue before the

13 Court today, a couple things. Is the settlement, in and of

14 itself, fair, reasonable, and adequate? The Court did not

15 receive any evidence that any officer outside of this facility

16 had ever taken any inappropriate action toward any HIV-positive

17 inmate. There is no evidence that such has ever occurred,

18 because it hasn't.

19

Have we gone, in my view, above and beyond the call of

20 duty as it relates to our obligation? Yes. Again, it is

21 unprecedented for a commissioner to issue the directives that

22 have been issued in this case. That has never happened before

23 on a system-wide basis relative to a minor portion of the inmate

24 population. And we have, again, strengthened the rules that

25 relate to confidentiality. The policies have been rewritten.

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1 They've received those policies, and their comments to them are

2 due back in the next three days, I believe. So we've taken

3 steps to do that.

4

Now, the question about the hot line is this. If

5 someone does something inappropriate that gives anyone any

6 indication that they are being sexually harassed, sexually

7 mistreated, they can pick up the phone and use the PREA hot

8 line.

9

THE COURT: I'm unaware of this hot line.

10

MR. LUNSFORD: The Prison Rape Elimination Act, PREA,

11 as we call it. It required that the department undertake a

12 number of different system steps, which includes a hot line.

13 And so essentially, you may remember when we walked around to

14 some of the dorms here, there were phones at various locations.

15

THE COURT: Yes.

16

MR. LUNSFORD: And the way they pay for those remains

17 mysterious to me. I still don't understand that exact process.

18 But they can pick up the phone and dial a number without paying

19 for it and report whether they have been sexually assaulted or

20 whether there has been a threat of sexual assault -- and if they

21 wish, that allegation can remain anonymous -- and it's

22 investigated. And the department is under an obligation under

23 the Prison Rape Elimination Act to investigate those complaints.

24 So if there is an incident where someone feels threatened in any

25 way sexually or because of something that they've done, they

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1 can -- they can report that through PREA.

2

But is that a -- you know, "he said something mean to

3 me and I think it's because I'm HIV positive." Is that the way

4 to do it? No. But again that's hard to regulate. I mean,

5 again, we -- I think there's a balance that has to be achieved

6 here. Do I think that we are seeking that balance? Yes.

7

Do I believe that based on the commissioner's

8 directives coupled with the training that's been provided by

9 UAB -- and Rick Meriwether, who you've heard his name before, I

10 don't know how much clearer someone could be with a group of

11 individuals about confidentiality and HIV. We have someone from

12 the outside world coming into each of our facilities, sitting

13 down for an hour with officers, saying you're not going to do

14 this anymore because here's why, because HIV -- here's what you

15 need to know about HIV. And it's interesting. I mean I sat in

16 the room for an hour and saw the officers' reaction to it, and

17 it was positive.

18

So again, I'm not sure what more we can do. We

19 obviously can't regulate people being nice. And I don't think

20 that's what they're complaining about, but we have to prevent

21 against abuse. And I think we're doing a very good job of

22 erring on the side of allowing abuse as opposed to quelling

23 complaints.

24

THE COURT: Thank you. Anything else, Ms. Winter?

25

MS. WINTER: We have a couple more witnesses.

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1

THE COURT: Okay.

2

MS. WINTER: On this point, I think I just wanted to

3 add that I do believe that if the ADOC administration at the top

4 becomes aware of incidents as inmates complain about it and if

5 the commissioner himself -- if, from the top, the message is

6 communicated that officers are going to be punished if they

7 abuse inmates based on HIV status, if that -- if there's

8 follow-through on that, I really believe that we're quickly

9 going to see an end to the kind of conduct that a few or some

10 officers may be engaging in. I think we'll be over it. The

11 message will come down from the top. And once people are really

12 called on their bad behavior and they're punished for it, it

13 does -- that kind of thing stops pretty quickly, I believe.

14

Plaintiffs call JY. Mr. Y's objection is filed at

15 docket number 293.

16

JY, the witness, having been duly sworn to speak the

17 truth, the whole truth, and nothing but the truth, testified, as

18 follows:

19

STATEMENT TO THE COURT

20

THE WITNESS: First of all, good afternoon, Judge. I

21 thank you, DOC, and the medical administration for the decision

22 that you have made. And it's very long overdue.

23

I do have certain problems as dealing with Mr. Langford

24 (sic) when he's discussing and trying to tell us about --

25

THE COURT: Can you pick up the mike? I can't hear

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1 you.

2

THE WITNESS: The problems that I have is dealing with

3 Mr. Langford, the way that he is trying to explain to us about

4 the different situations. The one that comes to mind -- I go

5 back to Mr. H. When it comes down to the continuation of

6 education for HIV positive -- see, I've been in the back a long

7 time, but the gates was locked down. I understand about dealing

8 with population. When I had the white armband, I still dealt

9 with the population in itself. So whenever this is over with,

10 I'm sure that we all will be all right going outside the gates.

11

And when it comes down to the education part, I would

12 like to see this to be continued, not just for an orientation

13 for an hour. See, now, we can go back to what you were saying

14 about 2008 or 2009. We also had those films here. They dealt

15 with HIV, they dealt with STDs and also talked about sexual

16 abuse, but DOC stopped it. Is this going to happen again?

17

MS. WINTER: Could you hold the mike a little closer to

18 your mouth? At the end of your sentence when your voice drops,

19 I can't quite pick it up.

20

THE WITNESS: Okay. We had this film before, what you

21 was talking about. And people that came in that was orientated,

22 but DOC stopped it. Is this going to be continued? You said an

23 hour, that they was going to have an orientation and then that

24 was it; but when they come in, we'll talk about it and send them

25 on to whatever prison that they have to go to. Are they going

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1 still to get this hour? That was one of my questions.

2

The next thing is about the Kilby issue. I understand

3 that you said that, okay, we're going to go through Kilby to get

4 transferred. It's for confidentiality. Okay. But in DOC

5 procedure statewide it says that an inmate to be transferred is

6 to be reclassed through that particular institution that they

7 are in and sent to the next institution. Wouldn't that also be

8 giving us something that's special going back through Kilby?

9 And you're talking about confidentiality.

10

Now, the people that's coming in through Kilby, the

11 people that's coming in through Kilby that has HIV, okay, I

12 understand about you sending them to the reassignment dorm or

13 whatever dorm it is at Kilby and sending them straight to

14 whatever facility. But for us who has already been stigmatized,

15 who has already -- all confidentiality has already been broken,

16 regardless if you send us to Kilby, we go to another camp, we

17 still -- people still know us. So that doesn't matter. The

18 problem is can we get classified here at Limestone and sent to

19 the facility.

20

The dummy jackets. Okay. Here we're going up to the

21 parole. There's many of us who have been going up for parole.

22 HIV is a stigmatize even in the parole board, no matter how you

23 look at it. Okay? When we're going for parole, they see HIV

24 positive, they kind of like shut the jacket up. We can be --

25 done took all these different kind of programs, and half of us,

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1 if you really look at statistics about the people that's leaving

2 out on parole from Limestone special unit, it hasn't been a lot

3 of us. We have been stopped. So the dummy jackets, does that

4 also go with, you know, the parole board? Do they get our

5 complete jacket? Do we -- do they get everything?

6

And when it comes down to our dietary, this goes for

7 you and also medical. Okay. Dealing with Dr. Truett, I have

8 congestive heart failure. She has me on a special diet. Will

9 that follow me to any prison facility that I go to? Okay. I

10 just wanted to, you know, get facts and get an understanding of

11 the lawsuit. I'm not trying to bash it, because we all are

12 ready to go or do whatever.

13

And you said there was only 40 beds that was available

14 here in Limestone. Okay. The prison system is overcrowded.

15 How many beds do you actually have for us to go to different

16 prisons? Which prison that you're actually going to send us to?

17 You only have a small amount. You said that all the prisons is

18 going to be opened up to us. By when? November -- I think the

19 lawsuit said 2014 that it's supposed to be opened up for us.

20 Well, if that's the case, will the telemeds be in every place?

21

You explain about expense and cost. If the expense and

22 cost is so great, why not go ahead and integrate us now? Why

23 wait until later? If you've already done that for Tutwiler, why

24 not do it for us? I understand there was just ten people at

25 Tutwiler. Ten, 50, 20, it doesn't matter. Integration is

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1 integration. We're ready to do whatever it takes.

2

And I'm sure UAB or whoever it is that's going to be

3 giving all these orientations to the officers -- you keep

4 hollering about the officers, the officers, the officers.

5 Officers are not all the problem. What about these inmates? We

6 got to live with the inmates. The officers are just doing their

7 job. It's the inmates that really need to be educated.

8

And what about the inmates that's coming in? See,

9 Limestone has been a hub for HIV positive just like -- just like

10 Kilby is the hub for the transfers. So guys that came in don't

11 know anything about HIV positive. And I know you don't

12 understand, because you don't have the virus and no one never

13 told you that you had the virus. If someone tells you you have

14 the virus and that feels like that's the end of your life and

15 you don't know anything about it, who do you talk to? There has

16 to be a counselor, someone set up to talk to an HIV individual.

17 You never know what kind of thoughts they may have, suicidal

18 thoughts. It's hard to take for a person when a person tells

19 someone that they're HIV positive. It's just like a cancer

20 person. If a person don't know they've got cancer, go to the

21 doctor, you have cancer, they have to have a counsel session

22 with someone. How is that going to be set up? How is DOC going

23 to handle it?

24

I hear all the little tweaks that you're giving us, but

25 I need a little bit more. I need to be reassured that things

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1 are going to happen the way that you say it's going to happen.

2 When it comes down to the procedural part of Kilby, you have a

3 guideline. You didn't go there. You said only a little bit of

4 it. You said six months you got to stay clean; no problem;

5 you'd be transferred. When those papers are signed, we are

6 population. We're not going to be treated any different. Your

7 procedure statewide says that.

8

Again, transfer from the facility to another facility,

9 I'm not worried about who see the jacket or whatever. Like I

10 said, our confidentiality has already been broken. So just give

11 us what we need.

12

And if something -- what Mr. B#2 was trying to explain

13 to you, if something happened to one of us, if a person hit us,

14 jump on us, however it may be, what kind of disciplinary action

15 are you going to take, official wise? Are they going to lose

16 their job? Are they going to be suspended? Are pay going to be

17 taken away from them? What is going to happen to them? We want

18 these answers. That's just the bottom line to it.

19

MR. LUNSFORD: Can you kind of summarize what you want

20 me to respond to?

21

MS. WINTER: The particular question -- Mr. Lunsford is

22 willing to address particular questions, but you put a lot out

23 there, Mr. Y. Could you maybe list like the three or four

24 questions that you --

25

THE WITNESS: Sure.

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1

MS. WINTER: -- had in there? And try to make them

2 succinct so that he can, you know, figure specifically how he

3 can --

4

THE COURT: I think Mr. Lunsford has answered some of

5 them --

6

MS. WINTER: Yes.

7

THE COURT: -- already. For instance, the issue of

8 delay.

9

MS. WINTER: The --

10

THE COURT: Of delay.

11

MS. WINTER: Yes.

12

THE COURT: And I guess the issue you seem to have is

13 what if somebody just beats you up because you're HIV positive.

14

THE WITNESS: No, just -- not just that, Your Honor.

15 It's the continuation of the education part. HIV must be

16 educated.

17

THE COURT: Well, is the education program a continuing

18 process, or is it a one-time thing?

19

MR. LUNSFORD: It will be a continuing process. As I

20 indicated, the video he's talking about -- when did you arrive?

21

THE WITNESS: I've been here since 2006.

22

MR. LUNSFORD: Okay. So when you went in intake, I'm

23 familiar with the video that you watched on intake. That video

24 is going to -- as I understand it, that video is being phased

25 out and some of the new training materials are being updated.

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1 And there is a need currently for all inmates, as you've pointed

2 out, to receive training on not just HIV, hepatitis C, herpes,

3 syphilis, gonorrhea, all of those.

4

THE WITNESS: Right. STDs.

5

MR. LUNSFORD: And so that's going to continue. And I

6 think the commissioner's directive through the office of health

7 services has always been to address these issues. Because

8 frankly, an ounce of prevention comes out a long way in terms --

9 is much cheaper than treatment once we have outbreaks, which the

10 Court is well aware we've had outbreaks of syphilis at certain

11 facilities in other locations that we had to go in and treat.

12 And we have to report to Public Health. And so we're very on

13 top of that. And I think that will be -- that will be a

14 continuing aspect of intake for all inmates, not just HIV

15 positive.

16

THE WITNESS: Okay. What about the procedure on Kilby

17 about reclass -- if I can remember now, there was a memo that

18 came out -- it was through ACLU -- that stated that you said

19 that we could be reclassed here. And the ones that stay here in

20 Limestone, it would be less costly for them to be bused back and

21 forth to Kilby.

22

MR. LUNSFORD: Let me -- all right. Let me -- I hope

23 everybody hears me --

24

THE WITNESS: Okay.

25

MR. LUNSFORD: -- because I've said this I don't know

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1 how many times. Every inmate that's in the special unit is not

2 being sent to Kilby. Okay? Every inmate that is currently in

3 the special unit, dorms B or C that are at Limestone, okay,

4 they're not all being shipped off to Kilby. Will some inmates

5 be assigned to Kilby on a permanent basis? Possibly. Will any

6 inmate be sent through the intake process at Kilby? No, unless

7 you're a newly arriving inmate, which obviously the inmates at

8 Limestone are not. Okay?

9

Here's the thing. You were reclassified May 13th. Do

10 you remember that?

11

THE WITNESS: Right.

12

MR. LUNSFORD: And your -- what's your current

13 classification?

14

THE WITNESS: Medium.

15

MR. LUNSFORD: You're medium, security level IV, right?

16

THE WITNESS: Correct.

17

MR. LUNSFORD: Okay. So you're only -- you understand

18 you're going to a select number of facilities.

19

THE WITNESS: Correct.

20

MR. LUNSFORD: Right? And those include --

21

THE WITNESS: Which I can go to a select. Because this

22 also --

23

MR. LUNSFORD: You can. And that includes Limestone,

24 correct?

25

THE WITNESS: Correct.

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1

MR. LUNSFORD: And you -- but you understand that

2 you're limited -- I want you to listen carefully to this

3 question, because I don't want to go into the details of it.

4 You understand that there's a limited number of facilities you

5 can go to because of your underlying offense.

6

THE WITNESS: Correct.

7

MR. LUNSFORD: So what will happen is if you're

8 disciplinary free, okay --

9

THE WITNESS: Which I see that -- you know, you see

10 that I am, so --

11

MR. LUNSFORD: You're disciplinary free. But

12 understand that doesn't count until -- it's basically back from

13 June 2014. So basically, when we get to January, you can

14 request a lateral transfer. Okay?

15

THE WITNESS: Correct.

16

MR. LUNSFORD: And your classification specialist here

17 at Limestone is going to receive that request for a lateral

18 transfer. And they're going to ask you -- they're going to

19 verify that you're disciplinary free. Now, keep in mind, if you

20 get a disciplinary while that lateral request is pending, do you

21 know what's going to happen?

22

THE WITNESS: I --

23

MR. LUNSFORD: Your lateral request is out. And at

24 that point, your classification specialist can send you wherever

25 there's an open bed. Okay? Does that make sense?

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1

THE WITNESS: Right. It makes sense, but what if I

2 don't request a lateral transfer?

3

MR. LUNSFORD: If you don't request a lateral transfer,

4 you're going to be transferred.

5

THE WITNESS: So either which way it goes, I will be

6 transferred.

7

MR. LUNSFORD: No, because if -- you request a lateral

8 transfer because you want to stay here at Limestone.

9

THE WITNESS: Oh, okay.

10

MR. LUNSFORD: If you want to stay at Limestone, you're

11 going to have to request that. Okay? Does that make sense?

12

Did everybody --

13

THE WITNESS: That makes sense.

14

MR. LUNSFORD: If you want to stay at Limestone, you

15 must submit a lateral request. Okay? Otherwise, the likelihood

16 is that you are going to be transferred to another facility.

17 But keep in mind, there's no guarantees that anybody stays at

18 Limestone just like there's no guarantees -- if somebody was

19 HIV -- not HIV positive and they were over here and they had a

20 disciplinary and the DOC had an open bed at St. Clair, they

21 could send them there. Okay?

22

THE WITNESS: (Nods head)

23

MS. WINTER: Thank you. I think that was helpful.

24

THE COURT: Does that answer your question?

25

THE WITNESS: That answers my question.

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1

THE COURT: The bottom line is he's giving you

2 probabilities, but he can't assure you of anything.

3

THE WITNESS: (Nods head) Sounds good to me, Judge.

4

THE COURT: Go ahead.

5

MS. WINTER: Mr. Y, you had raised a specific issue

6 with the class counsel, and it may be that you don't want to

7 pursue it in light of what Mr. -- other things Mr. Lunsford has

8 explained. But you had earlier raised the question about there

9 being currently open beds in the honor dorm.

10

THE WITNESS: Correct.

11

MS. WINTER: And folks who were currently -- general

12 population prisoners who are currently in the honor dorm

13 communicated to you that they would welcome an HIV-positive

14 prisoner being in there --

15

THE WITNESS: Correct.

16

MS. WINTER: -- if the ADOC would allow it. Is that --

17 did you want to --

18

THE WITNESS: Well, by me being in drafting -- I've

19 been in drafting for four years as a tool man. Been in trade

20 school since 2007. I guess you can see that. I've mixed with

21 general population. And they know about the lawsuit, and

22 they're welcoming us in different parts of the camp.

23

To go a little bit further, since -- as this has been

24 the hub of HIV, why not start here and integrate? You know, why

25 not we can't go to different dorms? Now I know that you have a

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1 timeline to go by. But even between that timeline, it's a slow

2 process. And to build that process, why not start building

3 here? And then we can still end up transferring with general

4 populations to Kilby two at a time or however DOC decide to do

5 it. I don't know. you know, that's however it may be. Is that

6 a possibility?

7

Now, I have talked to Warden Estes. And let me clarify

8 something on that. I've heard a lot of things about Warden

9 Estes do not want the camp open, he don't want this integrated.

10 But this is not what he told me. I spoke to him three

11 occasions. Two of them he told me, he said, whatever comes down

12 from the commission through Montgomery, I'm going to do my job.

13 The third one he said if they open the camp up, they agree to

14 this lawsuit, if you want to stay at Limestone, I welcome you to

15 stay at Limestone. And that came from him and it also has came

16 from other officers. So I don't see where there is a problem

17 why it cannot start here.

18

MR. LUNSFORD: Well, let me just be frank with you,

19 Mr. Y. It's not part of the agreement currently. It's not

20 something we discussed. And part of the reason why is because

21 based on what information was known at the time the agreement

22 was in place, it was anticipated on our end that you would be at

23 Limestone for a very short period of time after this was

24 executed and signed. Okay?

25

So this notion of there being eight months of time when

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1 the special unit was going to stay unchanged and that you were

2 going to stay there for a period of time -- there are -- let me

3 say this. Part of the equation that is blank right now for

4 whether we can move inmates to other dorms is what's going to

5 happen to B and C when all the HIV-positive inmates are gone and

6 what changes are going to need to be made to the physical

7 facilities and how long is that going to take and are they going

8 to need to be empty. Because, you know, I'll -- again, being

9 frank with you, there have been discussions about moving inmates

10 into B and C because there's room in B and C right now. Right?

11

THE WITNESS: Right.

12

MR. LUNSFORD: There have been discussions about how to

13 do various things. But my -- I will tell you the guiding

14 principle we're going to use is we're -- we want to make sure we

15 give you and every other HIV-positive inmate every opportunity

16 to remain disciplinary free to request that lateral transfer and

17 not to put you in a different scenario with a different set of

18 challenges where it's a dramatic change in your living

19 arrangement. Okay?

20

THE WITNESS: (Nods head)

21

MS. WINTER: Thank you.

22

There were a couple of other questions out there. I

23 don't know whether or not you can address them, Mr. Lunsford. I

24 think that Mr. Y raised the question about whether there would

25 be access to HIV counseling for incoming class members. And the

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1 other question was he was interested in knowing whether the

2 HIV -- whether the parole board would have access to the full

3 classification file which will contain old HIV information in

4 it.

5

THE WITNESS: Especially, Mr. Langford, after you have

6 reviewed my file and you understand it, it's most important to

7 me about the parole board, as being that I'm already up for

8 parole even though I haven't received a date yet. And by them

9 seeing HIV positive in my jacket dealing with my charge, that is

10 a completely file close there. So I really feel that that needs

11 to be out of my jacket. I need them to look at me as being a

12 person, a person that has achieved something, that's in prison,

13 that I have gotten better in life, not stigmatize me because of

14 my HIV positive.

15

MR. LUNSFORD: Well --

16

THE WITNESS: I've been positive for 27 years.

17

MR. LUNSFORD: Yes, sir.

18

THE WITNESS: And I understand about stigmatism (sic).

19

MR. LUNSFORD: I don't want to cut you off, but I'm

20 just trying to cut to the chase. Just so you know, I don't

21 represent Pardons and Paroles. They actually have separate

22 legal counsel and they maintain separate documents. And I --

23

THE COURT: I think what needs to be made clear, and

24 you-all can correct me, is this litigation doesn't cover that.

25

MR. LUNSFORD: It does not. That's a very accurate

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1 statement.

2

MS. WINTER: I'm sorry. I didn't hear the end of the

3 sentence.

4

THE COURT: His concern about the impact of his HIV

5 status on parole I said is really something that this litigation

6 doesn't cover.

7

MS. WINTER: That's right.

8

THE WITNESS: Well, let me --

9

THE COURT: I don't think we should make any

10 misrepresentations to him.

11

MS. WINTER: Right.

12

THE WITNESS: Well, let me correct that. My HIV

13 positive, period, being in the jacket, whether it's parole,

14 anywhere I transfer, I want to know is it going to be on my

15 jacket.

16

MR. LUNSFORD: Here's what I can tell you. There's --

17 you have to think of this. You have two sets of documents that

18 are hanging out there on you individually. Okay?

19

THE WITNESS: Okay.

20

MR. LUNSFORD: You have a set of documents that are in

21 a database file called IMOS. You may have heard that before.

22 There's another set of documents that are in another location

23 called the Vault. Have you heard Vault?

24

THE WITNESS: (Nods head)

25

MR. LUNSFORD: Vault is an electronic database that we

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1 can modify. We can -- for example, if I went and looked up your

2 housing listing on Vault -- am I correct? -- I'm sorry. IMOS.

3 IMOS we can modify, Vault we can't. So we're going into IMOS,

4 and there's a code in there that says you've been housed in

5 special unit. That's going to be changed so that it just says

6 Limestone. Okay?

7

THE WITNESS: Okay.

8

MR. LUNSFORD: Now, on the other portion of the

9 Vault -- and this is where we ran into issues. The problem is

10 that's like a library. It's a library of documents that date

11 back to your presentencing report when you were sentenced

12 originally, and it goes all the way through your current

13 incarceration up until your last reclassification back in May.

14 There's no -- those documents are scanned in. Okay? They're

15 actually -- they're copied electronically so that we can't go

16 into the contents of documents and change them. And those exist

17 for every single inmate who has ever been through our system,

18 and there's no way we can modify that documentation.

19

But to the extent you have a dummy jacket that goes

20 with you and to the extent you get to wherever you're going if

21 you don't stay here, they will access IMOS and they will see

22 Limestone. They'll look at your dummy jacket, which says

23 nothing about HIV. Okay? So that's the way we're addressing

24 the classification files.

25

THE WITNESS: Thank you, Mr. Langford. That's what I

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1 mean. Detail. That's what we want. Details.

2

MS. WINTER: So I believe that was all the concerns you

3 had raised Mr. Y.

4

THE WITNESS: That's all the concerns I have.

5

MS. WINTER: Thank you.

6

THE WITNESS: Thank you again, Your Honor.

7

THE COURT: Did we talk about the counseling?

8

MR. LUNSFORD: Oh. And the same counseling -- just to

9 be clear, the same counseling on intake that has been available

10 since 2004 is still available today. To the extent that anyone

11 would like counseling after they transfer, the mental health

12 provider has been notified of this process and is aware that

13 this is ongoing. And to the extent someone needs to request an

14 opportunity to meet with a counselor with MHM, they can do that

15 once they arrive at the facility.

16

THE WITNESS: Mr. Langford, due to my situation, there

17 is a class that they have available here. Coming through

18 classification, they do not even tell you that you can take this

19 individual class if you need counseling. That is not always

20 true that an individual know exactly where to go, so on and so

21 forth. It has to also be put out there: if you have this, you

22 can go to this counseling. You can be counseled. They don't

23 just give you this information. DOC don't just give it to you.

24

MR. LUNSFORD: Well, I understand you've not been

25 through the transfer process; but part of the transfer

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1 documentation includes an access-to-care form that you'll sign

2 at the facility you're arriving at from Corizon which details

3 all of the various medical processes including the times for

4 sick call, the times for chronic care, the dates on which dental

5 care is provided. You'll also receive a document that indicates

6 what mental health services are available and what you need to

7 do to submit a sick call request form in the manner required by

8 MHM to request counseling services. That will all be in your

9 intake package once you arrive at the facility where you arrive.

10

THE WITNESS: Is that dealing with just mental health

11 or --

12

MR. LUNSFORD: It's mental health and medical. It will

13 deal with the entire process once you get to the facility.

14

THE WITNESS: (Nods head)

15

THE COURT: Thank you very much.

16

MS. WINTER: Thank you. The final --

17

THE COURT: You have one more?

18

MS. WINTER: One more, class representative JB#1. And

19 Mr. B#1's filing is docket number 293.

20

THE WITNESS: Good afternoon, Your Honor, everybody

21 else.

22

JB#1, the witness, having been duly sworn to speak the

23 truth, the whole truth, and nothing but the truth, testified as

24 follows:

25

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1

DIRECT EXAMINATION

2 BY MS. WINTER:

3 Q. Mr. B#1, you're a class representative?

4 A. Yes, I am.

5 Q. You testified at the trial?

6 A. Yes, I did.

7 Q. What have your duties been as class representative?

8 A. My -- I represent the HIV dorms here at Limestone. I'm one

9 of the -- really, the only one left over. Everybody else went

10 home. I'm the last one standing.

11 Q. Do you relay to us concerns that class members bring to you

12 about the settlement?

13 A. Yes, I have. Everybody has -- every time we have a court

14 hearing and I come back, everybody asks me what's going on. And

15 I do my best to relay everything to them. You know, I can't

16 have a recorder with me when I come into court, so -- they won't

17 let me have it here at Limestone, so I've got to do the best I

18 can right now hand -- you know, I handwrite most of my stuff.

19 Q. Were you present during the mediation sessions --

20 A. Yes, I was.

21 Q. -- that resulted in this agreement?

22 A. Uh-huh.

23 Q. Do you know whether members of the class here at Limestone

24 got copies of the notice to the class and the settlement

25 agreements with exhibits?

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1 A. Yes, they did.

2 Q. And how do you know that?

3 A. Well, they let everybody know the night before -- not the

4 night before. That night. Excuse me. After count, everybody

5 go to your cell; you know, we're going to be passing out legal

6 documents that came from the American Civil Liberties and

7 everybody has to be present. Everybody's got to sign for a

8 copy.

9 Q. And did you -- have you ever heard of any class member who

10 did not receive and sign for a copy?

11 A. Not that I know of.

12 Q. Mr. B#1, you yourself have some concerns or objections about

13 the settlement agreement, correct?

14 A. Yes, I have.

15 Q. Would you tell the Court what those are.

16 A. Well, the Kilby transfer was one of the issues, but

17 Mr. Lunsford basically told me and everybody else, this is

18 what's going to happen and that's just it. So, I mean, I can't

19 argue with that.

20

The other one is --

21 Q. Just before we go on, so Mr. Lunsford's explanations were

22 helpful --

23 A. Yes, they were.

24 Q. -- to you in understanding the process?

25 A. Yeah. So I don't really have to go into depth with what my

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1 objection is, which everybody else's is the same. They didn't

2 want to go back to Kilby dealing with the humiliation and verbal

3 and psychological abuse that most of the correctional officers

4 there do and some of the inmates will do if they find out about

5 your status.

6

Me myself, I'm HIV and I ain't got a problem with it. If

7 someone else has got a problem with it, then we can deal with

8 that my way. You know, if they don't like it, well, deal with

9 it. As far as everybody else, other people have their concerns;

10 and I've got to take their concerns into consideration. Because

11 if I don't, then I'm not a good class member, you know. So

12 that's why I have to listen.

13

There -- they don't want to deal with the humiliation. They

14 don't want to go through intake or the receiving process. As

15 far as what Mr. Lunsford has already told us, that basically

16 we'll be going through a permanent party process instead of the

17 intake process. Because if we go through the intake receiving

18 process, it's going to be chaos.

19 Q. But you understand that Mr. Lunsford has assured you -- the

20 ADOC has assured you that you're not going through the intake

21 process again. You're not going to be treated as a new -- new

22 inmate.

23 A. No. We're going to be treated as a transferred in,

24 permanent party. That's -- that's the indication that I've got.

25 Q. So did you have any other concern that you wanted to raise

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1 with the Court?

2 A. Yeah. My other objection is to the dealing with the lower

3 court proceedings.

4 Q. You mean the state court?

5 A. State court. I feel that the federal court should have

6 jurisdiction over this instead of the lower courts, state

7 courts. Why? Well, because the state court will basically just

8 look at us and say, well, denied, denied, denied; and Department

9 of Corrections will get what they want and that will be it.

10 We'll be lost in the paperwork again and it will be in limbo for

11 God knows how long, and they could go back to doing whatever

12 they choose to do. If it's in the federal jurisdiction, well,

13 maybe they'll do what -- do what they say they're going to do.

14

And in my opinion, my true opinion, I feel that if the

15 Department of Corrections goes against the settlement agreement,

16 let alone the private agreement, I feel that the Department of

17 Corrections should be penalized financially every day tens of

18 thousands of dollars, every day until they are in compliance.

19 Q. Mr. B#1, having been at the mediation agreement, do you

20 think it would be fair to say that class counsel and the ADOC

21 discussed all these issues and that in order to have integration

22 of all facilities, the trade-off for that was that half of them

23 would not be under the federal court jurisdiction?

24 A. Yeah. I know.

25 Q. Okay.

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1 A. But I still feel that the federal court should have

2 jurisdiction over this instead of state court.

3 Q. Understood.

4 A. And may I go on?

5 Q. Yes.

6 A. My other concern is we've got roughly nine, maybe 12 guys

7 here that are doing life without. They're going to go through a

8 process that the rest of us are not going to be going through.

9 If, by some chance, they end up going to Kilby or any other

10 facility, they're going to be locked up in administrative

11 segregation.

12

THE COURT: They're going to be what?

13

THE WITNESS: They're going to be locked up. They're

14 going to be put in administrative segregation, AD SEG.

15

THE COURT: Who will?

16

THE WITNESS: The guys that are doing life without.

17

THE COURT: Getting what?

18

THE WITNESS: The inmates that -- the HIV inmates that

19 are doing life without.

20

THE COURT: Okay.

21

THE WITNESS: They're never getting out of prison.

22 They're here till they get put in the ground.

23 A. Their concern is this, is that when they first came through

24 the system, they were already put in administrative segregation

25 for 90 days -- for whatever period of time they were in there

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1 for, and they don't want to go through this again. So the

2 Department of Corrections commissioner himself needs to assure

3 that those guys who are doing life without don't have to go

4 through this lockup process again. Maybe go to the facilities

5 they need to go to because that's -- with the amount of time

6 they have, that's where they're going to do their time at.

7

That's the only -- that's really one of the concerns -- you

8 know, like I said, we have nine to 12 guys who are doing life

9 without. And they're going to go through a lot of pain.

10 They're going to be locked up. They won't be able to come out

11 but one hour a day for exercise. They won't be given no access

12 like the other facilities got until they get transferred to that

13 facility.

14 Q. And have class members who have the life without sentence

15 and who were concerned that they will be transferred from

16 Limestone and then have to go through the administrative

17 segregation again, have they expressed that to you --

18 A. Yes, ma'am.

19 Q. -- and asked you to communicate their concerns to the Court?

20 A. And I told them I would bring that up. I mean they're not

21 on the list as far as the list to be here today. I strongly

22 asked them why didn't you; you know, this is your life. This

23 ain't my life; this is your life. You know, but you're a

24 class -- you're a class representative. You represent us. Help

25 us out. I said, all right. I ain't got no problem doing that.

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1 So this is what I'm doing.

2

So I just need the Department of Corrections to give me some

3 kind of positive -- what have I got to tell these nine to 12

4 guys doing life without? I don't know what to tell these guys.

5 Because I really don't want to be dealing with no lockup.

6

MR. LUNSFORD: I can address that now, if you want.

7

MS. WINTER: Yes. Thank you.

8

MR. LUNSFORD: Hey, Mr. B#1. How are you?

9

THE WITNESS: Hello.

10

MR. LUNSFORD: I wish you had a pen with you. It's

11 Section 6.3.4.1. You got that? 6.3.4.1. Okay. Here's what it

12 says. This is from the ADOC classification manual: Close

13 custody is the least restrictive custody for life without parole

14 inmates -- and here's the important part -- at initial

15 classification for a minimum of 30 days.

16

Okay? So what you're hearing from the life without

17 parole inmates is that they were stuck in close custody on

18 intake. Okay? That only applies upon, as it says, initial

19 classification. It doesn't apply on transfer. Okay?

20

So as I've said earlier, just to be clear, most inmates

21 at Limestone currently, including those who have a life without

22 parole sentence, are not going to go to Kilby. Okay? Most of

23 those will go directly to where they -- the level V facilities

24 where they're housed, which are Donaldson, St. Clair, or Holman.

25

THE WITNESS: Thank you. And I can assure them that.

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1 Because they really believed they were going to be locked up for

2 90 days. That was the thing they were concerned about.

3

MS. WINTER: Thank you. That was very helpful.

4

That's -- is that all that you had to say, Mr. B#1?

5

THE WITNESS: Yes.

6

MS. WINTER: Yes. Thank you.

7

THE WITNESS: Thank you.

8

THE COURT: You are a class representative?

9

THE WITNESS: Yes, sir.

10

THE COURT: I see your name here.

11

THE WITNESS: Yeah. JB#1.

12

THE COURT: Mr. B#1?

13

THE WITNESS: I'm a native of Michigan.

14

THE COURT: Native of Michigan. Thank you very much

15 for your appearance here today.

16

THE WITNESS: Thank you, sir.

17

MS. WINTER: Your Honor, those are all the plaintiffs'

18 witnesses.

19

THE COURT: Thank you.

20

MS. WINTER: And we appreciated very much the

21 information that ADOC provided at the hearing.

22

THE COURT: Mr. Lunsford?

23

MR. LUNSFORD: Yes. Your Honor, the first individual

24 we're going to call is Captain --

25

CAPT. NOE: Guy Noe.

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1

THE COURT: How many witnesses do you have,

2 Mr. Lunsford?

3

MR. LUNSFORD: I think -- I think we're going to call

4 one.

5

THE COURT: Just this one?

6

MR. LUNSFORD: Yes, sir.

7

THE COURT: Okay. Go ahead.

8

MR. LUNSFORD: It's Noe?

9

THE WITNESS: Noe.

10

MR. LUNSFORD: I'm sorry.

11

THE CLERK: Sir, I need to swear you in. I need to

12 swear you in.

13

(The witness is sworn)

14

THE CLERK: What's your first name?

15

THE WITNESS: Guy.

16

THE CLERK: Guy?

17

THE WITNESS: G-U-Y. Guy.

18

GUY NOE, the witness, having been duly sworn to speak

19 the truth, the whole truth, and nothing but the truth, testified

20 as follows:

21

DIRECT EXAMINATION

22 BY MR. LUNSFORD:

23 Q. Captain, would you please introduce yourself to the Court.

24 A. My name is Captain Guy Noe. I'm an A-side captain. I'm in

25 charge of the health care unit, B, C, D, E, F, the gym. I've

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1 work for the Limestone Correctional Facility, Alabama Department

2 of Corrections, for 15 years; been at captain for four months

3 now. I primarily have worked on A side of the institution and

4 have been here throughout the whole process.

5 Q. Captain, at some point in time in the last 90 days were you

6 asked to assist with distributing certain documentation to the

7 inmates in B and C dorms here at Limestone?

8 A. Yes, sir.

9 Q. And if you would, just explain to the Court the process that

10 you-all went through in distributing those documents to the

11 dorms B and C inmates.

12 A. Yes, sir. We had a list, an alpha roster, of every inmate

13 that was assigned at Limestone Correctional Facility at that

14 time. And what we did is we went over -- I instructed to do it

15 after -- at lockdown. And I had a sergeant, Sergeant Mike

16 Jones, go to the dorms. And basically they went cell to cell,

17 and they gave every inmate at Limestone Correctional Facility a

18 copy of the settlement and they signed for it. I had three

19 inmates refuse. I called them to my office the next day. I

20 give them copies of the settlement, and they still refused to

21 sign. But every inmate that day received a copy of the

22 settlement.

23

MR. LUNSFORD: Your Honor, at this time, we would like

24 to offer an unredacted version of the signature sheets of all

25 the B and C dorms at Limestone.

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1

THE COURT: Very good. They're admitted under seal.

2

MR. LUNSFORD: May I approach?

3

THE COURT: Yes.

4 Q. Captain Noe, do you recognize what is before you marked as

5 Defendants' Exhibit 3?

6 A. Yes. Got JB --

7 Q. Well, before you get to that, do you recognize the document

8 itself?

9 A. Oh, yes, I do.

10 Q. And what is that document?

11 A. This is the sheet that -- the roster we had every inmate

12 sign to say they received the settlement.

13 Q. And based on your involvement, the copies of the

14 notification packet provided to the inmates, were they

15 distributed on August the 12th of 2013?

16 A. Yes, sir, they were.

17 Q. And you will see throughout here a certain individual signed

18 as a witness on each and every page of Defendants' Exhibit 3.

19 A. Yes, sir.

20 Q. And do you recognize that individual's signature?

21 A. Yes, sir. That's my sergeant, Mike Jones.

22 Q. I'm also going to hand you what's been previously marked as

23 Defendants' Exhibit 2, which is the notification packet.

24 Captain Noe, do you recognize that document?

25 A. Yes, sir. This is the document that I give to every

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1 inmate in B and C dorm, every inmate -- every special unit

2 inmate at Limestone.

3 Q. To your knowledge, Captain Noe, did any individual housed in

4 dorm B or C as of October -- or excuse me -- August 12th, 2013,

5 not receive a copy of the settlement packet?

6 A. Every one of them -- to my knowledge, every one of them

7 received a copy of this document.

8

MR. LUNSFORD: That's all we have of this witness.

9

THE COURT: Anything else?

10

MS. WINTER: Nothing from us.

11

THE COURT: Thank you. Any other evidence?

12

MR. LUNSFORD: No, sir.

13

THE COURT: Okay. Thank you.

14

Anything else from counsel?

15

MS. WINTER: Nothing, Your Honor.

16

THE COURT: Mr. Lunsford, anything else?

17

MR. LUNSFORD: No, sir.

18

THE COURT: Very good. Then I consider the settlement

19 agreement under submission. I will try to let you-all know

20 something by no later than Monday. I know you need to know

21 something before Monday at midnight.

22

MR. LUNSFORD: Yes, sir.

23

THE COURT: But I want to say to the inmates who are

24 here today that I think we all recognize that these agreements

25 are not perfect. And the essence of a settlement is that you

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1 get an agreement that's not perfect, but you get an agreement

2 that does help you and basically does vindicate the rights that

3 you've asserted. And what you have here is an incredibly good

4 agreement.

5

And I think that the fact that you have a commissioner

6 who has literally devoted, it seems like, day and night to

7 working this litigation out involving 250 inmates in the system,

8 the fact that he's been present at these fairness hearings I

9 think demonstrates the commitment of this department to carry

10 out these agreements. And it's clearly not only a commitment by

11 the department itself, but it's clearly a personal commitment by

12 the commissioner.

13

Anything else? Thank you.

14

Court is in recess.

15

(Proceedings concluded at 2:41 p.m.)

16

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COURT REPORTER'S CERTIFICATE

2

I certify that the foregoing is a correct transcript

3 from the record of proceedings in the above-entitled matter.

4

This 12th day of December, 2014.

5

6

/s/ Risa L. Entrekin

Registered Diplomate Reporter

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Certified Realtime Reporter

Official Court Reporter

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Risa L. Entrekin, RDR, CRR, Official Court Reporter U.S. District Court, Middle District of Alabama
One Church Street, Montgomery, Alabama 36104 * 334.240.2405

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

LOUIS HENDERSON, DANA

)

HARLEY, ALBERT KNOX, JAMES )

DOUGLAS, ALQADEER HAMLET, )

and JEFFREY BEYER, on

)

behalf of themselves and )

of those similarly

)

situated,

)

)

Plaintiffs,

)

)

v.

)

)

KIM THOMAS, Commissioner, )

Alabama Department of

)

Corrections; BILLY

)

MITCHEM, Warden, Limestone )

Correctional Facility;

)

FRANK ALBRIGHT, Warden, )

Julia Tutwiler Prison

)

for Women; BETTINA CARTER, )

Warden, Decatur Work

)

Release/ Community Work )

Center; EDWARD ELLINGTON, )

Warden, Montgomery Women’s )

Facility, in their

)

official capacities,

)

)

Defendants.

)

CIVIL ACTION NO. 2:11cv224-MHT (WO)

OPINION

The plaintiffs in this lawsuit, representing a class

of all current and future HIV-positive prisoners

incarcerated in Alabama Department of Corrections (ADOC) facilities, challenge the ADOC's policy of categorically segregating HIV-positive prisoners from the general prison population and denying the plaintiffs the opportunity to be considered for various rehabilitative services and programs offered to other prisoners. They have named as defendants ADOC Commissioner Kim Thomas and the wardens of the four ADOC facilities that house HIVpositive prisoners.
In December 2012, this court ruled that the HIVsegregation policy discriminates against HIV-positive inmates on the basis of a disability (HIV status) in violation of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. See Henderson v. Thomas, 913 F. Supp. 2d 1267 (M.D. Ala. 2012) (Thompson, J.). The court instructed the parties to meet and attempt to agree on relief. On August 1, 2013, the parties returned to the court with a motion for the court to
2

approve preliminarily two proposed joint settlement agreements: a primary agreement, which would be enforceable in this court, and a private agreement, which is enforceable only in state court under principles of contract law. Joint Mot. for Prelim. Approval and Notice of Proposed Settlement (Doc. No. 284).
Based on careful consideration of the proposed settlement agreements, the objections to the agreements, and the representations by counsel and after two fairness hearings held at the prisons that house the majority of current class members, the court will approve the proposed settlement agreements and enter the parties’ stipulated order.
I. BACKGROUND In the late 1980s, the ADOC began to test inmates for HIV and to segregate those inmates who tested positive. The department took these steps amidst a climate of fear regarding HIV and AIDS. Scientists were not yet certain
3

as to how HIV was transmitted, and, since the infection was so new, there were not yet adequate treatments. To many, HIV infection seemed like an automatic death sentence.
Soon after Alabama began segregating HIV-positive inmates, a group of inmates filed suit challenging the policy. After years of litigation, both this district court, see Harris v. Thigpen, 727 F. Supp. 1564 (M.D. Ala. 1990) (Varner, J.), and Eleventh Circuit Court of Appeals, see Onishea v. Hopper, 171 F.3d 1289 (11th Cir. 1999), found that segregation of HIV-positive prisoners was justified--primarily based on the dangerousness of HIV infection.
Today, the prognosis for a person who contracts HIV has changed drastically. With proper treatment, a person with HIV can live as long as one without HIV, and the danger that he will infect another is much lower. In light of this changing medical reality for people with HIV, this court held that the ongoing policy of
4

segregating HIV-positive inmates violated the Americans with Disabilities Act and the Rehabilitation Act. Henderson v. Thomas, 913 F. Supp. 2d 1267 (M.D. Ala. 2012) (Thompson, J.).
In early 2013, the parties began to develop a remedial plan, and, in June 2013, the parties entered into formal mediation with Magistrate Judge Wallace Capel, Jr. On July 30, the parties reached an agreement to settle all remaining claims with two agreements: a primary agreement enforceable in federal court and a private agreement enforceable in state court. On August 1, the parties filed a joint motion to ask the court to adopt, preliminarily, the agreements, both of which are signed by plaintiffs’ counsel and defendant Kim Thomas, Commissioner of the Alabama Department of Corrections.
On August 6, 2013, the court granted the motion to approve the two settlement agreements preliminarily. The court further approved the parties’ plan for notifying
5

class members of the proposed settlement and for soliciting and receiving class members’ feedback.
The court held two fairness hearings on the proposed settlement. On September 24, 2013, the court held a fairness hearing at Tutwiler Prison, during which the court heard testimony from class representative Dana Harley, two other members of the class, and Warden Bobby Barrett. Two days later, on September 26, the court held a fairness hearing at Limestone Correctional Facility, during which the court heard testimony from class representative Jeffrey Beyer, six other members of the class, and Captain Guy Noe.
II. DESCRIPTION OF PROPOSED SETTLEMENT The proposed settlement consists of two agreements: a primary agreement, enforceable in this court, and a private agreement, enforceable in state court. The primary agreement ends the practice of segregating HIV-positive inmates within facilities. The
6

agreement further allows for HIV-positive inmates to be
eligible for assignment to ten additional facilities
within the ADOC system, and it ends the HIV-specific
restrictions on work-release.1 Incoming prisoners who test
positive for HIV will no longer be sent to an isolation
cell. The parties agree that the ADOC will train staff,
inmates, and medical providers about HIV before HIV-
positive inmates are transferred to new facilities. To
1. ADOC facilities are separated by gender. Before this litigation, women with HIV were assigned to Tutwiler Prison (the only women’s prison in the system) and to Montgomery Women’s Center for work release. The primary agreement allows for women to be placed at Birmingham Work Release, the final remaining women’s facility in the ADOC system.
There are many more ADOC facilities for men. Before this litigation, a man with HIV would arrive at Kilby Correctional Facility for classification. He could then be sent only to Limestone Correctional Facility or Decatur Work Release. The primary agreement enables an HIV-positive inmate to be transferred to Donaldson Correctional Facility, Fountain Correctional Facility, Loxley Work Release, Staton Correctional Facility, Bullock Correctional Facility, Elmore Correctional Facility, St. Clair Correctional Facility, Mobile Work Release, and Red Eagle Work Center.
7

ensure that inmates who have HIV continue to receive necessary treatment, the ADOC will install telemedicine units in certain facilities and will maintain an Acute Care Unit at Limestone. The ADOC will take several steps to protect inmates’ medical confidentiality and will establish a zero-tolerance policy for harassment of HIVpositive prisoners, including ending the practice of making inmates wear armbands that correspond to their HIV status. The primary agreement establishes a schedule for implementing these changes and provides for a monitoring and dispute-resolution regime.
The private agreement expands the provisions of the primary agreement to all of the ADOC’s facilities, fully desegregating prisoners with HIV and allowing the ADOC to remove HIV status from prisoners’ non-medical files.
Both agreements expire on June 30, 2015, unless the agreement is extended by the parties or the primary agreement is extended by order of the court. (The private agreement provides that it will last as long as the
8

primary agreement does.) The primary agreement also provides for the ADOC to pay $ 1.3 million in attorney’s fees and costs to class counsel.
III. DISCUSSION Judicial policy favors voluntary settlement of classaction cases. Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984). However, the court retains a role in the evaluation and approval of settlements, including ensuring that any settlement complies with all relevant law. There are three provisions that require this court’s review. First, Federal Rule of Civil Procedure 23(e) provides for both procedural steps and substantive standards which must be satisfied before the court can approve a class action settlement. Second, the Prison Litigation Reform Act of 1996 establishes certain requirements for prospective relief in cases involving prisons, including when that prospective relief takes the form of a court-enforceable settlement. 18 U.S.C.
9

§ 3626(a)(1) & (c)(1). Finally, because the proposed settlement includes an award of attorney’s fees to plaintiffs’ counsel, Federal Rule of Civil Procedure 23(f) requires that the court find that such a fee award is “reasonable” and provides for a procedure to do so. The court will take up each of these requirements in turn.
A. 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.). This review 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’s note. In its review of the settlement, the court must determine whether notice to the class was adequate, Fed. R. Civ. P. 23(e)(1), and
10

must examine comments and objections from the members of the class, as well as the opinion of class counsel. Laube, 333 F. Supp. 2d at 1238.
i. Notice “The court must ensure that all class members are informed of the agreements and have the opportunity to voice their objections.” Laube, 333 F. Supp. 2d at 1246; Fed. R. Civ. P. 23(e)(1). In this case, plaintiffs’ counsel and the defendants provided many opportunities for members of the class to learn about the proposed settlement and to offer objections and comments about it. Between August 9 and 13, 2013, the defendants hand delivered to each member of the class a copy of the proposed settlements, a notice summarizing the proposed settlement, and a form for objections to the settlement. In an evidentiary submission, the defendants provided documentation of this notice to class members at Kilby, Decatur Work Release, and Montgomery Women’s Center. Exs.
11

B to Billups, Ellington, and Files Affs. (Doc. Nos. 3003, 300-6, 300-9). They further provided documentation for class members at Tutwiler and Limestone at the hearings on September 24 and 26, 2013. Defs. Exs. 1 and 3.
Class counsel visited each of the five facilities housing class members during the week of August 19, 2013. Counsel made efforts to schedule their meetings such that a majority of the class was able to attend, and they discussed the settlement extensively. The court finds that these measures were sufficient to satisfy Rule 23(e)(1)’s notice requirement.
ii. Objections and Comments Twenty-seven class members submitted objections and comments to the proposed settlement. Of these, 24 were submitted from Limestone Correctional Facility, two were submitted from Tutwiler Prison, and one was submitted from Montgomery Women’s Facility.
12

Five of the class members who submitted comments included an explicit statement in favor of the settlement, although two of them also had concerns about specific aspects of the settlement. Most of the other objectors seemed to approve implicitly the general structure of the settlement. However, one objector was concerned that the desegregation itself would undermine the success and privileges he had earned in segregated confinement.
The court could identify 44 discrete comments and objections in submissions from 27 different inmates. Five of these comments were statements of support for the settlement. The remaining comments fell into six general categories: money damages, medical care, the process of reclassification, speed of implementation, confidentiality, and other issues.
Money Damages: Nine inmates wrote that they believed that their treatment entitled them to monetary compensation and that they were disappointed that there
13

was no provision for such compensation in the settlement.2 While § III.A of the primary settlement agreement does not entitle members of the class to monetary compensation, it does not preclude class members from seeking compensation in a future suit.
Since the complaint, this litigation has not contained a claim for money damages. Furthermore, this class was certified as under Fed. R. Civ. P. 23(b)(2). Memorandum Opinion and Order (Doc. No. 188). That section of Rule 23 is available for only suits that primarily seek injunctive or declaratory relief, and a court can only offer monetary relief that is “‘incidental’ to the claims for equitable and declaratory relief.” Cooper v. Southern Co., 390 F.3d 695, 720-21 (11th Cir. 2004).
2. One of these inmates was particularly displeased that the plaintiffs’ attorneys would receive $ 1.3 million in compensation, while the class members would not receive any monetary compensation. The court finds that the amount of attorney’s fees is reasonable given the work performed by the attorneys. See infra, § III.C.
14

The court recognizes the class members’ legitimate senses of grievance for the treatment to which they were subjected. However, “this set of objections must be balanced against the substantial benefits plaintiffs will derive from the settlement agreement, as well as with the fact that the objectors are permitted to file or maintain their actions for monetary damages.” Austin v. Hopper, 28 F. Supp. 2d 1231, 1237 (M.D. Ala. 1998) (Thompson, J.) (quotation marks and ellipsis omitted).
Medical Care: Six of the comments raised concerns about health-care access. Three of these comments involved care for conditions unrelated to HIV. These comments alleged inadequate care for mental illness, cancer, ulcers, and breast reduction. Since these issues of general access to health care are not at the core of this litigation, the settlement is not unfair or unreasonable for failing to address these concerns.
However, three of those comments focused specifically on access to HIV-related care. One class member was
15

concerned that other facilities may not have HIV medications on hand and that this would disrupt the consistent treatment that allows many inmates to stay healthy. Another class member wanted to ensure that medical staff would take his “sick calls” seriously, whether they involved simple diagnoses or more complex issues. A third class member was worried about the proposal to use telemedicine to provide HIV care in some facilities. He pointed out that other inmates may notice who uses the telemedicine facilities, inadvertently revealing the inmate’s HIV status.
The proposed settlement takes several steps to ensure that class members will have consistent access to medical care. Each primary-care clinician at a facility housing an inmate with HIV will receive training on HIV care from the University of Alabama at Birmingham’s 1917 Clinic. § II.E.4. Furthermore, before the ADOC will transfer an HIV-positive inmate to a new facility which is not able to provide in-person HIV-specific consultation, the ADOC
16

will install telemedicine units. Since the ADOC intends to use those telemedicine units to provide access to a wide range of specialist medical providers, an inmate’s use of the units would not necessarily imply that he was HIV-positive. In testimony at the September 26 fairness hearing, the ADOC informed the court of its system for providing for inmates’ pharmaceutical needs during transfers. This system ensures that all inmates with chronic disease, including those with HIV, receive their prescriptions. The proposed settlement also establishes a designated procedure for complaints that an inmate is not receiving his HIV medication. While many class members expressed concern that the settlement’s complaint process would be too slow to address urgent pharmaceutical needs, there are several internal complaint mechanisms which an inmate could use to address an issue with his pharmaceutical or medical care. The court finds that these provisions will sufficiently
17

ensure that members of the class will receive their medications and adequate care.
Reclassification Process: Seven of the comments raised an issue with the process by which inmates who have HIV will be reclassified. These class members objected based on an understanding that all of the male inmates who have HIV will be transferred to Kilby Correctional Facility and then reclassified from that location. Two of the comments expressed concern that a reclassification through Kilby will indirectly signal to many other inmates and prison staff that the inmates who are being reclassified have HIV. Another comment associated Kilby with the past trauma of being diagnosed with HIV and immediately placed in solitary confinement.
At the September 26 fairness hearing, there was extensive explanation of the proposed transfer process from Limestone. Although the ADOC at one point proposed that all of the male class members would be re-classified through Kilby in one large group, the current plan is for
18

the class members to be re-classified in the same manner as any other prisoner. If a class member has been disciplinary-free for the six months prior to transfer, he can make a lateral transfer request for a particular facility. As a part of its general transfer process, the ADOC takes these requests into consideration, but does not guarantee that they will be honored. If a class member is not disciplinary free at the time of transfer, he will be transferred according to the ADOC’s needs. Although this process is not articulated in either settlement agreement, the court finds that it addresses the class members’ objections and has confidence in the ADOC’s good faith in the representations that were made at the September 26 hearing.
Confidentiality: Five class members expressed concern that, even with full implementation of the settlement, their HIV status would be made public. One class member expressed concern that there would be backlash among prison staff or other inmates, which would lead those
19

staff or inmates to reveal his status. Others were concerned that HIV-negative inmates from Limestone may end up in the facility to which he will be transferred and that those inmates will reveal his status to others. All five inmates expressed some collateral concern that the revelation of their HIV status could lead to conflict or violence from other inmates.
The court notes that the settlement includes several provisions to address the risks of noncompliant staff or inmates who may breach medical confidentiality or harass inmates who have HIV. First, all inmates and staff will receive training on HIV and the settlement. Also, the Commissioner issued directives on September 3 that establish a zero-tolerance policy for harassment of HIVpositive inmates. The directives also provide for disciplinary sanction of any staff member who violates the medical confidentiality of an inmate by revealing his HIV status. If class counsel learn that the ADOC is failing to implement these policies fully, they can begin
20

mediation with Magistrate Judge Wallace Capel, as provided by each agreement, and, if mediation does not solve the problem, can seek an order from the court. The court finds that this enforcement structure will adequately protect inmates from malicious or negligent violation of their medical confidentiality, as well as any corresponding harassment.
Speed of Implementation: Four class members objected to the speed at which the settlement process is scheduled to proceed. Two of these objectors noted that Mississippi recently desegregated its HIV-positive inmates more quickly. One inmate at Limestone noted that, as of August 19, the facility was still using armbands which indirectly identified inmates as being HIVpositive. In fact, as of the September 26 hearing, class members were still wearing these armbands. An inmate at Tutwiler noted that, as of August 20, she was still being held from work release. However, at the September 24 hearing, that class member, B.G., testified that she had
21

been allowed on work release after she had sent her objection.
When considering a settlement, the court must weigh criticisms against the risks of proceeding without settlement. “A settlement is in large measure a reasoned choice of certainty over a gamble.” Paradise v. Wells, 686 F. Supp. 1442, 1446 (M.D. Ala. 1988) (Thompson, J.). Even in a case where the court has adjudicated most issues of liability, it can take a court significant time to craft injunctive relief when the parties cannot develop an adequate settlement. While the court takes into consideration these class members’ sense of urgency with regard to changes in their conditions of confinement, rejecting this settlement would in fact exacerbate the class members’ concerns.
Other Issues: The remaining seven comments concerned a wide range of issues. Two objectors were utilizing the programming options which were available in the segregated facilities and feared that, after
22

desegregation, they would be put at the bottom of long waiting lists for access to similar programming. One objector was concerned that the settlement would lead to his transfer to a higher-security facility, which would expose him to more violence at the hands of other inmates. One objector expressed concern that the settlement will not change the behavior of guards who may still carry a strong anti-HIV bias. An inmate felt that he had not been given a fair chance to review the settlement. Another objector was concerned that the parole board may inappropriately use his status to deny him parole.3 Finally, an objector complained about the food at Limestone, in part because he was concerned that he receive a medically adequate diet.
After reviewing the written objections and testimony of class members and after a close examination of the
3. The Alabama Board of Pardons and Paroles is not a party to this litigation. To the extent that parole boards are inappropriately taking HIV status into account in their parole decisions, that issue would not be addressed by this litigation or this settlement.
23

proposed settlement agreements, the court finds that full implementation of the agreements will resolve the majority of the concerns. While some of the class member’s concerns will remain, the court finds that the benefits that the settlement will confer on the plaintiffs outweigh these residual concerns.
iii. View of Class Counsel In addition to considering the views of class members, the court should also consider the opinion of class counsel. Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1215 (5th Cir. 1978);4 Gaddis v. Campbell, 301 F. Supp. 2d 1310, 1315 (M.D. Ala. 2004) (Thompson, J.).
4. The Eleventh Circuit has adopted as precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981, and all Former Fifth Circuit Unit B and non-unit decisions rendered after October 1,1981. See Stein v. Reynolds Secur., Inc., 667 F.2d 33, 34 (11th Cir. 1982); Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981)(en banc).
24

Plaintiffs’ counsel agreed to this settlement only after this court’s judgment in their favor on the issue of liability. Over the more than three years since counsel first began to investigate this case, counsel conducted dozens of interviews with members of the class, and they consulted with numerous experts on prison administration and HIV care. Pls. Br. In Support of Mot. For Attorney’s Fees and Costs (Doc. No. 257) at 11-12. In fact, counsel themselves are experts in prison litigation (including the restrictions imposed by the Prison Litigation Reform Act, see infra) and in litigation on behalf of people with HIV. These attorneys, taking into account both their own experience and the opinions of experts, conclude that the settlement is fair, adequate, and reasonable.
Settlement negotiations between the parties were conducted at arms length, and there is no indication that the parties colluded in drafting this settlement. The
25

court takes seriously the view of class counsel that the settlement is fair, adequate, and reasonable.
iv. Court’s Assessment of the Settlement Agreements The court must now assess for itself whether the
settlement is fair, adequate, and reasonable. “Relevant factors include the stage in the proceedings; the plaintiffs’ likelihood of success at trial [on remaining issues]; the complexity, expense, and likely duration of the lawsuit; and the range of possible recovery.” Laube, 333 F. Supp. 2d at 1246.
The parties reached the proposed settlement after a trial in which the plaintiffs prevailed on nearly all questions of liability. However, for the court to develop injunctive relief absent such a settlement would require the expense of significant time, effort, and money by the parties and time and effort by the court. Such a process would also significantly delay relief for the members of the class.
26

In light of these factors and after a careful and independent review of the proposed settlement agreements, the court is satisfied that they are a fair, adequate, and reasonable resolution to this litigation.
B. Prison Litigation Reform Act “The PLRA strictly limits the prospective relief a federal court may order in cases concerning prison conditions.” Gaddis, 301 F. Supp. 2d at 1313. The PLRA’s restrictions extend to consent decrees. 18 U.S.C. § 3626(c)(1). However, private settlement agreements that are only enforceable in state court do not need to abide by the PLRA’s requirements. 18 U.S.C. § 3626(c)(2). In this case, the parties have developed two agreements. The primary agreement is enforceable by this court and is therefore a consent decree, governed by the PLRA. The private agreement, on the other hand, does not require a PLRA analysis.
27

The PLRA provides that “a court shall not grant or approve any prospective relief unless the court finds that such relief [(1)] is narrowly drawn, [(2)] extends no further than necessary to correct the violation of a Federal right, and [(3)] is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A). The court must also “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” 18 U.S.C. § 3626(a)(1)(B).
The PLRA generally requires that the court “engage in a specific, provision-by-provision examination of [a] consent decree[], measuring each requirement against the statutory criteria.” Cason v. Steckinger, 231 F.3d 777, 785 (11th Cir. 2000). However, “[t]he parties are free to make any concessions or enter into any stipulations they deem appropriate,” and the district court does not need to “conduct an evidentiary hearing about or enter
28

particularized findings concerning any facts or factors about which there is not dispute.” Id. at 785 n.8.
In this case, the parties all agree that the consent decree satisfies the so-called “need-narrownessintrusiveness” requirements of the 18 U.S.C. § 3626(a)(1)(A). They stipulate accordingly in § III.F of the primary agreement. The court would note that this stipulation is particularly justified, given the agreement’s short time frame and its application to only a limited number of the ADOC’s facilities.
The court further finds that the primary agreement will have no adverse effect on public safety or the operation of the criminal-justice system. See 18 U.S.C. § 3626(a)(1)(B). In fact, by integrating HIV-positive inmates within the ADOC’s normal structure of housing and programming, it may even be easier to maintain order and security among those inmates with HIV, as opposed to the current system which offers guards and wardens few
29

carrots and a limited range of sticks to address inmates’ behavior.
In sum, the court is satisfied that it is in full compliance with the PLRA in approving the primary agreement.
C. Rule 23(h) Rule 23(h) “provides a format for all awards of attorney fees and nontaxable costs in connection with a class action.” Fed. R. Civ. P. 23 advisory committee’s note. The rule requires that the attorneys seeking fees and costs “that are authorized by law or by the parties’ agreement” move for those fees and provide notice to the class. Fed. R. Civ. P. 23(h)(1). After allowing for class members or defendants to object to the award of fees, the court must make findings of fact and conclusions of law that the award sought is reasonable. Fed. R. Civ. P. 23(h)(2)-(3).
30

Under the proposed settlement, counsel would receive $ 1.3 million in attorney’s fees and costs. As noted above, one class member objected to the amount of attorney’s fees.
In their statement in support of the proposed settlement, class counsel referred the court to their documentation of fees and costs that was filed on January 4, 2013. Pls. Br. In Support of Mot. For Attorney’s Fees and Costs (Doc. No. 251). At that time, plaintiffs’ attorneys properly moved, in accordance with Fed. R. Civ. P. 54(d)(2), for approximately $ 2.1 million in attorney’s fees and $ 248,230 in non-taxable costs. The court finds that this motion, with the notice of the fee award in the settlement notice, satisfies the procedural requirements of Fed. R. Civ. P. 23(h)(1).
The court has a responsibility to assess independently the reasonableness of an attorney-fee award, even when both parties agree to the award. Piambino v. Bailey, 610 F.2d 1306, 1328 (5th Cir. 1980).
31

This court uses the lodestar approach to determine whether a proposed award of attorney’s fees is reasonable. Norman v. Housing Auth. Of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). Under the lodestar method, “the starting point in any determination [of fees] is to multiply hours reasonably expended by a reasonable hourly rate” to determine the ‘lodestar.’ Id. “After the lodestar is determined ... the court must next consider the necessity of an adjustment.” Id. at 1302. “In determining the lodestar figure and whether it should be adjusted upwards or downwards, the court is guided by the 12 factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th
32

Cir. 1974).”5 Simpleville Music v. Mizell, 511 F. Supp. 2d
1158, 1161 (M.D. Ala. 2007) (Thompson, J.).
Plaintiffs’ counsel present thorough documentation of
the hours spent on this case. Pls. Br. in Support of Mot.
For Attorney’s Fees and Costs (Doc. No. 257 and
Exhibits). They further provide extensive evidence that
their proposed rates represent the market rate for
attorneys of counsel’s caliber working on a case of this
complexity.(The court notes in passing that counsel seek
fees pursuant to 42 U.S.C. § 12205 (ADA) and 29 U.S.C.
§ 794a (Rehabilitation Act). As a result, their fees are
not limited by the PLRA’s restriction on hourly rates for
5. 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. Id.
33

prison litigation, which concerns cases “in which attorney’s fees are authorized under section 1988." 42 U.S.C. § 1997e(d)(1).) Counsel’s calculations establish a lodestar of $ 1,955,218.05
The agreement provides for fees (and costs) of $ 1,300,000, which equates to an adjustment of 66.5%, approximately two-thirds. Absent an agreement between the parties, the court would not adjust the lodestar downward so drastically. Plaintiffs’ counsel took on a case with three stigmas: the stigma attached to HIV, the stigma attached to prison-reform litigation, and finally, a consensus among many attorneys that these claims were barred by res judicata. Navigating legal and logistical challenges, counsel prevailed as to liability and have reached a settlement which addresses the concerns of the class. In light of these challenges and counsel’s effort, the court finds that $ 1,300,000 is a reasonable amount for attorney’s fees and costs.
34

IV. CONCLUSION This settlement is by no means perfect, and it will not provide the members of the class with everything that they could possibly desire. The court heard as much at the fairness hearings, particularly at Limestone. However, the settlement will nonetheless make a large difference for the members of the class. As class representative Dana Harley testified:
“[W]e’ve been waiting for this for a long time. We’ve talked about it over the years. And just being able to be looked at as an individual and not based on where I live or where I sleep or where I work due to my HIV status, that’s a big change.” Over the decades of litigation on this issue, there are many individuals who have helped make this “big change” happen. The court wishes to acknowledge these individuals. First, the court acknowledges the dedication and hard work of Dana Harley, Jeffrey Beyer, and all of the other class representatives past and present. At the fairness hearings, the court heard the extent of the hard work that
35

the representatives undertook: serving as a conduit for information between their fellow inmates and counsel; voicing the concerns of those who were not comfortable speaking for themselves; and participating in the mediation process to reach a final settlement. The court has been quite impressed with the poise and eloquence of Ms. Harley and the other representatives over the course of the litigation. There is a great deal of potential waiting to be unleashed once they finish serving their sentences.
Second, the court wishes to express its gratitude to Magistrate Judge Wallace Capel who ably shepherded the parties through the development of these agreements. These agreements are clearly the result of careful and arduous negotiation. Judge Capel’s efforts to bring the parties together and maintain momentum toward a compromise were indispensable.
Finally, the court recognizes the leadership of Commissioner Kim Thomas in resolving this litigation.
36

Since the court found that it was unlawful to continue segregating HIV-positive prisoners, Commissioner Thomas has shown a clear commitment to bringing the ADOC into compliance with federal law.
The parties’ stipulated order will be entered. DONE, this the 30th day of September, 2013.
/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

 
 Case 2:11-cv-00224-MHT-WC Document 306 Filed 09/30/13 Page 1 of 26

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

LOUIS HENDERSON, et al.,

Plaintiffs,

v.
KIM THOMAS, Commissioner, Alabama Department of Corrections, et al.,

Civil Case No. 2:11cv224-MHT (WO)

Defendants. STIPULATED ORDER

This matter, having come before the Court on the Joint Motion for Approval

of the Parties’ Settlement Agreement and Entry of Stipulated Order, and the Court

having entered an Opinion and Judgment on December 21, 2012, having further

ordered the provision of adequate notice to members of the Plaintiff Class of the

terms of this Order, having received and considered the written objections from

members of the Plaintiff Class related to the contents of this Order, having held

fairness hearings on September 24, 2013, commencing at 10:00 a.m. and

September 26, 2013, commencing at 11:00 a.m., having reviewed the filings,

document, orders and/or admissible evidence which are currently filed of record

with the Court, and having considered the arguments of counsel for the Parties and

{H0127437.2}

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the other premises herein, it is hereby ORDERED and ADJUDGED, for the reasons set forth in the Opinion accompanying this Order, as follows:
1. NOTICE PURSUANT TO RULE 23(e)(1). Reasonable notice of the proposed settlement was provided to the Plaintiff class in the manner directed by the Court by separate Order. Members of the Plaintiff class were then afforded an opportunity to submit comments and objections to the Court concerning the proposed settlement. Fairness hearings pursuant to Fed. R. Civ. P. 23(e)(2) was held on September 24 and 26, 2013, at which the Court heard arguments and testimony.
2. RULE 23(e)(2) FINDINGS. The Court, having considered the arguments and testimony at the hearing, the comments submitted by class members, and the entire record in this case, concludes that the settlement is fair, reasonable, and adequate.
3. DISCONTINUATION OF SEPARATE HIV HOUSING. Pursuant to the terms and conditions of this Order and the process identified herein, the ADOC will discontinue its policy and practice of housing inmates who have HIV separately from inmates who do not have HIV. HIV-positive inmates will be housed in general population housing together with non-HIV-positive inmates, except for those HIV-positive inmates assigned to designated housing units for medical, administrative, disciplinary, protective, and/or security reasons. The

{H0127437.2}

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Case 2:11-cv-00224-MHT-WC Document 306 Filed 09/30/13 Page 3 of 26
ADOC may house HIV-positive inmates in administrative or disciplinary segregation, or protective custody, on the same basis as prisoners who do not have HIV.
4. REVISION OR ELIMINATION OF ALL HIV-SPECIFIC POLICIES, PROTOCOLS, REGULATIONS AND STANDARD OPERATING PROCEDURES. In order to implement the remedial plan described herein, the ADOC will revise and replace the existing rules, policies, protocols, regulations and standard operating procedures that are specifically applicable to inmates with HIV. The rules, policies, protocols, regulations and standard operating procedures which shall be eliminated, revised and/or amended are the following:
TO BE REVISED: a. Exh. J-1 - Alabama Department of Corrections, Office of Health Services, HIV Serology in Determining Special Housing Needs (revised June 2011) (ADOC008886-8889); b. Exh. J-6 - Alabama Department of Corrections, Office of Health Services, Medical Coding Assessment Guide (revised Feb. 2011) (ADOC008893);

{H0127437.2}

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Case 2:11-cv-00224-MHT-WC Document 306 Filed 09/30/13 Page 4 of 26

c. Exh. J-8 - Alabama Department of Corrections Classification Manual (revised Oct. 2010) (ADOC008663-782; see ADOC008720 & ADOC008738);
d. Exh. J-32 - A.D.O.C. – Office of Health Services – Medical / Dental and Mental Health Services Code Match Map (recent review 03/25/10) (ADOC008783 – 8786);
e. Exh. J-33 - Alabama Department of Corrections – Office of Health Services: Medical Health Care Code “6,” Subset “A – Z” (revised Mar. 2010) (ADOC008787);
f. Exh. J-36 - ADOC – Office of Health Services Medical Coding Assessment Guide (revised Feb. 2011) (ADOC008893);
g. Exh. J-48 - Inmate orientation information and forms (ADOC009303 – 9317; see ADOC009306-07, ADOC009313, ADOC009315);
h. Exh. J-63 - Alabama Department of Corrections, Office of Health Services, Division Manual, Policies and Procedures, January 20, 2012 (ADOC17740 – 18038; see ADOC017769, 17773, 17795, 17846, 17881 and 17985); and
i. Exh. J-64 - Limestone Correctional Facility Standard Operating Procedure C-29, Residential Treatment Unit (ADOC18838 - 18845).
TO BE ELIMINATED:

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Case 2:11-cv-00224-MHT-WC Document 306 Filed 09/30/13 Page 5 of 26
j. Exh. J-2 - Alabama Department of Corrections, Julia Tutwiler Prison for Women, Standard Operating Procedure No. 12-3: Inmates with Human Immunodeficiency Virus (HIV)/ Acquired Immune Deficiency Syndrome (AIDS) (Nov. 28, 2011) (ADOC009036-40);
k. Exh. J-3 - Alabama Department of Corrections, Office of Health Services, Information for HIV+ Inmates to be Considered for or Housed at Work Release (revised May 2011) (ADOC008813);
l. Exh. J-7 - Alabama Department of Corrections, Limestone Correctional Facility, Standard Operating Procedure E-25: Inmates with Human Immunodeficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) (May 8, 2008) (ADOC018855-61);
m. Exh. J-34 - A.D.O.C. Inmate With HIV + Serology Health Screening and Criteria Assessment Tool; Transfer Consideration Specific to the Montgomery Work Release Program (Female) (revised Nov. 2011) (ADOC008809 – 8810);
n. Exh. J-35 - A.D.O.C. Inmate With HIV + Serology Health Screening and Criteria Assessment Tool; Transfer Consideration Specific to the Decatur Work Release Program (Male) (revised Nov. 2011) (ADOC008811 – 8812);

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o. Exh. J-49 - Limestone Correctional Facility Post Orders, Dormitory C Cubicle Officer (ADOC009318 – 9339);
p. Exh. J-65 - Limestone Correctional Facility Standard Operating Procedure C-55, Leatherwood Settlement (ADOC18846 - 18849).
Procedure for Adoption of New Policies Not Listed Above. To the extent that the ADOC elects to adopt any additional policy not specifically referenced in this Order which is applicable only to HIV-positive inmates, then the ADOC shall provide Counsel for the Plaintiff Class with a copy of the proposed policy at least 21 days prior to adoption of any such policy. Counsel for the Plaintiff Class may submit any comments, questions or proposed revisions to counsel for the ADOC within 14 days after receipt of such policy. To the extent that the Parties cannot reach a consensus on any such proposed policy during the term of this Order, such disagreement shall be submitted to Magistrate Judge Wallace Capel for resolution consistent with the Dispute Resolution provisions contained herein.
Specific Amendments to the Policies Listed Above: The ADOC will maintain the discretion and authority to revise its policies and procedures consistent with the terms and conditions of this Order and the ADOC specifically agrees to revise policies and procedures which will address (a) the confidentiality of medical information pertaining to all inmates consistent with the requirements of applicable law, and (b) the adoption of revised Medical Coding criteria which

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result in the elimination of the automatic classification of prisoners with HIV with one specific Medical Code.
Procedure for Revision of Policies Listed Above: The ADOC will provide Counsel for the Plaintiff Class a copy of any and all revised policies on or before September 1, 2013. Counsel for the Plaintiff Class will provide any suggested further revisions on or before October 1, 2013.
Procedure for Creation of New Acute Care Policy: Pursuant to the Settlement Agreement, the ADOC has provided Counsel for the Plaintiff Class a copy of the new policy pertaining to the Acute Care Unit at Limestone Correctional Facility, and Counsel for the Plaintiff Class has provided suggested further revisions to the ADOC. To the extent there is any disagreement over such policies that is not rectified by discussions between the Parties, any such disagreement shall be subject to the dispute-resolution provisions herein.
5. ACUTE CARE UNIT. The ADOC will maintain an Acute Care Unit at Limestone Correctional Facility for housing inmates whose individual medical condition, as determined by the HIV Specialist or another authorized medical professional, justifies special housing assignments in a setting that provides acute care. If a prisoner with HIV has been assigned to administrative or disciplinary segregation, but the HIV Specialist or another authorized medical professional determines it is in the inmate’s medical interest to be housed in the close

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observation setting, the inmate may be housed in segregation within the Acute Care Unit.
6. NO ISOLATION AT INTAKE. The ADOC will cease the practice of isolating newly-diagnosed HIV-positive inmates at Julia Tutwiler Prison for Women and Kilby Correctional Facility on or before August 1, 2013. Upon cessation of this practice, any inmate who receives a positive ELISA test result for HIV will remain housed in the receiving unit at Julia Tutwiler Prison for Women or Kilby Correctional Facility, unless such inmate must be housed in a separate housing area due to disciplinary, protective or other security-related reasons or because an authorized medical provider determines that the inmate needs to be housed separately for medical reasons. The ADOC will inform Counsel for the Plaintiff Class in writing when they have ended the prior intake process for HIVpositive inmates at Julia Tutwiler Prison for Women and Kilby Correctional Facility.
7. PRE-TRANSFER PREPARATIONS. Before any HIV-positive inmate is transferred to any facility under this revised housing plan, the following preparatory steps will be completed:
a. Initial Written Directive from ADOC Commissioner. At the outset of the implementation of this proposed remedial plan, the ADOC Commissioner will issue three separate written directives to (1) all classification

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staff, (2) senior security staff (i.e. wardens, captains, and above) and other security staff, and (3) all inmates, notifying these individuals of the changes in the ADOC’s housing practices related to HIV-positive inmates, as described below. The written directives will express the ADOC Commissioner’s commitment to complying with the Court’s judgment and ending the prior policies of the ADOC as it relates to prisoners with HIV. The directives to staff and inmates will also express commitment to ensuring that these individuals receive further education as to the current state of science relative to HIV and AIDS as well as an explicit directive that expresses ADOC’s zero tolerance of any prisoner threatening, abusing or undertaking acts of violence or abuse against any other inmate because of his or her HIV status. The directives to staff will include a mandate from the Commissioner that all ADOC personnel must respect the confidentiality of the medical conditions of all inmates, including the HIV-positive status of certain inmates, and that the intentional disclosure of any inmate’s medical status, including an HIV-positive diagnosis, may constitute a violation of ADOC policy and will result in consideration of disciplinary action. The Directives are attached to the Parties’ Agreement as Exhibit B.
b. Training of Correctional Staff by AATEC. The ADOC will enter into a Memorandum of Understanding with the Alabama AIDS Training and Education Center (“AATEC”) to provide correctional staff with training sessions

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throughout the system. ADOC and AATEC will agree on the duration of the training sessions. Training will be mandatory for all staff on all shifts.
Topics to be covered in this training will include the matters identified in the memorandum by Richard Meriwether with AATEC which is attached to the Parties’ Agreement as Exhibit C, as well as an additional training segment utilized by AATEC related to HIV stigma. Training sessions will include opportunities for staff members to ask questions. The ADOC will continue to offer basic training related to communicable diseases and “universal precautions” through training offered to correctional officer candidates at the Alabama Corrections Academy. The ADOC will incorporate a segment related to HIV prejudice and stigma within the current Academy curriculum.
c. Education Training for Inmates. The ADOC staff (together with representatives of the ADOC’s independent medical provider) will provide educational training to inmates at each of the subject institutions (excluding Decatur Work Release and Montgomery Women’s Center where such training has been previously provided). All individuals conducting training will be at least registered nurses licensed in the State of Alabama. This training will occur first at Julia Tutwiler Prison for Women. The materials and lesson plans to be utilized in the training of inmates will relate to HIV and other sexually transmitted infections (“STIs”), and will be mutually agreed upon by the Parties prior to the

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commencement of training. To the extent there is any disagreement regarding these materials and plans that is not rectified by discussions between the Parties, any such disagreement shall be subject to the dispute-resolution provisions herein. Beginning on or before June 1, 2014, the ADOC will provide the Inmate Training Handouts on HIV and other STIs to all incoming inmates.
d. Training of Medical Staff by AATEC. Each clinician who is expected to provide primary care at facilities housing HIV-positive inmates will engage in a mandatory preceptorship with UAB’s 1917 Clinic. The hours of training devoted by each medical professional will vary depending upon their medical training, education and/or experience as well as the expected tasks assigned to them related to HIV-specific care. To the extent necessary, the ADOC’s independent medical provider may identify additional laboratory personnel who may receive training to ensure the accuracy of laboratory results for testing specific to HIV.
e. Installation of Additional Telemedicine Units. Before the reassignment of HIV-positive inmates to any of the subject facilities, the ADOC will install telemedicine units (i.e. videoconferencing hardware) at facilities where such telemedicine units are necessary for the delivery of HIV-specific consultation.
f. Training of Classification Staff. Additional training of ADOC Classification staff will be conducted internally. As part of this training, ADOC

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will train classification personnel that an inmate’s HIV status must not be documented in his or her classification file, except when such information must necessarily be included as part of an inmate’s classification record (for example, when an inmate’s HIV status is an element of his or her criminal conviction). During this training, classification personnel will also be instructed not to inquire into an inmate’s HIV status. The site classification personnel will attend the AATEC trainings provided to correctional staff at each facility. Classification personnel situated outside of individual ADOC facilities are not required to receive any such training under this Order.
g. Reclassification of HIV-Positive Inmates. All HIV-positive inmates will undergo a reclassification under the revised housing policy pursuant to the existing ADOC Classification Manual. The ADOC will classify each inmate without regard to his or her HIV-positive status, consistent with ADOC’s classification policies and procedures. No inmate will be given authority to choose or direct his or her placement at any particular facility. Any documentation produced during the reclassification process will conform to the instructions provided to classification personnel during the training sessions identified above in Paragraph 7.f. Consistent with the terms of the ADOC Classification Manual (including Section 4.4.3 thereof), the reclassification of HIV-positive inmates under this Order may constitute a “lateral transfer” and, as such, the ADOC may

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consider an inmate’s request for assignment to “an institution that is closer to home or for program participation.”
h. Reassignment to Begin at Julia Tutwiler Prison for Women and Kilby Correctional Facility. The reassignment of HIV-positive inmates will begin at Julia Tutwiler Prison for Women and Kilby Correctional Facility and that initial reassignment of inmates within these facilities will be utilized to identify any actual or potential issues which may result from these housing reassignments to prevent any further issues at any other locations. Beginning on August 1, 2013, newly arriving female HIV-positive inmates will be processed together with nonHIV-positive female inmates through the intake / receiving process at Julia Tutwiler Prison for Women, which includes initial assignment to the receiving dorm within Tutwiler.
Beginning on September 13, 2013, newly arriving male HIV-positive inmates will be processed together with non-HIV-positive male inmates through the intake / receiving process at Kilby Correctional Facility, which includes initial assignment to the receiving dorm within Kilby. Upon completion of the intake / receiving process, male HIV-positive inmates will be transferred to the Permanent Party dorm once sufficient beds are available, on the same basis as other inmates. These newly arriving male HIV-positive inmates assigned to the Permanent Party dorm will be subject to reassignment beginning on June 1, 2014.

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8. IMPLEMENTATION SCHEDULE.

The schedule for

implementation of the matters set forth in this Order shall be as follows:

July 30, 2013

Complete Security Staff and Inmate Training at Tutwiler and Kilby

July 30, 2013

Complete Training for Classification Staff at Tutwiler and Kilby

July 30, 2013

Complete Reclassification of Female Inmates at Tutwiler

August 1, 2013

Reassign Female Inmates within Tutwiler

August 1, 2013

Begin Assigning Incoming HIV-Positive Inmates to Receiving Dorms at Tutwiler and Kilby

September 3, 2013

HIV-Positive Female Inmates first eligible for assignment to Birmingham Work Release

September 3, 2013 ADOC issues Commissioner’s Directives

September 13, 2013 Begin Assignment of Incoming Male HIV-Positive Inmates at Kilby to Permanent Party Dorms

April 1, 2014

Complete Installation of Telemedicine Equipment

May 1, 2014

Complete Training for All Correctional and Medical Personnel and Inmates

June 1, 2014

Begin Reassignment of Male HIV-Positive Inmates at Limestone

November 1, 2014 Complete Reassignment of All HIV-Positive Inmates

To the extent that the ADOC does not complete its specific obligations (as defined

in this Agreement) within the timeframes set forth above, the Parties reserve the

right to mutually agree in writing to an extension of this Order and the Plaintiff

Class reserves the right to request an extension of the term of this Order as well as

the reporting requirements stated herein and/or to seek enforcement of the above

timeframes.

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9. TRANSFER OF HIV-POSITIVE INMATES TO SELECT

FACILITIES. Pursuant to the terms of this Order, HIV-positive inmates will be

eligible to be housed at the following facilities:

Birmingham Work Release

Tutwiler Prison for Women

Decatur Work Release

Staton Correctional Facility

Donaldson Correctional Facility

Bullock Correctional Facility

Fountain Correctional Facility

Elmore Correctional Facility

Limestone Correctional Facility

St. Clair Correctional Facility

Loxley Work Release

Mobile Work Release

Montgomery Women’s Center

Red Eagle Work Center

Nothing in this Order should be construed as creating any obligation for the ADOC

to house any inmates in any facilities operated by the ADOC within the State of

Alabama other than the facilities listed above. The Parties reserve the right to enter

into a separate, independent agreement under which they may expand upon the

number of facilities where HIV-positive inmates may be housed under the same

circumstances as described in this Order.

10. WORK RELEASE CRITERIA. The ADOC will implement and

maintain a work release clearance policy and procedure which will be uniformly

applied to all eligible inmates including all eligible HIV-positive inmates. In other

words, the ADOC will no longer maintain any separate or distinct medical

clearance form or criteria for eligible HIV-positive inmates. The work release

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criteria will be utilized in the basic form and substance attached to the Parties’ Agreement as Exhibit D. The ADOC may revise and alter the attached work release criteria to the extent necessary so long as the work release criteria do not include any criteria applicable only to HIV-positive inmates.
11. ARM BANDS. Nothing contained in this Order shall prohibit the ADOC from utilizing arm bands to identify inmates housed in particular housing units in any ADOC facility, so long as the use of arm bands does not result in a direct or indirect means of disclosure of any inmate’s HIV-positive status.
12. ATTORNEYS’ FEES AND EXPENSES.1 The ADOC shall remit to Counsel for the Plaintiff Class payment in the amount of One Million Three Hundred Thousand and No/100 ($1,300,000.00), which shall constitute payment for any and all attorneys’ fees and expenses incurred, charged and/or otherwise generated by Counsel for the Plaintiff Class from the inception of the Litigation through the date of entry of this Order. The Parties further agree that the above-

1 The Court has independently evaluated the reasonableness of the attorneys’ fees and expenses agreed upon by the parties. After considering (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the 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, the Court finds that the agreed-upon fees set forth herein are reasonable.

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referenced sum may be paid by the ADOC in three separate installment payments as follows: $450,000 within 30 days after entry of the Stipulated Order, $450,000 on or before June 2, 2014, and $400,000 on or before November 3, 2014. The Parties acknowledge and agree that the payments reflected in this paragraph constitute payment in full of attorneys’ fees and expenses claimed by the Plaintiff Class and/or its counsel and/or owed by all Defendants in this matter through the date of the entry of this Order. The Plaintiff Class and its counsel hereby voluntarily, completely and unconditionally waive any and all right, claim and/or entitlement to the recovery of any monies of any kind from any Defendant in this action for any and all attorneys’ fees and/or expenses incurred, charged and/or otherwise generated by Counsel for the Plaintiff Class from the filing of this action through the date of entry of this Order.
Upon the termination or expiration of this Order pursuant to Paragraph 20 below, and from time to time prior to such termination, the Plaintiff Class may petition the Court for an award of attorneys’ fees and expenses incurred by Counsel for the Plaintiff Class for the period of time beginning on the date of the entry of this Order and continuing through the date of the termination or expiration of this Order, or a subperiod thereof. Plaintiff Class and its counsel specifically agree that they shall charge an hourly rate of $195.00 per hour for attorneys and $100.00 per hour for non-attorneys for any fees incurred following the entry of this

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Order and that they shall not seek reimbursement for any fees, retainers, costs, charges or expenses of any kind incurred by any expert retained by the Plaintiff Class or its counsel for work done or tasks completed during the term of the Parties’ Agreement. The ADOC and the Defendants reserve their rights to object to and/or oppose any petition or request by the Plaintiff Class and/or its counsel for any fees or expenses which may be sought after the date of the execution of their Agreement. However, the ADOC and the Defendants agree that they will not assert in any such objection or opposition that the hourly rates agreed upon above are not reasonable.
13. ACCESS TO INMATE RECORDS. Counsel for the Plaintiff Class will have access to copies of the medical and/or institutional records of members of the Plaintiff Class. With respect to inmate medical records, Counsel for the Plaintiff Class shall provide the release of medical information forms typically used by the ADOC and its independent medical provider, at the time of the record request. Counsel for the Plaintiff Class will pay reasonable copying charges for such records not to exceed $0.50 per page.
14. REPORTING REQUIREMENTS. During the term of this Order, the ADOC shall provide the following reports on or before the dates shown below:

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a. Inmate Housing Reports: On May 15, 2014, August 15, 2014,

November 17, 2014, February 13, 2015 and June 15, 2015, the ADOC will report

to Counsel for the Plaintiff Class:

i. The name, AIS Number, assigned facility, custody level,

medical code, mental health code, and EOS date for each member of the Plaintiff

Class. The first time each inmate appears on this report, the ADOC will also report

his or her county of commitment;

ii. the Names and AIS Numbers of HIV-positive Inmates

assigned to the Acute Care Unit;

iii. the Number of HIV-positive Inmates assigned to the

Acute Care Unit who are housed in disciplinary or administrative segregation;

iv. the Number of HIV-positive Inmates assigned to the

Acute Care Unit who are housed in the infirmary at Limestone Correctional

Facility;

v.

the Number of HIV-negative Inmates assigned to the

Acute Care Unit who are housed in the infirmary at Limestone Correctional

Facility; and

vi.

the Number of HIV-positive Inmates assigned to the

Acute Care Unit who are housed in a general population dormitory at Limestone

Correctional Facility.

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b. Medical Training Reports: On October 1, 2013, February 3, 2014 and June 2, 2014, the ADOC will report to Counsel for the Plaintiff Class:
i. the Titles of medical contractor personnel who have completed the 1917 Clinic preceptorships referenced in this Order, and the dates of those preceptorships; and
ii. the Titles of any medical personnel who are scheduled to complete preceptorships under the terms of this Order but have not yet done so.
c. Inmate & Staff Training Reports: On October 1, 2013, February 3, 2014 and June 2, 2014, the ADOC will report to Counsel for the Plaintiff Class:
i. Locations and dates that HIV training sessions referenced in this Order took place since June 15, 2013;
ii. Approximate number of attendees at each session; and iii. The number of classification staff and correctional staff who have yet to be trained at the facilities where trainings for their respective groups have already taken place. Pursuant to the Health Insurance Portability and Accountability Act (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (1996), this Order expressly authorizes the ADOC and any health care provider, health plan, or other covered entity that contracts with ADOC to periodically provide to Counsel for the Plaintiff

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Class the names and AIS numbers of all prisoners with HIV who are assigned to the Acute Care Unit at Limestone Correctional Facility, even if such production would result in the release of protected health information of such prisoners. The Parties are expressly prohibited from using or disclosing the protected health information obtained pursuant to this Order for any purpose other than this action. Further, the Parties shall either return to the covered entity from whom or which such protected health information was obtained, or to destroy the protected health information (including all copies made), immediately upon expiration of this Order. See 45 C. F. R. §§ 163.502(b); 164.512(e)(1)(v). This Order is and shall constitute an “order of a court or administrative tribunal” pursuant to the Privacy Rule, 45 C.F.R. § 164.512(e)(1)(i), promulgated under the Health Insurance Portability and Accountability Act (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (1996). “Protected health information” and “covered entities” have the meanings set forth in 45 C.F.R. § 160.103.
15. NOTIFICATION REGARDING MEDICATION COMPLAINTS. To the extent that Counsel for the Plaintiff Class receives any report from any member of the Plaintiff Class that he or she is not receiving his or her HIV-related medications as prescribed, such complaints may be initially submitted via electronic mail to the following e-mail address: anne.hill@doc.alabama.gov and must be followed with a copy sent via United States Mail to Anne Adams Hill at

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the following mailing address: Anne Adams Hill, Alabama Department of Corrections, Post Office Box 301501, Montgomery, Alabama 36130-1501.
16. PLACEMENT OF AGREEMENT IN LAW LIBRARIES. The ADOC will place a copy of the Parties’ Agreement in the law library at every ADOC facility where one exists.
17. NO MONETARY COMPENSATION. Excluding the payment of attorneys’ fees and costs to Counsel for the Plaintiff Class in this action, nothing contained in this Order creates, mandates or constitutes any obligation of any Defendant, the State of Alabama and/or the Alabama Department of Corrections to compensate, pay or otherwise provide any monetary payment of any kind to any inmate formerly housed, currently housed or housed in the future in any correctional facility operated by or at the direction of the Alabama Department of Corrections. Moreover, nothing in this Order creates any basis for any purported or actual Class Member to seek any financial recovery or monetary benefit of any kind from any Defendant, the State of Alabama and/or the Alabama Department of Corrections. Nothing in this Order is intended to curtail the rights of individual prisoners with HIV to bring lawsuits for violations of the Americans with Disabilities Act or the Rehabilitation Act, which are not otherwise barred for reasons unrelated to this Order.

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18. NO APPEAL. All Parties have waived all rights to seek any appeal from and/or appellate review of this Order.
19. COURT’S RETENTION OF JURISDICTION TO ENFORCE THE ORDER. Upon the entry of this Order, the Circuit Clerk for the United States District Court for the Middle District of Alabama is hereby directed to administratively close this case, but the Court shall retain jurisdiction to enforce this Order.
20. EXPIRATION OF ORDER. Unless otherwise agreed in writing by the Parties or extended by Order of the Court or unless a motion to extend the term of this Order is then pending, this Order shall expire by its own terms at 12:00 p.m. (Central Daylight Savings Time) on June 30, 2015. In the event that any such pending motion identified above (as of June 30, 2015) is denied, this Order shall expire on the date on which such motion is denied by the Court.
21. NO WAIVER OF PRIVILEGE. Nothing in this Order or undertaken pursuant to this Order constitutes or is intended to constitute a waiver of any applicable privilege of any kind.
22. FINDINGS PURSUANT TO 18 U.S.C. § 3626(a). The Court specifically finds that the prospective relief in this Order is narrowly drawn, extends no further than necessary to correct the violations of federal rights as alleged by the Plaintiff Class in the Second Amended Complaint, is the least

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intrusive means necessary to correct these violations, and will not have an adverse impact on public safety or the operation of a criminal justice system. Accordingly, this Order complies in all respects with the provisions of 18 U.S.C. § 3626(a).
In making these findings pursuant to 18 U.S.C. § 3626(a), the Court expressly acknowledges that it is not relying in any way on all or any portion of any Private Settlement Agreement and nothing in this Order is intended to address, incorporate or render enforceable in this Court any obligation undertaken or assumed by the ADOC under the Private Settlement Agreement, which shall be enforceable pursuant to its own terms in a state court of competent jurisdiction.
Nothing contained in this Order or the Parties’ Agreement shall be construed as an admission of any kind by the State of Alabama, any Defendant and/or any agent, employee, officer and/or representative of the Alabama Department of Corrections, except as expressly stated in this Order and the Parties’ Agreement.
23. DISPUTE RESOLUTION. In the event of any dispute related to the terms and conditions of this Order, the Parties shall submit to mediation before United States Magistrate Judge Wallace Capel prior to filing any document with the Court related to the alleged matters which are the subject of the dispute. To the extent that any party files any such motion or pleading with the Court without first submitting the matter to mediation, any such filing shall be dismissed without prejudice pending the outcome of mediation.

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24. PRESS STATEMENTS. Upon entry of this Order, the Parties shall issue the Joint Press Statement attached as Exhibit E to their Agreement, and any Party may subsequently choose to issue any other public statement.
25. NO ADDITIONAL EMPLOYMENT OBLIGATIONS. Nothing in this Order shall be construed in any way as creating any obligation of any kind upon any Defendant, the State of Alabama or the Alabama Department of Corrections to hire, retain and/or employ any consultant, advisor, correctional officer, medical professional or other individuals of any kind, excluding the retention of AATEC.
26. NO VIOLATION OF ANY OTHER APPLICABLE COURT ORDERS. Nothing in this Order is intended to create any obligation or requirement which would result in the violation of any other currently existing order entered by a Court of competent jurisdiction.
It is further ORDERED that all outstanding motions are denied as moot. 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. This case is closed.

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IT IS SO ORDERED, this 30th day of September, 2013.
/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE MYRON H. THOMPSON

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A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1 365, 1 368 ( 11th Ci r. 1 983). A magistrate judge’s report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885- 86 (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L .Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders “granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . .” and from “[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed.” Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964). Rev.: 4/04

Case 2:11-cv-00224-MHT-WC Document 306-1 Filed 09/30/13 Page 2 of 2
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

 
 Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 1 of 51
CLOSED,MHT−ClerkA,MHT−ClerkD
U.S. District Court Alabama Middle District (Montgomery) CIVIL DOCKET FOR CASE #: 2:11−cv−00224−MHT−WC

Henderson, et al. v. Dunn, et al. Assigned to: Honorable Judge Myron H. Thompson Referred to: Honorable Judge Wallace Capel, Jr Cause: 42:12101 Americans with Disabilities Act
Plaintiff

Date Filed: 03/28/2011 Date Terminated: 09/30/2013 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Louis Henderson on behalf of themselves and of all those similarly situated

represented by Allison Eichenfeld Neal American Civil Liberties Union of Alabama 207 Montgomery Street, Suite 910 Montgomery, AL 36104 334−265−2754 Fax: 334−269−5666 Email: aneal@aclualabama.org TERMINATED: 08/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amanda C. Goad American Civil Liberties Union Foundation AIDS Project 125 Broad Street; 18th Floor New York, NY 10004 212−549−2661 Email: agoad@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David M. Shapiro National Prison Project of the ACLU 915 15th Street, NW; 7th Floor Washington, DC 20005 202−715−0838 Email: dshapiro@npp−aclu.org TERMINATED: 10/03/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber National Prison Project of the ACLU Foundation 915 15th St. NW − 7th Floor Washington, DC 20005 202−393−4930 Email: geber@aclu.org 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

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Email: rmarshall@aclualabama.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert David Segall Copeland Franco Screws & Gill PO Box 347 Montgomery, AL 36101−0347 334−834−1180 Fax: 334−834−3172 Email: segall@copelandfranco.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carl Takei ACLU National Prison Project 915 15th St NW − 7th Floor Washington, DC 20005 202−393−4930 Fax: 202−393−4931 Email: ctakei@npp−aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer A Wedekind 915 15th Street NW; 7th Floor Washington, DC 20005 202−548−6607 Email: jennifer@aclu−nca.org PRO HAC VICE ATTORNEY TO BE NOTICED

Margaret Winter ACLU National Prison Project 915 15th St NW − 7th Floor Washington, DC 20005 202−393−4930 Fax: 202−393−4931 Email: mwinter@npp−aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Rose Saxe ACLU 125 Broad St − 18 Floor New York, NY 10004 212−549−2627 Email: rsaxe@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Dana Harley on behalf of themselves and of all those similarly situated

represented by Allison Eichenfeld Neal (See above for address) TERMINATED: 08/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amanda C. Goad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 3 of 51

David M. Shapiro (See above for address) TERMINATED: 10/03/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Robert David Segall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carl Takei (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer A Wedekind (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rose Saxe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Darrell Robinson on behalf of themselves and of all those similarly situated TERMINATED: 09/19/2012

represented by Allison Eichenfeld Neal (See above for address) TERMINATED: 08/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amanda C. Goad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David M. Shapiro (See above for address) TERMINATED: 09/19/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 4 of 51

Plaintiff
Dwight Smith on behalf of themselves and of all those similarly situated TERMINATED: 06/19/2013

Randall Charles Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert David Segall (See above for address) TERMINATED: 09/19/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carl Takei (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer A Wedekind (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Margaret Winter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rose Saxe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Allison Eichenfeld Neal (See above for address) TERMINATED: 08/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda C. Goad (See above for address) TERMINATED: 06/19/2013 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David M. Shapiro (See above for address) TERMINATED: 10/03/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gabriel B Eber (See above for address) TERMINATED: 06/19/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Charles Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert David Segall

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 5 of 51

(See above for address) TERMINATED: 06/19/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carl Takei (See above for address) TERMINATED: 06/19/2013 PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer A Wedekind (See above for address) TERMINATED: 06/19/2013 PRO HAC VICE ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) TERMINATED: 06/19/2013 PRO HAC VICE ATTORNEY TO BE NOTICED

Rose Saxe (See above for address) TERMINATED: 06/19/2013 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Albert Knox on behalf of themselves and of all those similarly situated

represented by Allison Eichenfeld Neal (See above for address) TERMINATED: 08/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amanda C. Goad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David M. Shapiro (See above for address) TERMINATED: 10/03/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Robert David Segall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carl Takei

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 6 of 51

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer A Wedekind (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rose Saxe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Roosevelt James on behalf of themselves and of all those similarly situated TERMINATED: 04/12/2011

represented by Allison Eichenfeld Neal (See above for address) TERMINATED: 08/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Robert David Segall (See above for address) TERMINATED: 04/12/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carl Takei (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rose Saxe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
John Hicks on behalf of themselves and of all those similarly situated TERMINATED: 09/30/2011

represented by Allison Eichenfeld Neal (See above for address) TERMINATED: 08/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 7 of 51

Robert David Segall (See above for address) TERMINATED: 09/30/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carl Takei (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rose Saxe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
April Stagner on behalf of themselves and of all those similarly situated TERMINATED: 04/12/2011

represented by Allison Eichenfeld Neal (See above for address) TERMINATED: 08/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Robert David Segall (See above for address) TERMINATED: 04/12/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carl Takei (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rose Saxe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Ashley Dotson on behalf of themselves and of all those similarly situated TERMINATED: 05/13/2011

represented by Allison Eichenfeld Neal (See above for address) TERMINATED: 08/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall Charles Marshall (See above for address) LEAD ATTORNEY

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 8 of 51

ATTORNEY TO BE NOTICED

Robert David Segall (See above for address) TERMINATED: 05/13/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carl Takei (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rose Saxe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Melinda Washington on behalf of themselves and of all those similarly situated TERMINATED: 09/30/2011

represented by Allison Eichenfeld Neal (See above for address) TERMINATED: 08/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Robert David Segall (See above for address) TERMINATED: 09/30/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carl Takei (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rose Saxe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
David Smith on behalf of themselves and of all those similarly situated TERMINATED: 09/30/2011

represented by Allison Eichenfeld Neal (See above for address) TERMINATED: 08/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall Charles Marshall

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 9 of 51

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

Robert David Segall (See above for address) TERMINATED: 09/30/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carl Takei (See above for address) TERMINATED: 06/19/2013 PRO HAC VICE ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) TERMINATED: 06/19/2013 PRO HAC VICE ATTORNEY TO BE NOTICED

Rose Saxe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
James Douglas on behalf of themselves and of all those similarly situated

represented by Allison Eichenfeld Neal (See above for address) TERMINATED: 08/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amanda C. Goad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David M. Shapiro (See above for address) TERMINATED: 10/03/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Robert David Segall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carl Takei (See above for address) PRO HAC VICE

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 10 of 51

ATTORNEY TO BE NOTICED

Jennifer A Wedekind (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rose Saxe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Alqadeer Hamlet on behalf of themselves and of all those similarly situated

represented by Allison Eichenfeld Neal (See above for address) TERMINATED: 08/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amanda C. Goad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David M. Shapiro (See above for address) TERMINATED: 10/03/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Carl Takei (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer A Wedekind (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Margaret Winter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Robert David Segall (See above for address) ATTORNEY TO BE NOTICED

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 11 of 51

Plaintiff Jeffery Beyer on behalf of themselves and of all those similarly situated
Plaintiff Bonita Graham on behalf of themselves and of all those similarly situated TERMINATED: 06/18/2012

Rose Saxe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Allison Eichenfeld Neal (See above for address) TERMINATED: 08/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda C. Goad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David M. Shapiro (See above for address) TERMINATED: 10/03/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gabriel B Eber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Charles Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carl Takei (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer A Wedekind (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Margaret Winter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert David Segall (See above for address) ATTORNEY TO BE NOTICED
Rose Saxe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Allison Eichenfeld Neal (See above for address) TERMINATED: 08/17/2012 LEAD ATTORNEY

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 12 of 51
ATTORNEY TO BE NOTICED
David M. Shapiro (See above for address) TERMINATED: 06/18/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall Charles Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carl Takei (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer A Wedekind (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Margaret Winter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert David Segall (See above for address) TERMINATED: 06/18/2012 ATTORNEY TO BE NOTICED
Rose Saxe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
Robert Bentley Govenor of Alabama, in his official capacity TERMINATED: 09/19/2011

represented by Anne Adams Hill Alabama Department of Corrections 301 South Ripley Street Montgomery, AL 36104 334−353−3884 Fax: 334−353−3891 Email: Anne.Hill@doc.alabama.gov TERMINATED: 09/19/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Berman Block Maynard Cooper & Gale, PC 655 Gallatin Street, SW Huntsville, AL 35801 256−551−0171 Fax: 256−512−0119 Email: dblock@maynardcooper.com TERMINATED: 09/19/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janine McKinnon McAdory

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 13 of 51

Maynard, Cooper & Gale, PC 1901 6th Ave N − 2400 Regions/Harbert Plaza Birmingham, AL 35203 205−254−1000 Fax: 205−254−1999 Email: jmcadory@maynardcooper.com TERMINATED: 09/19/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mitesh Bansilal Shah Maynard, Cooper & Gale, PC 1901 6th Avenue North; Suite 2400 Birmingham, AL 35203 205−254−1178 Fax: 205−254−1999 Email: mshah@maynardcooper.com TERMINATED: 09/19/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Lee Rouse Alabama Forestry Commission P o Box 302550 Montgomery, AL 36130−2550 334−240−9342 Fax: 334−240−9388 Email: scott.rouse@forestry.alabama.gov TERMINATED: 09/19/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Richard Lunsford Maynard Cooper & Gale PC 655 Gallatin Street Huntsville, AL 35801 256−551−0171 Fax: 256−512−0119 Email: blunsford@maynardcooper.com TERMINATED: 09/19/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Kim Tobias Thomas Commissioner, Alabama Department of Corrections, in his official capacity TERMINATED: 03/03/2015

represented by Anne Adams Hill (See above for address) TERMINATED: 03/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Berman Block (See above for address) TERMINATED: 03/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Anne Sees Alabama Department of Corrections Legal Division P O Box 301501 Montgomery, AL 36104 334−353−3857 Fax: 334−353−3891

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 14 of 51

Email: elizabeth.sees@doc.alabama.gov TERMINATED: 03/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janine McKinnon McAdory (See above for address) TERMINATED: 03/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mitesh Bansilal Shah (See above for address) TERMINATED: 03/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Lee Rouse (See above for address) TERMINATED: 03/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Richard Lunsford (See above for address) TERMINATED: 03/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mitchell David Greggs Maynard Cooper & Gale, PC 1901 Sixth Avenue North; Suite 2400 Birmingham, AL 35203 205−254−1874 Fax: 205−254−1999 Email: mgreggs@maynardcooper.com TERMINATED: 03/03/2015 ATTORNEY TO BE NOTICED

Defendant
Billy Mitchem Warden, Limestone Correctional Facility, in his official capacity TERMINATED: 10/06/2015

represented by Anne Adams Hill (See above for address) TERMINATED: 10/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Berman Block (See above for address) TERMINATED: 10/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Anne Sees (See above for address) TERMINATED: 10/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janine McKinnon McAdory (See above for address) TERMINATED: 10/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 15 of 51

Mitesh Bansilal Shah (See above for address) TERMINATED: 10/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Lee Rouse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Richard Lunsford (See above for address) TERMINATED: 10/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mitchell David Greggs (See above for address) TERMINATED: 10/06/2015 ATTORNEY TO BE NOTICED

Defendant
Frank Albright Warden, Julia Tutwiler Prison for Women, in his official capacity TERMINATED: 10/06/2015

represented by Anne Adams Hill (See above for address) TERMINATED: 10/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Berman Block (See above for address) TERMINATED: 10/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Anne Sees (See above for address) TERMINATED: 10/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janine McKinnon McAdory (See above for address) TERMINATED: 10/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mitesh Bansilal Shah (See above for address) TERMINATED: 10/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Lee Rouse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Richard Lunsford (See above for address) TERMINATED: 10/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 16 of 51

Mitchell David Greggs (See above for address) TERMINATED: 10/06/2015 ATTORNEY TO BE NOTICED

Defendant
Bettina Carter Warden, Decatur Work Release/Community Work Center, in her official capacity

represented by Anne Adams Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Berman Block (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Anne Sees (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janine McKinnon McAdory (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mitesh Bansilal Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Lee Rouse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Richard Lunsford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mitchell David Greggs (See above for address) ATTORNEY TO BE NOTICED

Defendant
Edward Ellington Warden, Montgomery Women's Facility, in his official capacity

represented by Anne Adams Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Berman Block (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Anne Sees (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janine McKinnon McAdory (See above for address) LEAD ATTORNEY

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 17 of 51

ATTORNEY TO BE NOTICED

Mitesh Bansilal Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Lee Rouse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Richard Lunsford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mitchell David Greggs (See above for address) ATTORNEY TO BE NOTICED

Defendant
Billy Sharp in his official capacity TERMINATED: 05/01/2015

represented by Anne Adams Hill (See above for address) TERMINATED: 05/01/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Berman Block (See above for address) TERMINATED: 05/01/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Anne Sees (See above for address) TERMINATED: 05/01/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janine McKinnon McAdory (See above for address) TERMINATED: 05/01/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mitchell David Greggs (See above for address) TERMINATED: 05/01/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mitesh Bansilal Shah (See above for address) TERMINATED: 05/01/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Lee Rouse (See above for address) TERMINATED: 05/01/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 18 of 51

William Richard Lunsford (See above for address) TERMINATED: 05/01/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Jefferson S. Dunn in his official capacity, Commissioner, Alabama Department of Corrections

represented by Anne Adams Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Berman Block (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Anne Sees (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janine McKinnon McAdory (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mitchell David Greggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mitesh Bansilal Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Lee Rouse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Richard Lunsford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Bobby Barrett

represented by Anne Adams Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Berman Block (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Anne Sees (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janine McKinnon McAdory

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 19 of 51

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

Mitchell David Greggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mitesh Bansilal Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Lee Rouse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Richard Lunsford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Christopher Gordy

represented by Anne Adams Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Berman Block (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Anne Sees (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janine McKinnon McAdory (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mitchell David Greggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mitesh Bansilal Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Richard Lunsford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
Ronald Evans TERMINATED: 07/24/2012

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Movant Ralph Davis TERMINATED: 03/03/2015 Movant Jaquine Roberto Taylor TERMINATED: 04/08/2016
Movant Dewayne Estes TERMINATED: 10/06/2015

represented by Jaquine Roberto Taylor AIS 167813 ADOC STATON Staton Correctional Facility 2690 Marion Spillway Road Elmore, AL 36025 PRO SE
represented by Anne Adams Hill (See above for address) TERMINATED: 10/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Berman Block (See above for address) TERMINATED: 10/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Anne Sees (See above for address) TERMINATED: 10/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janine McKinnon McAdory (See above for address) TERMINATED: 10/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mitchell David Greggs (See above for address) TERMINATED: 10/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mitesh Bansilal Shah (See above for address) TERMINATED: 10/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Lee Rouse (See above for address) TERMINATED: 10/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Richard Lunsford (See above for address) TERMINATED: 10/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 21 of 51

Date Filed 03/28/2011
03/28/2011 03/28/2011 03/28/2011
03/28/2011
03/30/2011 03/30/2011
03/31/2011 04/04/2011 04/04/2011 04/04/2011 04/05/2011 04/06/2011 04/06/2011

# Docket Text
1 CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against Frank Albright, Robert Bentley, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Thomas (Filing fee $ 350.00 receipt number 4602017920.), filed by John Hicks, Dana Harley, Louis Henderson, Roosevelt James, Darrell Robinson, Ashley Dotson, April Stagner, Dwight Smith, Melinda Washington, Albert Knox. (Attachments: # 1 Receipt) (wcl, ) (Entered: 03/30/2011)
2 MOTION for Class Certification by Ashley Dotson, Dana Harley, Louis Henderson, John Hicks, Roosevelt James, Albert Knox, Darrell Robinson, Dwight Smith, April Stagner, Melinda Washington. (Attachments: # 1 Proposed Order)(wcl, ) (Entered: 03/30/2011)
3 MEMORANDUM of Law in Support of 2 MOTION for Class Certification filed by Ashley Dotson, Dana Harley, Louis Henderson, John Hicks, Roosevelt James, Albert Knox, Darrell Robinson, Dwight Smith, April Stagner, Melinda Washington. (wcl, ) (Entered: 03/30/2011)
4 Motion for Admission of Margaret Winter as Visiting Attorney, Pro Hac Vice (Filing fee $ 50.00 receipt number 4602017924.) by Ashley Dotson, Dana Harley, Louis Henderson, John Hicks, Roosevelt James, Albert Knox, Darrell Robinson, Dwight Smith, April Stagner, Melinda Washington. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Certificate of Good Standing, # 4 Receipt) (wcl, ) (Entered: 03/30/2011)
5 Motion for Admission of Carl Takei as Visiting Attorney, Pro Hac Vice (Filing fee $ 50.00 receipt number 4602017924.) by Ashley Dotson, Dana Harley, Louis Henderson, John Hicks, Roosevelt James, Albert Knox, Darrell Robinson, Dwight Smith, April Stagner, Melinda Washington. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Certificate of Good Standing, # 4 Receipt) (wcl, ) (Entered: 03/30/2011)
6 Summons Issued as to Robert Bentley, Kim Thomas, Billy Mitchem, Frank Albright, Bettina Carter, Edward Ellington and mailed CMRRR with copy of Complaint, Motions 2 , 4 , & 5 , and 3 Memorandum. (wcl, ) (Entered: 03/30/2011)
7 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to Louis Henderson, Dana Harley, Darrell Robinson, Dwight Smith, Albert Knox, Roosevelt James, John Hicks, April Stagner, Ashley Dotson, Melinda Washington; Corporate Disclosures due by 4/11/2011. (Attachments: # 1 Corporate/Conflict Attachment)(wcl, ) (Entered: 03/30/2011)
8 ORDER granting 4 and 5 Motions for Admission Pro Hac Vice. Signed by Honorable Myron H. Thompson on 3/31/2011. (wcl, ) (Entered: 03/31/2011)
9 Return Receipt Card showing service of Summons, Complaint, 2 , 4 & 5 Motions, and 3 Memorandum signed by C. Thornton for Edward Ellington served on 3/31/2011, answer due 4/21/2011. (wcl, ) (Entered: 04/04/2011)
10 Return Receipt Card showing service of Summons, Complaint, 2 , 4 & 5 Motions, and 3 Memorandum signed by illegible for Robert Bentley served on 3/29/2011, answer due 4/19/2011. (wcl, ) (Entered: 04/04/2011)
11 Return Receipt Card showing service of Summons, Complaint, 2 , 4 & 5 Motions, and 3 Memorandum signed by Susie Mims for Frank Albright served on 4/1/2011, answer due 4/22/2011. (wcl, ) (Entered: 04/04/2011)
12 Return Receipt Card showing service of Summons, Complaint, 2 , 4 & 5 Motions, and 3 Memorandum signed by B.S. Artis for Kim Thomas served on 4/1/2011, answer due 4/22/2011. (wcl, ) (Entered: 04/05/2011)
13 Corporate/Conflict Disclosure Statement by Ashley Dotson re 7 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement,. (Neal, Allison) (Entered: 04/06/2011)
14 Corporate/Conflict Disclosure Statement by Dana Harley re 7 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement,. (Neal, Allison) (Entered:

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 22 of 51

04/06/2011 04/06/2011 04/06/2011 04/06/2011 04/06/2011 04/06/2011 04/07/2011 04/07/2011 04/11/2011 04/11/2011 04/11/2011
04/12/2011
04/12/2011 04/18/2011 04/18/2011 04/19/2011 05/11/2011

04/06/2011)
15 Corporate/Conflict Disclosure Statement by Louis Henderson re 7 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement,. (Neal, Allison) (Entered: 04/06/2011)
16 Corporate/Conflict Disclosure Statement by John Hicks re 7 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement,. (Neal, Allison) (Entered: 04/06/2011)
17 Corporate/Conflict Disclosure Statement by Albert Knox re 7 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement,. (Neal, Allison) (Entered: 04/06/2011)
18 Corporate/Conflict Disclosure Statement by Darrell Robinson re 7 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement,. (Neal, Allison) (Entered: 04/06/2011)
19 Corporate/Conflict Disclosure Statement by Dwight Smith re 7 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement,. (Neal, Allison) (Entered: 04/06/2011)
20 Corporate/Conflict Disclosure Statement by Melinda Washington re 7 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement,. (Neal, Allison) (Entered: 04/06/2011)
21 Return Receipt Card showing service of Summons, Complaint, 2 , 4 & 5 Motions, and 3 Memorandum signed by F. Roper for Bettina Carter served on 4/4/2011, answer due 4/25/2011. (wcl, ) (Entered: 04/07/2011)
22 Return Receipt Card showing service of Summons, Complaint, 2 , 4 & 5 Motions, and 3 Memorandum signed by H. Whitacre for Billy Mitchem served on 4/4/2011, answer due 4/25/2011. (wcl, ) (Entered: 04/07/2011)
23 NOTICE by Roosevelt James voluntary dismissal (Neal, Allison) (Entered: 04/11/2011)
24 NOTICE by April Stagner voluntary dismissal (Neal, Allison) (Entered: 04/11/2011)
25 Motion for Admission of Rose A. Saxe as Visiting Attorney, Pro Hac Vice (Filing fee $ 50.00 receipt number 4602018134.) by Ashley Dotson, Dana Harley, Louis Henderson, John Hicks, Roosevelt James, Albert Knox, Darrell Robinson, Dwight Smith, April Stagner, Melinda Washington. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Certificate of Good Standing, # 4 Receipt) (wcl, ) (Entered: 04/12/2011)
26 ORDER: pursuant to the 23 & 24 Notices of Voluntary Dismissal, it is the ORDER, JUDGMENT, and DECREE of the court that plfs Roosevelt James and April Stagner are dismissed and terminated as parties. Signed by Honorable Myron H. Thompson on 4/12/2011. (Attachments: # 1 Civil Appeals Checklist) (wcl, ) (Entered: 04/12/2011)
27 ORDER granting 25 Motion for Admission Pro Hac Vice. Signed by Honorable Myron H. Thompson on 4/12/2011. (wcl, ) (Entered: 04/12/2011)
28 MOTION for Extension of Time to File Special Report & Answer by Frank Albright, Robert Bentley, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Thomas. (Rouse, Scott) (Entered: 04/18/2011)
29 Corporate/Conflict Disclosure Statement by Frank Albright, Robert Bentley, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Thomas. (Rouse, Scott) (Entered: 04/18/2011)
30 ORDER granting 28 Motion for Extension of Time to Respond. Signed by Honorable Myron H. Thompson on 4/19/2011. (wcl, ) (Entered: 04/19/2011)
31 FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against Frank Albright, Robert Bentley, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Thomas, filed by John Hicks, Dana Harley, Louis Henderson, Darrell Robinson, James Douglas, David Smith, Dwight Smith,

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 23 of 51

05/11/2011 05/13/2011 05/25/2011 05/25/2011 05/25/2011 05/27/2011 06/24/2011
06/27/2011 07/08/2011 07/08/2011 07/11/2011

Melinda Washington, Albert Knox.(Neal, Allison) Modified on 5/12/2011 to remove the erroneous filer Ashley Dotson and to add as also filed on behalf of James Douglas and David Smith (wcl, ). (Entered: 05/11/2011)
32 NOTICE by Ashley Dotson of Voluntary Dismissal (Neal, Allison) Modified on 5/11/2011 to reflect as filed only on behalf of Ashley Dotson (wcl, ). (Entered: 05/11/2011)
33 ORDER, pursuant to the 32 Notice of voluntary dismissal, it is the ORDER, JUDGMENT and DECREE of the court that plaintiff Ashley Dotson is dismissed and terminated as a party. Signed by Honorable Myron H. Thompson on 5/13/11. (Attachments: # 1 civil appeals checklist)(djy, ) Modified on 5/16/2011 to correct the docket text to reflect the correct name as Dotson and not Dotxon (wcl, ). (Entered: 05/13/2011)
34 MOTION to Dismiss by Frank Albright, Robert Bentley, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Thomas. (Lunsford, William) (Entered: 05/25/2011)
35 BRIEF/MEMORANDUM in Support re 34 MOTION to Dismiss filed by Frank Albright, Robert Bentley, Bettina Carter, Billy Mitchem, Kim Thomas. (Attachments: # 1 Exhibit 1 − Affidavit of Tonitta Reese, # 2 Exhibit 2 − Affidavit of Debbie Hunt, # 3 Exhibit 3 − Leatherwood − Second Amended Complaint)(Lunsford, William) Modified on 5/26/2011 to add as also filed on behalf of Frank Albright, Robert Bentley, and Bettina Carter (wcl, ). (Entered: 05/25/2011)
***Attorney Anne Adams Hill, David Berman Block, Mitesh Shah, Janine Alicia McKinnon for Frank Albright, Robert Bentley, Bettina Carter, Edward Ellington, Billy Mitchem, and Kim Thomas added pursuant to 34 Motion. (No PDF Attached) (wcl, ) (Entered: 05/26/2011)
36 ORDER re 34 MOTION to Dismiss. Motion Submission Deadline set for 7/8/2011 without oral argument, with any opposition brief due by 6/24/2011, and any reply to the opposition due by 7/8/2011. Signed by Honorable Judge Myron H. Thompson on 5/27/2011. (dmn) (Entered: 05/27/2011)
37 BRIEF/MEMORANDUM in Opposition re 35 BRIEF/MEMORANDUM in Support, 34 MOTION to Dismiss filed by James Douglas, Dana Harley, Louis Henderson, John Hicks, Albert Knox, Darrell Robinson, David Smith, Dwight Smith, Melinda Washington. (Attachments: # 1 Table of Exhibits, # 2 Exhibit 1: DHHS website, # 3 Exhibit 2: Correspondence, # 4 Exhibit 3: Neal Declaration, # 5 Exhibit 4: Hatcher Declaration, # 6 Exhibit 5: Harley Declaration, # 7 Exhibit 6: Hunt Affidavit, # 8 Exhibit 7: Reese Affidavit, # 9 Exhibit 8: Limestone Instr., # 10 Exhibit 9: Tutwiler Instr., # 11 Exhibit 10: Limestone grievances, # 12 Exhibit 11: Tutwiler grievances)(Takei, Carl) (Main Document 37 replaced on 6/27/2011 to attach a corrected PDF document to include an e−signature and a certificate of service page) (wcl, ). Modified on 6/27/2011 to remove the previously terminated plfs Ashley Dotson, Roosevelt James, and April Stagner as filers (wcl, ). (Entered: 06/24/2011)
38 NOTICE of Correction re 37 BRIEF/MEMORANDUM in Opposition, to attach a corrected PDF document to include an e−signature and a certificate of service page. Previously terminated plfs Ashley Dotson, Roosevelt James, and April Stagner have been removed as filers. (Attachments: # 1 Corrected Main PDF Document to Docket Entry 37 )(wcl, ) (Entered: 06/27/2011)
39 REPLY BRIEF re 37 BRIEF/MEMORANDUM in Opposition,,, filed by Frank Albright, Robert Bentley, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Entered: 07/08/2011)
40 MOTION to Strike re 37 BRIEF/MEMORANDUM in Opposition, by Frank Albright, Robert Bentley, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) Modified on 7/11/2011 to add link to 37 Memorandum of Law (wcl, ). (Entered: 07/08/2011)
41 ORDERED that all pending motions are set for oral argument on 8/30/2011, at 10:00 AM, in Courtroom 2FMJ before Honorable Judge Myron H. Thompson. Signed by Honorable Judge Myron H. Thompson on 7/11/2011. (furn: Calendar, ag) (wcl, ) (Entered: 07/11/2011)

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 24 of 51

07/11/2011 07/15/2011 07/15/2011 07/15/2011
07/25/2011 08/01/2011 08/01/2011 08/03/2011 08/15/2011 09/15/2011 09/16/2011 09/16/2011
09/19/2011

42 ORDER TO SHOW CAUSE, if any there be, in writing, as to why the 40 Motion to Strike should not be granted; Show Cause Response due by 7/25/2011 for the plfs. Signed by Honorable Judge Myron H. Thompson on 7/11/2011. (wcl, ) (Entered: 07/11/2011)
43 MOTION to Clarify re 41 Order Setting Hearing on Motion, MOTION to Continue date for oral argument to September 12, 2011 by Louis Henderson. (Winter, Margaret) (Entered: 07/15/2011)
44 ORDERED that, on or before 8/1/2011, dfts are to show cause, if any there be, in writing, as to why plfs' 2 Motion for Class Certification should not be granted. Signed by Honorable Judge Myron H. Thompson on 7/15/2011. (wcl, ) (Entered: 07/15/2011)
45 ORDERED as follows: (1) Plfs' 43 Motion for Clarification is granted; (2) Plfs' 2 Motion for Class Certification is included in the oral argument on "all" pending motions; (3) Plfs' 43 Motion for Postponement is granted; (4) Oral argument on all pending motions is reset for 9/16/2011, at 11:00 AM in Courtroom 2FMJ before Honorable Judge Myron H. Thompson. Signed by Honorable Judge Myron H. Thompson on 7/15/2011. (furn: Calendar, ag) (wcl, ) (Entered: 07/15/2011)
46 MEMORANDUM OF LAW in Opposition re 40 MOTION to Strike filed by James Douglas, Dana Harley, Louis Henderson, John Hicks, Albert Knox, Darrell Robinson, David Smith, Dwight Smith, Melinda Washington. (Takei, Carl) Modified on 7/26/2011 to remove the previously terminated plfs Ashley Dotson, Roosevelt James, and April Stagner as filers (wcl, ). (Entered: 07/25/2011)
47 MOTION to Stay Or, In the Alternative, Opposition to Plaintiffs' Motion for Class Certification by Frank Albright, Robert Bentley, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Attachments: # 1 Exhibit 1 − Atchison Affidavit, # 2 Exhibit 2 − Mitchem Affidavit, # 3 Exhibit 3 − Naglich Affidavit)(Lunsford, William) (Entered: 08/01/2011)
RESPONSE in Opposition re 2 MOTION to Certify Class filed by Frank Albright, Robert Bentley, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (No PDF Attached−See Docket Entry 47 ) (wcl, ) (Entered: 08/02/2011)
48 ORDER TO SHOW CAUSE by the plfs, if any there be, in writing, as to why the 47 Motion to Stay should not be granted; Show Cause Response due by 8/15/2011. Signed by Honorable Judge Myron H. Thompson on 8/3/2011. (wcl, ) (Entered: 08/03/2011)
49 RESPONSE to Motion re 47 MOTION to Stay Or, In the Alternative, Opposition to Plaintiffs' Motion for Class Certification Plaintiffs' Response to Defendants' Motion to Stay or, In the Alternative, Opposition to Plaintiffs' Motion for Class Certification filed by Louis Henderson. (Winter, Margaret) (Entered: 08/15/2011)
50 NOTICE by James Douglas, Dana Harley, Louis Henderson, John Hicks, Albert Knox, Darrell Robinson, David Smith, Dwight Smith, Melinda Washington re 37 BRIEF/MEMORANDUM in Opposition,,, (Attachments: # 1 Exhibit)(Neal, Allison) (Entered: 09/15/2011)
51 MOTION to Strike Plaintiffs' Declaration for Failure to Comply with Court's Order by Frank Albright, Robert Bentley, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Shah, Mitesh) (Entered: 09/16/2011)
52 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Motion Hearing held on 9/16/2011 re 40 MOTION to Strike filed by Edward Ellington, Billy Mitchem, Kim Tobias Thomas, Frank Albright, Bettina Carter, Robert Bentley, 34 MOTION to Dismiss filed by Edward Ellington, Billy Mitchem, Kim Tobias Thomas, Frank Albright, Bettina Carter, Robert Bentley, 2 MOTION to Certify Class filed by April Stagner, Roosevelt James, Louis Henderson, Darrell Robinson, Dwight Smith, Albert Knox, John Hicks, Ashley Dotson, Melinda Washington, Dana Harley (PDF available for court use only). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 09/16/2011)
53 ORDERED that defendant Robert Bentley is dismissed as a party without prejudice. Signed by Honorable Judge Myron H. Thompson on 9/19/2011. (Attachments: # 1 Civil Appeals Checklist) (wcl, ) (Entered: 09/19/2011)

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 25 of 51

09/21/2011 09/28/2011 09/29/2011
09/29/2011 09/29/2011 09/29/2011 09/29/2011 09/29/2011
09/30/2011
09/30/2011 09/30/2011 09/30/2011 09/30/2011 10/03/2011

54 RULE 26(F) ORDER directing 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 10/3/2011. Signed by Honorable Judge Myron H. Thompson on 9/21/2011. (wcl, ) (Entered: 09/21/2011)
55 MOTION for Extension of Deadline re 54 Order, Set Deadlines,, by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Entered: 09/28/2011)
56 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Oral Argument Proceedings (PDF ACCESS RESTRICTED FOR 90 DAYS) held on September 16, 2011, before Judge Myron H. Thompson. Court Reporter/Transcriber Patricia G. Starkie, Telephone number 334−262−1221. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE OF INTENT TO REQUEST REDACTION DUE WITHIN 7 BUSINESS DAYS. Redaction Request due 10/20/2011. Redacted Transcript Deadline set for 10/31/2011. Release of Transcript Restriction set for 12/28/2011. (dmn, ) (Entered: 09/29/2011)
57 NOTICE by James Douglas, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith Notice of Voluntary Dismissal (Neal, Allison) (Entered: 09/29/2011)
58 NOTICE by James Douglas, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith Notice of Voluntary Dismissal of Hicks (Neal, Allison) (Entered: 09/29/2011)
59 NOTICE by James Douglas, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith Notice of Voluntary Dismissal of Washington (Neal, Allison) (Entered: 09/29/2011)
60 Second MOTION to Amend/Correct Complaint by James Douglas, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Neal, Allison) (Entered: 09/29/2011)
61 SECOND AMENDED COMPLAINT against All Defendants, filed by Dana Harley, Louis Henderson, Darrell Robinson, James Douglas, Dwight Smith, Albert Knox, Alqadeer Hamlet, Jeffery Beyer, Bonita Graham.(Neal, Allison) Modified on 9/30/2011 (qc/djy, ). Modified on 10/3/2011 to add as also filed on behalf of Alqadeer Hamlet, Jeffery Beyer, Bonita Graham (wcl, ). (Entered: 09/29/2011)
62 BRIEF/MEMORANDUM in Opposition re 55 MOTION for Extension of Deadline re 54 Order, Set Deadlines, filed by James Douglas, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Takei, Carl) Modified on 10/3/2011 to remove the previously terminated plfs Ashley Dotson, John Hicks, Roosevelt James, David Smith, April Stagner, and Melinda Washington as filers (wcl, ). (Entered: 09/30/2011)
63 CLERK'S NOTICE of Voluntary Dismissal of Plaintiff John Hicks from this case. (djy, ) (Entered: 09/30/2011)
64 CLERK'S NOTICE of Voluntary Dismissal of Plaintiff David Smith from this case. (djy, ) (Entered: 09/30/2011)
65 CLERK'S NOTICE of Voluntary Dismissal of Plaintiff Melinda Washington from this case. (djy, ) (Entered: 09/30/2011)
NOTICE of Docket Correction re 61 Amended Complaint to indicate that leave of court has not yet been granted for filing this document (NO PDF document attached to this notice). (djy, ) (Entered: 09/30/2011)
66 ORDERED that: (1) The dfts' 55 Motion for Extension of Deadline for the Rule 26(f) Report is granted; (2) The Rule 26(f) discovery plan shall be filed as soon as practicable but not later than 10/17/2011; (3) The plfs' 60 Motion for Leave to File Second Amended Complaint is granted, as further set out in order; (4) Any response to the 61 Second Amended Complaint is due on 10/17/2011, as further set out in order; (5) Finally, the dfts are allowed until 10/17/2011, to file any statement as to how the addition of the three plfs will affect, if at all, class certification. Signed by Honorable

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 26 of 51

10/03/2011 10/04/2011 10/10/2011 10/17/2011 10/17/2011
11/23/2011
11/28/2011 12/02/2011 12/02/2011 12/06/2011
12/07/2011 12/08/2011

Judge Myron H. Thompson on 10/3/2011. (wcl, ) (Main Document 66 replaced on 10/3/2011 to attach the correct PDF document due to a clerical error) (wcl, ). Modified on 10/3/2011 (wcl, ). (Entered: 10/03/2011)
67 NOTICE of Correction re 66 Order, to attach the correct PDF document due to a clerical error. (Attachments: # 1 Correct Main PDF Document to Docket Entry 66 )(wcl, ) (Main Document 67 replaced on 10/4/2011 to attach a corrected PDF document to include the correct case number) (wcl, ). Modified on 10/4/2011 (wcl, ). (Entered: 10/03/2011)
68 NOTICE of Correction re 67 Notice of Correction, to attach a corrected PDF document to include the correct case number. (Attachments: # 1 Corrected Main PDF Document to Docket Entry 67 )(wcl, ) (Entered: 10/04/2011)
69 RESPONSE to Motion re 60 Second MOTION to Amend/Correct Complaint pursuant to the Court's October 3, 2011 Order filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (McKinnon, Janine) (Entered: 10/10/2011)
70 REPORT of Rule 26(f) Planning Meeting. (Lunsford, William) (Entered: 10/17/2011)
71 Supplemental RESPONSE in Opposition re 2 MOTION to Certify Class based on the Second Amended Complaint filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Attachments: # 1 Affidavit Supplemental Affidavit of Stephanie Atchison, # 2 Exhibit ADOC File for Jeffery Beyer, # 3 Exhibit ADOC File for Bonita Graham)(McKinnon, Janine) Modified on 10/18/2011 to clarify the docket text to reflect as a supplemental opposition (wcl, ). (Entered: 10/17/2011)
72 Joint MOTION for Protective Order by Jeffery Beyer, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Attachments: # 1 Text of Proposed Order On Consent of the Parties Regarding HIV Disclosure, # 2 Text of Proposed Order On Consent of the Parties Regarding Confidential Discovery Materials)(Takei, Carl) Modified on 11/28/2011 to reflect as also filed on behalf of defendants (qc/djy, ). (Entered: 11/23/2011)
NOTICE of Docket Text Correction re 72 Joint MOTION for Protective Order to clarify text to indicate the motion was also filed on behalf of defendants (NO PDF Document attached to this notice). (djy, ) (Entered: 11/28/2011)
73 PROTECTIVE ORDER ON CONSENT OF THE PARTIES REGARDING CONFIDENTIAL DISCOVERY MATERIALS granting 72 Joint MOTION for Protective Order, as further set out in order. Signed by Honorable Judge Wallace Capel, Jr on 12/2/2011. (wcl, ) (Entered: 12/02/2011)
74 PROTECTIVE ORDER ON CONSENT OF THE PARTIES REGARDING HIV DISCLOSURE granting 72 Joint MOTION for Protective Order, as further set out in order. Signed by Honorable Judge Wallace Capel, Jr on 12/2/2011. (wcl, ) (Entered: 12/02/2011)
75 First MOTION to Compel Production by Jeffery Beyer, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Attachments: # 1 Text of Proposed Order, # 2 List of Exhibits, # 3 Exhibit 1: Plaintiffs' Request for Production, Sept. 20, 2011, # 4 Exhibit 2: Defendants' Responses and Objections, Nov. 29, 2011)(Takei, Carl) (Entered: 12/06/2011)
76 ORDERED that the disputes in the 70 Rule 26(f) Report are referred to Magistrate Judge Wallace Capel for consideration and recommendation, with the understanding that the pretrial is set for 8/16/2012, and the trial is set for the term of court beginning on 9/17/2012, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 12/7/2011. (furn: Calendar, ag)(wcl, ) (Entered: 12/07/2011)
77 ORDER directing that a hearing on Plaintiff's 75 Motion to Compel and any disputed issue in the 70 Rule 26(f) Report is set for December 15, 2011 at 10:00 a.m., in Courtroom 5A, Frank M. Johnson, Jr. United States Courthouse Complex, One Church Street, Montgomery, Alabama, before the undersigned Magistrate Judge; further ORDERED that the parties shall meet and confer prior to the hearing in a good faith effort to resolve the disputed issues, as further set out. Signed by Honorable Judge

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12/13/2011
12/13/2011 12/15/2011 12/15/2011 12/15/2011 12/20/2011 12/20/2011
01/25/2012 01/25/2012 01/27/2012 02/17/2012
02/17/2012

Wallace Capel, Jr on 12/8/11. (Furnished to Calendar and KG.)(scn, ) (Entered: 12/08/2011)
78 MOTION for Protective Order and Response to Plaintiffs' Motion to Compel Production by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G, # 8 Exhibit Exhibit H, # 9 Exhibit Exhibit I, # 10 Exhibit Exhibit J)(McKinnon, Janine) (Entered: 12/13/2011)
RESPONSE to Motion re 75 First MOTION to Compel Production filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (No pdf attached−See docket entry 78 ) (wcl, ) (Entered: 12/14/2011)
ORAL MOTION to Withdraw 75 First MOTION to Compel Production by Jeffery Beyer, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (cb, ) (Entered: 12/15/2011)
ORAL ORDER granting ORAL Motion to Withdraw 75 First MOTION to Compel Production. ( 75 Motion to Compel terminated per this Order). Signed by Honorable Judge Wallace Capel, Jr on 12/15/2011. (cb, ) (Entered: 12/15/2011)
79 Minute Entry for Motion Hearing re 75 First Motion to Compel Production held before Honorable Judge Wallace Capel, on 12/15/2011 (PDF available for court use only). (Recording Time 10:07−12:09.) (cb, ) (Entered: 12/15/2011)
80 ORDER denying 78 Motion for Protective Order. Signed by Honorable Judge Wallace Capel, Jr on 12/20/2011. (wcl, ) (Entered: 12/20/2011)
81 MOTION for Leave to File STIPULATED ORDER REGARDING IMMEDIATE DISCOVERY AND AMENDED RULE 26(f) REPORT by Frank Albright, Jeffery Beyer, Bettina Carter, James Douglas, Edward Ellington, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Billy Mitchem, Darrell Robinson, Dwight Smith, Kim Tobias Thomas. (Lunsford, William) (Entered: 12/20/2011)
82 RESPONSE in Opposition re 2 MOTION to Certify Class (The State's Second Supplemental Opposition to Plaintiffs' Motion for Class Certification) filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Entered: 01/25/2012)
83 BRIEF/MEMORANDUM in Support re 35 BRIEF/MEMORANDUM in Support, 34 MOTION to Dismiss (Supplemental Memorandum in Support of the State's Motion to Dismiss) filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Entered: 01/25/2012)
84 Joint MOTION to Continue by Frank Albright, Jeffery Beyer, Bettina Carter, James Douglas, Edward Ellington, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Billy Mitchem, Darrell Robinson, Dwight Smith, Kim Tobias Thomas. (Lunsford, William) (Entered: 01/27/2012)
85 RESPONSE to Motion re 34 MOTION to Dismiss, 2 MOTION to Certify Class in Response to 82 State's Second Supplemental Opposition to the Plaintiffs' Motion for Class Certification and to 83 State's Supplemental Memorandum in Support of the State's Motion to Dismiss filed by Jeffery Beyer, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Takei, Carl) (Entered: 02/17/2012)
86 Second MOTION to Compel Production by Jeffery Beyer, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Attachments: # 1 Exhibit 1: Plaintiffs' First Request for Production of Documents, # 2 Exhibit 2: Defendants' Objections and Responses, # 3 Exhibit 3: Letter from Carl Takei to William Lunsford, January 27, 2012, # 4 Exhibit 4: Email from William Lunsford to Carl Takei, February 8, 2012, # 5 Exhibit 5: ADOC Classification Manual, # 6 Exhibit 6: Declaration of James Austin, # 7 Exhibit 7: Louis Henderson Classification Summary, # 8 Text of Proposed Order)(Takei, Carl) (Entered: 02/17/2012)

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 28 of 51

02/22/2012 02/23/2012 02/28/2012
03/01/2012 03/02/2012 03/05/2012 03/12/2012 03/13/2012
03/14/2012 03/16/2012 03/16/2012 03/19/2012 03/19/2012

87 MOTION for Protective Order Motion for Entry of Qualified HIPAA Protective Order by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Entered: 02/22/2012)
88 ORDERED that Dft shall, on or before 3/1/2012, show cause as to why the 86 Motion to Compel should not be granted; and Plf shall, on or before 3/1/2012, show cause as to why the Qualified HIPAA Protective Order as proposed by Dft should not be entered. Signed by Honorable Judge Wallace Capel, Jr on 2/23/2012. (wcl, ) (Entered: 02/23/2012)
89 RESPONSE in Opposition re 87 MOTION for Entry of Qualified HIPAA Protective Order, Plaintiffs' Opposition to Defendants' Motion for Entry of Qualified HIPAA Protective Order, filed by Louis Henderson, Jeffery Beyer, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Albert Knox, Darrell Robinson, Dwight Smith. (Attachments: # 1 Exhibit QUALIFIED HIPAA PROTECTIVE ORDER)(Takei, Carl) (Additional attachment(s) added on 2/29/2012: # 2 Corrected Certificate of Service) (wcl, ). Modified on 2/29/2012 to add as also filed on behalf of Jeffery Beyer, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Albert Knox, Darrell Robinson, Dwight Smith (wcl, ). (Entered: 02/28/2012)
90 RESPONSE in Opposition re 86 Second MOTION to Compel Production filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Entered: 03/01/2012)
91 REPLY BRIEF re 85 Response to Motion, The State's Reply to Plaintiffs' Response to the State's Second Supplemental Opposition to Plaintiffs' Motion for Class Certification and to the State's Supplemental Memorandum in Support of the State's Motion to Dismiss filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Entered: 03/02/2012)
92 ORDER denying as moot 86 Motion to Compel; ORDER granting in part and denying in part 87 Motion for Protective Order, as further set out in order. Signed by Honorable Judge Wallace Capel, Jr on 3/5/2012. (wcl, ) (Entered: 03/05/2012)
93 QUALIFIED HIPAA PROTECTIVE ORDER, as further set out in order. Signed by Honorable Judge Wallace Capel, Jr on 3/12/12. (djy, ) (Entered: 03/12/2012)
94 (WITHDRAWN PURSUANT TO 97 ORDER) Motion for Admission of Jennifer Wedekind as Visiting Attorney, Pro Hac Vice (Filing fee $ 50.00 receipt number 4602022050.) by Jeffery Beyer, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 NY State Supreme Court Certificate of Good Standing, # 4 Receipt)(wcl, ) Modified on 3/19/2012 (wcl, ). (Entered: 03/14/2012)
95 NOTICE of Deficiency re 94 Motion for Admission of Jennifer Wedekind as Visiting Attorney, Pro Hac Vice.(wcl, ) (Entered: 03/14/2012)
96 NOTICE of Withdrawal by Jeffery Beyer, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith re 94 Motion for Admission of Jennifer Wedekind as Visiting Attorney, Pro Hac Vice. (Takei, Carl) Modified on 3/19/2012 to clarify the docket text (wcl, ). (Entered: 03/16/2012)
MOTION to Withdraw 94 Motion for Jennifer Wedekind to Appear Pro Hac Vice by Jeffery Beyer, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (NO PDF Document attached−See Docket Entry 96 ). (djy, ) (Entered: 03/16/2012)
97 ORDERED as follows: (1) The 96 notice of withdrawal is treated as a motion to withdraw and said motion is granted; (2) The 94 motion for admission pro hac vice is withdrawn. Signed by Honorable Judge Myron H. Thompson on 3/19/2012. (wcl, ) (Entered: 03/19/2012)
***Attorney Jennifer Alicia Wedekind terminated pursuant to 97 Order. (No pdf attached) (wcl, ) (Entered: 03/19/2012)

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 29 of 51

03/20/2012
03/22/2012
03/23/2012 03/29/2012 03/30/2012 03/30/2012 04/02/2012 04/02/2012
04/02/2012
04/03/2012 04/03/2012

98 MOTION to Compel Response to Plaintiffs' First Set of Interrogatories by Jeffery Beyer, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Attachments: # 1 Exhibit 1: Plaintiffs' First Interrogatory, # 2 Exhibit 2: Cover letter accompanying Plaintiffs' First Interrogatory, # 3 Exhibit 3: Defendants' Objections and Response to Plaintiffs' First Interrogatory, # 4 Exhibit 4: Email from Takei to Lunsford, # 5 Text of Proposed Order)(Takei, Carl) (Entered: 03/20/2012)
99 MOTION for Protective Order Regarding Written and Document Discovery by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Attachments: # 1 Exhibit A − Plaintiffs' First Request for Production of Documents, # 2 Exhibit B − Plaintiffs' First Set of Interrogatories, # 3 Exhibit C − Plaintiffs' Second Set of Interrogatories & Request for Production, # 4 Exhibit D − Plaintiffs' Second Request for Production of Documents, # 5 Exhibit E − Plaintiffs' Third Request for Production of Documents, # 6 Exhibit F − E−mail Correspondence from Bill Lunsford to Named Plaintiffs dated December 23, 2011, # 7 Exhibit G − E−mail Correspondence from Carl Takei to Defendants dated Feb. 1, 2012)(Lunsford, William) (Entered: 03/22/2012)
100 ORDERED that Dfts shall, on or before 4/2/2012, show cause as to why the 98 Motion to Compel a Response to Plfs' First Set of Interrogatories should not be granted. Signed by Honorable Judge Wallace Capel, Jr on 3/23/2012. (wcl, ) (Entered: 03/23/2012)
101 ORDER TO SHOW CAUSE by the Plfs as to why the 99 Motion for Protective Order should not be granted; Show Cause Response due by 4/2/2012. Signed by Honorable Judge Wallace Capel, Jr on 3/29/2012. (wcl, ) (Entered: 03/29/2012)
102 ORDER denying 47 Motion to Stay. Signed by Honorable Judge Myron H. Thompson on 3/30/12. (djy, ) (Entered: 03/30/2012)
103 ORDER denying 40 Motion to Strike, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 3/30/12. (djy, ) (Entered: 03/30/2012)
104 ORDER Setting Hearing on Motion re 98 MOTION to Compel a Response to Plfs' First Set of Interrogatories and 99 MOTION for Protective Order; Motion Hearing set for 4/3/2012, at 09:00 AM by telephone before Honorable Judge Wallace Capel Jr.. Signed by Honorable Judge Wallace Capel, Jr on 4/2/2012. (furn: Calendar, kg)(wcl, ) (Entered: 04/02/2012)
105 RESPONSE in Opposition re 98 MOTION to Compel Response to Plaintiffs' First Set of Interrogatories filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Attachments: # 1 Exhibit A − Cover Letter to First Set of Interrogatories, # 2 Exhibit B − Plaintiff's First Request for Production of Documents, # 3 Exhibit C − State' Objections and Responses to Plaintiffs' First Request for Production of Documents, # 4 Exhibit D − Request for Entry Upon Land for Inspection and Other Purposes by Ms. Madeleine LaMarre, MN, FNP−BC, # 5 Exhibit E − First Set of Interrogatories, # 6 Exhibit F − Objections and Response to Plaintiffs First Set of Interrogatories)(Lunsford, William) (Entered: 04/02/2012)
106 BRIEF/MEMORANDUM in Opposition re 99 MOTION for Protective Order Regarding Written and Document Discovery filed by Jeffery Beyer, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Attachments: # 1 Exhibit 1: Defendants' objections and responses to Plaintiffs' Second Set of Interrogatories and Request for Production, # 2 Exhibit 2: Letter from Neal to Lunsford, # 3 Exhibit 3: Defendants' Objections and Responses to Plaintiffs' Request for Entry Upon Land for Inspection and Other Purposes)(Takei, Carl) (Entered: 04/02/2012)
107 ORDERED that, on or before 4/6/2012, the parties shall conduct a face−to−face meeting in a good faith effort to resolve the pending motions; The parties will notify the court of the results of the meeting in a joint notice, filed no later than 4/9/2012. Signed by Honorable Judge Wallace Capel, Jr on 4/3/2012. (wcl, ) (Entered: 04/03/2012)
108 Minute Entry for proceedings held before Honorable Judge Wallace Capel, Jr: Telephone Conference held Re: on 4/3/2012 re 99 MOTION for Protective Order Regarding Written and Document Discovery filed by Edward Ellington, Billy

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 30 of 51

04/04/2012 04/04/2012 04/05/2012 04/09/2012
04/10/2012 04/17/2012 04/20/2012 04/20/2012 04/25/2012 05/15/2012 05/15/2012 05/15/2012 05/16/2012
05/16/2012

Mitchem, Kim Tobias Thomas, Frank Albright, Bettina Carter, 98 MOTION to Compel Response to Plaintiffs' First Set of Interrogatories filed by Jeffery Beyer, Louis Henderson, Darrell Robinson, Dwight Smith, Albert Knox, Bonita Graham, James Douglas, Alqadeer Hamlet, Dana Harley (PDF available for court use only). (Recording Time 9:04 − 9:15.) (kcg, ) (Entered: 04/04/2012)
109 MOTION to Clarify re 107 Order, by Jeffery Beyer, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Takei, Carl) (Entered: 04/04/2012)
110 ORDER granting 109 Motion for Clarification, as further set out in order. Signed by Honorable Judge Wallace Capel, Jr on 4/4/2012. (wcl, ) (Entered: 04/04/2012)
111 NOTICE of Appearance by Mitchell David Greggs on behalf of Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas (Greggs, Mitchell) (Entered: 04/05/2012)
112 NOTICE by Frank Albright, Jeffery Beyer, Bettina Carter, James Douglas, Edward Ellington, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Billy Mitchem, Darrell Robinson, Dwight Smith, Kim Tobias Thomas (JOINT REPORT OF PARTIES APRIL 6, 2012 MEET AND CONFER) (Lunsford, William) (Entered: 04/09/2012)
113 ORDERED that the Plfs' 98 Motion to Compel a Response to Plfs' First Set of Interrogatories and Dfts' 99 Motion for Protective Order are DENIED as moot. Signed by Honorable Judge Wallace Capel, Jr on 4/10/2012. (wcl, ) (Entered: 04/10/2012)
114 NOTICE by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas re 107 Order, (The State's Statement of Objection to Magistrate Judge's Order Dated April 3, 2012) (Lunsford, William) (Entered: 04/17/2012)
115 NOTICE by Bonita Graham of Voluntary Dismissal of Bonita Graham (Neal, Allison) Modified on 6/18/2012 to reflect as filed only on behalf of Bonita Graham (wcl, ). (Entered: 04/20/2012)
Minute Entry for proceedings held before Honorable Judge Wallace Capel, Jr: Telephone Status Conference held on 4/20/2012 (No PDF attached). (kcg, ) (Entered: 04/23/2012)
116 BRIEF/MEMORANDUM in Opposition re 114 Notice (Other) filed by Jeffery Beyer, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Takei, Carl) (Entered: 04/25/2012)
117 RESPONSE in Opposition re 2 MOTION to Certify Class (The State's Third Supplemental Response in Opposition to Plaintiffs' Motion for Class Certification) filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Entered: 05/15/2012)
118 (SEALED PURSUANT TO 128 ORDER) MOTION for Leave to Depose Inmates Incarcerated at Limestone Correctional Facility by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) Modified on 5/21/2012 (wcl, ). (Entered: 05/15/2012)
119 ORDER granting 118 Motion for Leave to Depose Inmates. Signed by Honorable Judge Wallace Capel, Jr on 5/15/2012. (wcl, ) (Entered: 05/15/2012)
120 (SEALED PURSUANT TO 128 ORDER) MOTION for Reconsideration re 119 Order by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Winter, Margaret) (Main Document 120 replaced on 5/16/2012 to attach a corrected PDF document to include the e−signatures which were previously omitted in error) (wcl, ). Modified on 5/16/2012 (wcl, ). Modified on 5/21/2012 (wcl, ). (Entered: 05/16/2012)
121 NOTICE of Correction re 120 MOTION for Reconsideration, to attach a corrected PDF document to include the e−signatures which were previously omitted in error. (Attachments: # 1 Corrected Main PDF Document to Docket Entry 120 )(wcl, ) (Entered: 05/16/2012)

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 31 of 51

05/16/2012 05/17/2012 05/18/2012 05/18/2012 05/18/2012 05/18/2012 05/21/2012 05/21/2012 05/21/2012 05/25/2012
05/25/2012 06/01/2012
06/01/2012

122 ORDER re 120 MOTION for Reconsideration, that Dfts shall, on or before 5/18/2012, file a response. Signed by Honorable Judge Wallace Capel, Jr on 5/16/2012. (wcl, ) (Entered: 05/16/2012)
123 MOTION to Withdraw as Attorney by Jeffery Beyer, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Neal, Allison) (Entered: 05/17/2012)
124 MOTION for Leave to File Responsive Brief re Defendants' Third Supplemental Response 117 by June 1, 2012 by Jeffery Beyer, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Takei, Carl) (Entered: 05/18/2012)
125 MOTION to Seal re 118 MOTION for Leave to Depose Inmates Incarcerated by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) Modified on 5/21/2012 to add the link to the 118 Motion (wcl, ). (Entered: 05/18/2012)
126 RESPONSE in Opposition re 120 MOTION for Reconsideration re 119 Order filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Lunsford, William) Modified on 5/21/2012 to clarify the docket text (wcl, ). (Entered: 05/18/2012)
Amended MOTION (Request) for Leave to Conduct Additional Depositions by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (No pdf attached − See docket entry 126 ) (wcl, ) (Entered: 05/21/2012)
127 MOTION for Leave to File Reply Brief re Defendants' Response in Opposition to Plaintiffs' Motion for Reconsideration and Amended Motion for Leave to Conduct Additional Depositions 126 by Jeffery Beyer, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Takei, Carl) (Entered: 05/21/2012)
128 ORDER granting 125 Motion to Seal, as further set out in order; granting 127 Motion for Leave to Submit Responsive Brief; Plfs shall have until on or before 5/25/2012 in which to file a Reply. Signed by Honorable Judge Wallace Capel, Jr on 5/21/2012. (wcl, ) (Main Document 128 replaced on 5/21/2012) (wcl, ). Modified on 5/21/2012 to attach the correct PDF document due to a clerical error (wcl, ). (Entered: 05/21/2012)
129 NOTICE of Correction re 128 Order, to attach the correct PDF document due to a clerical error. (Attachments: # 1 Correct Main PDF Document to Docket Entry 128 )(wcl, ) (Entered: 05/21/2012)
130 REPLY BRIEF in Opposition re defendants' 126 Response in Opposition to Plaintiffs' 120 Motion for Reconsideration of May 15, 2012 Order and Amended Request for Leave to Conduct Additional Depositions filed by Jeffery Beyer, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Takei, Carl) Modified on 5/29/2012 to clarify text to add link to reflect as in opposition to 126 response (qc/djy, ). (Entered: 05/25/2012)
131 Motion for David M. Shapiro to Appear Pro Hac Vice ( Filing fee $ 50.00 receipt number 4602022889.) by Jeffery Beyer, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Attachments: # 1 Declaration, # 2 certificate of good standing, # 3 fee receipt, # 4 Text of Proposed Order)(djy, ) (Entered: 05/29/2012)
132 ORDER setting Discovery conference for 6/7/2012 @ 10:00 AM before Honorable Judge Wallace Capel Jr. in Courtroom 5A, FMJFB & USCC, Montgomery, AL, as furthr set out in order; directing that counsel for the parties shall meet and confer prior to the hearing to discuss the resolution of the matter surrounding the motion and discuss the future conduct of discovery and any issues that may arise. Signed by Honorable Judge Wallace Capel, Jr on 6/1/12. (djy, ) (Entered: 06/01/2012)
133 MOTION to Reschedule June 7, 2012 Discovery Conference by Jeffery Beyer, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Takei, Carl) Modified on 6/4/2012 to clarify the docket text (wcl, ). (Entered: 06/01/2012)

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 32 of 51

06/01/2012
06/04/2012 06/07/2012 06/08/2012 06/15/2012
06/15/2012 06/18/2012 06/18/2012
06/22/2012 06/25/2012
06/25/2012 06/27/2012
07/02/2012

134 REPLY BRIEF re 117 Response in Opposition to Motion, filed by Jeffery Beyer, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Attachments: # 1 Exhibit 1: ADOC OHS Information for HIV+ Inmates to be Considered for or Housed at Work Release, # 2 Exhibit 2: ADOC Classification Manual sec. 4.4.5)(Takei, Carl) (Entered: 06/01/2012)
135 ORDER denying 133 Motion to Reschedule the June 7, 2012 Discovery Conference, as further set out in order. Signed by Honorable Judge Wallace Capel, Jr on 6/4/2012. (wcl, ) (Entered: 06/04/2012)
136 Minute Entry for proceedings held before Honorable Judge Wallace Capel, Jr: Discovery Hearing held on 6/7/2012 (PDF available for court use only). (Recording Time 10:00 − 10:36.) (kcg, ) (Entered: 06/07/2012)
137 ORDER granting 131 Motion for Admission Pro Hac Vice. Signed by Honorable Judge Myron H. Thompson on 6/8/2012. (wcl, ) (Entered: 06/08/2012)
138 Notice of Joint STIPULATION Regarding Remaining Discovery re 132 Order, by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith, Kim Tobias Thomas, Billy Mitchem, Edward Ellington, Bettina Carter, Frank Albright. (Winter, Margaret) Modified on 6/18/2012 to clarify the docket text and to add as also filed on behalf of the defendants (wcl, ). (Entered: 06/15/2012)
139 NOTICE by Louis Henderson, Dwight Smith, Darrell Robinson, Albert Knox, Dana Harley, Alqadeer Hamlet, James Douglas, Jeffery Beyer re ESTIMATED NUMBER OF TRIAL DAYS (Winter, Margaret) Modified on 6/18/2012 to add as filed on behalf of all plaintiffs (wcl, ). (Entered: 06/15/2012)
140 Clerk's NOTICE of Voluntary Dismissal of Plf Bonita Graham from this case pursuant to 115 Notice. (wcl, ) (Entered: 06/18/2012)
141 Motion for Admission of Amanda C. Goad as Visiting Attorney, Pro Hac Vice (Filing fee $ 50.00 receipt number 4602023165.) by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Billy Mitchem, Darrell Robinson, Dwight Smith. (Attachments: # 1 Declaration of Amanda C. Goad, # 2 Certificate of Good Standing, # 3 Text of Proposed Order, # 4 Receipt)(wcl, ) (Entered: 06/21/2012)
142 ORDER granting 141 Motion for Admission Pro Hac Vice. Signed by Honorable Judge Myron H. Thompson on 6/22/2012. (dmn, ) (Entered: 06/22/2012)
143 Fourth MOTION to Compel by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Text of Proposed Order)(Shapiro, David) (Additional attachment(s) added on 6/25/2012 to redact personal information contained in original filing pursuant to the E−government rules: # 7 (Redacted) Exhibit 3, # 8 (Redacted) Exhibit 5) (wcl, ). Modified on 6/25/2012 (wcl, ). (Entered: 06/25/2012)
144 ORDERED that Dfts shall, on or before 7/5/2012, show cause as to why the 143 Motion to Compel should not be granted. Signed by Honorable Judge Wallace Capel, Jr on 6/25/2012. (wcl, ) (Entered: 06/25/2012)
145 ORDER SETTING PRETRIAL HEARING: Final Pretrial Conference set for 8/16/2012, at 10:30 AM in chambers 200FMJ before Honorable Judge Myron H. Thompson; the parties are DIRECTED to prepare JOINTLY a proposed pretrial order, as further set out in order; Proposed Pretrial Order due by 8/13/2012; Non−Jury Trial set for 9/17/2012 before Honorable Judge Myron H. Thompson. Signed by Honorable Judge Myron H. Thompson on 6/27/2012. (furn: Calendar, ag)(wcl, ) (Entered: 06/27/2012)
146 Fifth MOTION to Compel by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Attachments: # 1 Text of Proposed Order, # 2 Table of Exhibits, # 3 Exhibit 1: Plaintiffs' First Set of Interrogatories, # 4 Exhibit 2: State's Objections and Responses, # 5 Exhibit 3: State's Supplemental Responses, # 6 Exhibit 4: Email Takei to Lunsford,

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 33 of 51

07/02/2012
07/02/2012 07/03/2012 07/03/2012 07/05/2012 07/06/2012 07/11/2012 07/11/2012 07/11/2012 07/13/2012 07/13/2012 07/13/2012

6/11/12, # 7 Exhibit 5: Email Lunsford to Takei 6/12/12, # 8 Exhibit 6: Email Takei to Lunsford, 6/22/12, # 9 Exhibit 7: Table of ADOC educational and vocational programs, # 10 Exhibit 8: Map of ADOC drug treatment programs and locations)(Takei, Carl) (Entered: 07/02/2012)
147 MOTION to Compel FRCP 30(b)(6) Deposition by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Dwight Smith. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1: Deposition notice (revised), # 3 Exhibit 2: Deposition notice (original), # 4 Exhibit 3: Takei email to Lunsford, 6/11/12, # 5 Exhibit 4: Shapiro email to Lunsford, 6/22/12, # 6 Exhibit 5: Lunsford email to Shapiro, 6/22/12, # 7 Exhibit 6: Shapiro email to Lunsford, 6/25/12, # 8 Exhibit 7: Shapiro email to Lunsford, 6/26/12, # 9 Exhibit 8: Lunsford email to Shapiro, 6/26/12, # 10 Exhibit 9: Shapiro email to Lunsford, 6/26/12, # 11 Exhibit 10: Lunsford email to Shapiro, 6/26/12, # 12 Exhibit 11: Shapiro email to Lunsford, 6/27/12, # 13 Exhibit 12: ADOC Classification Manual, # 14 Exhibit 13: Kim Thomas deposition (selected pages))(Takei, Carl) (Entered: 07/02/2012)
148 MOTION to Quash re 119 Order by non−party inmate Ronald Evans. (wcl, ) (Entered: 07/02/2012)
149 ORDERED that Dft shall, on or before 7/9/2012, show cause as to why the 146 & 147 Motions to Compel should not be granted, as further set out in order. Signed by Honorable Judge Wallace Capel, Jr on 7/3/2012. (wcl, ) (Entered: 07/03/2012)
150 ORDERED that Dft shall, on or before 7/11/2012, show cause as to why the 148 Motion to Quash should not be granted. Signed by Honorable Judge Wallace Capel, Jr on 7/3/2012. (wcl, ) (Entered: 07/03/2012)
151 RESPONSE in Opposition re 147 MOTION to Compel FRCP 30(b)(6) Deposition, 146 Fifth MOTION to Compel , 143 Fourth MOTION to Compel filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Additional attachment(s) added on 7/9/2012: # 1 Corrected Certificate of Service) (wcl, ). (Entered: 07/05/2012)
152 REPLY BRIEF re 151 Response in Opposition to Motion, re Motions to Compel 143 146 147 filed by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Takei, Carl) (Entered: 07/06/2012)
153 RESPONSE in Opposition re 148 MOTION to Quash filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Attachments: # 1 Exhibit 1 − Redacted Subpoena to the inmate)(Lunsford, William) (Additional attachment(s) added on 7/12/2012: # 2 Corrected Certificate of Service) (wcl, ). (Entered: 07/11/2012)
154 STIPULATION regarding discovery by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Shapiro, David) (Entered: 07/11/2012)
Joint Stipulated MOTION for Extension of Deadline Regarding Discovery by Frank Albright, Jeffery Beyer, Bettina Carter, James Douglas, Edward Ellington, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Billy Mitchem, Darrell Robinson, Dwight Smith, Kim Tobias Thomas. (No pdf attached − See docket entry 154 ) (wcl, ) (Entered: 07/12/2012)
155 MOTION for Extension of Deadline (The State's Motion for Extension of Time to File Expert Report) by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Entered: 07/13/2012)
156 ORDER granting 154 Motion for Extension of Time. Signed by Honorable Judge Wallace Capel, Jr on 7/13/2012. (wcl, ) (Entered: 07/13/2012)
157 (STRICKEN PURSUANT TO LOCAL RULES RE: NON−FILING OF CIVIL DISCOVERY) NOTICE by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas (NOTICE OF SERVICE OF DISCOVERY) (Lunsford, William) Modified on 7/13/2012 (wcl, ). (Entered: 07/13/2012)

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 34 of 51

07/13/2012 07/13/2012 07/16/2012 07/18/2012
07/23/2012 07/24/2012 07/24/2012 07/30/2012 07/30/2012 07/31/2012 07/31/2012 08/02/2012
08/07/2012 08/10/2012

158 NOTICE of Non−Compliance re 157 Notice of Service of Discovery, which is hereby STRICKEN pursuant to the local rules regarding non−filing of civil discovery. (wcl, ) (Entered: 07/13/2012)
159 RESPONSE in Opposition re 146 Fifth MOTION to Compel , 143 Fourth MOTION to Compel (SUPPLEMENTAL) filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Entered: 07/13/2012)
160 Evidentiary Submission re 155 MOTION for Extension of Deadline (The State's Motion for Extension of Time to File Expert Report) filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Attachments: # 1 Exhibit 1 − Email Chain)(Lunsford, William) (Entered: 07/16/2012)
161 NOTICE of Stipulation by Frank Albright, Jeffery Beyer, Bettina Carter, James Douglas, Edward Ellington, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Billy Mitchem, Darrell Robinson, Dwight Smith, Kim Tobias Thomas re 155 MOTION for Extension of Time to File Expert Report. (Attachments: # 1 Exhibit 1: Stipulation)(Takei, Carl) Modified on 7/19/2012 to clarify the docket text (wcl, ). (Entered: 07/18/2012)
162 NOTICE by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith re 147 MOTION to Compel FRCP 30(b)(6) Deposition, 146 Fifth MOTION to Compel (Shapiro, David) (Entered: 07/23/2012)
163 Sixth MOTION to Compel by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Text of Proposed Order)(Shapiro, David) (Entered: 07/24/2012)
164 ORDERED denying as moot 146 & 147 Motions to Compel; denying as moot 143 Motion to Compel; denying 148 Motion to Quash. Signed by Honorable Judge Wallace Capel, Jr on 7/24/2012. (wcl, ) (Entered: 07/24/2012)
165 RESPONSE in Opposition re 163 Sixth MOTION to Compel filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Entered: 07/30/2012)
MOTION for Protective Order by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (No pdf attached − See docket entry 165 ) (wcl, ) (Entered: 07/31/2012)
166 ORDER denying 163 Sixth Motion to Compel, as further set out in order; denying 165 Motion for Protective Order. Signed by Honorable Judge Wallace Capel, Jr on 7/31/2012. (wcl, ) (Entered: 07/31/2012)
167 MOTION Leave to present expert rebuttal witness by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Attachments: # 1 Exhibit 1−−report, # 2 Exhibit 2−−email, # 3 Text of Proposed Order)(Winter, Margaret) (Entered: 07/31/2012)
168 Motion for Admission of Gabriel B. Eber as Visiting Attorney, Pro Hac Vice (Filing fee $ 50.00 receipt number 4602023665.) by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Attachments: # 1 Declaration of Gabriel B. Eber, # 2 Certificate of Good Standing, # 3 Proposed Order, # 4 Receipt)(wcl, ) (Additional attachment(s) added on 8/8/2012: # 5 Corrected Certificate of Service) (wcl, ). (Entered: 08/06/2012)
169 RESPONSE in Opposition re 167 MOTION Leave to present expert rebuttal witness filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Lunsford, William) (Entered: 08/07/2012)
170 ORDER that the motion for admission pro hac vice 168 is granted. Signed by Honorable Judge Myron H. Thompson on 8/10/2012. (jg, ) (Entered: 08/10/2012)

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 35 of 51

08/13/2012 08/16/2012 08/17/2012 08/17/2012 08/17/2012 08/17/2012 08/17/2012 08/20/2012
08/20/2012 08/22/2012 08/22/2012
08/22/2012 08/22/2012
08/22/2012 08/23/2012 08/23/2012 08/23/2012
08/23/2012

171 NOTICE of Appearance by Elizabeth Anne Sees on behalf of Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas (Sees, Elizabeth) (Entered: 08/13/2012)
172 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Pretrial Conference held on 8/16/2012 (PDF available for court use only). (Court Reporter Mitchell Reisner.) (ag, ) (Entered: 08/17/2012)
173 ORDER granting 124 Motion for Leave to submit responsive brief. Signed by Honorable Judge Myron H. Thompson on 8/17/12. (djy, ) (Entered: 08/17/2012)
174 ORDER granting 123 Motion for Allison Neal to Withdraw as Attorney. Signed by Honorable Judge Myron H. Thompson on 8/17/12. (djy, ) . (Entered: 08/17/2012)
*** Attorney Allison Eichenfeld Neal terminated pursuant to 174 order (NO PDF Document attached to this notice). (djy, ) (Entered: 08/17/2012)
175 ORDER granting 167 Motion for leave to offer rebuttal expert testimony. Signed by Honorable Judge Myron H. Thompson on 8/17/12. (djy, ) (Entered: 08/17/2012)
176 ORDER denying 84 Joint Motion to Continue. Signed by Honorable Judge Myron H. Thompson on 8/17/12. (djy, ) (Entered: 08/17/2012)
177 PRETRIAL ORDER: Non−Jury Trial, which is to last 16 days, is set for 9/17/2012, at 10:00 AM in Montgomery, Alabama before Honorable Judge Myron H. Thompson; Trial Brief by plfs due by 8/31/2012, and by dfts due by 9/10/2012, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 8/20/2012. (furn: Calendar, ag) (wcl, ) (Entered: 08/20/2012)
178 ORDER denying as moot 155 Motion for Extension of Time. Signed by Honorable Judge Myron H. Thompson on 8/20/2012. (wcl, ) (Entered: 08/20/2012)
179 MOTION Concerning Upcoming Trial by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Block, David) (Entered: 08/22/2012)
180 NOTICE by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith of Service and Filing of Plaintiffs' Pretrial Disclosures (Attachments: # 1 Exhibit Plaintiffs' pretrial disclosures)(Takei, Carl) (Additional attachment(s) added on 8/23/2012: # 2 Corrected Certificate of Service for Notice, # 3 Corrected Certificate of Service for Pretrial Disclosures) (wcl, ). (Entered: 08/22/2012)
Witness List by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (No pdf attached − See docket entry 180 )(wcl, ) (Entered: 08/23/2012)
(STRICKEN AS A CLERICAL ERROR) Deposition Designations by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (No pdf attached − See docket entry 180 )(wcl, ) Modified on 8/23/2012 (wcl, ). (Entered: 08/23/2012)
Exhibit List by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (No pdf attached − See docket entry 180 )(wcl, ) (Entered: 08/23/2012)
181 ORDER granting 179 Motion Concerning Upcoming Trial, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 8/23/2012. (wcl, ) (Entered: 08/23/2012)
182 NOTICE of ERROR re 180 Deposition Designations, which have been STRICKEN as a clerical error. (wcl, ) (Entered: 08/23/2012)
183 Amended Exhibit List (Plaintiffs' Amended Pretrial Disclosures) by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith.. (Shapiro, David) Modified on 8/24/2012 to clarify the docket text (wcl, ). (Entered: 08/23/2012)
Amended Witness List by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (No pdf attached − See docket entry 183 )(wcl, ) (Entered: 08/24/2012)

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 36 of 51

08/27/2012 08/27/2012 08/29/2012 08/29/2012 08/29/2012 08/30/2012
08/30/2012
08/31/2012 08/31/2012 08/31/2012 08/31/2012

184 MOTION Application for Assistance in Facilitating Plfs' Attendance at Trial by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Attachments: # 1 Text of Proposed Order)(Winter, Margaret) Modified on 8/27/2012 to correct the docket text to reflect as an Application for Assistance and not a Motion for Writ of Habeas Corpus ad testificandum (wcl, ). (Entered: 08/27/2012)
NOTICE of Docket Text Correction re 184 MOTION Application for Assistance in Facilitating Plfs' Attendance at Trial, to correct the docket text to reflect as an Application for Assistance and not a Motion for Writ of Habeas Corpus ad testificandum. (No pdf attached) (wcl, ) (Entered: 08/27/2012)
185 RESPONSE to Motion re 184 MOTION Application for Assistance in Facilitating Plfs' Attendance at Trial filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Entered: 08/29/2012)
186 MOTION for Leave to File Sealed Exhibits by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (wcl, ) (Entered: 08/29/2012)
187 MOTION in Limine Regarding Dfts' Exhibit List and Witness List by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Attachments: # 1 Exhibit 1 (SEALED), # 2 Exhibit 2 (SEALED))(wcl, ) (Entered: 08/29/2012)
188 MEMORANDUM OPINION AND ORDER directing that (1) plaintiffs' 2 MOTION for class certification is GRANTED; (2) a plaintiff class is certified as consisting of all present and future prisoners diagnosed with HIV in the custody of the Alabama Department of Corrections; (3) the class representatives are Louis Henderson, Dana Harley, Darrell Robinson, Dwight Smith, Albert Knox, James Douglas, Alqadeer Hamlet, and Jeffery Beyer. Signed by Honorable Judge Myron H. Thompson on 8/30/12. (Attachments: # 1 civil appeals checklist)(djy, ) (Entered: 08/30/2012)
189 ORDER, upon consideration of plaintiffs' 184 Application for Assistance in Facilitating Plfs' Attendance at Trial, it is ORDERED as follows: (1) Counsel for Plaintiffs and Defendants shall meet and confer to arrange for the attendance of Plaintiffs in ADOC custody at trial; The parties shall plan for and arrange the transportation of Plaintiffs in ADOC custody and allow for Counsels' consultation with Plaintiffs prior to and following court proceedings; The parties must have their plan for Plaintiffs' attendance and any meetings prior to and following court proceedings coordinated through and approved by the United States Marshals Service; The parties will submit their joint plan to the court no later than September 5, 2012, and certify that the plan has been approved by the United States Marshals Service; (2) DENYING plfs' request that the court "direct ADOC to issue a request to plf Smith's work release employer that Smith be excused from work in order to testify at trial and not be discharged from his employment for appearing in court to testify", as further set out in order; (3) DENYING plf's request that plf Knox be permitted to testify remotely by video−conferencing, as further set out in order. Signed by Honorable Judge Wallace Capel, Jr on 8/30/12. (djy, ) (Entered: 08/30/2012)
190 ORDER granting 186 Motion to Seal sealed exhibits. Signed by Honorable Judge Myron H. Thompson on 8/31/12. (djy, ) (Entered: 08/31/2012)
191 RESPONSE in Opposition re 187 MOTION in Limine Regarding Defendants' Exhibit List and Witness List filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Greggs, Mitchell) (Entered: 08/31/2012)
192 ORDER directing that the parties meet and confer regarding plaintiffs' requests concerning the Exhibit and Witness Lists; further ORDERING that a telephonic hearing is set on the 187 MOTION in Limine for 9/4/2012 @ 11:00 AM before Honorable Judge Wallace Capel Jr.; directing counsel for plaintiffs to facilitate the joint call to chambers, as further set out in order. Signed by Honorable Judge Wallace Capel, Jr on 8/31/12. Furnished to calendar group & KG.(djy, ) (Entered: 08/31/2012)
193 BRIEF/MEMORANDUM in Support (Pretrial Brief) filed by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, David Smith, Dwight Smith. (Attachments: # 1 Exhibit A: LaMarre Report, # 2 Exhibit A−1: LaMarre CV, # 3 Exhibit B: Altice Report, # 4 Exhibit B−1: Altice

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 37 of 51

09/04/2012 09/04/2012 09/04/2012 09/04/2012
09/05/2012 09/05/2012 09/05/2012
09/05/2012 09/05/2012 09/06/2012 09/06/2012 09/06/2012 09/06/2012
09/06/2012

CV, # 5 Exhibit C: Austin Report, # 6 Exhibit C−1: Austin CV, # 7 Exhibit C−2: Austin list of documents, # 8 Exhibit D: Taxman Report, # 9 Exhibit D−1: Attachment to Taxman Report, # 10 Exhibit E: Proposed Findings of Fact and Conclusions of Law)(Takei, Carl) (Entered: 08/31/2012)
194 ORDER denying 51 Motion to Strike. Signed by Honorable Judge Myron H. Thompson on 9/4/12. (djy, ) (Entered: 09/04/2012)
195 ORDER granting 81 Motion to File. Signed by Honorable Judge Myron H. Thompson on 9/4/12. (djy, ) (Entered: 09/04/2012)
196 ORDER denying 120 Motion for Reconsideration ; and denying as moot 126 Motion for leave to conduct additional depositions. Signed by Honorable Judge Wallace Capel, Jr on 9/4/12. (djy, ) (Entered: 09/04/2012)
197 Minute Entry for proceedings held before Honorable Judge Wallace Capel, Jr: Motion Hearing held on 9/4/2012 re 187 MOTION in Limine filed by Jeffery Beyer, Louis Henderson, Darrell Robinson, Dwight Smith, Albert Knox, James Douglas, Alqadeer Hamlet, Dana Harley (PDF available for court use only). (Recording Time 11:05 − 11:11.) (kcg, ) (Entered: 09/04/2012)
198 ORDER denying 187 Motion in Limine; ORDER that the court adopts the parties' joint submission, as further set out in order. Signed by Honorable Judge Wallace Capel, Jr on 9/5/2012. (wcl, ) (Entered: 09/05/2012)
199 OPINION AND ORDER that the dfts' 34 MOTION to Dismiss is denied with the understanding that the court will address the res judicata issue after the bench trial. Signed by Honorable Judge Myron H. Thompson on 9/5/2012. (Attachments: # 1 Civil Appeals Checklist) (wcl, ) (Entered: 09/05/2012)
200 Response to Order re 189 Order, Parties' Joint Plan Regarding Plaintiffs' Attendance at Trial by Frank Albright, Bettina Carter, Edward Ellington, Kim Tobias Thomas, Dwight Smith, Darrell Robinson, Billy Mitchem, Albert Knox, Louis Henderson, Dana Harley, Alqadeer Hamlet, James Douglas, Jeffery Beyer. (Rouse, Scott) Modified on 9/6/2012 to add as also filed on behalf of the Plfs (wcl, ). (Entered: 09/05/2012)
201 MOTION to Modify re 189 Order, (Appeal Magistrate Judge's Order) by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Takei, Carl) (Entered: 09/05/2012)
APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith re 189 Order. (No pdf attached − See docket entry 201 ) (wcl, ) (Entered: 09/06/2012)
202 Joint MOTION Requesting Opening and Closing Statements by Frank Albright, Jeffery Beyer, Bettina Carter, James Douglas, Edward Ellington, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Billy Mitchem, Darrell Robinson, Dwight Smith, Kim Tobias Thomas. (Greggs, Mitchell) (Entered: 09/06/2012)
203 ORDERED that the 200 Joint Plan Regarding Plfs' Attendance at Trial is Adopted and Approved. Signed by Honorable Judge Wallace Capel, Jr on 9/6/2012. (wcl, ) (Entered: 09/06/2012)
204 ORDER Setting Hearing on Motion re 201 MOTION to Reconsider: Motion Hearing set for 9/10/2012 at 10:30 AM in Courtroom 5A before Honorable Judge Wallace Capel Jr., as further set out in order. Signed by Honorable Judge Wallace Capel, Jr on 9/6/2012. (furn: Calendar, kg)(wcl, ) (Entered: 09/06/2012)
205 MOTION Urgent Request for Ruling by District Judge re 201 APPEAL OF MAGISTRATE JUDGE ORDER by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Shapiro, David) Modified on 9/7/2012 to add the link to the Appeal (wcl, ). (Entered: 09/06/2012)
Set Hearings: Telephone Conference re 202 Joint Motion Requesting Opening and Closing Statements set for 9/7/2012 09:30 AM by telephone before Honorable Judge Myron H. Thompson. (ag, ) (Entered: 09/06/2012)

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 38 of 51

09/07/2012 09/07/2012 09/07/2012 09/07/2012
09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/11/2012 09/11/2012 09/11/2012 09/11/2012 09/11/2012 09/11/2012

206 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference re 202 Joint Motion held on 9/7/2012 (PDF available for court use only). (Recording Time 9:41:14 − 10:19:30.) (ag, ) (Entered: 09/07/2012)
207 ORDERED that the hearing set for Monday, 9/10/2012, at 10:30 a.m. is CANCELED; ORDER denying as moot 201 Motion to Reconsider. Signed by Honorable Judge Wallace Capel, Jr on 9/7/2012. (furn: Calendar, kg) (wcl, ) (Entered: 09/07/2012)
208 ORDERED as follows: (1) The 202 Joint Motion Regarding Opening and Closing Statements is granted as orally set forth by the court; (2) The 201 Motion to Modify or Reconsider, etc. and the 205 Motion for Ruling, etc. are denied, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 9/7/2012. (wcl, ) (Entered: 09/07/2012)
209 CORRECTED ORDER re 208 Order; ORDERED as follows: (1) The 202 joint motion regarding opening and closing statements is granted as orally set forth by the court; (2) The 201 motion to modify or reconsider, etc. and the 205 motion for ruling, etc. are denied. The only remaining dispute between the parties is the handling of documents. By 9/12/2012, the parties are to resolve that issue (with the assistance of the courtroom deputy) and to file a joint statement reflecting the resolution. Signed by Honorable Judge Myron H. Thompson on 9/7/2012. (wcl, ) (Entered: 09/07/2012)
210 MOTION to File Under Seal Legend for Pseudonyms Used in Dfts' Narrative Statement of Facts in Support of Pretrial Brief by Frank Albright, Bettina Carter, Edward Ellington, Kim Tobias Thomas, Billy Mitchem. (McKinnon, Janine) Modified on 9/11/2012 to add as also filed on behalf of Billy Mitchem (wcl, ). (Entered: 09/10/2012)
211 PRE TRIAL BRIEF (Defendants' Pretrial Brief) by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Additional attachment(s) added on 9/11/2012: # 1 Corrected Certificate of Service) (wcl, ). (Entered: 09/10/2012)
212 MOTION Enforce Protective Order re 73 Protective Order by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Greggs, Mitchell) (Additional attachment(s) added on 9/11/2012: # 3 Corrected Certificate of Service) (wcl, ). (Entered: 09/10/2012)
213 Narrative Statement of Facts in Support of 211 Pretrial Brief by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Additional attachment(s) added on 9/11/2012: # 1 Corrected Certificate of Service) (wcl, ). Modified on 9/11/2012 (wcl, ). (Additional attachment(s) added on 9/12/2012: # 2 Exhibit A (SEALED)) (wcl, ). (Entered: 09/10/2012)
Set Hearings: Telephone Conference re 212 M/enforce protective order set for 9/11/2012 03:00 PM by telephone before Honorable Judge Myron H. Thompson. (ag, ) Modified on 9/11/2012 (ag, ). (Entered: 09/11/2012)
214 ORDER granting 210 Motion to File Under Seal. Signed by Honorable Judge Myron H. Thompson on 9/11/2012. (wcl, ) (Entered: 09/11/2012)
215 BRIEF/MEMORANDUM in Opposition re 212 MOTION Enforce Protective Order re 73 Protective Order filed by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Takei, Carl) (Entered: 09/11/2012)
216 Statement Regarding Custody Levels of Named Plaintiffs by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Shapiro, David) Modified on 9/12/2012 to clarify the docket text (wcl, ). (Entered: 09/11/2012)
217 NOTICE by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas Notice of Service regarding Exhibit A to Defendants' Narrative Summary of Facts in Support of Pretrial Brief (McKinnon, Janine) (Entered: 09/11/2012)
218 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference re 212 M/enforce protective order held on 9/11/2012 (PDF

Case: 2:11-cv-224 As of: 06/17/2019 11:11 PM CDT 39 of 51

09/11/2012 09/11/2012 09/11/2012 09/11/2012 09/12/2012 09/14/2012 09/14/2012 09/17/2012 09/17/2012 09/17/2012
09/17/2012
09/18/2012 09/18/2012 09/18/2012

available for court use only). (Recording Time 3:09:36 − 3:39:22.) (ag, ) (Entered: 09/11/2012)
219 ORDER REGARDING DEPOSITION OF PLAINTIFF ALBERT KNOX, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 9/11/2012. (wcl, ) (Entered: 09/11/2012)
220 Exhibit List Objections to Plaintiffs' Amended Pre−Trial Disclosures by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Greggs, Mitchell) Modified on 9/12/2012 to correct the exhibit docket text (wcl, ). (Entered: 09/11/2012)
221 Objection to Defendants' "will use" exhibits filed by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Attachments: # 1 Exhibit A: Table of objections to "will use" exhibits)(Takei, Carl) (Entered: 09/11/2012)
Objections to 183 Plfs' Amended Pretrial Disclosures filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (No pdf attached − See docket entry 220 which was incorrectly e−filed as an Exhibit List) (wcl, ) (Entered: 09/12/2012)
222 Exhibit List Supplement to Plaintiffs' "May Use" Exhibit List by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith.. (Attachments: # 1 Exhibit Supplement)(Takei, Carl) (Entered: 09/12/2012)
223 ORDER granting 212 Motion to Enforce, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 9/14/2012. (wcl, ) (Entered: 09/14/2012)
224 ANSWER to 61 Amended Complaint, by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas.(Lunsford, William) (Entered: 09/14/2012)
Renewed ORAL MOTION to Dismiss plaintiff Darrell Robinson by Kim Tobias Thomas. (ag, ) (Entered: 09/17/2012)
Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Non−Jury Trial (commenced) on 9/17/2012 (No PDF attached, See Final Minute Entry). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 09/17/2012)
225 RESPONSE to Motion re MOTION to Dismiss and Plaintiffs' Motion in Limine to Admit Deposition of Darrell Robinson into Evidence filed by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Attachments: # 1 Exhibit 1: Wedekind Decl., # 2 Exhibit 2: Turner Decl., # 3 Exhibit 3: Takei Decl., # 4 Exhibit 4: Krase Decl., # 5 Exhibit 5: Heim Decl.)(Takei, Carl) (Entered: 09/17/2012)
MOTION in Limine to Admit Deposition of Darrell Robinson into Evidence by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (No pdf attached − See docket entry 225 ) (wcl, ) Modified on 9/19/2012 to correct the docket text (wcl, ). (Entered: 09/18/2012)
Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Non−Jury Trial continues on 9/18/2012 (No PDF attached, See Final Minute Entry). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 09/18/2012)
226 BRIEF/MEMORANDUM in Support (Plaintiffs' Brief Regarding Intentional Discrimination) filed by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Darrell Robinson, Dwight Smith. (Takei, Carl) (Entered: 09/18/2012)
Minute Entry for proceedings held before Honorable Judge Wallace Capel, Jr: Mediation Conference held on 9/18/2012 (No PDF attached). (kcg, ) (Entered: 10/10/2012)

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09/19/2012
09/19/2012 09/19/2012 09/19/2012 09/20/2012 09/21/2012 09/24/2012
09/24/2012 09/24/2012 09/24/2012 09/25/2012 09/26/2012 09/26/2012 09/27/2012 09/28/2012 09/28/2012 10/01/2012

227 BRIEF/MEMORANDUM in Support Memorandum of Law regarding Intentional Discrimination Claim under Title II of the ADA filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Greggs, Mitchell) (Entered: 09/19/2012)
228 ORDERED that plf Darrell Robinson is dismissed and terminated as a party. Signed by Honorable Judge Myron H. Thompson on 9/19/2012. (wcl, ) (Entered: 09/19/2012)
229 ORDER granting 225 Motion in Limine and that the deposition of Darrell Robinson is admitted under the conditions to which the parties agreed. Signed by Honorable Judge Myron H. Thompson on 9/19/2012. (wcl, ) (Entered: 09/19/2012)
Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Non−Jury Trial continues on 9/19/2012 (No PDF attached, See Final Minute Entry). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 09/19/2012)
Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Non−Jury Trial continues on 9/20/2012 (No PDF attached, See Final Minute Entry). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 09/20/2012)
Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Non−Jury Trial continues on 9/21/2012 (No PDF attached, See Final Minute Entry). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 09/21/2012)
230 Motion to Appear Pro Hac Vice by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Dwight Smith. (Attachments: # 1 Exhibit Declaration of Jennifer Wedekind, # 2 Exhibit Certificate of Good Standing)(Takei, Carl) (Entered: 09/24/2012)
231 MOTION for Judgment on Partial Findings by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Entered: 09/24/2012)
Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Non−Jury Trial continues on 9/24/2012 (No PDF attached, See Final Minute Entry). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 09/24/2012)
MOTION for Waiver of Pro Hac Vice Admission Requirements by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Dwight Smith. (No pdf attached − See docket entry 230 ) (wcl, ) (Entered: 09/28/2012)
Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Non−Jury Trial continues on 9/25/2012 (No PDF attached, See Final Minute Entry). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 09/25/2012)
232 ORDER denying without prejudice 231 Motion for Partial Judgment on the Findings. Signed by Honorable Judge Myron H. Thompson on 9/26/2012. (wcl, ) (Entered: 09/26/2012)
233 NOTICE by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Dwight Smith Plaintiffs' Final Group of Exhibits (Takei, Carl) (Entered: 09/26/2012)
Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Non−Jury Trial continues on 9/27/2012 (No PDF attached, See Final Minute Entry). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 09/27/2012)
234 ORDER granting 230 Motion for Waiver, etc. and Motion for Admission Pro Hac Vice. Signed by Honorable Judge Myron H. Thompson on 9/28/2012. (wcl, ) (Entered: 09/28/2012)
Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Non−Jury Trial continues on 9/28/2012 (No PDF attached, See Final Minute Entry). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 09/28/2012)
235 MOTION to Withdraw as Attorney (David M. Shapiro) by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Dwight Smith. (Shapiro, David) (Entered: 10/01/2012)

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10/01/2012 10/01/2012 10/03/2012 10/03/2012 10/03/2012 10/04/2012 10/09/2012 10/10/2012 10/10/2012 10/11/2012 10/11/2012
10/11/2012 10/11/2012 10/12/2012 10/15/2012 10/15/2012 10/16/2012 10/16/2012

236 Objection to re 233 Notice (Other) The State's Objections and Responses to Plaintiffs' Final Group of Exhibits filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Greggs, Mitchell) (Entered: 10/01/2012)
***Attorney Elizabeth Anne Sees added pursuant to 236 Objections. (No pdf attached) (wcl, ) (Entered: 10/02/2012)
237 ORDER granting 235 Motion to Withdraw. Signed by Honorable Judge Myron H. Thompson on 10/3/2012. (wcl, ) (Entered: 10/03/2012)
***Attorney David M. Shapiro terminated pursuant to 237 Order. (No pdf attached) (wcl, ) (Entered: 10/03/2012)
Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Non−Jury Trial continues on 10/3/2012 (No PDF attached, See Final Minute Entry). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 10/03/2012)
Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Non−Jury Trial continues on 10/4/2012 (No PDF attached, See Final Minute Entry). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 10/04/2012)
Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Non−Jury Trial continues on 10/9/2012 (No PDF attached, See Final Minute Entry). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 10/09/2012)
Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Non−Jury Trial continues on 10/10/2012 (No PDF attached, See Final Minute Entry). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 10/10/2012)
Minute Entry for proceedings held before Honorable Judge Wallace Capel, Jr: Mediation Conference held on 10/10/2012 (No PDF attached). (kcg, ) (Entered: 11/09/2012)
Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Non−Jury Trial continues on 10/11/2012 (No PDF attached, See Final Minute Entry). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 10/11/2012)
238 NOTICE by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Dwight Smith PLAINTIFFS SUMMARY OF VISIT TO LIMESTONE CORRECTIONAL FACILITY WITH RESPONSES TO THE COURTS QUESTIONS (Takei, Carl) (Entered: 10/11/2012)
239 NOTICE by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas State's Summary of October 5, 2012 Tour of Limestone Correctional Facility (McKinnon, Janine) (Entered: 10/11/2012)
240 NOTICE by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas of The State's Response to Judicial Request (Attachments: # 1 Exhibit A)(Greggs, Mitchell) (Entered: 10/11/2012)
Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Non−Jury Trial continues on 10/12/2012 (No PDF attached, See Final Minute Entry). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 10/12/2012)
241 NOTICE by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Dwight Smith PLAINTIFFS SUMMARY OF VISIT TO JULIA TUTWILER PRISON FOR WOMEN (Takei, Carl) (Entered: 10/15/2012)
242 NOTICE by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas Summary of October 11, 2012 Tour of the Julia Tutwiler Prison for Women (McKinnon, Janine) (Entered: 10/15/2012)
Renewed ORAL MOTION for Judgment as a Matter of Law by Kim Tobias Thomas et al. (ag, ) (Entered: 10/16/2012)
ORAL ORDER denying Renewed ORAL Motion for Judgment as a Matter of Law. Entered by Honorable Judge Myron H. Thompson on 10/16/2012. (ag, ) (Entered: 10/16/2012)

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10/16/2012 10/16/2012 10/17/2012 10/24/2012 10/24/2012 10/31/2012 10/31/2012 11/06/2012 11/21/2012 12/21/2012 12/21/2012
01/04/2013 01/07/2013
01/18/2013

ORAL ORDER that the state provide the medical records of the inmate involved in the biting incident. Entered by Honorable Judge Myron H. Thompson on 10/16/2012. (ag, ) (Entered: 10/16/2012)
Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Non−Jury Trial continues on 10/16/2012 (No PDF attached, See Final Minute Entry). (Court Reporter Patricia Starkie.) (ag, ) (Entered: 10/16/2012)
243 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Non−Jury Trial completed on 10/17/2012 (PDF available for court use only). (Court Reporter Patricia Starkie.) (Attachments: # 1 Witness List, # 2 Plaintiffs'Exhibit List, # 3 Defendants' Exhibits List, # 4 Joint Exhibits List) (ag, ) (Entered: 10/17/2012)
244 Proposed Findings of Fact by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Dwight Smith. (Wedekind, Jennifer) (Entered: 10/24/2012)
245 TRIAL BRIEF (PLAINTIFFS' POST−TRIAL BRIEF REGARDING WORK RELEASE CRITERIA) by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Dwight Smith. (Takei, Carl) (Entered: 10/24/2012)
246 Proposed Findings of Fact by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Entered: 10/31/2012)
247 TRIAL BRIEF REGARDING WORK RELEASE by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Entered: 10/31/2012)
Minute Entry for proceedings held before Honorable Judge Wallace Capel, Jr: Mediation Conference held on 11/6/2012 (No PDF attached). (kcg, ) (Entered: 12/12/2012)
248 NOTICE TO COUNSEL, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 11/21/2012. (wcl, ) (Entered: 11/21/2012)
249 OPINION. Signed by Honorable Judge Myron H. Thompson on 12/21/12. (djy, ) (Entered: 12/21/2012)
250 JUDGMENT, in accordance with the 249 opinion entered this date, it is the ORDER, JUDGMENT and DECREE of the court as follows: (1) judgment is entered in favor the plaintiffs and against the defendants; (2) it is DECLARED that, with the exception of the Alabama Department of Corrections' work−release policy, its segregation policy with regard to HIV−positive prisoners violates Title II of the Americans with Disabilities Act, 42 U.S.C. 12101 et seq., and 504 of the Rehabilitation Act, 29 U.S.C. 794; (3) the parties will be given a reasonable opportunity, jointly or separately, to propose relief to the court; (4) by a later separate order, the court will address the unresolved challenge to the work−release policy. Signed by Honorable Judge Myron H. Thompson on 12/21/12. (Attachments: # 1 civil appeals checklist)(djy, ) (Entered: 12/21/2012)
251 MOTION for Attorney Fees by Louis Henderson, Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Albert Knox, Dwight Smith. (Winter, Margaret) Modified on 1/7/2013 to add as filed on behalf of all plfs (wcl, ). (Entered: 01/04/2013)
252 ORDERED as follows: (1) Plfs' 251 MOTION for Attorneys' Fees and costs is set for final submission, without oral argument, on 3/8/2013; (2) To the extent the plfs' initial submissions do not meet the requirements of this order, the plfs are to file a supplemental brief and evidentiary materials by 2/15/2013; (3) Dfts are to file their brief and evidentiary materials by 3/1/2013; (4) Plfs may file a reply brief by 3/8/2013, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 1/7/2013. (wcl, ) (Entered: 01/07/2013)
Set Hearings: Telephone Conference set for 1/31/2013 03:00 PM by telephone before Honorable Judge Myron H. Thompson. (Plaintiffs to set up the call) (ag, ) (Entered: 01/18/2013)

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01/24/2013 01/31/2013 02/12/2013 02/14/2013 02/22/2013
02/25/2013 02/25/2013 02/28/2013 03/04/2013

253 BILL OF COSTS by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Dwight Smith. (Attachments: # 1 Memorandum in Support of Bill of Costs, # 2 Exhibit A: Documentation supporting fees for printed or electronically recorded transcripts from Part I, # 3 Exhibit B: Documentation supporting fees for exemplification and the costs for making copies from Part II)(Takei, Carl) (Entered: 01/24/2013)
254 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 1/31/2013 (PDF available for court use only). (Recording Time 3:08 − 3:22:22.) (ag, ) (Entered: 01/31/2013)
255 Consent MOTION for Extension of Time to File Supplemental Brief and Evidentiary Materials in Support of their Motion for Attorneys Fees and costs (Doc. 251) by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Dwight Smith. (Attachments: # 1 Text of Proposed Order)(Takei, Carl) (Entered: 02/12/2013)
256 ORDER directing that the 255 motion for extension of time is granted as follows: (1) Plaintiffs' 251 motion for attorneys' fees and costs is reset for final submission, without oral argument, on March 15, 2013; (2) Plaintiffs are to file a supplemental brief and evidentiary materials by February 22, 2013; (3) Defendants are to file their brief and evidentiary materials by March 8, 2013; (4) Plaintiffs may file a reply brief by March 15, 2013. Signed by Honorable Judge Myron H. Thompson on 2/14/13. (scn, ) (Entered: 02/14/2013)
257 BRIEF/MEMORANDUM in Support of 251 Motion for Attorneys Fees and Costs filed by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Dwight Smith. (Attachments: # 1 Table of Exhibits, # 2 Exhibit A: Declaration of Margaret Winter, # 3 Exhibit A−1: Timeslips reports for NPP, # 4 Exhibit A−2 part 1, # 5 Exhibit A−2 part 2, # 6 Exhibit A−2 part 3, # 7 Exhibit A−2 part 4, # 8 Exhibit A−2 part 5, # 9 Exhibit A−2 part 6, # 10 Exhibit A−2 part 7, # 11 Exhibit A−2 part 8, # 12 Exhibit A−2 part 9, # 13 Exhibit A−2 part 10, # 14 Exhibit A−2 part 11, # 15 Exhibit A−2 part 12, # 16 Exhibit A−2 part 13, # 17 Exhibit A−2 part 14, # 18 Exhibit A−2 part 15, # 19 Exhibit A−2 part 16, # 20 Exhibit A−2 part 17, # 21 Exhibit A−3, # 22 Exhibit B: Declaration of Eber, # 23 Exhibit C: Declaration of Shapiro, # 24 Exhibit D: Declaration of Takei, # 25 Exhibit E: Declaration of Wedekind, # 26 Exhibit F: Declaration of Heim, # 27 Exhibit G: Declaration of Goad, # 28 Exhibit G−1, # 29 Exhibit G−2, # 30 Exhibit G−3, # 31 Exhibit G−4, # 32 Exhibit G−5, # 33 Exhibit H: Declaration of Neal, # 34 Exhibit H−1, # 35 Exhibit I: Declaration of Segall, # 36 Exhibit I−1, # 37 Exhibit J: Declaration of Turner, # 38 Exhibit J−1, # 39 Exhibit K: Declaration of Hanlon, # 40 Exhibit K−1, # 41 Exhibit L: Declaration of Drake, # 42 Exhibit M: Declaration of Ballew, # 43 Exhibit M−1)(Takei, Carl) Modified on 2/25/2013 to clarify text to reflect as in support of 251 motion for attorneys fees (qc/djy, ). [Modified on 2/26/2013 to reflect that Exhibit A−2, Part 18 was omitted and is filed with Doc. 258 .−dmn] (Entered: 02/22/2013)
NOTICE of Docket Text Correction re 257 BRIEF/MEMORANDUM in Support to clarify text to reflect as in support of 251 motion for attorneys fees (NO PDF Document attached to this notice). (djy, ) (Entered: 02/25/2013)
258 NOTICE by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Dwight Smith re 257 BRIEF/MEMORANDUM in Support,,,,,, Supplementation of Exhibit A−2 to Plaintiffs' Memorandum in Support of Motion for Attorneys' Fees (Attachments: # 1 Exhibit A−2 part 18 (UPS))(Takei, Carl) (Entered: 02/25/2013)
259 MOTION to Stay OR, IN THE ALTERNATIVE, MOTION FOR EXTENSION OF TIME by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Entered: 02/28/2013)
260 RESPONSE to Motion re 259 MOTION to Stay OR, IN THE ALTERNATIVE, MOTION FOR EXTENSION OF TIME filed by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Dwight Smith. (Attachments: # 1 Exhibit A)(Takei, Carl) (Entered: 03/04/2013)

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03/05/2013 03/05/2013 03/06/2013
03/06/2013 03/07/2013
03/19/2013
03/19/2013 03/19/2013 03/21/2013 03/21/2013 03/22/2013 03/22/2013 03/25/2013 03/26/2013 04/17/2013

Set Hearings: Telephone Conference re 259 M/Stay etc. set for 3/5/2013 04:00 PM by telephone before Honorable Judge Myron H. Thompson. (ag, ) (Entered: 03/05/2013)
261 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference re 259 M/Stay held on 3/5/2013 (PDF available for court use only). (Recording Time 4:09 − 4:15:48.) (ag, ) (Entered: 03/05/2013)
262 ORDERED that the dfts' 259 Motion to Stay and Alternative Motion for Extension of Time are granted to the extent that this case is referred to the magistrate judge to develop and recommend, after conferring with counsel for all parties, a schedule for the resolution of all remaining issues in this case; Counsel are to contact the magistrate judge immediately. Signed by Honorable Judge Myron H. Thompson on 3/6/2013. (wcl, ) (Entered: 03/06/2013)
Minute Entry for proceedings held before Honorable Judge Wallace Capel, Jr: Mediation Conference held on 3/6/2013 (No PDF available). (kcg, ) (Entered: 04/11/2013)
263 ORDERED that the parties shall meet and confer and develop a joint report, as further set out in order; ORDERED that a Telephone Conference regarding the report will be held on 3/20/2013, at 11:00 AM before Honorable Judge Wallace Capel Jr.. Signed by Honorable Judge Wallace Capel, Jr on 3/7/2013. (furn: Calendar, kg)(wcl, ) (Entered: 03/07/2013)
264 (STRICKEN PURSUANT TO 265 ORDER) Response to Order re 263 Order (Joint Report of the Parties Regarding a Schedule for the Resolution of All Remaining Issues in the Case) by Frank Albright, Jeffery Beyer, Bettina Carter, James Douglas, Edward Ellington, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Billy Mitchem, Dwight Smith, Kim Tobias Thomas. (Lunsford, William) (Main Document 264 replaced on 3/19/2013) (wcl, ). Modified on 3/19/2013 (wcl, ). (Entered: 03/19/2013)
265 ORDERED that the 264 Joint Report is STRICKEN from the docket, as further set out in order. Signed by Honorable Judge Wallace Capel, Jr on 3/19/2013. (wcl, ) (Entered: 03/19/2013)
266 ORDERED that the telephone conference scheduled for 3/20/2013, is CANCELED, as further set out in order. Signed by Honorable Judge Wallace Capel, Jr on 3/19/2013. (furn: Calendar, kg)(wcl, ) (Entered: 03/19/2013)
267 (VACATED PURSUANT TO 267 ORDER) Costs Taxed in amount of $ 36598.05 against all Defendants. (wcl, ) Modified on 4/17/2013 (wcl, ). (Entered: 03/21/2013)
268 MOTION to Vacate 267 Costs Taxed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Entered: 03/21/2013)
269 BRIEF/MEMORANDUM in Opposition re 268 MOTION to Vacate 267 Costs Taxed filed by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Dwight Smith. (Takei, Carl) (Entered: 03/22/2013)
270 REPLY to Response to Motion re 268 MOTION to Vacate 267 Costs Taxed (The State's Reply to Plaintiffs' Memorandum in Opposition to Defendants' Motion to Vacate Taxation of Costs) filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Entered: 03/22/2013)
271 ORDERED that the 268 Motion to Vacate is referred to the magistrate judge pursuant to the court's 262 Order. Signed by Honorable Judge Myron H. Thompson on 3/25/2013. (wcl, ) (Entered: 03/25/2013)
272 ORDER setting in−person conference for 4/17/2013 at 10:00 AM in Courtroom 5A before Honorable Judge Wallace Capel Jr.., as further set out in order. Signed by Honorable Judge Wallace Capel, Jr on 3/26/2013. (furn: Calendar, kg)(wcl, ) (Entered: 03/26/2013)
273 Minute Entry for proceedings held before Honorable Judge Wallace Capel, Jr: Status Conference held on 4/17/2013 (PDF available for court use only). (Recording Time 10:07−10:34, 10:49−11:26, 11:31−11:32.) (kcg, ) (Entered: 04/17/2013)

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04/17/2013
04/17/2013 04/24/2013 05/03/2013 05/07/2013 05/09/2013 05/09/2013 05/10/2013 06/03/2013 06/06/2013 06/11/2013 06/12/2013

274 RECOMMENDATION OF THE MAGISTRATE JUDGE: the undersigned RECOMMENDS that the following schedule for the resolution of all remaining issues in this case be entered: 1) No later than 5/10/2013, Dfts shall provide Plfs with information regarding the contours of their remedial proposal; 2) No later than 5/24/2013, Dfts shall submit their remedial proposal to Plfs; 3) On June 4−7 and 10−12, 2013, the Parties shall engage in mediation on all unresolved issues and on or before 6/17/2013, file a joint statement notifying the district judge of any remaining dispute; 4) No later than 6/26/2013, Dfts shall file with the Court a final remedial proposal with supporting evidentiary materials; 5) No later than 7/3/2013, Dfts shall submit to the Court any argument, together with any supporting evidentiary materials, pertaining to the issue of the criteria for work release housing of HIV−positive inmates, should the issue still be in dispute; 6) No later than 7/15/2013, any party may request an evidentiary hearing on Dfts' final remedial plan; 7) No later than 7/26/2013, Plfs shall file a response Dfts' arguments pertaining to work−release criteria; 8) No later than 7/26/2013, Dfts shall file their response to Plfs' 251 Motion for Attorneys' Fees; 9) No later than 8/2/2013, Plfs shall file their response to Dfts' remedial plan; 10) No later than 8/9/2013, Dfts shall file a reply to Plfs' response to the work−release criteria; 11) No later than 8/16/2013, Dfts shall file a reply to Plfs' response to the remedial plan; and 12) No later than 8/16/2013, Plfs shall file a reply to Dfts' response to the Motion for Attorneys' Fees; Objections to R&R due by 5/1/2013. Signed by Honorable Judge Wallace Capel, Jr on 4/17/2013. (wcl, ) (Entered: 04/17/2013)
275 ORDER granting 268 Motion to Vacate; The 267 Taxation of Costs, is hereby VACATED. Signed by Honorable Judge Wallace Capel, Jr on 4/17/2013. (wcl, ) (Entered: 04/17/2013)
276 MOTION to Clarify Motion for Clarification and for Immediate Limited Relief on HIV Isolation and HIV Segregation Within Tutwiler by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Dwight Smith. (Attachments: # 1 Exhibit Declaration, # 2 Exhibit Declaration, # 3 Exhibit Declaration)(Winter, Margaret) (Entered: 04/24/2013)
Set Hearings: Telephone Conference re 276 M/Clarify and 274 RECOMMENDATION OF THE MAGISTRATE JUDGE set for 5/10/2013 09:30 AM by telephone before Honorable Judge Myron H. Thompson. (ag, ) Modified on 5/3/2013 (ag, ). (Entered: 05/03/2013)
No objections filed to the 274 Recommendation. (No pdf attached to this entry) (wcl, ) (Entered: 05/07/2013)
277 RESPONSE in Opposition re 276 MOTION to Clarify Motion for Clarification and for Immediate Limited Relief on HIV Isolation and HIV Segregation Within Tutwiler AND MOTION TO STRIKE filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) (Entered: 05/09/2013)
MOTION to Strike Supporting Declarations re 276 MOTION to Clarify by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (No pdf attached to this entry − See doc 277 for pdf) (wcl, ) (Entered: 05/10/2013)
278 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference Motion 276 to Clarify and 274 Recommendation held on 5/10/2013 (PDF available for court use only). (Recording Time 9:41 − 10:03:18.) (ag, ) (Entered: 05/10/2013)
Minute Entry for proceedings held before Honorable Judge Wallace Capel, Jr: Mediation Conference held on 6/3/2013 (No PDF attached). (kcg, ) (Entered: 07/03/2013)
Minute Entry for proceedings held before Honorable Judge Wallace Capel, Jr: Mediation Conference held on 6/6/2013 (No PDF attached). (kcg, ) (Entered: 07/03/2013)
Minute Entry for proceedings held before Honorable Judge Wallace Capel, Jr: Mediation Conference held on 6/11/2013 (No PDF attached). (kcg, ) (Entered: 07/03/2013)
Minute Entry for proceedings held before Honorable Judge Wallace Capel, Jr: Mediation Conference held on 6/12/2013 (No PDF attached). (kcg, ) (Entered:

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06/13/2013 06/14/2013 06/17/2013 06/17/2013 06/17/2013 06/18/2013 06/19/2013 08/01/2013 08/05/2013 08/06/2013 08/06/2013
08/20/2013 08/21/2013

07/03/2013)
Minute Entry for proceedings held before Honorable Judge Wallace Capel, Jr: Mediation Conference held on 6/13/2013 (No PDF attached). (kcg, ) (Entered: 07/03/2013)
279 MOTION to Seal Mark A. Baines Objection to Proposed Settlement and Motion to Withdraw by Jeffery Beyer, Alqadeer Hamlet, Dana Harley, Louis Henderson. (Attachments: # 1 Text of Proposed Order)(Takei, Carl) (Entered: 06/14/2013)
280 ORDER denying as moot 279 Motion to Seal, as further set out in order; directing the clerk to include a copy of this order with any materials to be returned to any parties attempting to improperly file documents in this case. Signed by Honorable Judge Wallace Capel, Jr on 6/17/2013. (wcl, ) (Entered: 06/17/2013)
281 Joint STATUS REPORT regarding Settlement Discussions by Frank Albright, Jeffery Beyer, Bettina Carter, James Douglas, Edward Ellington, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox, Billy Mitchem, Dwight Smith, Kim Tobias Thomas. (Takei, Carl) Modified on 6/18/2013 to add "Joint" to the docket text (wcl, ). (Entered: 06/17/2013)
Minute Entry for proceedings held before Honorable Judge Wallace Capel, Jr: Mediation Conference held on 6/17/2013 (No PDF attached). (kcg, ) (Entered: 07/03/2013)
282 MOTION to Dismiss Voluntarily as to Dwight Smith by Jeffery Beyer, Alqadeer Hamlet, Dana Harley, Louis Henderson, Dwight Smith. (Attachments: # 1 Text of Proposed Order)(Takei, Carl) (Entered: 06/18/2013)
283 ORDER directing that, by agreement of the parties, it is the ORDER, JUDGMENT, and DECREE of the court that plaintiffs' 282 motion for voluntary dismissal is granted and that plaintiff Dwight Smith is dismissed and terminated as a party. Signed by Honorable Judge Myron H. Thompson on 6/19/13. (Attachments: # 1 Civil Appeals Checklist)(scn, ) (Entered: 06/19/2013)
284 Joint MOTION for Preliminary Approval and Notice of Proposed Settlement by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (with Exhibit A−1, A−2, B, and C incorporated in main document pdf.) (Lunsford, William) [Modified on 8/2/2013 to include exhibit text.−dmn] (Entered: 08/01/2013)
285 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference re 284 J/M Preliminary Approval etc. held on 8/5/2013 (PDF available for court use only). (Recording Time 2:55 − 3:17:01.) (ag, ) (Entered: 08/05/2013)
286 NOTICE by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox re 284 Joint MOTION for Preliminary Approval and Notice of Proposed Settlement − Notice of Amended Exhibits (Attachments: # 1 Exhibit B: Notice, # 2 Exhibit C: Proposed Order)(Takei, Carl) (Entered: 08/06/2013)
287 ORDER granting 284 Joint MOTION for Preliminary Approval; that the proposed Settlement Agreement attached hereto as Exhibits A−1 and A−2 is PRELIMINARILY APPROVED, as further set out in order; The Court will hold Fairness Hearings at Tutwiler Prison for Women, Wetumpka, Alabama, at 10:00 AM on 9/24/2013 and at Limestone Correctional Facility, Harvest, Alabama, at 11:00 AM on 9/26/2013 before Honorable Judge Myron H. Thompson, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 8/6/2013. (Attachments: # 1 Exhibit A−1 (Settlement Agreement), # 2 Exhibit A−2 (Private Agreement), # 3 Exhibit B (Notice of Proposed Settlement Agreement inc Class Action Lawsuit), # 4 Exhibit C (Objection/Comment on Proposed Settlement Agreement)) (wcl, ) (Entered: 08/06/2013)
288 Objection/Comment on Proposed Settlement Agreement in Class Action Lawsuit by Mr. Ashley, Mr. King, Mr. Core. (wcl, ) (Entered: 08/21/2013)
289 Objection/Comment on Proposed Settlement Agreement in Class Action Lawsuit by Ms. Graham, Mr. Taylor. (wcl, ) (Entered: 08/22/2013)

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08/22/2013 08/27/2013 08/28/2013 08/29/2013 09/03/2013 09/03/2013 09/03/2013 09/06/2013 09/09/2013 09/11/2013 09/13/2013 09/20/2013
09/20/2013 09/24/2013
09/24/2013 09/26/2013
09/30/2013 09/30/2013

290 Objection/Comment on Proposed Settlement Agreement in Class Action Lawsuit by Mr. Welch, Mr. Partian, Mr. Richards, Mr. Stone, Mr. Murphy. (wcl, ) (Entered: 08/23/2013)
291 Objection/Comment on Proposed Settlement Agreement in Class Action Lawsuit by Ms. Robinson. (wcl, ) (Entered: 08/28/2013)
292 Objection/Comment on Proposed Settlement Agreement in Class Action Lawsuit by Mr. McGhee, Mr. Burton, Mr. Tippit, Mr. Phelps. (wcl, ) (Entered: 08/29/2013)
293 Objection/Comment on Proposed Settlement Agreement in Class Action Lawsuit by Mr. Beyer, Mr. Young, and Mr. Hunter. (wcl, ) (Entered: 08/30/2013)
294 ORDERED that all objections to, and comments on, the proposed settlement are to be filed under seal, since they most likely will contain personal medical history. Signed by Honorable Judge Myron H. Thompson on 9/3/2013. (wcl, ) (Entered: 09/03/2013)
295 Objection/Comment on Proposed Settlement Agreement in Class Action Lawsuit by Ms. Lomax, Mr. Rucker, Mr. Martinez.. (wcl, ) (Entered: 09/04/2013)
296 Objection/Comment on Proposed Settlement Agreement in Class Action Lawsuit by Mr. Taylor, Mr. Stone. (wcl, ) (Entered: 09/04/2013)
297 Objection/Comment on Proposed Settlement Agreement in Class Action Lawsuit by Mr. Burton, Mr. Merriweather, Mr. Howard, Mr. Teal. (wcl, ) (Entered: 09/09/2013)
Set Hearings: Telephone Conference set for 9/13/2013 10:00 AM by telephone before Honorable Judge Myron H. Thompson. (ag, ) (Entered: 09/09/2013)
298 Objection/Comment on Proposed Settlement Agreement in Class Action Lawsuit by Mr. Powe, Mr. Baine. (wcl, ) (Entered: 09/12/2013)
299 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 9/13/2013 (PDF available for court use only). (Recording Time 10:03 − 10:33.) (ag, ) (Entered: 09/13/2013)
300 Evidentiary Submission in Support of the Proposed Settlement Agreement filed by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Attachments: # 1 Affidavit of Phyllis Billups, # 2 Exhibit A to Billups Affidavit, # 3 Exhibit B to Billups Affidavit, # 4 Affidavit of Edward Ellington, # 5 Exhibit A to Ellington Affidavit, # 6 Exhibit B to Ellington Affidavit, # 7 Affidavit of Bradrick Files, # 8 Exhibit A to Files Affidavit, # 9 Exhibit B to Files Affidavit)(Lunsford, William) (Entered: 09/20/2013)
301 NOTICE by Louis Henderson Statement of Class Counsel in Support of Proposed Settlement (Winter, Margaret) (Entered: 09/20/2013)
302 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Evidentiary (Fairness) Hearing held on 9/24/2013 (PDF available for court use only). (Court Reporter Patricia Starkie.) (Attachments: # 1 Witness List, # 2 Defendants Exhibits List) (ag, ) (Attachment 1 replaced on 10/1/2013) (ag, ). (Entered: 09/24/2013)
303 ORDER denying 251 Motion for Attorneys Fees, as further set out. Signed by Honorable Judge Myron H. Thompson on 9/24/. (scn, ) (Entered: 09/24/2013)
304 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Evidentiary Hearing held on 9/26/2013 (PDF available for court use only). (Court Reporter Risa Entrekin.) (Attachments: # 1 Witness List, # 2 Defendants Exhibits List) (ag, ) (Entered: 09/27/2013)
305 OPINION. Signed by Honorable Judge Myron H. Thompson on 9/30/13. (djy, ) (Entered: 09/30/2013)
306 STIPULATED ORDER, on the Joint Motion for Approval of the Parties' settlement agreement and entry of stipulated order for the reasons set forth in the Opinion accompanying this order, ORDERING and ADJUDGING, as further set out in order; further ORDERING that all outstanding motions are denied as moot; directing the clerk to enter this document on the civil docket as a Final Judgment pursuant to Rule 58 FRCP; this case is closed. Signed by Honorable Judge Myron H. Thompson on

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08/07/2014 09/26/2014 09/29/2014 10/16/2014 10/16/2014 12/02/2014
12/12/2014
12/12/2014 12/29/2014 12/29/2014 12/30/2014 01/05/2015 01/06/2015 01/06/2015

9/30/13. (Attachments: # 1 civil appeals checklist)(djy, ) (Entered: 09/30/2013)
307 SEALED DOCUMENT−statement from "possible" class member filed for information purposes only and emailed to counsel pursuant to instructions from chambers. (djy, ) (Entered: 08/08/2014)
308 NOTICE by Louis Henderson Transcript Order for Evidentiary Hearing (Takei, Carl) (Main Document 308 replaced on 9/29/2014) (scn, ). (Entered: 09/26/2014)
309 NOTICE of PDF Correction re 308 Notice. (Attachments: # 1 Corrected main document of docket entry 308 )(scn, ) (Entered: 09/29/2014)
310 MOTION to Compel Transfer/MOTION for Modification of Agreement, by Ralph Davis. (scn, ) (Entered: 10/16/2014)
311 NOTICE of Appearance by Randall C Marshall on behalf of All Plaintiffs (Marshall, Randall) (Additional attachment(s) added on 10/17/2014: # 1 Corrected certificate of service) (scn, ). (Entered: 10/16/2014)
312 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Fairness Hearing Proceedings (PDF ACCESS RESTRICTED FOR 90 DAYS) held on 9/24/13, before Judge MYRON H. THOMPSON. Court Reporter/Transcriber Patricia G. Starkie, Telephone number 334.262.1221. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE OF INTENT TO REQUEST REDACTION DUE WITHIN 7 BUSINESS DAYS. Redaction Request due 12/23/2014. Redacted Transcript Deadline set for 1/2/2015. Release of Transcript Restriction set for 3/2/2015. (scn, ) (Entered: 12/02/2014)
313 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Evidentiary Hearing Proceedings (PDF ACCESS RESTRICTED FOR 90 DAYS) held on September 26, 2013, in Limestone Correctional Facility before Honorable Judge Myron H. Thompson. Court Reporter/Transcriber Risa L. Entrekin, Telephone number 334−240−2405. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE OF INTENT TO REQUEST REDACTION DUE WITHIN 7 BUSINESS DAYS. Redaction Request due 1/2/2015. Redacted Transcript Deadline set for 1/12/2015. Release of Transcript Restriction set for 3/12/2015. (scn, ) (Entered: 12/12/2014)
314 ORDER directing the parties TO SHOW CAUSE, if any there be, as to whether inmate Ralph Davis's 310 Motion to Compel should not be granted. Show Cause Response due by 12/29/2014. Signed by Honorable Judge Myron H. Thompson on 12/12/2014. (dmn, ) (Entered: 12/12/2014)
315 RESPONSE TO ORDER TO SHOW CAUSE by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas re 314 Order to Show Cause,. (Lunsford, William) (Entered: 12/29/2014)
316 RESPONSE TO ORDER TO SHOW CAUSE by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox re 314 Order to Show Cause,. (Marshall, Randall) (Entered: 12/29/2014)
317 (SEALED PURSUANT TO 319 ORDER DATED 01/06/2015) MOTION to Add Additional Plaintiffs, by (Movant) Ralph Davis. (scn, ) Modified on 1/6/2015 (scn, ). (Entered: 12/30/2014)
318 MOTION to Seal 317 Motion to Add Additional Plaintiffs, by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox. (Attachments: # 1 Text of Proposed Order)(Marshall, Randall) Modified on 1/5/2015 to create relationship to 317 Motion (scn, ). (Entered: 01/05/2015)
319 ORDER granting 318 Motion to Seal. Signed by Honorable Judge Myron H. Thompson on 01/06/2015. (scn, ) (Main Document 319 replaced on 1/6/2015) (scn, ). (Entered: 01/06/2015)
320 ORDER denying 317 Motion to add additional plaintiffs. Signed by Honorable Judge Myron H. Thompson on 01/06/2015. (scn, ) (Main Document 320 replaced on

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01/06/2015 03/03/2015
03/03/2015
03/03/2015 03/03/2015 03/06/2015 03/10/2015 03/24/2015 03/24/2015 03/25/2015 03/30/2015 03/30/2015 03/31/2015 04/01/2015 04/28/2015

1/6/2015) (scn, ). (Entered: 01/06/2015)
321 NOTICE of PDF Correction re 320 Order and 319 Order to reflect corrections to DATE orders were signed. (Attachments: # 1 Corrected Order Doc 319 , # 2 Corrected Order Doc 320 )(scn, ) (Entered: 01/06/2015)
322 ORDER directing that, upon consideration of the responses filed by the plaintiffs and defendants in this case (doc. nos. 316 and 315 ) to the court's order to show cause (doc. no. 314 ), it is ORDERED that inmate Ralph Davis's motion to compel (doc. no. 310 ) is denied without prejudice. Signed by Honorable Judge Myron H. Thompson on March 3, 2015. (scn, ) (Entered: 03/03/2015)
323 ORDER directing that, it appearing that Kim Thomas has been replaced by Billy Sharp, albeit as Interim Commissioner, Alabama Department of Corrections, see Dunn v. Sharp, civil action no. 2:14cv601, it is ORDERED that the docket sheet and all future filings in this case shall reflect this substitution pursuant to Fed. R. Civ. P. 25(d). Signed by Honorable Judge Myron H. Thompson on March 3, 2015. (scn, ) (Entered: 03/03/2015)
***Attorney Anne Adams Hill,David Berman Block,Elizabeth Anne Sees,Janine McKinnon McAdory,Mitesh Shah,Scott Lee Rouse,William Richard Lunsford,Mitchell David Greggs for Billy Sharp added pursuant to 323 Order. (scn, ) (Entered: 03/03/2015)
*** Attorney Anne Adams Hill; William Richard Lunsford; Janine McKinnon McAdory; Scott Lee Rouse; Elizabeth Anne Sees; Mitesh Shah; David Berman Block and Mitchell David Greggs terminated as counsel for Kim Thomas pursuant to 323 Order. (scn, ) (Entered: 03/03/2015)
324 MOTION for Relief, by Movant Jaquine Roberto Taylor. (scn, ) (Entered: 03/06/2015)
325 ORDER directing that the parties show cause, if any there be, in writing by March 24, 2014, as to whether inmate Jaquine Roberto Taylor's motion for relief (doc. no. 324 ) should not be granted. Signed by Honorable Judge Myron H. Thompson on 03/10/2015. (scn, ) (Entered: 03/10/2015)
326 RESPONSE TO ORDER TO SHOW CAUSE by Jeffery Beyer, James Douglas, Alqadeer Hamlet, Dana Harley, Louis Henderson, Albert Knox re 324 MOTION, 325 Order to Show Cause,. (Marshall, Randall) (Entered: 03/24/2015)
327 RESPONSE TO 325 SHOW CAUSE ORDER The State's Response to Show Cause Order by Frank Albright, Bettina Carter, Edward Ellington, Billy Mitchem, Kim Tobias Thomas. (Lunsford, William) Modified on 3/25/2015 to clarify text to reflect as response to 325 order (QC/djy, ). (Entered: 03/24/2015)
Set Hearings: Telephone Conference re 324 Motion for Relief and 326 Response set for 3/30/2015 09:30 AM by telephone before Honorable Judge Myron H. Thompson. (ag, ) (Entered: 03/25/2015)
328 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 3/30/2015 (PDF available for court use only). (Recording Time 9:35 − 9:43.) (ag, ) (Entered: 03/30/2015)
329 ORDER directing that, based on the representations made on the record on March 30, 2015, it is ORDERED that inmate Jaquine Roberto Taylor's motion for relief (doc. no. 324 ) is denied without prejudice. Signed by Honorable Judge Myron H. Thompson on March 30, 2015. (scn, ) (Entered: 03/30/2015)
330 NOTICE of problems with ADOC, by Jaquine Roberto Taylor. (scn, ) (Entered: 04/01/2015)
331 ORDER directing that inmate Jaquine Roberto Taylor's request for relief (doc. no. 330 ) is denied without prejudice, as further set out. Signed by Honorable Judge Myron H. Thompson on April 1, 2015. (scn, ) (Entered: 04/01/2015)
332 ORDER directing that this matter is set for a mediation conference on May 28, 2015, at 10:00 a.m., in Courtroom 5A, United States Courthouse, One Church Street, Montgomery, Alabama, as further set out. Signed by Honorable Judge Wallace Capel, Jr on April 28, 2015. (Furnished to Calendar/KF) (scn, ) (Entered: 04/28/2015)

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05/01/2015
05/28/2015 05/28/2015 07/09/2015
07/24/2015 08/14/2015
08/14/2015 09/10/2015 09/11/2015 10/01/2015 10/01/2015
10/06/2015

333 ORDER: It appearing that Billy Sharp has been replaced by Jefferson S. Dunn as Commissioner, Alabama Department of Corrections, see Dunn v. Dunn, civil action no. 2:14cv601−MHT, it is ORDERED that the docket sheet and all future filings in this case shall reflect this substitution pursuant to FRCP 25(d). Signed by Honorable Judge Myron H. Thompson on 5/1/2015. (Party Jefferson S. Dunn added. Billy Sharp (in his official capacity) terminated. Attorney Anne Adams Hill, David Berman Block, Elizabeth Anne Sees, Janine McKinnon McAdory, Mitchell David Greggs, Mitesh Bansilal Shah, Scott Lee Rouse, William Richard Lunsford, added for Jefferson S. Dunn and terminated as counsel for Billy Sharp.)(dmn, ) (Entered: 05/01/2015)
Minute Entry for proceedings held before Honorable Judge Wallace Capel, Jr: Mediation Conference held on 5/28/2015 (No PDF attached). (kcf, ) (Entered: 05/28/2015)
Minute Entry for proceedings held before Honorable Judge Wallace Capel, Jr: Settlement Conference held on 5/28/2015 (No PDF attached). (Recording Time 11:17 − 11:23.) (kcf, ) (Entered: 05/28/2015)
334 MOTION for Attorney Fees by Louis Henderson, Dana Harley, Albert Knox, James Douglas, Alqadeer Hamlet, Jeffery Beyer. (Marshall, Randall) Modified on 7/9/2015 to remove the previously terminated parties Ashley Dotson, Bonita Graham, John Hicks, Roosevelt James, Darrell Robinson, David Smith, Dwight Smith, April Stagner, and Melinda Washington as filers − these parties were voluntarily dismissed (wcl, ). (Entered: 07/09/2015)
Set Hearings: Telephone Conference re (1) mediation of the the fee request and (2) whether the entire case can now be dismissed set for 9/2/2015 09:00 AM by telephone before Honorable Judge Myron H. Thompson. (ag, ) (Entered: 07/24/2015)
335 ORDER re 305 Opinion and 306 Stipulated Order. It is ORDERED that this matter is set for a Mediation Conference set for 9/10/2015 at 09:00 AM in Courtroom 5A in Montgomery, AL before Honorable Judge Wallace Capel Jr. On or before 9/3/2015, each party shall provide the undersigned with a confidential mediation conference statement as further set out in the order. Signed by Honorable Judge Wallace Capel, Jr. on 8/14/2015. Copies furnished to calendar group, KF. (dmn, ) (Entered: 08/14/2015)
336 TEXT ORDER: Resetting Telephone Conference re (1) mediation of the the fee request and (2) whether the entire case can now be dismissed now set for 9/2/15 to 10/2/2015 10:00 AM by telephone before Honorable Judge Myron H. Thompson.. Entered by Honorable Judge Myron H. Thompson on 8/14/2015. (ag, ) (Entered: 08/14/2015)
Minute Entry for proceedings held before Honorable Judge Wallace Capel, Jr: Mediation Conference held on 9/10/2015 (No PDF attached). (kcf, ) (Entered: 10/06/2015)
337 ORDERED that the mediation concerning Plfs' request for attorney's fees in this matter is continued pending further order of the court. Signed by Honorable Judge Wallace Capel, Jr on 9/11/2015. (wcl, ) (Entered: 09/11/2015)
338 UNOPPOSED MOTION to Continue Telephone Conference by Bettina Carter, Jefferson S. Dunn, Edward Ellington. (Lunsford, William) Modified on 10/1/2015 to remove repetitive text. (dmn, ) (Entered: 10/01/2015)
339 TEXT ORDER that the 338 Unopposed Motion to Continue Telephone Conference is GRANTED and the Telephone Conference set for 10/2/2015 is RESET to 11/10/2015 at 10:00 AM before Honorable Judge Myron H. Thompson re (1) mediation of the fee request and (2) whether the entire case can now be dismissed. Signed by Honorable Judge Myron H. Thompson on 10/1/2015. Copies furnished to calendar group, AG. (dmn, ) (NO PDF) (Entered: 10/01/2015)
340 ORDER, counsel for defendants having informed the court that Christopher Gordy and Bobby Barrett have replaced Billy Mitchem and Frank Albright as Warden of Limestone Correctional Facility and Warden of Julia Tutwiler Prison for Women, respectively, it is ORDERED that the docket sheet and all future filings in this case shall reflect this substitution, pursuant to FRCP 25(d). Signed by Honorable Judge Myron H. Thompson on 10/6/15. (djy, ) (Entered: 10/06/2015)

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10/06/2015 10/06/2015 10/27/2015
11/03/2015 11/12/2015 11/13/2015 11/23/2015 12/07/2015
12/08/2015
01/07/2016 01/08/2016
04/07/2016 04/08/2016

341 NOTICE of Appearance by William Richard Lunsford on behalf of All Defendants (Lunsford, William) (Entered: 10/06/2015)
***Attorney David Berman Block,Mitesh Bansilal Shah,Mitchell David Greggs,Janine McKinnon McAdory,Anne Adams Hill,Elizabeth Anne Sees added for Christopher Gordy. (dmn, ) (see Doc. 341 for pdf) (Entered: 10/07/2015)
342 ORDER that the Mediation Conference will reconvene on 11/12/2015 at 09:00 AM in Courtroom 5A in Montgomery, AL before Honorable Judge Wallace Capel Jr. If the parties wish to submit supplemental confidential mediation statementsahead of the mediation, the parties shall transmit such statements to the undersigneds chambers on or before 11/5/2015. Signed by Honorable Judge Wallace Capel, Jr. on 10/27/2015. Copies furnished to calendar group, KG. (dmn, ) (Entered: 10/27/2015)
343 TEXT ORDER: Resetting Telephone Conference now set for 11/10 to 11/23/2015 09:00 AM by telephone before Honorable Judge Myron H. Thompson. Entered by Honorable Judge Myron H. Thompson on 11/3/2015. (ag, ) (Entered: 11/03/2015)
Minute Entry for proceedings held before Honorable Judge Wallace Capel, Jr: Mediation Conference held on 11/12/2015 (No PDF attached). (kcf, ) (Entered: 12/03/2015)
344 ORDER: As discussed during the mediation with the parties on 11/12/2015, it is ORDERED that the mediation concerning Plaintiffs' request for attorney's fees in this matter is continued pending further order of the court. Signed by Honorable Judge Wallace Capel, Jr. on 11/13/2015. (dmn, ) (Entered: 11/13/2015)
345 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 11/23/2015 (PDF available for court use only). (Recording Time 9:09 − 9:14.) (ag, ) (Entered: 11/23/2015)
346 Amended MOTION for Attorney Fees by Jeffery Beyer, Ashley Dotson, James Douglas, Bonita Graham, Alqadeer Hamlet, Dana Harley, Louis Henderson, John Hicks, Roosevelt James, Albert Knox, Darrell Robinson, David Smith, Dwight Smith, April Stagner, Melinda Washington. (Attachments: # 1 Text of Proposed Order)(Marshall, Randall) (Entered: 12/07/2015)
347 ORDER that Plaintiffs' 346 Amended Motion for Attorneys' Fees is granted as follows: Defendants shall pay Plaintiffs counsel ninety−nine thousand dollars and no cents ($ 99,000.00) in full satisfaction of any claim for attorneys fees, expenses, and costs within thirty (30) days of this Order. The other 334 Motion for Attorneys Fees is denied as moot. Upon notification that payment has been made, the Court will dismiss this action with prejudice. Signed by Honorable Judge Myron H. Thompson on 12/8/2015. (dmn, ) (Entered: 12/08/2015)
348 NOTICE by Bobby Barrett, Bettina Carter, Jefferson S. Dunn, Edward Ellington, Christopher Gordy re 347 Order, Terminate Motions,,,, (Attachments: # 1 Exhibit A − Acknowledgment)(Lunsford, William) (Entered: 01/07/2016)
349 JUDGMENT it is the ORDER, JUDGMENT, and DECREE of the court that this cause is dismissed in its entirety with prejudice. 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 FRCP. Signed by Honorable Judge Myron H. Thompson on 1/8/2016. (Attachments: # 1 Civil Appeals Checklist)(kh, ) (Entered: 01/08/2016)
350 Letter MOTION to Reopen Case by Jaquine Roberto Taylor. (wcl, ) (Entered: 04/07/2016)
351 ORDER denying 350 Motion to Reopen the Case; This litigation is over. Signed by Honorable Judge Myron H. Thompson on 4/8/2016. (wcl, ) (Entered: 04/08/2016)