IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

J.B., a minor child, by and through *

his next friend, ADDIE WARD, on *

Behalf of himself and all others *

similarly situated; *

*

Plaintiff, *

vs. * CASE NO: 2:06cv00755-MHT

*

*

WALTER WOOD, in his individual *

capacity, *

*

Defendant. *

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

J.B., a minor child, by and through *

his next friend, ADDIE WARD, on *

Behalf of himself and all others *

similarly situated; *

*

Plaintiff, *

vs. * CASE NO: 2:06cv00908-MEF

*

*

WALTER WOOD, in his individual *

capacity, *

*

Defendant. *

PLAINTIFF’S BRIEF IN SUPPORT OF OPPOSITION

TO SUMMARY JUDGMENT

INTRODUCTION

These actions were initiated by Addie Ward on behalf of J.B., a minor. Both

actions allege violations of J.B.’s substantive due process rights under the Fourteenth

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Amendment to the Constitution of the United States and the failure of the Defendant to

accept J.B. within seven days of notice of commitment, pursuant to §12-15-61(c) Code

of Alabama (1975).

The respective claims, violation of due process and failure to accept within seven

days, have separate and distinct legal foundation, neither relying on the other.

Defendant Wood has moved for Summary Judgment on three grounds. First, he

argues he is entitled to qualified immunity. Second, he argues he is entitled to stateagent immunity. Third, he alleges the cases should be dismissed under 42 U.S.C.

§1997e(e). None of these arguments have merit.

DEFENDANT’S EVIDENTIARY SUPPORT

In support of his Motion for Summary Judgment, Defendant submits four exhibits.

The “Undisputed Facts” as set forth by the Defendant are unsupported by the evidence

offered through the exhibits.

Exhibits three (3) (Affidavit of Walter Wood) and four (4) (Affidavit of Patrick

Pendergast) offer no evidence as to Plaintiff, J.B. and in fact do not reference the

Plaintiff at any time or manner.

In addition, the Defendant has failed to establish an absence of a genuine issue

of material fact. Because the movant has not satisfied his burden under Rule 56(c)

F.R.C.P., he would not be entitled to a judgment as a matter of law.

The Plaintiff submits Defendant’s Motion for Summary Judgment is to be

summarily denied. Absent such denial, the Plaintiff states as follows:

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STATEMENT OF THE FACTS

SUMMARY OF THE CASES

The first lawsuit, 2:06-CV-755 filed on August 23, 2006, asserts claims based

upon events occurring as a result of J.B.’s commitment to the Alabama Department of

Youth Services on May 18, 2005. (Exhibit 1) The second lawsuit, 2:06-CV-908, was

filed on October 6, 2006, asserts claims based upon events occurring as a result of

J.B.’s commitment to the Alabama Department of Youth Services on April 4, 2006.

(Exhibit 2)

The lawsuits assert identical causes of action and relief based upon their

respective dates of occurrence.

J.B.’S FIRST COMMITMENT (CV-06-755)

On May 18, 2005 the Juvenile Court of Montgomery County, Alabama entered an

Order finding J.B. to be a delinquent child. The Order included, inter alia, that J.B. was

in need of care or rehabilitation treatment; that custody was placed with the Alabama

Department of Youth Services (hereinafter referred to as “DYS”) for a period to be

determined by DYS, referral to “CAPS” (Drug program) and that pending transfer to

DYS, J.B. is to be detained at the Montgomery County Youth Facility. (Exhibit 3)

On June 28, 2005 J.B. was placed at the 28-day Autauga “HIT” (High Intensive

Treatment) program located in Prattville, Alabama. Subsequent to completion of the

“HIT” program, J.B. was placed at the 64-day “Bridge” program, located in Mobile,

Alabama for drug treatment where he completed the program and was released.

(Exhibit 4 and 5)

J.B.’S SECOND COMMITMENT (CV-06-908)

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On April 4, 2006 the Juvenile Court of Montgomery County, Alabama entered an

Order again committing J.B. to the custody of the Alabama Department of Youth

Services and specifically noted that J.B. was “Committed for inpatient drug treatment”.

The Order further directed that J.B. be detained at the Montgomery County Youth

Facility pending transfer to DYS. (Exhibit 6) J.B was placed at a drug treatment facility

in Mobile, Alabama on May 9, 2006. (Exhibit 7)

HOW A CHILD ENDS UP AT DYS

The statutory framework of the Alabama juvenile justice system is found at §12-

15-1 et seq. and §44-1-1 et seq. Code of Alabama.

§12-15-1.1 provides – This chapter shall be known as the Alabama

Juvenile Justice Act. The purpose of this chapter is to facilitate the care,

protection, and discipline of children who come within the jurisdiction of

the juvenile court, while acknowledging the responsibility of the juvenile

court to preserve the public peace and security. In furtherance of this

purpose, the following goals have been established for the juvenile court:

(1) To preserve and strengthen the child’s family whatsoever

possible, including improvement of home environment.

(2) To remove the child from the custody of his or her parents only

when it is judicially determined to be in his or her best interest or for the

safety and protection of the public.

(3) To reunite a child with his or her parents as quickly and as

safely as possible when the child has been removed from the custody of

his or her parents.

(4) To secure for any child removed from parental custody the

necessary treatment, care guidance, and discipline to assist him or her in

becoming a responsible productive member of society.

(5) To promote a continuum of services for children and their

families from prevention to aftercare, considering wherever possible,

prevention, diversion, and early intervention.

(6) To promote the use of community based alternatives as

deterrents to acts of juvenile delinquency and as least restrictive

dispositional alternatives.

(7) To hold a child found to be delinquent accountable for his or her

actions to the extent of the child’s age, education, mental and physical

condition, background, and all other relevant factors and to provide a

program of supervision, care, and rehabilitation, including restitution by the

child to the victim of his or her delinquent acts.

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(8) To achieve the foregoing goals in the least restrictive setting

necessary, with a preference at all times for the preservation of the family

and the integration of parental accountability and participation in treatment

and counseling programs.

Judicial procedures through which these goals are accomplished

will assure the parties a fair hearing where their constitutional and other

statutory rights are recognized and enforced.

This chapter shall be liberally construed to the end that each child

coming within the jurisdiction of the juvenile court shall receive the care,

guidance, and control, preferably in his or her own home, necessary for

the welfare of the child and the best interest of the state.

§12-15-1(5) provides – Commit. Transfer legal and physical custody.

§12-15-1(9) provides – Delinquent child. A child who has committed a

delinquent act and is in the need of care or rehabilitation. [Emphasis

added.]

§12-15-1(17) provides – Legal custody. A legal status created by court

order which vests in a custodian the right to have physical custody of the

child and to determine where and with whom the child shall live within

the state and the right and duty to protect, train, and discipline the child

and to provide the child with food, shelter, clothing, education, and

ordinary medical care, all subject to the powers, rights, duties, and

responsibilities of the guardian of the person of the child and subject to

any residual parental rights and responsibilities. An individual granted

legal custody shall exercise the rights and responsibilities personally

unless otherwise authorized by the juvenile court. [Emphasis added.]

§12-15-61(c) provides – After October 1, 1991, the Department of Youth

Services shall accept all children committed to it within seven days of

notice of disposition.

§12-15-71(c) provides – If a child is found to be delinquent or in need of

supervision, the court may make any of the following order or dispositions

for the child’s supervision, care, and rehabilitation:

(1) Permit the child to remain with the parents, guardian, or

other custodian of the child, subject to the conditions and limitations the

court may prescribe.

(2) Place the child on probation under conditions and limitations

the court may prescribe.

(3) Transfer legal custody to any of the following:

a. The Department of Youth Services, with or

without a commitment order to a specific institution. [Emphasis

added.]

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§12-15-71(j) provides – Whenever the court commits a child to a state or

local agency or orders a state or local agency to provide services or

treatment for a child, that agency shall accept the child for commitment,

ordered services, or treatment within seven days of the court’s order.

However, if compliance with the court’s order within seven days would

place an agency in violation of either a state statute or standard, then

compliance is not required.

§12-15-71(g) provides – Whenever the court vests legal custody in an

agency or department, it shall transmit with the order copies of clinical

reports, predisposition study, and other information it has pertinent to the

care and treatment of the child.

THE ALABAMA DEPARTMENT OF YOUTH SERVICES

The Alabama Department of Youth Services is statutorily created:

§44-1-1 provides - The purpose of this chapter is to promote and

safeguard the social wellbeing and general welfare of the youth of the

state through a comp rehensive and coordinated program of public

services for the prevention of juvenile delinquency and the rehabilitation

of delinquent youth. [Emphasis added] This state program shall

provide the following:

(1) Social and educational services and facilities for any youth

whom a juvenile judge deems in need of such state services;

(2) The establishment of standards for social and educational

services and facilities for such youth;

(3) Cooperation with public and voluntary agencies,

organizations and citizen groups in the development and coordination of

programs and activities directed toward the prevention, control and

treatment of delinquency;

(4) The promotion and improvement of community conditions,

programs and resources to aid parents in discharging their responsibilities

for the care, development and well-being of their children; and

(5) The promotion of improved communications between the

public and voluntary agencies and bodies of this state responsible for said

youth and the juvenile courts of this state. (Acts 1973, No. 816, p. 1261

§1)

Among other statutory provisions DYS is to:

§44-1-2(14) provides – Legal custody. A legal status created by a court

order embodying the following rights and responsibilities: the right to have

physical possession of the youth; the right and the duty to protect, train

and discipline him; the responsibility to provide him with food, clothing,

shelter, education, and medical, dental and hospital care and the right to

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determine where and with whom he shall reside. [Emphasis added]

§44-1-30 provides – When the legal custody of a youth has been vested in

the department of youth services by order of the juvenile judge, the

department shall, under rules established by it, study and evaluate such

youth and investigate all pertinent circumstances of his behavior and life in

order to prepare a service plan while he or she is detained in the state

training schools. Data concerning such youth secured in any previous

study and evaluation undertaken under this chapter may be utilized by the

department in lieu of or in supplementation of a new study and evaluation.

The police authorities, the school authorities and other public officials and

agencies of the state or any county or municipality in the state shall, upon

the request of the department, promptly make available to the department

all pertinent information in their possession with respect to a youth whose

custody is vested in the department; provided, that this section shall not

require any disclosure which would be inconsistent with the requirements

of any federal statute or regulation under which grants are made to the

state or any state law. The department shall make available its findings

pursuant to this section to any juvenile court in the state. (Acts 1973, No.

816, p. 1261, §21.)

§44-1-32 provides – (a) When legal custody of a youth has been vested in

the department of youth services and so long as such legal custody is

such vested in the department. The department may, after an objective

consideration of all available information, take one of the following social

service actions:

(1) The department may place the youth in a state training

school within the state or in another state in accordance with the

provisions of the Interstate Compact on Juveniles, under such conditions

as it believes best designed for his welfare or for the protection of the

public;

(2) The department may release the youth to the jurisdiction of

the committing court;

(3) The department may arrange temporary return or a trial visit

of the youth to his own home, as often as conditions appear desirable.

(b) The committing court shall be kept informed by the department of

the physical location of the youth at all times. (Acts 1973, No. 816, p.

1261, §23.)

HOW A CHILD GETS OUT OF DYS CUSTODY

§44-1-36(c) provides – A committed youth shall be discharged who, in the

judgment of the director, has gained optimal rehabilitation from the

programs of the department and will not be received again by the

department under the original commitment order.

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§44-1-36(d) provides – A committed youth shall be released into aftercare

when the department determines that said youth is no longer in need of

the services of the state training schools and can function within the open

society under the supervision of a probation officer in accordance with the

terms and conditions as established by the committing court. The

department shall notify the committing court in writing at least 10 days in

advance of the release. The committing court, at the time of release into

aftercare, shall then invest custody in a party which the court deems

suitable.

The Alabama Department of Youth Services has established Policies 17.11 and

18.1, which sets the criteria for release. This policy states as follows:

Release from departmental programs is an integral part of any

student’s service plan. Release from custody should be planned during

the development of the service plan and accomplished in an orderly and

effective manner. The committing court must be informed 30 days prior to

the release of any student and only after substantial completion of the

service plan. Substantial completion is defined as meeting goals of the

plan unless there is reasonable justification to the contrary.

The following is the procedure to be used to release a student from

DYS custody:

1. Notify the committing court and legal custodian 30 days prior

to the pending release from custody.

2. The case manager prepares release summary documenting

substantial completion of the service plan.

3. The service delivery liaison which prepared the service plan

meets with student to determine release.

4. The service delivery team certifies to the program director

that the service plan has been substantially met.

5. Program director certifies to the division head that plan has

been met.

6. Division head prepares release papers and recommends

release to the Executive Director.

(Exhibit 8)

The service plan is the driving force of the child’s stay at DYS. It is the blue print,

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based upon individual needs, to provide appropriate services to each youth placed at

DYS. Thus, a child remains in DYS custody until the service plan is substantially

completed, such is communicated to the director and the director of DYS releases the

child. (Exhibit 9) The service plan is created upon placement at a facility, not by

Screening & Placement, and is based upon review of all relevant information, including

evaluations, etc. DYS Policy 16.3.

STATUTORILY CREATED DYS ACCEPTANCE PROCESS

Upon commitment of a child to DYS, the court Order and other pertinent

documents in the committing court’s possession are to be transmitted to DYS. §12-15-

71(g) Code of Alabama (1975). (Exhibit 9)

§12-15-61(c) provides – After October 1, 1991, the Department of Youth

Services shall accept all children committed to it within seven days of

notice of disposition.

§12-15-71(j) provides – Whenever the court commits a child to a state or

local agency or orders a state or local agency to provide services or

treatment for a child, that agency shall accept the child for commitment,

ordered services, or treatment within seven days of the court’s order.

However, if compliance with the court’s order within seven days would

place an agency in violation of either a state statute or standard, then

compliance is not required.

THE DYS ACCEPTANCE PROCESS

Upon receipt of the commitment Order, DYS, through the office of screening and

placement, generates a letter to the probation officer acknowledging receipt of the Court

Order and other materials. (Exhibit 10)

The notification letter provides the receipt status of the materials and specifies:

“Please forward missing materials as soon as possible so we can staff and admit your

client.” DYS will not staff a child until all materials are received. The letter also states:

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“You will be contacted shortly as to a specific intake date. (Exhibit 11)

Although not established by statute or DYS Board promulgated rule, regulation or

policy, Defendant Wood has adopted a practice of requiring the submission of certain

materials in addition to the commitment Order. These are: 1) the completed DYS social

history form; 2) DYS risk/needs assessment; 3) immunization record; 4) cumulative

school transcripts; and 5) social security number. (Exhibit 12)

PENDERGAST DEPO PG. 77, LINES 2-7

Q. Can you point to me any statutory

authority that says DYS doesn't have to

staff or place this child until the other

information is received?

MR. PERRY: Same objection.

A. This is the way we've been doing it.

When all materials are submitted to DYS, the child’s name is placed on a list to

be “staffed.” Staffing

1

is the process of classifying and determining initial placement of

the committed child. Staffing takes place on Wednesday of each week. Regardless

when a child’s material are received, the child will not be staffed until the following

Wednesday, meaning that a week can pass before DYS reviews the child for

placement.

The Screening and Placement committee (hereinafter referred to a S/P) is the

entity that “staffs” a child. The Defendant asserts: “When a child is committed to DYS

custody, the Screening and Placement Committee meets and reviews the child’s

characteristics to determine where the child would most appropriately be staffed.”

(Pendergast Affidavit pg. 2)

According to the DYS Classification Manual:

1 Definition of staffing means classifies and places. (See Pendergast Aff. pg. 1)

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“The Screening and Placement Committee will initially classify all juveniles

referred to the Alabama Department of Youth Services within two weeks of completed

notification. The classification and placement decisions are made simultaneously.

Classification decisions are based upon court orders, risk assessment scores, and

reports from probation officers, psychologists and others familiar with the child.

Placement decisions match resources with the identified needs of the student. A threemember panel (described later) has the responsibility and authority to make

classification and placement decisions.” (Exhibit 13) Notwithstanding §12-15-61(c)

Code of Alabama (1975), Defendant Wood has adopted the above policy whereby

committed children can wait two (2) weeks after the Court Order and all materials are

received by DYS to be “staffed”. This time period exceeds the statutory time limitation

for actual acceptance by DYS by one week.

The Defendant would have the Court believe that the screening and placement of

committed children is a detailed comprehensive process (Defendant’s Brief Pg. 4; Exh.

3, Exh. 4). However, the classification and placement decisions are made

simultaneously. (Exhibit 13) Staffing is a function of determining the type of facility to

which a child will be placed and where his Service Plan will be developed. (Pendergast

depo pg. 166, line 6-9) Those service categories are pretty general. (Wood Depo pg.

244) (Exhibit 9)

A secondary consideration in the classification process would be to assess

subjective testing and/or reports in the case file which denote high or low risk factors

concerning the child’s emotional/mental health, potential for aggression, response to

previous treatment programs and family stability. (Exhibit 13)

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Testing will be provided by DYS when existing evaluations need to be updated or

are non-existent. The testing will take the form of a mental status exam, drug and

alcohol involvement scale; brief social history; diagnosis and recommendations.

Testing can be used for classification, placement and service plan development.

(Exhibit 13, pg. 2)

According to Pendergast “When a particular facility has no beds available due to

a lack of capacity, and if no alternate appropriate placement is available, placement is

delayed until a bed becomes available. (Pendergast affidavit at page 4,5)

The actual staffing process occurs in the following way:

* The coordinator of Screening and Placement, (Pendergast) upon notice of

commitment, causes a file to be created on the committed child.

* If all materials are received, the child is placed on the following week’s staffing

docket. Staffing is held once a week for the benefit of the people in the department.

(Up to a week after receipt of all materials) (Pendergast depo pp. 95-99)

* A single copy of the child’s file is created for the four members of the

screening/placement committee to review prior to the Wednesday staffing at 1:00 p.m.

(Pendergast depo pg. 99-109)

* The S/P Coordinator reviews each file prior to staffing and notates on the file

his recommended placement. (Pendergast depo. pg. 105-108)

* The S/P coordinator (Pendergast) makes his recommendation at the staffing

meeting and absent discussion regarding the recommendation, the S/P coordinator’s

recommendation is adopted.

* The placement recommendation is noted on the screening and placement

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staffing report and entered into the approach/tracking computer system. (Pendergast

depo. pg. 62; Exhibit 22 and 25)

* The placement decision is not communicated to the committing court, the

probation officer, the parent or guardian or the child. (Pendergast depo. pg. 29-32)

* The date placement is any projected placement date that is not communicated

to the committing court, the probation officer, the parent or guardian or the child.

(Pendergast depo. pg. 29-32)

*Intake to facilities occurs on Tuesdays. If a particular child is to be placed on

Tuesday S/P notifies the probation officer and/or detention facility prior to Thursday or

Friday.

* If a child or parent were to call Pendergast to get information about the

placement or intake date, Pendergast would not provide staffing or placement

information to them, in fact he would not speak to them, nor would the information be

communicated to a parent or guardian. (Pendergast Depo pg. 38-39)

THE HISTORY OF THE PLACEMENT PROCESS

AND DEFENDANT WOOD’S ROLE THEREIN

The issue of children waiting for DYS placement subsequent to commitment is

not a novel issue. It is an issue that has plagued DYS since the mid-nineties. The issue

was first judicially addressed in 1996 in the litigation known as “AW”.

2 Specifically the

issue was addressed when Judge Hobbs issued his Order of June 25, 1996. The Order

provides in part the following:

The Fourteenth Amendment’s protection against deprivations of

liberty without due process of law apply at the Department of Youth

Services, and conditions and procedures at detention facilities must be

evaluated under that standard. See e.g., H.C. ex rel. Hewett v. Jarrard,

2 A.W. v. Dupree, CV-92-H-104-N

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786 F.2d. 1080, 1084-85 (11

th Cir. 1986). The Defendant appears to

argue that because limited services are provided to juveniles during the

pre-evaluation or pre-placement detention period, the juvenile has no

constitutional interest in ending the detention period. If the Defendant is

suggesting that because such juveniles receive some limited services,

there is no constitutional violation from the failure to evaluate and place

juveniles in a timely manner, then the court rejects this suggestion. A

juvenile’s constitutional interest in “freedom from institutional restraints,

even for the brief time involved here, is undoubtedly substantial.” Schall v.

Martin, 467 U.S. 253, 265, 104 S. Ct. 2403, 2410 (1984) (citing In re

Gault, 387 U.S. 1, 87 S. Ct. 1428 (1967)). Although a state’s parens

patriae duty to juvenile offenders permits it to impose restraints on them

even in a civil setting, i.d., due process requires that the nature and

duration of commitment bear some reasonable relation to the purpose for

which the juvenile is committed. Alexander S. v. Boyd, 876 F. Supp. 773,

797-98 (D.S.C. 1995) (citing Jackson v. Indiana, 406 U.S. 715, 738, 92 S.

Ct. 1845, 1858 (1972) (applying standard to pretrial detention of civillycommitted, mentally-ill criminal defendant) and Youngberg v. Romeo, 457

U.S. 307, 102 S. Ct. 2452 (1982) (applying similar standard to civillycommitted mentally-retarded individuals)).

At DYS, the delay in obtaining evaluations for and placement of

committed juveniles may seriously interfere with their constitutional

interest in a commitment period that is reasonably related to the purposes

of their commitment. The court was particularly troubled in this regard by

evidence at the May 1996 hearing indicating that some juveniles wait in

detention longer than they serve in DYS programs. Evaluations may

result in immediate release for a juvenile, or, more typically, in placement

in a fixed-period program that leads to release from DYS. The court

reiterates the constitutional principle underlying the evaluation and

placement provisions of the Consent Order and Interim Consent Order--

that an unreasonable delay in getting placed in an appropriate program,

leads to unjustifiably prolonged restraints on a juvenile’s liberty and is

unconstitutional. Such a violation requires action on the part of this court.

(The entire Order is attached here as Exhibit 14).

The issue was next addressed in S.S. v Wood, CV-01-224-N, In the United

States District Court for the Middle District of Alabama, wherein the Defendant entered

into a settlement agreement whereby he would place committed youth within the time

specified by state law. (Exhibit 15)

The issue was again addressed in A.G. v. Wood and Pendergast, CV-02-A-182-

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N, In the United States District Court for the Middle District of Alabama, wherein the

Court issued its Memorandum Opinion and Order on Defendant’s Motion to Dismiss.

The case was settled thereafter. (Exhibit 16)

In addition, the Defendant was sued and settled the cases of R.P. v. DYS, Case

No.: CV-2002-34; J.N. v. DYS, Case No.: CV-2002-94; and C.F. v. Walter Wood, Case

No.: CV-2002-119, all actions in the Circuit Court of Montgomery County, Alabama. All

claims were premised on the Defendant’s failure to provide timely placement, care and

services. (Exhibit 31)

As a result of the aforementioned litigation, Wood adopted several policies,

procedures or practices: These include:

* The creation of the consent decree report, which provides students staffing

information. (Exhibit 17)

* The creation of the waiting list report, which provides the number of children

awaiting placement. (Exhibit 18)

* The creation of the 25-day letter that Defendant Wood sends requesting the

court allow the child to remain at home pending DYS placement. These letters are sent

by Wood 25 days after staffing if the child has not been placed. (Exhibit 19)

3

Defendant Wood acknowledges he is the final decision maker regarding

placement. (Wood depo pg. 72, 73, 89)

Defendant Wood acknowledges he could remove all children from detention and

make temporary arrangements without the committing courts approval. (Wood depo pg.

118)

3 Exhibit 19 consists of 661 25-day non-placement notifications. Instead of submitting all 661 letters, Plaintiff’s are

submitting the first and last letter it received from Defendant Wood.

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Defendant Wood had a myriad of options:

WOOD DEPO PG. 110, LINE 15 – PG. 117, LINE 11

Q. Mr. Wood, recognizing the statutes that we

have reviewed so far, and regardless of

somebody's interpretation -- but as the

statute reads, we have reviewed that when

you have legal custody, you can place a

child where and when you want. We've

reviewed that statute.

Would you agree with me, Mr. Wood, that

in exercising your statutory rights, you, as

the ultimate decision-maker in this

regard -- other than SJO, you could place a

child waiting in detention on electronic

monitoring?

MR. PERRY: I'm going to object to

the form of the question;

of the

testimony thus for.

But go ahead, Mr. Wood.

If you understand, you can

answer.

A. If I understand what you're asking, that is

a -- it is conceivable or possible or

allowable, yes, sir, that is a possibility.

Q. Okay. You could, for a child waiting in

detention -- other than a SJO, you could

place that child on home detention?

MR. PERRY: Objection to form.

Objection to form.

Are you asking him

whether he could place any

child regardless of his

characteristics, or are you

asking whether he could place

an appropriate child?

Q. It's not a trick question, guys.

MR. PERRY: Well, it sounded like one.

MR. DRUMMOND: Dudley, I'm going

to say this one time, and I

mean it as genuinely as I can

mean it.

There's a purpose here,

and trickery isn't it. It

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isn't it.

Q. So my question, Mr. Wood, is, other than a

SJO, you could place a child at home pending

placement at DYS, couldn't you?

A. Well, if I understand the provisions and

what's allowable or not, under certain

circumstances that that is a possibility,

yes, sir.

Q. Other than a SJO, you could allow a child to

go home and have his evaluation done while

he's at home, couldn't you?

A. I can -- I assume under certain

circumstances, if that was --

Q. Mr. Wood, other than --

A. -- possible in that particular case, that

that would be possible, yes, sir.

Q. Other than a SJO -- and I'm not sure you

couldn't do it with a SJO. But other than a

SJO, you could place a child at home on

electronic monitoring and require him to

go -- come out to DYS and get their

evaluation, out to Mt. Meigs or Vacca or

Chalkville, couldn't you?

A. That's conceivable, yes, sir.

Q. You could, while a child is waiting in

detention, have him at home and develop his

service plan while he's at home, couldn't

you?

A. It's conceivable. Under the right

circumstances, yes, sir.

Q. And, Mr. Wood, it's also statutorily

possible for you to create the service plan

and have the child participate in community

resources to satisfy that service plan,

couldn't you?

A. I'm not sure if under certain circumstances

that would be allowable. Of course, that,

you know, invokes the need for staff and

supervision and community probation-like

services that we don't -- don't have.

Q. Well, Mr. Wood, you already said that

pursuant to DYS policy, if there's a service

that's needed for a child, the department

can contract with community services to

provide that, can't it?

A. Yes, sir.

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18

Q. Okay. And so under that scenario, a service

plan could be developed for a child at home;

and if the need is not available at one of

the campuses, the department can secure or

procure that service in the community, can't

it?

MR. PERRY: Object to the form.

Argumentative. It assumes

facts that don't exist.

A. If I understand what you're asking, those

possibilities exist, yes, sir.

Q. And a child committed to the HIT program

could go up to Autauga during the day and

participate in the HIT components during the

day, couldn't they?

A. I wouldn't -- I wouldn't think so, no, sir.

Q. Well, why not?

A. It is a residential program and not a day

program.

Q. Well, can you tell me what services are

provided for a child between nine p.m. and

six a.m. at the Autauga or Thomasville HIT

program that contribute toward their service

plan?

A. Just by virtue of being in custody under

supervision and monitoring behavior and --

during any hour of the day, the staff are

effectively trying to accomplish a treatment

plan. So even in off hours and odd hours,

there are still components of the treatment

plan that are in play.

Q. Well, you could certainly hire day staff to

work at the HIT program for a group of kids,

couldn't you?

A. I’m not sure it would be workable or

practical. But those -- you know, I guess

it's a possible scenario under certain

circumstances.

Q. And students at DYS group homes go to

schools in the local community, don't they?

A. Yes, sir.

Q. They receive counseling sometimes at the

group homes, sometimes through community

resources?

A. That's correct.

Q. As a matter of fact, at most group home

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19

placements is it not accurate that most of

the services are provided in the community

and not actually at the group home?

A. For that specific low risk population, yes,

sir, that's correct.

Q. So a child that's on the waiting list to go

to a group home and is in detention could

actually be placed in their home or a foster

home and receive services in the community,

couldn't they?

A. I don't know. I'm not sure how that would

work.

Q. Well, Mr. Wood, of all these possibilities

that I've just mentioned, tell me during

your tenure which one have you reviewed the

viability of and rejected.

A. Well, I'm not sure that we've done any of

those. They sound nice. But as a practical

matter, they -- since we deal with a

case-by-case basis, I'm not sure that as a

practical matter we would be successful in

any of those.

Defendant Wood is required by DYS policy to review the space requirements of

each facility on an annual basis and document corrective action. (Exhibit 20)

Defendant Wood has no documentation reflecting this review, nor any

documentation reflecting corrective action. (Wood depo. pgs. 12-16)

The DYS is required by statute, §44-1-55 Code of Alabama (1975) to submit to

the Governor annually a report setting forth, inter alia; 1) the need for facilities under its

jurisdiction and, 2) juvenile conditions in the state.... Neither, the annual FY 2004, nor

FY 2005 reports to the Governor mention the need for additional facilities nor the

waiting list issue. (Exhibits 21 and 22) In 2004 and 2005, the waiting list and length of

detention time pending placement rose steadily. (Exhibit 17 and 18)

Defendant Wood, every three years, initiates a RFP (Request for Proposal)

process to anticipate placement needs of children expected to be committed to state

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20

custody. Choosing to contract for beds instead of operating DYS facilities, Defendant

Wood explains in his affidavit: “Beginning in October, every three years, the RFP

committee conducts research and planning to anticipate “service categories” for the

next three years and the number of slots anticipated for each category. Essentially, this

means every three years the committee makes its “best guess” as to the types of

juveniles (or services categories) expected to be committed to DYS custody during the

next three years and numbers of juveniles within each type (or service category)

expected to be committed.” (Wood Affidavit pg. 3 and 4)

Defendant Wood does not know what is a reasonable or unreasonable time to

stay in detention pending placement and there is no person at DYS vested with

responsibility of determining whether or not the length of stay in detention is reasonable

or unreasonable. (Wood Depo pg. 240, 241) (See Wood Depo. excerpt below.)

WOOD DEPO PG. 241, LINE 6 – PG. 243, LINE 6:

Q. Who at the department is vested with the

responsibility of determining whether or not

the length of stay in detention is

reasonable or unreasonable, if anybody?

MR. PERRY: Objection to form.

A. I don't know that there is a person who

makes that determination.

Q. In the staffing that you have done with the

committee, the RFP committee, every three

years, does that group give you any

information as to what is a reasonable

length of stay pending placement?

A. No, sir.

Q. In your determination as to how many beds

are needed in the system, did you take into

account how many beds were needed for

children to only wait twenty-one days,

fourteen days, seven days, or zero days?

A. No, sir. None of the above.

Q. Mr. Wood, then how can you determine how

many beds the department needs if no

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21

determination has been made as to what a

reasonable length of stay in detention is?

A. That determination about beds is not just

about detention. It's about capacity for

the projected estimate of the numbers and

the kinds of children that might come in the

system.

Q. To be placed within what time period?

A. It's an effort to have enough beds so that

commitments can come in as quickly as would

be possible given the system.

Q. So then the goal when you're deciding how

many beds to ask for is not to get them

within seven days, but just whatever the

system will allow for?

A. That's not really what I said.

Q. Please correct it.

A. The work is -- the effort is -- centers not

around how long someone will sit in

detention. It is focused on trying to

create a system where there are enough beds

for all commitments to come in. And if it

is possible, given their location,

their -- the court staff, the transfer of

paperwork, whatever that short time could

be, that's what we would like to see happen.

THE SCREENING AND PLACEMENT PROCESS

AS APPLIED TO J.B. 2005 COMMITMENT

5/18/05 – J.B. was committed to DYS, but was detained in the Montgomery

County Youth Facility. (Exhibit 3)

5/24/05 – DYS received J.B.’s Commitment Order, Social Summary, Risk/Needs

Assessment. (Exhibit 10)

6/2/05 – DYS received J.B.’s school records, social security records and

immunization card. (Exhibit 12)

6/8/05 – The S/P committee staffed and recommended J.B. be placed at the

Autauga/ A&D Combo.

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6/12/05 – J.B. was evaluated while he was still in detention at the Montgomery

County Youth Facility and where his drug assessment determined he was chemically

dependant. The Screening and Placement Committee never considered the evaluation

as a placement decision to the HIT Boot Camp Program, as his placement had already

been made. (Exhibit 23)

6/17/05 – Screening and Placement received his evaluation indicating J.B. was

chemically dependant. (Exhibit 23)

6/28/05 – J.B. was transferred to the HIT Program in Prattville, Alabama. (Exhibit

4)

While at the Montgomery County Youth Facility, J.B. received no services, care,

or treatment for his drug dependency. Subsequent to J.B.’s staffing, neither he nor his

parent or guardian was informed of his potential placement or the date of such

placement and he had no way of receiving a service plan, beginning his service plan or

being released upon substantial completion of his service plan. (Pendergast depo. pgs.

29-32) (Wood Depo pgs. 96-101)

Although the committing Court in its Order referred J.B. to drug treatment, and

despite the June 12, 2005 evaluation establishing J.B. as chemically dependent, J.B.

remained in detention without treatment until he was placed at the HIT Program on June

28, 2005. While at the HIT Program, J.B. received no treatment for his chemical

dependency, but did receive generic drug education. (Exhibit 4)

J.B.’S SECOND DYS COMMITMENT 2006

4/4/06 – J.B. was committed to the custody of DYS for inpatient drug treatment,

and remained in detention at Montgomery County Youth Facility. (Exhibit 6)

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23

4/12/06 – DYS received J.B.’s Commitment Order. (Exhibit 7)

4/19/06 – S/P committee decided to place J.B. in the Mobile Drug Treatment

Program. (Exhibit 25)

5/9/06 – J.B. remained in Montgomery County Youth Facility, where he receive

no care, services, treatment or rehabilitative opportunities, and was finally transferred to

the Mobile Drug Treatment Program. (Exhibit 25)

For both commitments to DYS, J.B. remained in detention without any ability to

receive treatment and secure his release from DYS custody. On both occasions J.B.

remained in detention without any information as to where he would be placed, when he

would be placed, what he must do to be released, or when he would be released. On

both occasions he remained in detention without treatment for his DYS identified

chemical dependency and other needs. (Exhibits 8, 9, and 24; Pendergast depo. pg.

29-32)

THE DEFENDANT’S POSITION ON DETAINED CHILDREN

AWAITING DYS PLACEMENT

J.B.’s plight is common to DYS committed children. For example:

J.W. was a 15-year-old male from Covington County. He had a risk score of one

(1), the lowest possible. He was committed to DYS on November 27, 2006 and staffed

on December 6, 2006. The jacket of his file indicates a recommendation by Pat

Pendergast of either a Group Home or Wilderness Program. At staffing it was

determined his placement would be a Group Home, and that the Group Home would be

the Big Brother Group Home. A group home is a non-secure facility. It is one of the

least restrictive placements available. J.W. remained in detention, the most restrictive

setting possible for over 45 days from the day DYS received his Court Order and

Case 2:06-cv-00755-MHT-CSC Document 38 Filed 07/09/2007 Page 23 of 52
24

materials until he was placed the Big Brother Group Home on January 16, 2007.

(Exhibit 26)

Mr. Wood testified regarding J.W. that he did not know if that was reasonable.

(Wood depo pgs. 238, lines 14, pg. 241, line 5)

Mr. Wood also testified that he doesn’t know what is reasonable or

unreasonable. (Wood depo pgs. 238, lines 14, pg. 241, line 5)

C.J. was a 16 year old girl, with severe mental health issues and needs, and at

risk of suicide, with a risk score of 4, who remained in detention without services or

treatment from the date DYS received her materials, April 10, 2006 until placement on

June 6, 2006, Mr. Wood could not say whether this was reasonable or unreasonable.

(Exhibit 27 and 28)

When asked about whether it was unreasonable for these children to remain in

detention Defendant Wood states as follows: (Wood depo pg. 238, line 14; pg. 241, line

5)

WOOD DEPO PG. 238, LINE 14 – PG. 241. LINE 5

Q. Mr. Wood, we've looked now at three

different examples, J.B., J.W., and this

young lady. We had one young man who waited

in detention for longer than the program he

went to, that being J.B. You would agree

with that, would you not?

A. I think we talked about that, yes, sir.

Q. Okay. There's J.W., who had a risk score of

one who was staffed by your employees to go

to a group home?

A. Yes, sir.

Q. And he remained in detention for at least

twenty-five days before being placed in a

non-secure group home?

A. It appears so, yes, sir.

Q. We have a young lady with

evaluation-identified mental health needs,

Case 2:06-cv-00755-MHT-CSC Document 38 Filed 07/09/2007 Page 24 of 52
25

would you agree with that, named C.J.?

A. Yes, sir, it appears to be so.

Q. And she remained in detention for at least

six weeks, if not longer, before being

placed by the department?

A. It appears so, yes, sir.

Q. Given those three different examples, which

one of those children remained in detention

for an unreasonable length of time, if any?

A. Well, I don't -- I don't know what's

reasonable or unreasonable. These are three

examples of individual cases that were

handled within the existing system. And

each of the three, obviously, had a

twenty-five day letter mailed out.

Q. Are there any of those three examples,

Mr. Wood, that you find that the length of

stay was unreasonable?

MR. PERRY: Objection to the

form. Based on the facts that

you have given him here today?

Is that your question?

Q. Based on what you've reviewed in the

screening and placement files, Mr. Wood.

A. Well, I -- I don't know how to define what's

reasonable. Those cases had different

amounts of time and --

Q. Mr. Wood, if you don't know, who can define

for these three students and all of the

others what's reasonable or unreasonable?

In your opinion, who can?

A. I don't know how to answer that.

Q. In your opinion, Mr. Wood -- let me make

sure I understand your testimony right. You

can't testify whether in any of these three

cases, or any of the others -- whether their

stay in detention was reasonable or

unreasonable; is that correct?

A. No. I'm saying that I don't know what is

reasonable or not reasonable. Those are

individual cases that came through the

system. And based on the resources and the

procedure that's in place, that is -- that

is what happened in those cases.

When Pendergast was asked about the reasonableness of these children in

Case 2:06-cv-00755-MHT-CSC Document 38 Filed 07/09/2007 Page 25 of 52
26

detention, the information children receive, and services to detained children, including

J.B., Pendergast testified as follows:

PENDERGAST DEPO PG. 169, LINE 5 – PG. 197, LINE 19

Q. So this young man stayed in detention, a

secure facility, for six weeks before being

placed in the least restrictive environment

that DYS has to offer?

A. That appears to be the case.

Q. Okay. Does that -- is that reasonable to

you?

MR. PERRY: Object to the form of

the question.

A. That's the way it is.

Q. I understand that, Pat. But my question is,

is that reasonable to you?

A. I -- I can't really say.

Q. Is it unreasonable?

A. I can't say that either.

Q. If it were your child, would you consider

six weeks in a secure facility to go to an

unsecure, least restrictive environment, to

be reasonable or unreasonable?

MR. PERRY: Objection to form.

A. I don't really know.

Q. Would you consider it -- it's either

reasonable or unreasonable. Which do you

consider it to be?

MR. PERRY: Object to the form.

He's answered your question.

Q. It's not an I don't know question. It's

either one or the other. Either it's

reasonable or it's unreasonable.

My question to you, Pat, is as

administrator of screening and placement, is

it reasonable or unreasonable for a child to

sit in a secure facility for six weeks

before being placed in the least restrictive

environment that DYS has?

MR. PERRY: Objection to the

question. Argumentative.

You can go ahead --

MR. PERRY: Asked and answered.

Q. You can --

Case 2:06-cv-00755-MHT-CSC Document 38 Filed 07/09/2007 Page 26 of 52
27

MR. PERRY: You've asked him

several times, and he's -- he's

already answered.

MR. DRUMMOND: Dudley, let's not

do what we did yesterday. He

can answer the question. He

knows whether it's reasonable

or not reasonable.

Q. Pat, you know, this -- well --

A. This is the way it is.

Q. Okay.

A. That's what happened in this case.

Q. Is the way it is in this case reasonable or

unreasonable?

MR. PERRY: Objection. Same

objection.

Q. Pat, you're not a defendant. I'm just

asking you --

A. It's the way -- it's the way it is. The

system is imperfect.

Q. Why is the system imperfect?

A. Because that's the way it is.

Q. Okay. If you were the parent of J.W. --

well, let me ask you more directly. After

you staffed J.W. to go to a group home, did

you contact his mother or father or legal

guardian to tell them he would be going to a

group home?

A. I can't tell from this.

Q. Well, if normal procedure would have been

followed, parents would not have been

notified by your office, would they?

A. No.

Q. Did you contact, or anyone from your office

contact, J.W. to inform him he was going to

a group home?

MR. PERRY: Objection to form.

Asked and answered.

Q. I'm sorry. I thought I said the child,

J.W.

MR. PERRY: You just asked him the

same --

MR. DRUMMOND: No, I said parents

before.

MR. PERRY: I'm sorry.

THE WITNESS: He said parents.

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28

MR. PERRY: I'm sorry.

Q. I'm sorry?

A. No.

Q. Okay. Did you contact the probation officer

and say, this child is going to a group

home?

A. I can't tell from this.

Q. If normal procedure were followed, would you

have initiated that information to the

probation officer?

A. I might have.

Q. But only the Thursday before the child was

taken, absent some other circumstances,

correct?

A. I --

MR. PERRY: Objection to form.

That's not what his testimony

was earlier today when you

covered this for the first

time.

Q. You can go ahead and answer.

A. Really. I mean, I really feel like we're

going back over the same thing over again.

MR. PERRY: We are. Just --

A. And I'm just going to say --

Q. I'm asking you about this specific child.

A. -- I might have and I might not have. I

don't know.

Q. Well, if you had contacted anyone, it would

it?

A. One would think so.

Q. Okay. Because given the thousands of kids

that you have to deal with, you don't rely

on your memory to keep up with what you do

in relation to each child, do you?

A. Right.

Q. Do you keep a daily log of your activities?

A. Typically, I keep a log -- I keep my

activities of that nature in the student's

file.

Q. Okay. Is it safe to assume -- is it safe to

conclude that if you had made contact with

probation officers subsequent to staffing

and prior to actual placement a notation

would be reflected in the file?

A. I might not have.

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29

Q. Okay. Well, generally, you would make that

notation, wouldn't you?

Q. Okay. After placement, a decision was made,

you knew this child was sitting in

detention, didn't you?

A. After the placement decision was made, I had

access to the information.

Q. Well, it would be reflected on the consent

decree report, wouldn't it?

A. It would.

Q. Okay.

A. That's the access I'm referring to.

Q. Okay. And as a matter of fact, under a

prior settlement agreement, you knew to take

kids that are in detention and give them

priority from kids not in detention, didn't

you?

A. No, that's not true.

Q. Are you telling me that you don't give

priority for placement for kids that are

being held in detention?

A. No.

Q. Is it your testimony that a child not

waiting in detention for the same bed would

be placed before a child waiting in

detention?

A. Well, if it came down to choosing between

a -- working our way down the waiting list,

I might have to make that decision, you

know, prioritizing one over the other. But

it's not -- it doesn't impact who we take in

and when.

Q. Do you maintain a list of -- a separate list

of this is the facility, these are the kids

waiting to go in that facility?

A. It's not a separate list, no.

Q. Where is that list?

A. It's -- it's that consent decree. It's

that.

Q. Is there any other document than this --

than this consent decree report which

reflects, here is the facility, here is our

list of kids waiting to go into that

facility, other than the consent decree

report?

A. I don't believe so.

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30

Q. You don't believe so or there's not one?

A. There's not one that I'm aware of.

MR. DRUMMOND: Dudley -- never

mind.

MR. PERRY: He just -- he answered

your question honestly.

MR. DRUMMOND: Well, fine. We're

not going to go back to I

believes, and then go, oh,

yeah, I found this document.

We're just not going to do

that.

MR. PERRY: Well, neither --

neither is he --

A. Have you got it?

MR. PERRY: Neither is he going to

sit here and give you

definitive answers to questions

that he's not definitive

about. And I don't

appreciate -- you're

browbeating him for being

honest in his deposition.

Q. You asked -- you just asked me if I have

that document, or if I have a document like

that. I want to ask you again, is there

some other document --

A. No.

Q. All right. You said, we work our way down

the waiting list?

A. Right.

Q. Okay. What waiting list are you talking

about?

A. What you don't understand --

MR. DRUMMOND: Let him answer the

question, Dudley.

A. -- is that that document is the waiting

list.

Q. Well, that document is not what is sent to

Mr. Wood every week, is it?

A. Not the one that I think you're referring

to. He doesn't get that one.

Q. You e-mail him a waiting list every week

showing the facilities and --

A. Right.

Q. -- how many kids are --

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31

A. Right.

Q. -- waiting?

How did this child know how long after

staffing he was going to have to wait in

detention?

A. How did he know?

Q. Yes.

A. How long?

Q. Yes.

A. My guess is that he didn't know.

Q. Whose responsibility is it to let him know?

MR. PERRY: Objection to the form

of the question.

A. You know -- whose responsibility is it to

let him know?

MR. PERRY: Do you know the answer

to the question?

A. There's really not --

MR. PERRY: Do you know the answer

to the question?

THE WITNESS: No.

MR. PERRY: If you know, answer.

If you don't --

A. No.

MR. PERRY: -- tell him you don't

know.

A. I don't know.

Q. Does somebody have a responsibility to

notify this child of where he's going to be

placed?

MR. PERRY: Are you asking him

whether legally that's an

obligation or are you asking

him whether somebody that works

for him or he has that job

responsibility?

MR. DRUMMOND: I'm not that smart

to break it down. It's just a

question.

MR. PERRY: Well, then, I object

to the question as far as --

MR. DRUMMOND: You can object to

the form.

Q. You can go ahead and answer.

MR. PERRY: -- it calls for a --

A. I don't know of anybody --

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32

MR. PERRY: -- legal conclusion.

A. I don't know anybody whose responsibility it

is to let him know. I told you before, the

probation officers are my contacts on these

things.

Q. Okay. And tell me when you notified J.W.'s

probation officer where he was going to be

placed prior to the Thursday before he went

on Tuesday?

MR. PERRY: We've covered this

twice now. This is the third

time.

MR. DRUMMOND: They say it's the

charm.

A. As a matter of fact, this one -- this court

did get a notification on January 2nd that

he was awaiting a bed at Big Brother.

Q. Okay. And that was after a twenty-five day

letter was sent?

A. That was the twenty-five day letter, part of

it.

Q. What do you mean, part of it?

A. It was added to the bottom of it.

Q. Okay. Who added it to the bottom of it?

A. Arnea.

Q. So any notations on the bottom of these

reports to the court indicate where -- the

bed that the child is waiting for?

A. If it's on there, yes.

Q. If it's not on there, what does that mean?

A. I'm not quite sure. But I know that if it's

on there, that's what it means.

Q. Well, if it's on there, that's something.

If it's not on there --

MR. PERRY: What does something

that's not there mean or not

mean?

A. Really.

Q. Have you given your staff instructions to

put on the twenty-five day letters -- if a

child is waiting to put the information

where they're waiting?

A. We have -- we have done that when we know

that the child is close to coming in, yes.

Q. Pat, is it that you put it on there -- or

rather --

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33

A. It's as a courtesy to the judge.

Q. Well, did you not put it on there because

you hadn't made a final decision of where

the child is going to go?

A. No. The reason it may not be on there is

because somebody just didn't realize we were

getting close to bringing that child in.

It's a courtesy.

Q. So you consider close to bringing a child in

to be how long?

A. A week or so.

Q. Okay. Well, if the letter went out

twenty-five days after staffing, he stayed

there for another three weeks, didn't he?

A. Unh-unh (negative response). He stayed

there until June -- January 16th. The

letter went out on the 2nd.

Q. How do you justify holding a child in

detention for six weeks to be placed in a

least -- a less -- an absolute

least-restrictive environment?

MR. PERRY: Objection to the form

of the question. It assumes

all kind of facts that aren't

here.

A. I really don't know that I can justify it.

It's just the way it is.

Q. Do you review an individual's needs

assessment?

A. I do.

Q. Do you review the PO's social summary?

A. I do.

Q. So if there's information in that social

summary, you use that information in making

your placement decision?

A. In the social summary, yes.

Q. And in the needs assessment?

A. Yes.

Q. And in the risk assessment?

A. Yes.

Q. And you said earlier -- I thought you said

the risk assessment was just a number?

A. It is a number, right. It's not something

that we can use as the sole reason for

placement.

Q. Okay. I'll ask you to take a look at that

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34

file. I'll represent to you that's what was

copied out of the skeleton file.

(Off-the-record discussion.)

(Brief pause in proceedings.)

(Plaintiffs'Exhibit Number 5 marked

for identification.)

Q. (Mr. Drummond continuing) Pat, that's -- let

me mark that as Plaintiffs'5.

Pat, I don't remember asking Phyllis to

make a copy of the file jacket on this one.

I think that's why it's not there.

Can you identify Plaintiffs'5 for me?

A. It says C.J.

Q. Would that be her skeleton file from

screening and placement?

A. It appears that it is.

Q. What was her risk score?

A. Four.

Q. Which is in what range?

A. Low range.

Q. What were her needs? What were her needs,

her needs score?

A. Twenty.

Q. In that file at the time of the placement

staffing, was there an evaluation that y'all

could review?

A. Was there an evaluation, yes, there was.

Q. Did y'all review that evaluation?

A. I would think that we did. I mean, it was

in the file, so ...

MR. PERRY: Do you remember this

case other than --

A. I can't remember reading the evaluation

before staffing.

MR. PERRY: Okay.

Q. If that evaluation was in the file, would

you have read it?

A. Normally I would, yes.

Q. This child was staffed to go where?

A. Chalkville.

Q. And reading the evaluation, do you find that

she has any mental health needs?

A. Yes.

Q. What is the date of y'all's staffing on her?

A. April 12th, '06.

Q. And what was the date of her evaluation?

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35

A. The evaluation was done February 21st of

'06.

Q. Okay. So within a few weeks, that's how

recent an evaluation y'all had?

A. A couple of months.

Q. Did you find that she had either attempted

suicide or --

A. Yes, she had.

Q. Would you consider, based on that report,

that this young lady had mental health

needs?

A. Yes.

Q. At the time of placement, you would have

known that she was in detention?

A. Could have access to that information. And

I'm not sure if she was in detention or

not. I don't know. I'm not sure if she was

in detention or not based on the court

order. We would have had to have done a

little more research to figure that out.

Q. What was the staffing date on there?

A. 4/12 of '06. There may be something else in

here that indicates that. But I can't tell

from looking at the court order, which is

usually where it is at.

Q. Pat, I'm going to show you what we'll mark

as Plaintiffs'Exhibit 6 and ask if you can

Identify that document.

A. This is a consent decree report.

Q. For what time period?

A. April 12 of '06.

Q. Does that form reflect whether she was or

was not in detention?

A. I'm pretty sure this is her. C.J. is listed

as being from Cullman County, staffed on

that day. Let's see, commitment order,

4/6. Completion date, 4/10. I feel

reasonably sure that this is that person.

And what was your question? Was she in

detention?

Q. Yes, sir.

A. She's in Tennessee Valley Detention, yes.

Q. And your consent decree report reflects that

information, that she's in detention?

A. This report does, yes.

Q. How long did she remain in detention?

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36

A. I don't know what day we brought her in.

Oh, wait a minute. I do. June 6th.

Q. So she stayed in detention for how long?

A. Two months. Almost two months.

Q. Can you tell me what mental health needs DYS

provided to this child in its custody during

those two months?

A. Not any, that I'm aware of.

Q. Tell me what persons you contacted after

staffing and informed them that she would be

placed at Chalkville.

A. I don't know from -- from looking at this

that we informed anybody.

Q. Tell me how the child would have known that

she was going to be placed at Chalkville.

A. She might have guessed that she was going to

Chalkville.

Q. How would this child have known how long she

would be in detention waiting placement?

A. She might not have known that.

Q. During those two months, could she have done

anything to get out of DYS custody?

A. To get out of DYS custody?

Q. Yes.

A. I suppose her attorney could have filed an

appeal or something of this nature.

Q. How could she have done anything while she

was in detention to have developed a service

plan?

A. She would not have had a service plan

developed in the detention center.

Q. Is it your knowledge that students cannot

get out of DYS until they generally

substantially complete their service plan?

A. That is true.

Q. How would she have had the opportunity to

complete her service plan?

A. By coming into our facility and completing

the service plan.

Q. Was it reasonable for her to wait two months

to be placed in a facility?

MR. PERRY: Objection to the form

of the question. That's --

here we go again.

A. I can't say.

Q. Was it unreasonable?

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37

MR. PERRY: Objection to the

question.

A. I can't say.

Q. How many days for her to wait in detention,

Pat, would have been reasonable before she

was placed?

MR. PERRY: Same objection.

A. I can't say.

Q. Why did this child have to go two months

without receiving any services from DYS?

MR. PERRY: I'm sorry, did you ask

why did she have to go two

months without receiving any

services from DYS?

MR. DRUMMOND: That was my

question.

A. She went two months without receiving

services from DYS because there was not a

bed open at the Chalkville campus.

Q. Was there a bed open at any other facility?

A. I can't say from looking at this information

you have right here. But she was staffed to

go to the Chalkville campus based on the

things that she was exhibiting prior to, you

know, coming in.

Q. Is there not a secure facility for girls

other than Chalkville?

A. There is. But I think that in this case

Chalkville was recommended and Chalkville

was warranted.

Q. Chalkville was recommended by who?

A. By the placement committee.

Q. Well, what other secure facility was there

for girls?

A. In 6 of '06, we had -- wait a minute now.

The only possible place that we would have

had as a secure facility in 6 of '06, I

believe, would have been the Chances program

in west Alabama.

Q. And that's a secure program just like

Chalkville, is it not?

A. It's similar, but it's not just like

Chalkville.

Q. Well, it's a secure facility, right?

A. It is. It is secure.

Q. Service plans are developed at that program?

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38

A. They are.

Q. And services are provided to meet that

service plan?

A. Yes.

Q. So how would it be any different than

Chalkville?

A. Well, there are other things to consider.

In the case of this girl right here, she

was -- she had some issues that would

require the expertise at Chalkville as

opposed to the level of care that she would

get in the secure facility at WAYS.

Q. Well, if she had a service plan developed at

both facilities that identified needs, the

department would provide those services to

meet those needs, wouldn't they?

A. There may not be those abilities at that

particular place. Now, I'm -- looking at

the date -- and I'm going on my best

recollection of what was available at that

time. And I don't think that would have

been available at the detention -- Chances

program at that time.

Q. So your belief is that she needed the

services and expertise that could best be

offered at Chalkville?

A. That's correct.

Q. On what date did she need those services and

expertise that were available at Chalkville?

A. On the date we staffed her.

Q. Okay. And she went two months without those

services and expertise, didn't she?

A. It appears so.

Q. Is that reasonable?

MR. PERRY: Objection.

Argumentative.

A. I don't know.

Q. Let me ask you this way. In your opinion as

a juvenile -- do you consider yourself a

juvenile justice professional?

A. Yes.

Q. Is it your impression as a juvenile justice

professional that it was in that child's

best interest to go two months without

receiving services and expertise to meet her

needs?

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39

A. I don't know.

Q. Well, when you say you don't know, you

believe there is a scenario that exists

where a child that needs services and

expertise that can only be offered at

Chalkville can wait two months to receive

those services?

A. I just don't know.

Q. Okay. Pat, you've prepared -- well, without

being cynical, much to his credit, Dudley

prepared an affidavit for you, which he

acknowledged he prepared it, not you -- but

that you reviewed it and provided the

information. But you provided Dudley

information to prepare an affidavit, and you

signed that affidavit?

A. Right, I did.

Q. And now I can't find it anywhere. In

preparing that affidavit, Pat, what

documents did you review, if any? It's not

a trick question. If any.

A. I'm trying to remember. We talked about it

some time ago. But there were options,

placement options. I'm sure I looked at our

list that we have of our facilities. I may

have looked at the classification manual for

some things. I -- I don't know. I would

to -- I would really have to see the

affidavit to help me remember, if anything.

Q. Pat, if you would take a look at your

affidavit. Tell me if in fact that is your

affidavit.

A. Yes, this is -- this is my affidavit.

Q. Did I overlook something? You never mention

the plaintiff in this case, do you, in your

affidavit, J.B.?

A. No, I didn't.

Q. You don't offer any information at all about

J.B., do you?

A. Not in here, no.

Q. Before you signed this affidavit, did you

review J.B.'s file?

A. No. I don't even know who J.B. is.

Q. Okay. Is J.B. just a name on a list?

MR. PERRY: Objection to the form.

Q. I don't mean that cynically, Pat. I mean

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40

that seriously.

A. Every kid on the list means something to us

at DYS. And to infer that they're just a

name on a list is baloney, and you know

that. That's absolutely ridiculous, Rick.

Q. Okay. And that's why I'm glad you said

that, Pat. Because this is what I want to

ask you.

A. Well, ask.

Q. If every child on that list means something

to you or somebody else at DYS, explain to

me how J.W., with a risk score of one, can

sit in detention for six weeks only to go to

a group home?

MR. PERRY: Objection to the form

of the question.

A. Because that's the way it is. (Emphasis added)

THE DEFENDANT’S EVIDENCE REGARDING J.B.’S PLACEMENT

The Defendant offers in support of his motion for summary judgment no evidence

regarding the placement of J.B. In fact, neither the affidavit of Wood nor Pendergast

references J.B. (See Defendants Exhibit’s 3 and 4)

The Defendant does not assert, claim or offer any evidence that the acceptance

of J.B. within seven days, or any time period for that matter, would cause DYS to be in

violation of a state statute or standard. (Wood Depo pg. 160, line 7 – pg. 166, line 11)

Defendant Wood could not set forth any statute or standard which would have

been violated, had any detained child, including J.B., been accepted with seven (7)

days. (Wood depo. pg. 161-169)

The Defendant, neither directly or through the affidavit of Pendergast, offers any

evidence that the period of time J.B. waited in detention pending placement on either

occasion was reasonable. In fact, the Defendant by his failure to specify what was

reasonable or unreasonable for J.B., creates a general issue of fact, and therefore

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41

precludes the granting of his Motion for Summary Judgment. (Pendergast Depo pg.

169, line 5 – pg. 197, line 19)

ARGUMENT

SUMMARY JUDGMENT STANDARD

The Defendant asserts that he is entitled to summary judgment on the §1983

claim because there is no evidence that he violated a constitutional right; that he is

entitled to qualified immunity and because he is entitled to state-agent immunity on the

state claims. Finally, Defendant asserts that the claim should be dismissed pursuant to

42 U.S.C. section 1997e(e).

Federal Rules of Civil Procedure 56(c) provides that Summary Judgment shall be

granted:

If the pleadings, depositions, answers to Interrogatories, and

Admissions on file, together with Affidavits if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.

A factual dispute is “genuine” if the evidence is such that a reasonable jury could

return a verdict for the non-moving party. A fact is “material if it might affect the

outcome of the suit under the governing substantive law.” In Beck v. Sommerset

Technologies, Inc., 882 Fed. 2d 993, 996 (5

th Cir. 1998) (citing Anderson v. Liberty

Lobby, Inc., 447 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).

The basic issue before a court on a Motion for Summary Judgment is whether

the evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party may prevail as a matter of law. The moving

party has the burden of showing the absence of a genuine issue as to any material fact,

and for these purposes the material submitted and all factual instances arising from it,

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42

must be viewed in the light most favorable to the non-moving party. Once the movant

satisfies its initial burden under Rule 56(c) of demonstrating the absence of a genuine

issue of material fact, the burden shifts to the non-movant to “come forward with specific

facts showing that there is a genuine issue for trial.” A scintilla of evidence supporting

the non-moving parties position will not suffice; there must be enough of a showing that

a jury could reasonably find for that party. Where the record taken as a whole could not

lead a rationale trier-of-fact to find for the non-moving party, there is no genuine issue

for trial.

J.B.’S SUBSTANTIVE DUE PROCESS RIGHTS

“...An unreasonable delay in getting evaluated, or a subsequent unreasonable

delay in getting placed in an appropriate program, leads to unjustifiably prolonged

restraints on a juveniles liberty and is unconstitutional.” A.W. v. Dupree, Civil Action

No.: CV-92-H-104-N (June 25, 1996) (Exhibit 14)

“If the purpose of the commitment is to secure treatment, the state violates due

process if it does not, in fact, provide treatment.” D.W. v. Rogers, 113 F. 3d 1214, 1218

(11 Cir. 1997)

DEFENDANT WOOD’S DELIBERATE INDIFFERENCE

Defendant Wood has known throughout his DYS tenure, that the unreasonable

delay in placement of detained children is unconstitutional. Notwithstanding this

knowledge, Defendant Wood has caused, and continues to cause scores of children,

including J.B., to languish in detention centers without services, treatment, or

rehabilitative opportunities.

Moreover, detained children, including J.B., are denied the fundamental

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43

information as to where and when they will be offered services, treatment, or

rehabilitative opportunities. The Defendant, with the full ability and legal authority, to

exercise a myriad of options, chooses instead to allow these children, including J.B. to

languish. Defendant Wood acknowledges he could exercise a myriad of options

regarding detained children, including J.B., instead he does nothing. (Wood depo pg.

110-117)

Defendant Wood does not document corrective action requests regarding annual

facility space needs, nor does he not report to the Governor annually, as legally

required, the facility needs of the department. (Exhibit 21; Wood depo pg.14-16, 43-47)

In his brief, Defendant Wood does not argue that the waiting period for J.B. was

reasonable. Rather, Defendant Wood argues that J.B. and all committed children have

no recognized right to treatment. (Defendant’s brief at pg. 21)

As Judge Harold Albritton stated in his Memorandum Opinion and Order, in A.G.

v. Wood, in denying Wood’s Motion to Dismiss based upon the same argument, the

U.S. Supreme Court in Hope v. Pelzer, 122 S. Ct. 2508 (2002), broaden somewhat the

scope of what can give a reasonable official fair warning that his actions were

unconstitutional.

Being the Defendant in litigation on this issue no less than five times, Mr. Wood

has had more than fair warning that the unreasonable delay in placement of detained

committed children is unconstitutional.

Defendant Wood has undeniably acted with deliberate indifference to all detained

committed children, including J.B. A finding of deliberate indifference precludes

qualified immunity.

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44

QUALIFIED IMMUNITY

The Defendant claims that qualified immunity protects him from liability for

damages for the Plaintiff’s §1983 claim. Qualified immunity shields government officials

sued in their individual capacities “insofar as their conduct does not violate clearly

established...constitutional rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982). “For a constitutional right to be

clearly established so that qualified immunity does not apply, ‘[t]he contours of the right

must be sufficiently clear that a reasonable official would understand that what he is

doing violates that right.’” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)).

Here, the Plaintiff has alleged that the Defendant violated his clearly established

constitutional right to be free from unjustifiably prolonged restraints on his liberty.

Judge Hobbs precisely recognized this clearly established right in A.W. v. Dupree “[A]n

unreasonable delay in getting evaluated, or a subsequent unreasonable delay in getting

placed in getting in an appropriate program, leads to unjustifiably prolonged restraints

on a juvenile’s liberty and is unconstitutional.” (See Exhibit 14). Schall v. Martin, 467

U.S. 253, 265 (1984) (“The juvenile’s countervailing interest in freedom from restraint,

even for the brief time involved here, is undoubtedly substantial as well.”); Youngberg v.

Romeo, 457 U.S. 307, 324 (1982) (involuntarily committed mentally retarded person

has right to “conditions of confinement [that] would comport fully with the purpose of

[his] commitment”); Jackson v. Indiana, 406 U.S. 715, 738 (1972) (“At the very least,

due process requires that the nature and duration of commitment [on account of

incapacity to proceed to trial] bear some reasonable relation to the purpose for which

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45

the individual is committed.”); D.W. v. Rogers, 113 F. 3d 1214, 1218 (11

th Cir. 1997)

(“[I]f the purpose of the commitment is to secure treatment, the state violates due

process if it does not, in fact, provide treatment.”).

Plaintiff’s substantial evidence establishes, Defendant Wood has known that the

unreasonable delay in placement is unconstitutional. Notwithstanding his knowledge,

Defendant Wood caused unreasonable delay in J.B.’s placement on two occasions.

For these reasons, Defendant Wood is not entitled to qualified immunity.

SUPERVISORY LIABILITY

“The Supervisory Defendant may be found liable under the theory of supervisory

liability if Plaintiffs eventually prove ‘a causal connection between [their actions] and the

alleged constitutional deprivation.’” Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir.

1999). One such means of demonstrating a causal connection is by pointing out that a

supervisory official was aware of the ongoing violation yet failed to act. Id. Plaintiffs

need not prove actual knowledge, however; the law will impute constructive knowledge

to the Supervisory Defendants upon a showing that “[t]he depreviations [are] obvious,

flagrant, rampant, and of continued duration.” Id.An official is liable under the theory of

supervisory liability “either when the supervisor personally participates in the alleged

violation or when there is a causal connection between the actions of the supervisory

official and the alleged constitutional deprivation.” Hackett v. Fulton County School

District, 238 F. Supp. 2d 1330, 1359 (N.D. Ga. 2002).

Elaborating on the personal involvement of the supervisor the second circuit

stated:

‘Personal involvement’ is not limited to direct participation by

the supervisor in the challenged conduct, but may also be

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46

established by evidence of an official’s (1) failure to take

corrective action after learning of a subordinate’s unlawful

conduct, (2) creation of a policy or custom fostering the

unlawful conduct, (3) gross negligence in supervising

subordinates who commit unlawful acts, or a (4) deliberate

indifference to the rights of others by failing to act on

information regarding the unlawful conduct of subordinates.

Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246,

254 (2d.Cir. 2001)(citing Colon v. Coughlin, 58 F.3d 865,

873(2d.Cir. 1995).

“The casual connection can be established when a history of widespread abuse

put the responsible supervisor on notice of the need to correct the alleged deprivation,

and he fails to do so. The deprivations...must be obvious, flagrant, rampant, and of

such continuous duration, rather than isolated occurrences.” Hackett, 238 F.Supp.2d

1330, 1359. Defendant Wood has been fully aware of the failure to place children within

a reasonable time. (Exhibits 17 and 18)

In order to establish supervisory liability in a situation where the supervisor does

not personally participate, a plaintiff must first establish the existence of a causal

connection between the actions of the supervisory official and the constitutional

deprivation. Cross, 49 F.3d at 1508. Such a casual connection can be established (1)

when a history of widespread abuse puts the reasonable supervisor on notice of the

need to correct the alleged deprivation, and he fails to do so; or (2) the supervisor’s

improper “custom or policy” results in deliberate indifference to plaintiff’s constitutional

rights. Cross, 49 F.3d at 1508; Hartley, 193 F.3d 1269.

Here, no argument can be made that Wood is not personally involved, however

without doubt he has been fully aware each week that children were waiting in detention

for unreasonable time periods and he was deliberately indifferent to J.B.’s rights.

(Exhibit 17 and 18)

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47

STATE CLAIMS

Defendant Wood asserts he is entitled to state agent immunity.

Plaintiff has alleged that Defendant Wood acted negligently and wantonly in

failing to comply with §12-15-61(c) Code of Alabama. The substantial evidence is that

Defendant Wood had a duty to accept J.B. within seven days, that he breached that

duty and that the breach caused J.B. to have his liberty restrained for each day

thereafter until placement.

The Alabama Supreme Court restated the standard applicable in cases involving

State-agent immunity in Ex parte Cranman, 792 So.2d 392 (Ala. 2000)

4

The Alabama Supreme Court has established a “burden-shifting” process when a

trial court is presented with the defense of State-agent immunity:

“ ‘[A] State officer or employee is not protected by

discretionary immunity if in performing his discretionary

functions he willfully, maliciously, fraudulently, or in bad faith

injures someone. [Nonetheless, ] [o]nce a defendant

demonstrates that a plaintiff’s claims arise from the

defendant’s performance of a discretionary function [i.e., a

function now entitling the defendant to State-agent

immunity], the burden then shifts to the plaintiff to establish

that the defendant acted in bad faith or with malice or

willfulness, in order to deny the defendant discretionary

immunity from suit...’

“Ex parte Davis, 721 So.2d 685, 689 (Ala. 1998) (citations omitted [in Ryan]).

“’In order to claim the benefits of [State] immunity, a

State officer or employee bears the burden of showing that

the plaintiff’s claims arise from the officer or employee’s

performance of a discretionary duty on behalf of the State.

Upon such a showing, the burden shifts to the plaintiff, who

must show that the officer or employee acted fraudulently,

4

The opinion in Cranman was plurality opinion of this Court. However, a majority of this Court later used

the Cranman restatement to control the outcome in Ex parte Rizk, 791 So.2d 911 (Ala. 2000), and the

majority explicitly adopted the Cranman restatement in Ex parte Butts, 775 So.2d 173, 177-78 (Ala.

2000).

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48

willfully, maliciously, or in bad faith.’

“Ex parte Alabama Dep’t of Transp., 764 So.2d 1263, 1268-69 (Ala. 2000)

(citation omitted [in Ryan]).”

Ryan v. Hayes, [Ms. 1001578, March 22, 2002] 831 So. 2d. 21, 28 (Ala. 2002).

In Cranman, we stated:

“A State agent shall be immune from civil liability on

his or her personal capacity when the conduct made the

basis of the claim against the agent is based upon the

agent’s

“(1) formulating plans, policies, or designs; or

“(2) exercising his or her judgment in the

administration of a department or agency of government,

including, but not limited to, examples such as:

“(a) making administrative adjudications;

“(b) allocating resources;

“(c) negotiating contracts;

“(d) hiring, firing, transferring, assigning, or

supervising personnel; or

“(3) discharging duties imposed on a department or

agency by statute, rule, or regulation, insofar as the statute,

rule or regulation prescribes the manner for performing the

duties and the State agent performs the duties in that

manner; or

“(5) exercising judgment in the discharge of duties

imposed by statute, rule, or regulation in releasing persons

of unsound mind, or educating students.

“Notwithstanding anything to the contrary in the

foregoing statement of the rule, a State agent shall not be

immune from civil liability in his or her personal capacity

“(1) when the Constitution or laws of the United

States, or the Constitution of this State, or laws, rules, or

regulations of this State enacted or promulgated for the

purpose of regulating the activities of a governmental agency

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49

require otherwise; or

“(2) when the State agent acts willfully, maliciously,

fraudulently, in bad faith, beyond his or her authority, or

under a mistaken interpretation of the law.”

In Ex parte Butts, the Alabama Supreme Court adopted “a new test for

determining when State employees sued in their individual capacities are entitled to

assert the defense of State-agent immunity.” Id. Under the Alabama Supreme Court’s

new test, “[I]f any employee failed to discharge duties pursuant to detailed rules or

regulations, such as those stated on a checklist, or acted willfully, maliciously,

fraudulently, in bad faith, beyond his authority, or under a mistaken interpretation of the

law, then it is possible that the employee would not be entitled to State-agent immunity.”

Id. at 178 (emphasis added).

5

Here, the Plaintiff has clearly alleged that Defendant “failed to discharge duties

pursuant to detailed rules or regulation” – i.e., the seven day mandatory requirement.

(§12-15-61(c) Alabama Code (1975)).

5 Although in Ex parte Cranman, 2000 WL 772850, “11-12 (June 16, 2000), the Alabama Supreme Court purported

to abandon its prior distinction between “discretionary” and “ministerial” acts in determining whether a state-agent

is immune, the court nevertheless continues to refer to “ministerial” acts as acts that are not immune from liability

for damages. See Ex parte Tuscaloosa County, 2000 WL, “6 (Sept. 8, 2000) (“Qualified immunity shields a State

employee from liability if the employee is engaged in discretionary function, instead of a ministerial one, when the

alleged [tort] occurs.”) (quoting Defoor v. Evesque, 694 So. 2d 1302, 1305 (Ala. 1997)). “A ministerial act

envisions direct adherence to a governing rule or standard with a compulsory result. It is performed in a prescribed

manner without the exercise of judgment or discretion as the propriety of the action.” Ex parte Alabama Dept. of

Forensic Sciences, 709 So. 2d 455, 458 (Ala. 1997). The Defendant’s duty to accept all children committed to its

custody within seven days of disposition is ministerial, not discretionary. That duty is prescribed by state law,

leaving no room for discretion. See Alabama Code §12-25-61(c) states that: “After October 1, 1991, the

Department of Youth Services shall accept all children committed to it within seven days of notice of disposition.”);

see also Alabama Code §12-15-71(j). §12-15-71(j) provides – Whenever the court commits a child to a state or

local agency or orders a state or local agency to provide services or treatment for a child, that agency shall accept the

child for commitment, ordered services, or treatment within seven days of the court’s order. However, if

compliance with the court’s order within seven days would place an agency in violation of either a state statute or

standard, then compliance is not required.

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Defendant Wood can not establish that accepting J.B. within seven days is a

discretionary function. However, presuming he did, the substantial evidence is that

Defendant Wood has never asserted that accepting J.B. on either occasion would

cause DYS to be in violation of a statute or standard; that J.B. was not placed within

seven days; that he failed to discharge his duties pursuant to detailed rules or

regulations (in this case state law); that his actions were willful; and that he acted in bad

faith. For these reasons, Defendant Wood is not entitled to state agent immunity.

PRISON LITIGATION REFORM ACT

The Defendant asserts this lawsuit should be dismissed pursuant to §42 U.S.C.

1997 e(e). His argument in support thereof is as follows:

“J.B. sustained no physical injury.” “He was in custody at the time this lawsuit

was filed and is in custody again.” (Wood brief, pg. 39) Defendant’s arguments lack

merit.

Because the two lawsuits have been consolidated, CV-06-755 and CV-06-908, it

is unclear which lawsuit Defendant is addressing. Assuming 42 U.S.C. § 1997 e(e)

applied, and Plaintiff contends it does not, Defendant offers no evidence that Plaintiff

was in custody when either lawsuit was filed. Defendant’s conclusory statement is

totally unsupported by any evidence offered by Defendant. Presuming, Defendant had

offered evidence in support of his conclusions, 42 U.S.C. §1997 e(e) does not apply for

the following reasons:

1. The issue raised by Plaintiff is not a claim for mental or emotional injury

suffered during any attendant custodial detention for which the PLRA would apply. In

other words, if the Plaintiff filed his initial complaint while in custody, the events made

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the basis of the claims occurred during his prior custodial event.

2. Because J.B. is a minor child, he does not have the capacity to sue, but

must do so by and through his next friend. Rule 17(c), F. R. C. P. Section 1997 e(e)

places limitations on a “prisoner” bringing the action. The action is “brought” by J.B.’s

next friend, Addie Ward. The Defendant has offered no evidence that Ms. Ward, at the

time of the filing of either lawsuit, was a confined prisoner.

3. Presuming, Defendant can offer evidence that either lawsuits was filed

while J.B. was in custody, and presuming the Court were to conclude §1997 e(e)

applies to either lawsuit, a reading of the complaints and the evidence offered in

response to Defendants Summary Judgment shows that J.B. was physically restrained

without treatment, that he was a chemically dependent child physically restrained

without treatment, and in addition to these injuries he suffered mental anguish.

Therefore, any applicable §1997 e(e) requirements have been satisfied, therefore

neither lawsuit is due to be dismissed.

_/s/Robert D. Drummond, Jr._____________

ROBERT D. DRUMMOND, JR. (DRU004)

Attorney for Plaintiff

OF COUNSEL:

323 De La Mare Avenue

Fairhope, Alabama 36532

(251) 990-6249

_/s/Michael J. Crow_________________

MICHAEL J. CROW (CRO039)

Attorney for Plaintiff

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OF COUNSEL:

BEASLEY, ALLEN, CROW,

METHVIN, PORTIS & MILES, P.C.

P.O. Box 4160

Montgomery, AL 36103-4160

(334) 269-2343 - Telephone

(334) 954-7555 - Facsimile

CERTIFICATE OF SERVICE

I hereby certify that on the 9

th

day of July, 2007, I electronically filed the foregoing

with the Clerk of the Court using the CM/ECF system, which will send notification of

such filing to the following:

T. Dudley Perry

P.O. Box 66

Mt. Meigs, AL 36057

Michael Crow

P.O. Box 4160

Montgomery, AL 36103-4160

Robert D. Drummond

Attorney at Law

323 De LaMare

Fairhope, AL 36532

/s/Robert D. Drummond, Jr.______

OF COUNSEL

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