IN THE DISTRICT COURT OF THE UNITED STATES

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 other similarly situated; )

) Case No: 2:06-CV-755-MHT

Plaintiff, )

)

vs. )

)

WALTER WOOD, in his individual )

capacity, )

)

Defendant. )

)

)

J.B., a minor child, by and through his )

next friend, ADDIE WARD, on behalf of )

himself and all other similarly situated; )

) Case No: 2:06-CV-908-MHT

Plaintiff, )

)

vs. )

)

WALTER WOOD, in his individual )

capacity, )

)

Defendant. )

BRIEF IN SUPPORT OF 

RENEWED MOTION FOR SUMMARY JUDGMENT

AND IN SUPPORT OF MOTION TO SUPPLEMENT THE RECORD 

The Defendant, J. Walter Wood, Jr., hereby resubmits, and amends, his previous motion

for summary judgment. (Doc No. 29). In support whereof, and in support of the motion to

Case 2:06-cv-00755-MHT-CSC Document 71 Filed 11/16/2007 Page 1 of 7
supplement the record pursuant to the Court’s Order dated November 6, 2007, the Defendant

submits the affidavit of Hon. Danielle Lipow, with attachments, submitted separately. The

Defendant respectfully requests the Court revisit the Defendant’s summary judgment motion and

alternatively consider abstention while ongoing statewide system reform efforts proceed. The

Plaintiff could have, and should have, first sought in state court the relief he seeks in this case.

PULLMAN ABSTENTION. “A state’s constitutional interest in immunity

encompasses not merely whether it may be sued, but where it may be sued.” Pennhurst State

School and Hospital v. Halderman, 465 U.S. 89, 99 104 S.Ct. 900, 79 L.Ed.2d 67 (1983). The

Defendant submits that this claim should be pursued in state court. Therefore, assuming this

Court has subject matter jurisdiction (see below), the Defendant requests this Court to apply the

doctrines of comity and abstention requiring federal Courts to defer to state court proceedings. 

This argument is based on principles of federalism and separation of powers. See, Railroad

Commission of Tex. v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Although

the Court may decide this issue sua sponte, the Defendant submits the following for the Court’s

consideration:

First, there is no parallel state law proceeding to construe the question of state law raised

by the Plaintiff and on which the Plaintiff’s claims are in part based. Second, state law is unclear

and unsettled and an erroneous construction of state law would be disruptive of important state

policies. As a result, the advantages of abstention clearly outweigh the disadvantages. Third,

resolution of the state law question would obviate the need to decide the constitutional question

the Plaintiff raises because a ruling in state court would be either be dispositive of some or all the

Plaintiff’s claims or would materially alter the constitutional question presented. See, e.g.

Harman v. Forssenius, 380 U.S. 528, 535, 85 S.Ct. 1177, 1182, 14 L.Ed.2d 50 (1965); Bullock v.

Case 2:06-cv-00755-MHT-CSC Document 71 Filed 11/16/2007 Page 2 of 7
 This is particularly true in this case because DYS is merely the component of the 1

system to which juvenile commitments are sent from the 67 Alabama counties. DYS does not

control the characteristics of the juveniles sent to DYS, the numbers of commitments within each

category, or the length of time the juveniles will be required to remain in custody. 

Cuyler, 463 F.Supp. 40 (DC Pa. 1978); Lowe v. Smith, 363 F. Supp. 1385 (DC Va. 1973); Rock

v. East Tennessee Bonding Co., 450 F. Supp. 321 (DC. Tenn. 1978).

That state law is unsettled is clear from the face of the Complaint and the statutes in

question. The Plaintiff’s position is that the provisions of §§12-15-61( c ) and 12-15-71(j), Code

of Alabama 1975, as amended, when construed together, require the Department of Youth

Services to staff juveniles within 7 days regardless of whether doing so would violate a state

statute or standard. §12-15-71(j), states “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,” but §12-15-61( c ) has no such limitation. There is therefore a reasonable

susceptibility of varying interpretations. The issue has never been answered by the state court.

 As the affidavit of Danielle Lipow shows, the State of Alabama is engaged in a broad

juvenile justice system reform effort. This reform effort includes the Executive, Legislative, and

Judicial branches, each of which comprise components of the system. On the other hand this

lawsuit ignores the broad systemic issues and focuses only on the Department of Youth Services. 

It is not logical that truly systemic problems emerging from a complex system could possibly be

solved by isolating one component. Yet that is the purported goal of this and similar previous 1

lawsuits. The Defendant submits that the ongoing effort to broadly reform the juvenile justice

system and redirect more of the state’s limited resources toward local community based

alternatives to institutional placement will almost certainly suffer if the Plaintiff’s claims in this

case are successful. (See, Affidavit of Danielle Lipow, stating: “a finding of liability in this case

Case 2:06-cv-00755-MHT-CSC Document 71 Filed 11/16/2007 Page 3 of 7
 The Defendant submits that construction of state statute in accordance with the 2

Plaintiff’s claim would open a different Pandora’s box of constitutional problems. 

is likely to create incentives to further expand capacity, draining public resources that could be

invested in non-residential interventions that are proven to reduce crime and help children and

families succeed.”) The mere possibility of such a result reveals that the advantages of

abstention outweigh the disadvantages.

Finally, the Defendant submits that construction of the statute in accordance with the

Plaintiff’s argument would obviate the need for answering the Plaintiff’s constitutional question. 

If the Plaintiff’s state law claims and theories have merit and the statutes require placement

within 7 days regardless of whether facilities are overcrowded, there would be no need to

determine when, or even whether, awaiting placement in detention becomes unconstitutional for

an adjudicated juvenile delinquent. On the other hand, if the statute is construed other than as

the Plaintiff argues, the Plaintiff’s constitutional claims, which are based in part on his tenuous

construction of state law, would be materially altered. Either way, the case would either be 2

mooted or presented in a different posture after a state court determination of the pertinent

statutes. Thus, every essential element necessary for application of the doctrine of abstention is

present. 

IMMUNITY. The Defendant submits that the Plaintiff’s case, although it is ostensibly

against the Executive Director in his individual capacity, is barred by Eleventh Amendment

immunity. See Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900,

79 L.Ed.2d 67 (1983). The Complaint, on page 1 stated that the Plaintiff’s underlying legal

theories include: “the Defendant’s failure to comply with state law regarding the placement of

committed youth, including the Plaintiff.” If the Plaintiff’s theory has merit, success in this case

Case 2:06-cv-00755-MHT-CSC Document 71 Filed 11/16/2007 Page 4 of 7
would force the Defendant to conform his conduct to the Plaintiff’s interpretation of state law. 

The Defendant submits that the real and substantial goal of this case is to force DYS to accept

more juveniles and accept them faster. However, a suit in Federal court to force a state to

conform its conduct to state law is directly in conflict with the principles of federalism that

underlie the Eleventh Amendment. Id. at 106. As a result, the case is barred by immunity.

In connection with the issue of immunity, this Court must answer the question whether

this suit is actually a suit against the state. If the state is the “real, substantial party in interest,”

the claim is one against the state. Pennhurst State School and Hospital v. Halderman, 465 U.S.

89, 101 (1983). It is clear that the answer to the question does not lie merely in the nature of the

relief sought. See, e.g. State of Missouri v. Fiske, 290 U.S. 18, 27, 54 S.Ct. 18, 21, 78 L.Ed. 145

(1933). It thus follows that, at least in this case, the question whether the Plaintiff’s claim is a

claim “against the state” cannot be answered merely by recognizing that the complaint seeks

monetary damages from the Executive Director of the Department of Youth Services in his

individual capacity. But see, contra., Hafer v. Melo, 502 U.S. 21, 27, 31, 112 S.Ct. 358, 116

L.Ed.2d 301 (1991). The answer whether the claim is really “against the state” must be found

elsewhere. 

To answer the question, the Court need only look to the effect of the lawsuit. For

example, a finding of interference with the administration of government programs leads to

Eleventh Amendment immunity. See, Shands Teaching Hosp. and Clinics, Inc. v. Beech Street

Corp., 208 F.3d 1308, 1311 (11 Cir. 2000), citing Pennhurst State School & Hosp. v. th

Halderman, 465 U.S. 89, 101, n. 11, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984). The Defendant

submits that the Plaintiff’s success in this case will interfere with the administration of the

programs of the Department of Youth Services because it will interfere with the ongoing reform

Case 2:06-cv-00755-MHT-CSC Document 71 Filed 11/16/2007 Page 5 of 7
efforts designed to reduce institutional capacity rather than expand it. 

In Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 101 (1983), the

Supreme Court held that a lawsuit challenging the conditions of confinement in state institutions

was a lawsuit against the state because the “effect” of the suit would have been “that a major

state institution be closed and smaller state institutions be created and expansively funded.”

Pennhurst, 465 U.S. 89, at 107. The effect of this case would be strikingly similar–only in

reverse–major state institutions for juvenile delinquents would be expanded and funded from

proceeds intended by the State for use on alternative local programs because admissions would

be expected to spike. (See affidavit of Danielle Lipow). Accordingly, the Plaintiff’s claims in

this case are barred by state immunity. 

 Respectfully submitted,

 s/ T. Dudley Perry, Jr. 

T. Dudley Perry, Jr. 

Bar Number: (PER-034)

General Counsel

Alabama Department of Youth Services

Post Office Box 66

Mt. Meigs, Alabama 36057

Telephone: (334) 215-3803

Fax: (334) 215-3872

E-Mail: dudley.perry@dys.alabama.gov 

CERTIFICATE OF SERVICE 

 I hereby certify that on the 16 day of November, 2007, I electronically filed the th

foregoing RENEWED MOTION FOR SUMMARY JUDGMENT AND MOTION TO

SUPPLEMENT THE RECORD, with the Clerk of the Court using the CM/ECF system which

will send notification of such filing to the following:

Case 2:06-cv-00755-MHT-CSC Document 71 Filed 11/16/2007 Page 6 of 7
Robert D Drummond

Attorney at Law

323 De LaMare

Fairhope, AL 36532

Michael J. Crow

Beasley, Allen, Crow, Methvin, Portis & Miles, P. C.

P. O. Box 4160

Montgomery, AL 36103-4160

s/ T. Dudley Perry, Jr.

General Counsel

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