Prison Phone Justice

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 1 of 116

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

JOSHUA DUNN, et al.,
Plaintiffs,
v.
JEFFERSON S. DUNN, in his
official capacity as
Commissioner of
the Alabama Department of
Corrections, et al.,
Defendants.

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CIVIL ACTION NO.
2:14cv601-MHT
(WO)

PHASE 1 FINAL SETTLEMENT APPROVAL OPINION AND ORDER
I.
The
lawsuit

individual
are

17

INTRODUCTION

plaintiffs

prisoners

with

in

Phase

1

disabilities

of
in

this
the

custody of the defendants, the Alabama Department of
Corrections (ADOC or the Department) and Commissioner
Jefferson
Program

Dunn.
(ADAP),

The

Alabama

Alabama’s

Disabilities

protection

and

Advocacy
advocacy

organization for people with disabilities, is also a
plaintiff.

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 2 of 116

Plaintiffs alleged that the Department has violated
Title II of the Americans with Disabilities Act (ADA),
codified at 42 U.S.C. § 12131 et seq., and § 504 of the
Rehabilitation
§ 794. 1

Act

Briefly,

of

1973,

codified

plaintiffs

at

contended

29

U.S.C.

that

the

Department lacks adequate systems for implementing its
obligations under the ADA, and that this results in
discrimination

against

and

prisoners with disabilities. 2

failure

to

accommodate

Specifically, plaintiffs

1. This
case
has
been
bifurcated
for
the
administrative convenience of the court and parties.
Phase 1, at issue in this opinion, involves ADA claims
alleging
discrimination
on
the
basis
of
and
non-accommodation of physical disabilities.
Phase 2,
to be tried later, involves Eighth Amendment claims
alleging inadequate medical and mental healthcare.
Phase
2
also
involves
ADA
claims
alleging
discrimination on the basis of and non-accommodation of
mental disabilities. Although class certification will
be considered separately for the two phases, there is
significant
overlap
between
the
putative
class
representatives and members.
2. “State
prisons
fall
squarely
within
the
statutory definition of ‘public entity,’” and Title II
therefore “unmistakably includes State prisons and
prisoners within its coverage.” Pa. Dep’t of Corr. v.
Yeskey, 524 U.S. 206, 209-10 (1998). Moreover, the ADA
applies to all of the “many recreational ‘activities,’
(continued...)
2

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 3 of 116

alleged that the Department failed to (1) implement a
system

for

identifying

prisoners

(2) institute

a

system

requests

a

grievance

denied

and

accommodations;

(4) adequately

for

with

disabilities;

receiving

accommodation

procedure

(3) appoint

train

personnel

for

ADA

challenging

coordinators;

regarding

the

requirements of the ADA; (5) develop an ADA transition
plan

and

corresponding

policies

and

procedures;

(6) remove architectural barriers affecting prisoners
with

disabilities;

(7) provide

reasonable

accommodations, such as auxiliary and visual aids and
services, to those with disabilities; and (8) enable
those

with

programming
declaratory

disabilities
and
and

to

access

services.
injunctive

relief.

various
Plaintiffs

types

of

sought

Jurisdiction

is

medical
‘services,’
and
educational
and
vocation
‘programs’” offered by prisons, id. at 210; see also
Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1081 (11th
Cir. 2007), and to such basic necessities of life as
use of toilets, showers, and sinks, see Schmidt v.
Odell, 64 F. Supp. 2d 1014, 1032-33 (D. Kan. 1999)
(Brown, J.).
3

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 4 of 116

proper under 28 U.S.C. § 1331 (federal question) and 28
U.S.C. § 1343 (civil rights).
In March 2016, almost two years after this case was
filed

and

after

extensive

discovery,

the

parties

submitted to the court a joint motion for preliminary
approval of a settlement of the Phase 1 claims in this
case.

Their agreement lacked specificity; akin to an

outline,

it

contained

placeholders

in

the

form

of

references to a “plan” that the parties intended to
develop later.
settlement

Concerned that it could not approve a

without

scrutinizing

its

details--the

“beef,” as the court bluntly put it--the court ordered
the parties to submit this plan.
Initially, it appeared that it would be impossible
for the parties to reach agreement as to specifics;
both

they

Meanwhile,

and

the

they

court

prepared

continued

to

to

go

negotiate,

to

trial.

and

wisely

requested the assistance of United States Magistrate
Judge

John

Ott,

who

being

from

another

generously

district--to

4

volunteered--despite
devote

a

tremendous

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 5 of 116

amount of time to the task.

After numerous lengthy

mediation sessions, they reached a much more detailed
settlement agreement.
The parties submitted this agreement to the court
and,

after

preliminary
provide

a

hearing,

approval

notice

to

it

entered

and

an

requiring

class

order
the

members.

granting

parties

See
---

to

Phase

1

Preliminary Settlement Approval Order (doc. no. 532).
The

preliminary

approval

order

provisionally

certified the putative Phase 1 class and established a
procedure

for

providing

notice

of

the

proposed

settlement agreement--and a reasonable opportunity to
object or comment--to putative class members.

Both the

court’s certification analysis and the notice procedure
are discussed in greater detail below.
In addition to receiving written comments on the
settlement from putative class members, the court held
three fairness hearings.

In the first two, it heard

from a representative group of putative class members
who

had

submitted

comments

5

on

or

objections

to

the

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 6 of 116

settlement

agreement

and

who

were

selected

court, with the input of the parties.

by

the

Following these

hearings, the court held a third fairness hearing at
which counsel for the parties responded to the various
comments and objections raised by these witnesses and
other questions raised by the court.
For the reasons that follow, the court will grant
final

approval

of

the

settlement

and

the

parties’

request to enter a consent decree.

II.

DESCRIPTION OF PROPOSED SETTLEMENT

The settlement agreement runs some 78 pages.

As a

preliminary matter, it is predicated on--and defendants
consent

to--the

defined

as

physical

“any

custody

certification
current

or

of

who

ADOC

of

a

settlement

future
has

inmate
a

class

in

disability

the
as

defined in 42 U.S.C. § 12102 and 29 U.S.C. §705(9)(B),
excluding

those

inmates

whose

disabilities

relate

solely to or arise solely from mental disease, illness,

6

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 7 of 116

or defect.”

Am. and Restated Settl. Agmt. (doc. no.

518) at 4.
The
measures

settlement
that

the

agreement
Alabama

addresses

Department

the
of

following

Corrections

will be required to take in order to ensure that it is
in compliance with the ADA and the Rehabilitation Act:
Self-Assessment
Department

will

and

Transition

evaluate

all

Plan:

facilities

The

that

house

disabled prisoners, and identify necessary changes to
facilities and policies concerning disabled prisoners’
ability

to

Department

communicate
will

create

and
a

access

programs.

transition

plan,

The
listing

changes to be made and deadlines for those changes.
Programs:
accommodations

The Department will provide reasonable
for

disabled

prisoners

to

access

the

programs offered by the Department.
Special Housing Units:

The Department will make

individualized assessments of disabled prisoners housed
in

residential

treatment

and

7

stabilization

units

to

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 8 of 116

ensure

that

they

have

reasonable

access

to

the

Department’s programs.
Identification and Tracking:

An initial screening

for disabilities will be performed within 12 hours of a
prisoner’s

entering

the

Department’s

custody,

and

a

physical examination will be administered within seven
days of entry.

The Department will test new prisoners

for intellectual and developmental disabilities using
certain tests and guidelines.
all

prisoners

will

receive

Within about one year,
testing

for

disabilities and physical examinations.

intellectual

The Department

will track prisoners with disabilities through a new
system-wide

computer

periodically

database.

re-evaluate

The

prisoners

Department
for

changes

will
in

disability status, and will do so anytime a prisoner is
transferred among facilities.
Security Levels:
Department
level

will

solely

not
based

In assigning security levels, the
increase
upon

8

a

a

prisoner’s

disability,

security
but

the

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 9 of 116

Department will have discretion to lower a prisoner’s
security level based upon a disability.
Auxiliary Aids and Services:
hearing

and

vision

impairments,

For prisoners with
the

Department

will

provide auxiliary aids and services including readers,
materials

in

Braille,

and

teletype

phones.

Hearing-impaired prisoners will be assessed at least
every three months to ensure their hearing aids are
properly

functioning,

and

any

needed

repairs

or

replacement batteries will be provided according to set
deadlines.
for

Sign-language interpreters will be provided

certain

specified

proceedings,

such

as

intake

interviews, health-care appointments, and disciplinary
hearings, and other prisoners may serve as interpreters
only

with

a

hearing-impaired

prisoner’s

consent

and

only on occasions not involving either medical care or
a criminal investigation, or otherwise implicating a
due-process right.

9

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 10 of 116

Emergencies:

To evacuate disabled prisoners in the

event of an emergency, the Department will designate
responsible employees, create plans, and run drills.
Requests,

Grievances,

and

Coordinators:

The

Department will implement a procedure for receiving and
processing prisoners’ requests for accommodations and
appeals

of

denials,

including

repositories

to

prisoners

completing

in

submit

forms,
and

specified
and

forms,

assistance

submitting

forms.

for
The

Department will appoint an ADA coordinator for each of
its facilities, as well as a state-wide coordinator, to
handle ADA requests, process appeals, produce monthly
reports, and assess compliance.
Training:
annual

ADA

The Department will provide initial and
training

to

correctional

officers

and

enhanced training to ADA coordinators.
Quality

Assurance:

The

Department

will

create

a

quality-assurance program that includes audits of the
identification

of

disabled

prisoners

accommodation requests and appeals.

10

and

of

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 11 of 116

The

agreement

also

contains

the

following

provisions related to implementation:
Monitoring:
compliance

ADAP

with

the

will

monitor

consent

the

decree,

Department’s
and

will

be

entitled to access relevant documents and to conduct
interviews with prisoners and staff.
quarterly

reports

containing

written

changes,

and

the

on

the

Department’s

recommendations
parties

ADAP will prepare

will

for

meet

compliance

any
and

necessary
confer

to

address any reported deficiencies.
Dispute

Resolution

Process:

Both

the

named

plaintiffs and unnamed class members (either with or
without representation by class counsel) must arbitrate
claims that the Department is not in compliance with
the

consent

non-compliance

decree.
impacts

If

the

fewer

Department’s

than

12

arbitrator’s decision will be final.

alleged

prisoners,

the

If 12 or more

prisoners are affected, the arbitrator’s decision may
be

appealed

to

the

court

abuse-of-discretion standard.

11

for

review

under

an

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 12 of 116

Termination:

After five years the Department may

request termination of the consent decree, which will
terminate after six years unless plaintiffs request and
the court grants an extension.
Amendment:
agreement.

The

parties

may

mutually

amend

the

The parties agree to re-evaluate deadlines

in the transition plan if Alabama passes legislation to
construct new prison facilities.
Funding:

The

Department

will

make

good-faith

efforts to obtain necessary funding to comply with the
agreement.
Attorneys’ Fees:

Finally, the agreement contains

an agreement that the Department will pay plaintiffs’
attorneys $ 1.25 million in fees and costs, as well as
additional fees on an hourly basis (subject to caps)
during

the

monitoring

process,

and

fees

for

litigation necessary to enforce the consent decree.

12

any

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 13 of 116

III.
Judicial

policy

class-action cases.

DISCUSSION
favors

the

settlement

of

Bennett v. Behring Corp., 737 F.2d

982, 986 (11th Cir. 1984).

This is particularly true

“in an area [such as this] where voluntary compliance
by the parties over an extended period will contribute
significantly toward ultimate achievement of statutory
goals,” Ass’n for Disabled Ams., Inc. v. Amoco Oil Co.,
211

F.R.D.

(quoting

457,

466

Patterson

(S.D.

v.

Fla.

Newspaper

2002)
&

Mail

(Gold,

J.)

Deliverers’

Union, 514 F.2d 767, 771 (2d Cir. 1975)), and “in class
actions with their notable uncertainty, difficulties of
proof, and length,” Behrens v. Wometco Enters., Inc.,
118

F.R.D.

(citations

534,

538

omitted),

(S.D.
aff’d,

Fla.
899

1988)

F.2d

21

(King,
(11th

J.)
Cir.

1990).
However, the court retains an important role in
evaluating and approving such settlements, pursuant to
multiple provisions of Federal Rule of Civil Procedure
23

and

the

Prison

Litigation

13

Reform

Act

(PLRA),

18

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 14 of 116

U.S.C.

§ 3626.

First,

because

the

settlement

contemplates the certification of a class, the court
must determine whether the requirements of Rule 23(a)
and

(b)

are

met.

Second,

Rule

23(e)

imposes

both

procedural and substantive requirements that must be
satisfied before the court may
that binds absent class members.

approve a settlement
Third, because the

settlement includes an agreed-upon award of attorneys’
fees and costs to plaintiffs’ counsel, the court must
determine their suitability for appointment as class
counsel pursuant to Rule 23(g) and the reasonableness
of the fee award reasonable pursuant to Rule 23(h).
Fourth and finally, the court must confirm that the
prospective relief to be afforded through entrance of a
consent decree complies with various provisions of the
PLRA.

A.
The

Class Certification: Rules 23(a) and (b)(2)
court

previously

granted

provisional

certification of a settlement class defined to include

14

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 15 of 116

“any current or future inmate in the physical custody
of

the

Alabama

disability
U.S.C.

as

defined

§ 705(9)(B),

disabilities
disease,

Department

relate

illness,

in

of

Corrections

42

U.S.C.

excluding
solely

or

to

defect.”

§ 12012

those
or

who

has
and

inmates

arise

Phase

1

a
29

whose

from

mental

Preliminary

Settlement Approval Order (doc. no. 532) at 2. 3
Having

considered

the

parties’

post-settlement

brief on this topic, the court now concludes that final
certification of this settlement class is appropriate
for the reasons that follow.
In order for any certification motion to succeed,
the

putative

“(1) the

class

class
is

representatives
so

numerous

that

must

show

joinder

of

that
all

members is impracticable; (2) there are questions of

3. The court and the parties intended the word
‘solely’ to modify both ‘relate to’ and ‘arise from,”
as reflected in the settlement agreement itself.
However, the court preliminarily certified the class
based on the language included in the parties’ motion
for preliminary approval, which omitted the second
‘solely.’ The class certified here is worded according
to the language in the settlement agreement.
15

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 16 of 116

law or fact common to the class; (3) the claims or
defenses of the representative parties are typical of
the

claims

or

representative

defenses
parties

of

the

will

class;

fairly

protect the interests of the class.”
23(a).

and

and

(4) the

adequately

Fed. R. Civ. P.

In addition, a class must clear one of three

additional

hurdles;

because

the

named

plaintiffs

in

this case seek certification of a Rule 23(b)(2) class,
they must also show that “the party opposing the class
has

acted

or

refused

to

act

on

grounds

that

apply

generally to the class, so that final injunctive relief
or

corresponding

declaratory

relief

respecting the class as a whole.”
23(b)(2).

is

appropriate

Fed. R. Civ. P.

These requirements apply with “equal force”

to uncontested certification of a class for purposes
only of settlement.
1210,

1224

(M.D.

Austin v. Hopper, 15 F. Supp. 2d

Ala.

1998)

(Thompson,

J.)

(citing

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620-22
(1997)).

16

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 17 of 116

The court notes that, in conducting this analysis,
it

has

motion

had

the

for

settlement

benefit

class
of

of

briefing

certification

Phase

1

of

on

a

contested

filed

this

prior

case.

to

Although

defendants no longer contest certification for purposes
and in light of the settlement, the court has assured
itself that, for the reasons discussed below, none of
the

arguments

defendants

previously

offered

warrants

denial of certification.

i.

Standing

“[A]ny analysis of class certification must begin
with the issue of standing”; only once the court finds
that the named plaintiffs have standing may it consider
whether they have “representative capacity, as defined
by

Rule

Griffin
1987).

23(a),
v.
To

to

Dugger,
show

assert
823

the

F.2d

Article

rights

1476,

III

1482

standing,

of

others.”

(11th
the

Cir.
named

plaintiffs must show that they have been injured, that
their injuries are fairly traceable to the defendants’

17

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 18 of 116

conduct,

and

that

a

judgment

likely redress their injuries.

in

their

favor

would

See Mulhall v. UNITE

HERE Local 355, 618 F.3d 1279, 1286 (11th Cir. 2010).
The

individual

named

plaintiffs

clearly

have

standing to assert the claims brought in Phase 1 and
now resolved in the settlement agreement. 4

Each is a

prisoner in the custody of defendants, (allegedly) has

4. Not all of the plaintiffs named in the
complaint prior to bifurcation raised Phase 1 claims.
The following named plaintiffs did so, and are
therefore named class representatives: Edward Braggs,
Tedrick Brooks, Gary Lee Broyles, Sylvester Hartley,
Charlie
Henderson,
Brandon
Johnson,
John
Maner,
Jermaine Mitchell, Roger Moseley, Timothy Sears, Daniel
Tooley, Joseph Torres, and Donald Ray Turner.
Note that the court has excluded from this list
four named plaintiffs who were released from custody
prior to the filing of plaintiffs’ motion for class
certification, and whose ability to serve as class
representative defendants then challenged. (These four
individuals are: Christopher Gilbert, Dwight Hagood,
Tommie Moore, and Bradley Pearson.)
Because the
parties’ have reached a settlement, it is irrelevant
whether these named plaintiffs’ class claims are moot.
See Dunn v. Dunn, 148 F. Supp. 3d 1329 (M.D. Ala. 2015)
(Thompson, J.) (discussing the legal framework for
assessing the mootness of putative class claims brought
by prisoners who have been released from custody). For
the purposes of this opinion alone, the court has
assumed without deciding that they are.
18

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 19 of 116

a disability that qualifies for the protection of the
ADA and the Rehabilitation Act, and (allegedly)

has

been denied reasonable accommodations as a result of
the policies and procedures of defendants.

A judgment

in plaintiffs’ favor would have remedied these alleged
violations, just as will this consent decree.

Rule

ii.

Rule 23(a)

1.

Numerosity

23(a)(1)’s

satisfied

if

requirement

joinder--the

usual

of

numerosity

method

similar claims--would be impracticable.

of

is

combining

Although there

is no strict threshold, classes containing more than 40
members

are

generally

certification.

large

enough

to

warrant

See, e.g., Cox v. Am. Cast Iron Pipe

Co., 784 F.2d 1546, 1553 (11th Cir. 1986); see also
William B. Rubenstein, Newberg on Class Actions § 3.12
(5th ed.).
number

of

numerosity

“[P]laintiff[s] need not show the precise
members

in

requirement

the
is

19

class,”
“less

given

that

significant”

the
where

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 20 of 116

“class wide discrimination has been alleged.”

Evans v.

U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir.
1983).
In moving to certify a class prior to settlement,
plaintiffs acknowledged that, due to the Department’s
“fail[ure]

to

adequately

identify,

track

and

accommodate people in its custody with disabilities,
ADOC’s

data

significantly

underestimate[]

and

under-identif[y] the number of people with disabilities
in

its

custody,”

and

thus

that

they--and

the

court--could not be sure with great specificity how
many current prisoners are members of the class.

Mem.

of Law in Supp. of Pls.’ Mot. for Class Cert. (doc. no.
433-2) at 30.

However, they submitted evidence, in the

form of records obtained from the Department’s medical
contractor, indicating that, as of March 2015 (the date
of the most recent records available to plaintiffs), at
least 100 prisoners used wheelchairs, 20 had hearing
impairments,

a

dozen

were

prostheses.

All of these disabilities plainly fall

20

blind,

and

a

dozen

used

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 21 of 116

within the definition of disability in the ADA. 5

This

evidence alone is sufficient to support a finding of
numerosity. 6

5. In relevant part, that definition states that
“the term ‘disability’ means ... a physical or mental
impairment that substantially limits one or more major
life activities of [an] individual,” and “major life
activities include, but are not limited to, caring for
oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating,
thinking, communications, and working.”
42 U.S.C.
§ 12102(1)(A) and (2)(A).
6. Plaintiffs also suggested in their motion and
the parties now suggest in their post-settlement brief
that the court consider statewide data regarding the
rate of disability among the adult population in
Alabama (apparently, it leads the nation at slightly
less than a third).
Because the court need not
calculate exactly how many current prisoners are
members of the class in order to certify it, the court
need not determine whether a reliable inference can be
drawn on the basis of these data.
However, the court
notes that a recent study by the federal Bureau of
Justice Statistics found that approximately a third of
state and federal prisoners reported at least one
disability, and that almost a quarter of these
prisoners reported a serious vision, hearing, or
ambulatory impairment, rates more than twice that of
the general population. See Jennifer Bronson, et al.,
Disabilities Among Prison and Jail Inmates, 2011-12
(Dec. 2015) (reporting findings based on a national
survey of almost 40,000 prisoners housed in over 200
state and federal prisons, including at least one
(continued...)
21

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 22 of 116

“Moreover,

the

fluid

nature

of

a

plaintiff

class--as in the prison-litigation context--counsels in
favor

of

certification

members.”

of

all

present

and

future

Henderson v. Thomas, 289 F.R.D. 506, 510

(M.D. Ala. 2012) (Thompson, J.) (citing Kilgo v. Bowman
Transp.,

Inc.,

789

F.2d

859,

878

(11th

Cir.

1986)

(affirming a certified class of 31 present members as
well as future members who could not be identified);
Green v. Johnson, 513 F. Supp. 965, 975 (D. Mass. 1981)
(Freedman,
“the

fact

J.)

(finding

that

the

numerosity
inmate

after

population

considering
at

these

facilities is constantly revolving”)); see also Reid v.
Donelan, 297 F.R.D. 185, 189 (D. Mass. 2014) (Ponsor,
J.) (explaining, in finding numerosity and certifying a
class of detained plaintiffs, that “when a party seeks
only

declaratory

or

injunctive

relief,

...

the

facility located in each state), available online at
www.bjs.gov/content/pub/pdf/dpji1112.pdf. (This online
document has been filed on the docket.)
Given that
defendants incarcerate approximately 25,000 prisoners,
the size of the class is almost certainly in the
thousands.
22

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 23 of 116

inclusion

of

future

members

increases

the

impracticability of joinder” (citing McCuin v. Sec’y of
Health & Human Servs., 817 F.2d 161, 167 (1st Cir.
1987));
(5th

Rubenstein,

ed.)

Newberg

(explaining

on

that

the

Class

Actions

inclusion

of

§ 3.15
future

class members “may make class certification more, not
less, likely”; citing two decisions certifying classes
of prisoners, Hill v. Butterworth, 170 F.R.D. 509, 514
(N.D.

Fla.

1997)

(Paul,

J.)

(“[T]he

presence

of

an

unknown number of future class members here actually
bolsters a finding of the requisite numerosity.

...

This Circuit has held [that when] the alleged class
includes

future

[members],

necessarily

unidentifiable[,] ... the requirement of Rule 23(a)(1)
is clearly met, for joinder of unknown individuals is
clearly

impracticable.”

(citation

and

internal

quotation marks omitted)); Clarkson v. Coughlin, 145
F.R.D. 339, 346 (S.D.N.Y. 1993) (Sweet, J.) (“The class
action device is particularly well-suited in actions
brought by prisoners due to the fluid composition of

23

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 24 of 116

the prison population.

Prisoners frequently come and

go from institutions for a variety of reasons.
prisoners

are

released

or

prisoners arrive every day.

transferred,

Veteran

while

new

Class actions therefore

generally tend to be the norm in actions such as this.”
(citations and internal quotation marks omitted))). 7
In light of plaintiffs’ evidentiary showing that
there are at least--and probably quite substantially
more than--150 prisoners with disabilities (as defined
in the ADA) in the custody of the Department, and in
light of precedent making clear that it is appropriate
in prison-conditions litigation to consider future and
as-yet-unidentifiable

class

members

in

determining

whether joinder is impracticable or indeed impossible,
the court finds that the class meets the numerosity

7. Recognition of prisoners’ relatively limited
“access to the legal system ... has [also] led courts
to certify classes in cases ... which involve issues of
common concern to inmates even when the potential class
size is small and somewhat undefined.”
Bradley v.
Harrelson, 151 F.R.D. 422, 426 (M.D. Ala. 1993)
(Albritton, J., adopting recommendation of Carroll,
M.J.) (citation and internal quotation marks omitted).
24

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 25 of 116

requirement of Rule 23(a)(1).

2.
Rule

23(a)(2)

Commonality

requires

named

plaintiffs

seeking

class certification to show that “there are questions
of law or fact common to the class.”

In Wal-Mart

Stores, Inc. v. Dukes, 564 U.S. 338 (2011), the Supreme
Court explained that “this does not mean merely that
they

have

all

provision of law.

suffered
...

a

violation

of

the

same

[Rather,] [t]heir claims must

depend upon a common contention ... [which] must be of
such

a

nature

that

it

is

capable

of

classwide

resolution--which means that determination of its truth
or falsity will resolve an issue that is central to the
validity of each one of the claims in one stroke.

What

matters to class certification ... is not the raising
of common ‘questions’--even in droves--but, rather the
capacity of a classwide proceeding to generate common
answers apt to drive the resolution of the litigation.”
Id.

at

350

(citation

and

25

internal

quotation

marks

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 26 of 116

omitted).

In short, commonality requires a showing

that there is “some glue” holding the claims together.
Id. at 352.
However,
commonality
common

plaintiffs
under

Rule

questions

questions

as

seeking

23(a)(2)

need

“predominate”

required

under

to
not

over

Rule

demonstrate
show

individual

23(b)(3);

“even a single common question will do.”

that

indeed,

Wal-Mart, 564

U.S. at 359 (citations and alterations omitted).

a.

Analysis

In their pre-settlement opposition to plaintiffs’
motion

for

primarily

class
(almost

commonality.

certification,

defendants

exclusively)

Although

they

no

on

longer

focused

contesting
raise

these

points of law, the court must give a reasoned response
to their arguments in order to explain adequately why
certification of a settlement class is warranted.
Defendants contended that commonality was lacking
because

the

putative

class

26

was

“expansive,”

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 27 of 116

encompassing

prisoners

disabilities,

and

with

sought

a

to

wide

“challenge

panoply of possible ADA violations.”

range
the

entire

Def.’s Opp’n to

Pls.’ Mot. for Class Cert. (doc. no. 476)) at 18.
argued

that

homogenous

plaintiffs’

claim,”

abstraction,”

but

touching

many

on

claims

except
rather

at

“many

different

were

“the

“not

a

highest

different

ADA

of

They

single,

level

ADA

requirements

of

claims
that

Plaintiffs[] ha[d] lumped together for purposes of this
lawsuit.”

Id.
--

at 18-19.

Defendants were quite correct that the individual
named plaintiffs’ disabilities, and the accommodations
they

alleged

different.

they

had

been

denied,

are

rather

But defendants misapprehended the basis of

liability plaintiffs asserted: not the denial of the
accommodations themselves, but the denial of a system
that would have the effect of ensuring that they and
their fellow prisoners were appropriately accommodated.
(Or,

to

phrase

it

differently,

they

argue

that

defendants have failed to remedy an inadequate system

27

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 28 of 116

that has the effect of discriminating against them by
failing to accommodate their disabilities.)
If

indeed

plaintiffs

were

an

assorted

group

of

prisoners alleging merely that defendants had failed to
provide

them

particular

accommodations

(and

seeking

simply orders requiring that they be provided those
same accommodations), class certification would not be
appropriate.

But plaintiffs were endeavoring to prove

not merely, or even primarily, that their individual
rights to particular accommodations under the ADA have
been violated.

They planned to present evidence to

this effect to demonstrate that defendants’ failure to
implement

certain

policies

and

procedures

has

the

effect of consistently violating their rights under the
ADA,

and

that

represent--were

they--and

the

class

therefore

entitled

members
to

an

they
order

requiring defendants to implement those policies and
procedures. 8

8. Of course, it may well be true that some class
members have not actually been denied a reasonable
(continued...)
28

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 29 of 116

Plaintiffs

directed

the

alleged systemic failures.
particular

(which

also

court

to

a

number

of

They highlighted three in
constitute

violations

of

Department of Justice regulations promulgated pursuant
to Title II of the ADA, see 28 C.F.R. §§ 35.107(a),
35.107(b), 35.150(d)): the failure to (1) appoint and
train

ADA

procedures,
Defendants

coordinators,
and

(2) adopt

(3) develop

conceded

for

the

an

ADA

sake

ADA

grievance

transition
of

argument

plan.
that

whether they had failed to do these things could be
common questions with common answers, but argued that
these questions could not satisfy Rule 23(a)(2) because
the regulations at issue are not privately enforceable,
and the common answers were therefore not “apt to drive
the resolution of the litigation.”

Wal-Mart, 564 U.S.

accommodation. But the inclusion of some class members
who
have
not
been
injured
does
not
defeat
certification.
See In re Deepwater Horizon, 785 F.3d
1003, 1015 (5th Cir. 2015); Shelton v. Bledsoe, 775
F.3d 554, 564 (3d Cir. 2015); Messner v. Northshore
Univ. HealthSystem, 669 F.3d 802, 824 (7th Cir. 2012);
Holmes v. Godinez, 311 F.R.D. 177, 216 (N.D. Ill. 2015)
(Aspen, J.).
29

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 30 of 116

at 350.
The

court

argument,

that

will

assume,

defendants

also

were

for

correct

the

sake

that

of

these

regulations do not create a private right of action.
This would not, however, have made them irrelevant.
They

are

Department

binding
of

regulations

Justice

(which

bring an enforcement action). 9

promulgated

would

be

by

empowered

the
to

When courts have found

them not to be privately enforceable, as in Ability
Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d
901, 913-14 (6th Cir. 2004) (relying on Alexander v.
Sandoval, 532 U.S. 275 (2001)), they have reasoned that
the regulations are designed to facilitate, but do more

9. See A.R. ex rel. Root v. Dudek, 31 F. Supp. 3d
1363,
1368-70
(S.D.
Fla.
2014)
(Rosenbaum,
J.)
(explaining
that
42
U.S.C.
§ 12132,
Title
II’s
enforcement provision, incorporates by reference the
enforcement provision of Title VI of the Civil Rights
Act of 1964, 42 U.S.C. § 2000d-1, which authorizes the
Department of Justice to bring enforcement litigation);
42 U.S.C. § 2000d-1 (granting agencies enforcement
authority
to
“effect[]”
“[c]ompliance
with
...
requirement[s] adopted pursuant to this section,” such
as “regulations ... which shall be consistent with
achievement of the objections of the statute”).
30

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 31 of 116

than merely describe, compliance with the ADA, such
that

“it

fully

is

conceivable

satisfy

its

that

a

obligations

public
to

entity

accommodate

could
the

disabled while at the same time fail to put forth a
suitable transition plan.”
All this means is that the Department’s failure to
implement a transition plan would not have constituted
a per se violation; plaintiffs could not have shown
liability merely by proving that the Department had no
transition plan, without showing that the Department
had, as a result, failed to accommodate prisoners with
disabilities.

That said, plaintiffs could have argued,

and proven at trial, that the Department’s failure to
do the things required by these regulations had the
effect of discriminating.

b.

Methods-of-Administration Regulation

Indeed,
enforceable--ADA

there

is

regulation

which

another--privately
makes

clear

that

policies and practices (or their absence) which result

31

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 32 of 116

in discrimination against people with disabilities are
actionable
practices
above)

under
(such

are

not

the
as

ADA,
the

even

three

themselves

if

the

policies

regulations

required

by

and

discussed

the

statue.

Under this regulation, plaintiffs in an ADA case can
challenge

a

described

policy

in

or

practice--whether

another

regulation

or

it

is

simply

one
one

articulated by the plaintiffs themselves--if it causes
the

public

entity

to

discriminate

against

them,

including by failing to accommodate them.
The so-called methods-of-administration regulation
recognizes

that

the

ADA

forbids

a

public

entity’s

utilization, “directly or through contractual or other
arrangements,

[of]

criteria

or

methods

of

administration: (i) That have the effect of subjecting
qualified

individuals

discrimination

on

the

with
basis

of

disabilities

to

disability;

[or]

(ii) That have the purpose or effect of defeating or
substantially

impairing

accomplishment

of

the

objectives of the public entity’s program with respect

32

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 33 of 116

to

individuals

with

disabilities.”

28

C.F.R.

§ 35.130(b)(3). 10
This

regulation

“applies

to

written

policies

as

well as actual practices, and is intended to prohibit
both blatantly exclusionary policies or practices as
well

as

policies

and

practices

that

are

neutral

on

their face, but deny individuals with disabilities an
effective

opportunity

Maxwell-Jolly,

688

F.

to
Supp.

participate.”
2d

980,

995

Cota
(N.D.

v.
Cal.

2010) (Armstrong, J.) (citation and internal quotation

10. Courts
have
consistently
held
that
the
methods-of-administration
regulation
is
privately
enforceable under Alexander, because it “does not
create rights that do not exist under the ADA.”
Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161,
1175-76 (N.D. Cal. 2009) (Armstrong, J.); see also Day
v. D.C., 894 F. Supp. 2d 1, 22-23 (D.D.C. 2012)
(Huvelle, J.); Conn. Off. of Prot. & Advocacy for
Persons with Disabilities v. Connecticut, 706 F. Supp.
2d 266, 277-78 (D. Conn. 2010) (Thompson, J.); Crabtree
v. Goetz, 2008 WL 5330506, at *24 (M.D. Tenn. Dec. 19,
2008) (Haynes, J.); Frederick L. v. Dep't of Pub.
Welfare, 157 F. Supp. 2d 509, 538 (E.D. Pa. 2001)
(Schiller, J.); Judice v. Hosp. Serv. Dist. No. 1, 919
F. Supp. 978, 982 (E.D. La. 1996) (Feldman, J.) (“28
C.F.R. § 35.130 ... do[es] not seem broader than the
statute.”).

33

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 34 of 116

marks omitted).

And there is nothing in the regulation

or the case law interpreting it to suggest that the
discriminatory

effects

of

a

particular

method

of

administration must be uniform in order for the method
to be properly subject to challenge. 11
Moreover, an omission as well as a commission can
be

an

actionable

method

of

administration. 12

In

11. Consider, for example, the hypothetical prison
administrator who decides whether to accept any
particular accommodation request by flipping a coin.
This method of administration will have widely varied
effects, and will just as plainly be actionably
unlawful.
Less farcically, consider the administrator
who denies any accommodation that would cost more than
$ 20. This method of administration may result in the
denial of hearing aids, sign-language interpreters, and
shower grab-bars, in lots of different facilities to
lots of different prisoners with lots of different
disabilities.
Clearly, though, they could properly
raise one common joint methods-of-administration claim
and offer evidence of all these denials as proof of
discriminatory effects.
12. The methods-of-administration regulation makes
clear that a know-nothing, do-nothing policy of
non-administration is a privately actionable violation
of the ADA, at least when plaintiffs can show that it
has the effect of discriminating. As Justice Marshall
explained in Alexander v. Choate, Congress designed the
Rehabilitation Act, the predecessor statute to the ADA,
to address not only “invidious animus,” but also, more
(continued...)
34

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 35 of 116

Connecticut Office of Protection & Advocacy for Persons
with Disabilities v. Connecticut, 706 F. Supp. 2d 266
(D. Conn. 2010) (Thompson, J.), the court held that the
plaintiffs had adequately alleged a claim under the
regulation by contending that the defendants had, among
other things, “failed to adequately assess and identify
the long-term care needs of Plaintiffs and the Class
they represent and to determine whether those needs
could

be

appropriately

met

in

integrated,

community-based settings.”

Id. at 277-78.

went

plaintiffs

on

to

find

that

the

had

The court
identified

commonly, “thoughtlessness and indifference--[] benign
neglect.”
469 U.S. 287, 295 (1985).
Courts have
consistently explained that “Title II [of the ADA]
imposes affirmative obligations on public entities and
does
not
merely
require
them
to
refrain
from
intentionally discriminating against the disabled.”
Ability Ctr. of Greater Toledo v. City of Sandusky, 385
F.3d 901, 910 (6th Cir. 2004); see also Disabled in
Action v. Bd. of Elections in City of N.Y., 752 F.3d
189, 200-01 (2d Cir. 2014); Toledo v. Sanchez, 454 F.3d
24, 32 (1st Cir. 2006); Bennett-Nelson v. La. Bd. of
Regents, 431 F.3d 448, 454-55 (5th Cir. 2005);
Constantine v. Rectors & Visitors of George Mason
Univ., 411 F.3d 474, 488 (4th Cir. 2005).
Under the
ADA, a public entity must be “proactive.”
Clemons v.
(continued...)
35

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 36 of 116

multiple common issues suitable for class certification
“with respect to the alleged failure of the methods of
administration used by the defendants,” including their
“failure to evaluate the proposed class for readiness
for community placement.”

Id. at 287; see also id. at

289 (explaining that the “gravamen” of the plaintiffs’
claims was not a demand to be placed in community-based
alternatives but rather a demand that the defendants
“cease

using

methods

of

administration

that

subject

individuals with disabilities to discrimination”).

See

also Kathleen S. v. Dep’t of Pub. Welfare of Pa., 10 F.
Supp.

2d

460,

471

(E.D.

Pa.

1998)

(Broderick,

J.)

(finding that the defendant had “utilized methods of
administration at Haverford State Hospital which have
resulted in discrimination against class members ....
through its failure to initiate plans sufficiently in
advance

to

community

ensure
within

the
a

necessary

reasonable

placements
time

after

in

the

it

was

Dart, 2016 WL 890697, at *6 (N.D. Ill. Mar. 9, 2016)
(Tharp, J.).
36

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 37 of 116

determined

that

a

member

of

[the

class]

had

become

appropriate for community placement”).

c.
The

Common Questions

methods-of-administration

regulation

neatly

encapsulates the common questions plaintiffs presented,
which were whether the Department has employed methods
of

administration

discriminating

that
against

disabilities--namely,
inadequate

have

system

the

prisoners

(1) employing
for

effect

no

with

system

identifying

of

and

or

an

tracking

prisoners with disabilities, (2) employing no system or
an

inadequate

accommodations

system
and

for
submit

prisoners

to

grievances

request
regarding

non-accommodation, (3) failing to appoint or train ADA
coordinators

or

other

administrators

responsible

for

oversight of compliance with the ADA, (4) failing to
train

staff

(5) failing

regarding
to

the

promulgate

requirements
policies

of

and

the

ADA,

procedures

regarding the treatment of prisoners with disabilities,

37

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 38 of 116

and (6) failing to draft a plan for identifying and
addressing

areas

of

requirements of the ADA.

non-compliance

with

the

These are questions common to

the class, susceptible of common answers apt to drive
the resolution of the case.
Plaintiffs not only alleged in their complaint that
the lack of these policies and practices resulted in
discrimination; they presented expert evidence to show
as

much

in

support

of

their

motion

for

class

certification.

While the court would of course have

had

this

to

weigh

evidence

against

any

contrary

evidence presented by defendants had Phase 1 of this
case

proceeded

to

a

merits

adjudication,

plaintiffs

“affirmatively demonstrate[d] [their] compliance with
[] Rule” 23(a)(2).

Wal-Mart, 564 U.S. at 350.

The commonality requirement is satisfied.

3.

Typicality

Although the commonality and typicality inquiries
“tend to merge,” the typicality requirement--which is

38

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 39 of 116

“somewhat

of

a

low

hurdle”--focuses

the

court’s

attention on “whether a sufficient nexus exists between
the claims of the named representatives and those of
the class at large.”

Gen. Tel. Co. of Sw. v. Falcon,

457 U.S. 147, 157 n.13 (1982); Taylor v. Flagstar Bank,
FSB, 181 F.R.D. 509, 517 (M.D. Ala. 1998) (Albritton,
J.); Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1322
(11th

Cir.

2008)

(citation

omitted).

A

class

representative’s claims are typical if they “arise from
the same event or pattern or practice and are based on
the same legal theory” as the class claims; they need
not be identical.

Williams v. Mohawk Indus., Inc., 568

F.3d 1350, 1357 (11th Cir. 2009) (citation omitted);
see In re Healthsouth Corp. Sec. Litig., 257 F.R.D.
260, 275 (N.D. Ala. 2009) (Bowdre, J.).
This

court

requirement

has

previously

satisfied

in

found

another

the

case

typicality
brought

by

disabled prisoners, given that “the named plaintiffs’
legal

claim--that

disability

the

discretion

in

defendants
violation

39

are
of

engaged
the

ADA

in
and

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 40 of 116

Rehabilitation Act--is identical to the class’s claim.”
Henderson, 289 F.R.D. at 511.

Here, too, the named

plaintiffs brought the same claims as the class: that
the Department employed methods of administration which
resulted

in

rampant

discrimination

against

prisoners

with disabilities.
It is true that the named plaintiffs (and the class
members more generally) have diverse disabilities and
require

various

disabilities.

different
Their

accommodations

claims

accommodation-specific,

were

not

though;

for

those

disability

they

or

challenged

systemic practices with which they all interact and
from which they all allegedly suffer.
extent

that

the

named

plaintiffs

Moreover, to the
have

sought

and

obtained relief that pertains specifically to prisoners
with certain categories of disabilities, such as those
related to communication, mobility, or cognition, the
court

is

satisfied

that

the

named

plaintiffs,

as

a

group, adequately cover the spectrum of disabilities,

40

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 41 of 116

such that the particular interests of all class members
are represented.

4.

Adequacy

Rule 23(a)(4) requires the court to find that the
“representative

parties

will

fairly

and

protect the interests of the class.”
“encompasses
substantial

two

separate

conflicts

representatives

and

of

the

inquiries:
interest

class; 13

This analysis
(1) whether

exist

and

adequately

any

between

the

(2) whether

the

representatives will adequately prosecute the action.”
Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181,
1189 (11th Cir. 2003) (citation omitted).
“Adequate representation is usually presumed in the
absence of contrary evidence,” and generally exists for
injunctive-relief classes, because there is no monetary

13. For a conflict to defeat class certification,
it must be “fundamental,” such that “some party members
claim to have been harmed by the same conduct that
benefitted other members of the class.”
Valley Drug
Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th
Cir. 2003).
41

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 42 of 116

pie to be sliced up.

Access Now, Inc. v. Ambulatory

Surgery Ctr. Grp., Ltd., 197 F.R.D. 522, 528 (S.D. Fla.
2000) (Seitz, J.).
harmed

when

accommodated

No member of the class will be

another
pursuant

prisoner’s
to

the

sought and together obtained.
the

reforms

the

consent

disability

relief

they

have

is
all

To the contrary: many of

decree

requires

facially

benefit all disabled prisoners equally; for example,
establishing an ADA request and grievance process will
allow all class members, regardless of their individual
circumstances, to seek out and obtain accommodations.
See Ass’n for Disabled Ams., Inc., 211 F.R.D. at 464
(certifying a settlement class of persons with diverse
disabilities and finding that the consent decree to be
issued would “provide substantially equal benefits and
relief to all members of the class through increased
accessibility and the coordinated removal of physical
and communication barriers”).
Moreover, many of the particular accommodations to
be provided to individual class members will in fact

42

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 43 of 116

have significant benefits for other prisoners.
inmate

handbook

is

translated

into

Braille

Once an
for

one

prisoner’s use, for example, another blind prisoner who
enters the system will more readily be provided with
the same accommodation.

Once a grab bar is installed

in a shower in a particular dormitory to accommodate a
prisoner who has difficulty standing, another prisoner
with a similar disability can use it.
Turning now to the second aspect of Rule 23(a)(4):
“The vigor with which [] named representative[s] and
[their]

counsel

will

pursue

the

class

claims

is

assessed by considering the competency of counsel and
the

rationale

Id.

(citing

(11th

Cir.

for

not

Griffin

pursuing

v.

1985)).

Carlin,

The

further
755

competency

litigation.”

F.2d

1516,

of

counsel

1533
for

plaintiffs in this case is reflected plainly in their
extensive involvement in a large number of successful
class actions vindicating the constitutional or federal
statutory
individuals

rights
with

of

classes

disabilities

43

in

of

prisoners

Alabama,

and

throughout

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 44 of 116

the South, and across the country.

See Mem. of Law in

Supp. of Pls.’ Mot. for Class Cert. (doc. no. 433-2) at
46-48 (listing cases).
Their rationale for not pursuing further litigation
is equally plain--after extensive negotiation and while
actively preparing to try Phase 1 of this case, they
reached a settlement highly favorable to all members of
the class.
delay

class

“[C]ontinued litigation would only serve to
relief

....”

Ass’n

for

Disabled

Ams.,

Inc., 211 F.R.D. at 464.
Admittedly, the court is troubled by plaintiffs’
counsel’s earlier acquiescence to an initial settlement
agreement that included a seriously inadequate level of
specificity.

On

balance,

however,

the

court

is

impressed that once set to the task of negotiating a
detailed ‘plan,’ they proceeded to engage in weeks of
involved

mediation,

in

which

they

apparently

fought

hard and obtained very good results for their clients.
The fact that these efforts at first fell through, and
only resulted in a settlement shortly before trial, is

44

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 45 of 116

one

indication

counsel.

of

the

steadfastness

of

plaintiffs’

Additionally, the bifurcation of this case

into phases places the court at a uniquely privileged
vantage point in assessing whether plaintiffs’ counsel
are overeager to settle.
negotiate

a

settlement

case--concerning
healthcare--in

The parties have attempted to
to

medical,

numerous

Phase
dental,

mediation

2
and

sessions

of

this
mental

with

the

same magistrate judge who helped them to resolve Phase
1.

Despite seeking a three-week extension of pretrial

deadlines in the hope that they would be able to reach
agreement, they have informed the court that Phase 2
will go to trial.

Although the court cannot know the

reasons for this decision, it certainly suggests that
plaintiffs’ counsel are not pushovers.
Rule 23(a)(4) is satisfied.

iii.

Rule 23(b)(2)

A class satisfies Rule 23(b)(2) in cases in which
“the party opposing the class has acted or refused to

45

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 46 of 116

act

on

grounds

generally

applicable

to

the

class,

thereby making appropriate final injunctive relief or
corresponding declaratory relief with respect to the
class as a whole.”
23(b)(2)
civil

has

rights,

been

Fed. R. Civ. P. 23(b)(2).
liberally

including

applied

suits

in

the

challenging

“Rule

area

of

conditions

and practices at various detention facilities, as well
as claims for violations of the ADA and Rehabilitation
Act.”

Bumgarner

v.

NCDOC,

276

F.R.D.

452,

457-58

(E.D.N.C. 2011) (Boyle, J.); see also Wright & Miller,
7AA Fed. Prac. & Proc. Civ. § 1776 (3d ed.) (discussing
the range of civil-rights actions certified pursuant to
Rule 23(b)(2), and explaining that “the class suit is a
uniquely appropriate procedure in civil-rights cases,
which generally involve an allegation of discrimination
against a group as well as the violation of rights of
particular

individuals”).

Indeed,

some

courts

have

gone so far as to say that the rule’s requirements are
“almost

automatically

satisfied

46

in

actions

primarily

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 47 of 116

seeking injunctive relief.”

Baby Neal ex rel. Kanter

v. Casey, 43 F.3d 48, 59 (3d Cir. 1994).
As plaintiffs have repeatedly explained (and indeed
offered some evidence to demonstrate) throughout the
litigation of this case, the problems of which they
complain and the remedies they seek are systemic.

The

existence or lack of a general, state-wide Department
policy

or

procedure

regarding

the

identification,

tracking, or accommodation of disabilities necessarily
affects all disabled prisoners. 14

14. As discussed above in the commonality context,
the fact that some class members may already have
received reasonable accommodations and therefore might
not have been injured by the challenged policies and
procedures does not defeat certification. See Anderson
v. Garner, 22 F. Supp. 2d 1379, 1386 (N.D. Ga. 1997)
(Murphy, J.) (“‘[A]ll the class members need not be
aggrieved by or desire to challenge the defendant’s
conduct in order for one or more of them to seek relief
under Rule 23(b)(2).’
Johnson v. American Credit Co.
of Georgia, 581 F.2d 526, 532 (5th Cir. 1978); Georgia
State Conference of Branches of NAACP v. State, 99
F.R.D. 16, 35 (S.D. Ga. 1983).
‘What is necessary is
that the challenged conduct or lack of conduct be
premised on a ground that is applicable to the entire
class.’ Georgia NAACP, 99 F.R.D. at 35-36.”).
47

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 48 of 116

Class certification pursuant to Rule 23(b)(2) is
appropriate.

B.
When

Settlement Approval: Rule 23(e)

parties

participated

to

a

actively

non-class

in

action--who

litigating

and

have

then

in

resolving their case--reach a private settlement, the
court

need

not

appropriateness
settlement

and
of

does

it

agreement

not

terms.

in

a

enquire
Before

class

action,

into

the

approving

a

though,

“a

court has a heavy, independent duty to ensure that the
settlement is ‘fair, adequate, and reasonable.’”

Laube

v. Campbell, 333 F. Supp. 2d 1234, 1238 (M.D. Ala.
2004) (Thompson, J.) (quoting Fed. R. Civ. P. 23(e)(2),
additional citation omitted).
is

“essential

to

ensure

This careful inspection

adequate

representation

of

class members who have not participated in shaping the
settlement.”
note.

Fed. R. Civ. P. 23(e) advisory committee

In the course of this review, the court must

determine whether notice to the class was adequate, and

48

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 49 of 116

must consider the comments made and objections raised
by class members, as well as the opinions of class
counsel.

Laube, 333 F. Supp. 2d at 1238.

i.

Notice to Class Members

“The court must ensure that all class members are
informed of the agreement[] and have the opportunity to
voice their objections.”

Laube, 333 F. Supp. 2d at

1240; Fed. R. Civ. P. 23(e)(1).
The

court’s

order

preliminarily

approving

the

settlement agreement contained specific procedures for
the Department of Corrections to give notice of the
settlement

to

the

members

of

the

provisionally

certified class, as well as approved notice and comment
forms.

Substantively,

the

three-page

notice

form

included a description of the case, a definition of the
class,

a

list

of

the

provisions

of

the

settlement

agreement, an indication of its preclusive effects, and
notice

of

the

Additionally,

agreement
the

concerning

notice

49

included

attorney’s
directions

fees.
for

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 50 of 116

obtaining a copy of the settlement agreement, contact
information for class counsel along with an invitation
for

prisoners

to

inquire

about

the

settlement,

an

announcement of the fairness hearing, and instructions
for prisoners to exercise their right to comment about
or object to the settlement.

The comment form allowed

a respondent to select the general topic(s) at issue
from

a

list,

and

to

indicate

whether

the

commenter

wished to testify at a fairness hearing.
The notice form was posted in each dormitory and
library within the prison system, and copies of the
comment form were made available in the libraries and
shift commanders’ offices.

Copies of the settlement

agreement were made available for viewing in the law
library or another location within each facility and
were provided upon request to any prisoners lacking
access to that location.

Prisoners who were not housed

in dormitories were hand-delivered a copy of the notice
and

comment

forms

and

an

50

envelope.

Weekly

oral

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 51 of 116

announcements

also

notified

all

prisoners

of

the

settlement and the opportunity to comment or object.
The notice and comment forms
settlement
Spanish,

agreement

Braille,

were

and

also

large

and copies
made

print.

of the

available
Upon

in

request,

prisoners were to receive assistance in reading the
documents and in writing comments.
Secured

and

clearly

labeled

comment

boxes

were

placed in each facility for prisoners to submit forms,
and

defendants’

staff

were

designated

comment forms from prisoners lacking
move about their facilities.
forms

were

transmitted

to

to

collect

the freedom to

The comment boxes and
the

Department’s

general

counsel, and a representative of the clerk of court met
with the parties to open the comment boxes.

Prisoners

were also given the option to submit comments by mail
directly to the clerk of court.
Notice of the settlement agreement was posted by
June 24, 2016, and prisoners were given until July 25,
2016, to submit comments.

(Comments received by mail

51

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 52 of 116

after this date were also docketed.)

More than 550

prisoners submitted comments.
One matter concerning the submission of comments
warrants

additional

correspondence
Correctional

from

discussion.
two

Facility,

prisoners
which

it

The

court

housed

received

at

construed

Holman

both

as

objections to the settlement agreement and as motions
for extensions of the time for submission of comments.
Both submissions, which were phrased similarly to
each other, stated that prisoners at Holman had been
unable

to

review

the

settlement

agreement

at

all

because the facility--including the law library where
the settlement documents were to be made available--had
been in lockdown throughout the duration of the comment
period.

These prisoners further stated that no comment

box had been placed at Holman. 15

15. Notably, these submissions were postmarked well
after the comment period had closed; at that time,
there should no longer have been a comment box in the
facility.
52

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 53 of 116

The court promptly brought these submissions to the
attention of the parties, explaining that it took the
allegations very seriously.
members

in

this

freedom

of

movement

custodians

but

case

disabilities,

the

ensuring

they

that

are

is

also

Because the putative class
incarcerated,

limited
in

court

not

many

their

by

their

only

cases

is

acutely

received

adequate

meaningful opportunity to be heard.

and

by

their

sensitive
notice

and

to
a

Hence, the court

instructed the parties to investigate these allegations
and report back.
Having

now

looked

into

the

matter,

the

parties

contend that prisoners at Holman were in fact given
adequate

notice

of

the

settlement

opportunity to respond to it.

agreement

and

First, the parties point

to the fact that nine prisoners at Holman did timely
submit comments, three by direct mail to the court and
six

by

way

consistent

of

with

a
the

comment

box

established

placed
notice

at

Holman,

procedure.

Second, the parties present evidence in the form of a

53

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 54 of 116

sworn

affidavit

by

the

Warden

of

Holman,

which

indicates that he followed the notice procedures, that
Holman was on lockdown on June 27-28, July 1-5, July
11-12, and July 16-17, but not otherwise on lockdown
during

the

lockdown

comment

periods

nonetheless

period,
notice

available

and

and

to

that
comment

prisoners

during

these

forms

were

throughout

the

facility.
Although it is unfortunate that prisoners at Holman
were unable to review the settlement agreement in the
law library for some portions of the comment period,
the evidence submitted by the parties suggests--and the
comments the court received from prisoners at Holman
corroborates--that prisoners housed there were able to
do

so

for

allotted.
class

more

than

half

of

the

one-month

period

Therefore, the court finds that putative

members

at

Holman

were

afforded

an

adequate

opportunity to review and respond to the settlement
agreement,

and

that

they

additional time to do so.

54

need

not

be

afforded

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 55 of 116

ii.

Objections and Comments

Based on the suggestions of counsel and the court’s
own review of the comments submitted, 45 prisoners and
two

individuals

Department’s
lawsuit
hearings

who

had

custody

were

been

during

selected

conducted

to

released

the

the

of

this

pendency

testify

over

from

the

during

fairness

course

of

two

days--partially in person at the federal courthouse,
and

partially

by

videoconference

(due

to

the

impracticality of visiting a large number of prisons).
Of those selected, 37 elected to testify.
were

selected

based

on

various

Prisoners

considerations,

including the substance of their comments; those who
submitted

comments

not

germane

to

the

case

settlement were excluded from consideration.

or

the

Efforts

were made to ensure a fairly representative sample in
terms of the range of disabilities class members have
and the facilities in which they are housed.
parties

and

the

court

have

55

reviewed

the

Both the
written

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 56 of 116

comments of those who were not selected to testify, as
well as those who declined to do so.
Those
hearings

prisoners
and

those

who
who

testified
submitted

at

the

comments

fairness
raised

a

range of issues, many of which were relevant but some
of which were not.

For example, some prisoners wrote

about other legal claims they wished to bring or on
prison conditions unrelated to discrimination against
prisoners with disabilities.
Other comments were relevant to this litigation,
but were more squarely related to claims at issue in
Phase 2, rather than Phase 1.

For example, several

prisoners commented that their requests for medically
necessary treatment, including mental-health treatment,
had been denied by the Department.
Of
majority

the

directly

expressed

pertinent

comments,

discontentment

with

the

vast

existing

conditions or procedures, rather than any objection to
the adequacy or fairness of the agreement or to any
specific

provision

of

it.

56

Indeed,

many

expressed

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 57 of 116

support for the agreement.

Generally,

the comments

submitted fell into five loosely defined categories:
identification,

accommodations,

architecture,

grievances, and money damages and attorney fees.
Identification: Thirty-one prisoners flagged their
comments

as

procedures.

related
Some

to

disability-identification

commented

that

they

had

not

been

formally identified as disabled despite the fact that
their

medical

records

indicated

they

were.

Some

suggested allowing disabled prisoners to self-identify.
Others

commented

disabilities
between

did

that
not

facilities.

identification

follow

them

during

Further, some alleged

of

their

transfers
that the

Department’s failure to identify their disabilities had
resulted in them being required to hold jobs they were
not capable of
suggested

that

performing.
those

with

Finally, some prisoners
disabilities

be

housed

separately from others, in part due to security-related
concerns.

57

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 58 of 116

The

settlement

require,

the

agreement

Department

to

allows,

but

accept

an

prisoner’s self-report of a disability.
Department

does

not

accept

such

does

not

individual
Assuming the

self-reports,

the

agreement requires it to conduct screening procedures
within specified time periods, using specified tests,
and

requires

periodically.

it

to

review

disability

determinations

As to tracking, the agreement mandates a

new Department-wide computer system.

It also requires

the Department’s personnel at receiving facilities to
review a prisoner’s disability status and corresponding
health codes in the event of a transfer.

Furthermore,

the agreement’s identification provisions are designed
to address the concerns of those prisoners required to
do work they are not able to perform; once identified,
a disabled prisoner would be given a work assignment
(if any) consistent with the prisoner’s limitations.
Finally,
housed
agrees

as

to

requests

separately
with

the

from

that
other

parties

58

disabled

prisoners

prisoners,

that

imposing

the

be

court

such

a

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 59 of 116

requirement

would

be

integration

mandate.

inconsistent
See

42

with

U.S.C.

the

ADA’s

§ 12101(a)(2);

Olmstead v. L.C., 527 U.S. 581 (1999).
Accommodations:

One

hundred

and

four

prisoners

indicated that their comments pertained to disability
accommodations.
stated

that

Some prisoners with vision impairments

materials

provided

to

them,

such

as

official notices or books, should be made available in
alternate formats such as large print or audio.

At the

fairness hearing, for example, one woman with a vision
impairment testified that her requests for books on
tape

had

been

denied

repeatedly.

The

agreement addresses these concerns.

settlement

It provides that

educational materials, notices, court orders, and other
generally

available

documents

must

be

provided

in

alternate formats; it also provides for taped texts.
Several
commented
functional

prisoners
that

they

hearing

with
had

aids;

hearing

been

denied

for

example,

impairments
access

to

prisoners

commented that they had been provided with one hearing

59

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 60 of 116

aid

instead

batteries,

of
or

two,

or

hearing

that

aids

their

hearing

themselves,

aid

were

repaired or replaced in a timely manner.

not

The court

heard from multiple prisoners that they were unable to
use their hearing aids because they were broken and had
not been repaired for extended periods of time.

Others

commented that they had not been provided with sign
language

interpreters.

addresses

these

The

concerns

by

settlement

agreement

mandating

that

the

Department assess each hearing-impaired prisoners with
respect

to

auxiliary

aids

and

services

every

three

months, timely replacement or repair of damaged hearing
aids, and timely replacement of hearing aid batteries.
Other

prisoners

disabilities,
facilities

they

and

commented
are

that,

denied

programming.

due

access
For

to
to

example,

their
certain
at

the

fairness hearing, one witness stated that he had been
denied access to trade school and the honors program
due

to

his

disability.

issues,

the

settlement

To

address

agreement

60

these

provides

sorts
that

of
any

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 61 of 116

individual

who,

qualifies

for

independent

a

certain

of

disability

program,

must

be

status,
provided

access to that program on a non-discriminatory basis,
and requires the Department to undertake a transition
planning process to determine (among other things) how
to

afford

prisoners

access

to

programs

which

are

currently inaccessible.
Facilities:
their

comments

Forty-six
pertained

prisoners
to

indicated

architectural

that

barriers.

The court received such comments pertaining to numerous
(indeed, nearly all) Department facilities.

Prisoners

commented, for example, that the facilities where they
were

housed

lacked

accessible

bathrooms

with

shower

chairs and hand rails, that hallways and dorms lacked
rails,

and

that--due

to

overcrowding--prisoners

with

devices such as canes and wheelchairs were unable to
move

around

safely.

At

the

fairness

hearings,

prisoners testified, for example, that they were unable
to

attend

programs

chapel
being

and
held

certain
in

programs

locations

61

due
that

to
are

those
not

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 62 of 116

accessible

to

individuals

with

mobility

impairments.

Others noted that facilities lacked climate controls,
making them extremely hot in the summer and extremely
cold in the winter.
The settlement agreement addresses these concerns
by requiring the Department to develop and implement a
transition

plan

architectural

for

identifying

barriers.

The

and

addressing

Department

may

address

these issues either through architectural changes or
potentially through the relocation of programs.
comments

concerning

climate

control

were

The
mostly

unrelated to any prisoner’s disability and, therefore,
unrelated to the claims brought and now settled in this
case.

To the extent that a prisoner’s disability does

require access to facilities of a certain temperature-for example, one prisoner

testified at the fairness

hearing that, due to her burn injury, she cannot have
prolonged

heat

exposure--those

concerns

should

be

addressed by way of the new accommodation request and

62

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 63 of 116

grievance

procedure

provided

for

in

the

settlement

agreement.
Grievances:
comments

Fifteen

pertained

to

procedure.

Most

of

Department’s

existing

prisoners
the

these

noted

that

Department’s
comments

(general)

their

grievance

criticized

grievance

the

procedure

rather than the procedure outlined in the agreement.
Prisoners complained, for example, that no grievance
procedure

currently

exists,

or

that

grievance procedure is inadequate.

the

existing

Others expressed

concern about the ADA grievance procedure outlined in
the settlement agreement.
the

Department’s

One commenter suggested that

personnel

be

required

to

sign

a

document indicating receipt of an individual grievance.
Another prisoner who testified at the fairness hearing
suggested

that

Department’s
process.

a

system,

third
be

party,
involved

outside
in

the

of

the

grievance

Relatedly, a few prisoners objected to the

Department’s employees serving as ADA coordinators.

63

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 64 of 116

Because the settlement agreement does establish a
clear and well-elaborated procedure for receiving and
adjudicating
from

the

requests

denial

for

of

accommodations

such

requests,

and

it

appeals

adequately

addresses the objections to the lack of an adequate
process.
signed

The agreement does not require staff to issue
receipts,

but

it

does

require

that

ADA

Coordinators document all grievances, which will help
to ensure accountability.
within

the

settlement

class

requested

accommodation,

assistance

from

arbitration,
The

addresses

this

require

that

employees.
that

employs

to

individual
and

Finally,

coordinators

be

can

a

seek
pursue

counsel’s

thus
ADA

secure

may

plaintiffs’

agreement

concern.

See
---

unable

counsel,

without

settlement

the

is

that

plaintiffs’

even

consent.

If an individual prisoner

adequately
regulations

the

Department’s

28 C.F.R. § 35.107(a) (“A public entity

50

or

more

persons

shall

designate

at

least one employee to coordinate its efforts to comply
with

and

carry

out

its

responsibilities

64

under

this

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 65 of 116

part,

including

any

investigation

of

any

complaint

communicated to it alleging its noncompliance with this
part or alleging any actions that would be prohibited
by this part.”)
Attorney Fees and Money Damages:
objected

to

the

attorneys’

fee

Some prisoners

provision

of

the

settlement agreement, while others objected to the fact
that the agreement only provided for injunctive relief
rather than money damages.

The court will address the

appropriateness of the attorneys’ fees in a subsequent
section of this opinion.
As to money damages, the court understands that
commenters alleging past harms may feel that they are
entitled to damages.

But in determining whether the

settlement in this case is a fair and reasonable one,
the court must look to whether the settlement agreement
is an adequate resolution of the claims presented in
this lawsuit.
this

case

have

Since its inception, the plaintiffs in
only

alleged

claims

for

relief; no money damages were ever at issue.

65

injunctive
Moreover,

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 66 of 116

Eleventh Circuit case law makes clear that an unnamed
class member cannot be precluded from bringing a claim
for

damages

challenged

in

stemming
the

from

class

the

same

action,

if

conditions
the

class

representatives sought only injunctive or declaratory
relief.

See Fortner v. Thomas, 983 F.2d 1024, 1031

(11th Cir. 1993) (collecting cases).

This additional

remedial avenue has therefore not been foreclosed.
Conclusion:

The court has carefully considered the

comments and objections filed by class members, which
highlight the importance of the reforms to be effected
pursuant to the consent decree.

However, none calls

into serious question the fairness or adequacy of the
settlement agreement.

iii.

Objections by Federal Public Defender
and Equal Justice Initiative

Four death-sentenced prisoners, represented by the
Federal

Public

Defender,

filed

an

objection

to

the

section of the settlement agreement, V.5.I.C.2, that
requires defendants to test prisoners for intellectual
66

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 67 of 116

disabilities and that reserves for defendants the right
to administer additional tests.

Their

objection is

that there is a risk that this testing, especially if
repeated,

could

artificially
could

in

inflate

results,

which

turn

potential

intellectual-disability

a

prisoner’s

adversely
defense

impact
to

a

a

death

sentence under Atkins v. Virginia, 536 U.S. 304 (2002).
The

objectors

requested

that

the

reservation

of

defendants’ right to administer additional testing be
struck

from

the

settlement,

that

death-sentenced

prisoners (and their lawyers) be given an opportunity
to

opt

out

allowed

of

to

testing,
provide

documentation

to

and

that

such

defendants

demonstrate

prisoners

with

their

be

alternate
intellectual

disabilities.
The

court

ordered

the

parties

to

solicit

and

present to the court the view of the Equal Justice
Initiative, which represents many of the prisoners on
Alabama’s

death

row.

The

Equal

Justice

Initiative

agrees with the objection and believes that the only

67

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 68 of 116

way

to

protect

the

rights

of

the

roughly

200

death-sentenced prisoners in defendants’ custody is to
exempt them from all testing “until and unless [their]
lawyer[s] request[]” it.
(doc. no. 652-1) at 1.
expressed

its

Letter from Bryan Stevenson
The Federal Defender has since

agreement

with

the

Equal

Justice

Initiative that death-sentenced prisoners should not be
required

to

Defender

and

opt

out

the

of

Equal

testing.
Justice

Both

the

Initiative

Federal

take

the

position that the proposed exemption does not violate
the ADA or the Rehabilitation Act.
In

response

Defender

and

to

Equal

the

objections

Justice

of

the

Federal

Initiative,

the

parties

submitted a joint proposal that the relevant section be
‘carved out’ with respect to the few hundred prisoners
on death row.
not

be

regarding

required
the

intellectual
these

Under this approach, the Department will
to

change

testing

of

disabilities,

practices

are

its

death-row
and

adequate

68

current

the
with

practices

prisoners

question
respect

for

whether
to

those

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 69 of 116

prisoners

will

be

reserved

for

adjudication

or

settlement during Phase 2 of this litigation.
The parties agree that this resolution is in the
best

interest

of

all

class

members,

death-row prisoners affected by it.

including

the

The court finds

that the objections of the Federal Defender and Equal
Justice Initiative present a serious question worthy of
further

consideration

and,

because

the

parties’

proposed solution would allow more time to resolve this
narrow issue without delaying the entry of the consent
decree, it agrees that such a carve-out is appropriate.
Unlike most of the other stipulations the parties
have filed, which offer clarifying interpretations of
provisions of the settlement agreement, the parties’
proposal

with

modification
after

of

careful

additional

respect
the

to

this

settlement

consideration,

notice

of

this

given, for three reasons.

69

issue

amounts

agreement.

the

court

modification

to

a

However,
finds

need

that

not

be

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 70 of 116

First, the parties propose a modification only to a
small subsection of the settlement agreement.

Second,

the number of prisoners affected by the change will be
very

small--less

population.

than

one

percent

of

the

current

Third, and most important, carving out the

provision will not constitute a final resolution of the
issue.

Instead, the matter will simply be reserved for

future resolution.

For these reasons, notice is not

required.

See Harris v. Graddick, 615 F. Supp. 239,

244

Ala.

(M.D.

respect

to

an

1985)

(Thompson,

amendment

to

a

J.)

(holding,

settlement

of

with

a

Rule

23(b)(2) class action, that “where the amendment is
narrow and it is clearly apparent that the interests of
the classes are not substantially impaired, the court
is of the opinion that the notice already given is
adequate and that additional notice is not required
pursuant

to

Rule

Vilsack,

102

F.

23(e)”);

Supp.

3d

see
306,

(Sullivan, J.) (citing cases).

70

also
313-14

Keepseagle
(D.D.C.

v.

2015)

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 71 of 116

iv.

Views of Class Counsel

Class counsel contend that the settlement agreement
is

a

fair,

adequate,

and

reasonable

plaintiffs’ Phase 1 claims.

resolution

of

They argue that, if the

agreement is approved, the Department will be required
to address discrimination against disabled prisoners on
several fronts, including by creating a transition plan
and

the

oversight

mechanisms

described

above,

by

instituting corrective actions to bring facilities into
compliance with the ADA and the Rehabilitation Act, and
by continually reassessing its policies and procedures
to ensure that prisoners are not discriminated against
on the basis of their disabilities.
They also contend that changes to existing policies
and procedures will allow for improved identification
and tracking of disabilities and ensure that prisoners
with disabilities will be afforded, and continue to
receive,

appropriate

incarceration.
will

allow

These

disabled

accommodations
policy

and

prisoners

71

throughout
procedural

increased

their

changes

access

to

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 72 of 116

rehabilitative
Department

programming

system;

those

available
prisoners

within
in

the

residential

treatment and stabilization units will likewise benefit
from

individualized

appropriateness

of

assessments

restricting

as

their

to

access

the

to

such

programming.
Further,

class

counsel

argue

that,

although

the

settlement agreement will not provide (and plaintiffs
never

sought)

direction

as

to

the

particular

accommodations to be provided to individual prisoners,
the

changes

to

the

Department’s

existing

grievance

processes will create a meaningful avenue for prisoners
to

assert

their

rights

to

such

accommodations.

Finally, they argue that the Department’s creation of a
new quality assurance program, the monitoring process,
and

the

continued

jurisdiction

of

the

court

for

a

period of at least five years will help to ensure that
the agreement is implemented appropriately.
The court considered appointing a guardian ad litem
to

advocate

for

the

interests

72

of

the

unnamed

class

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 73 of 116

members who, due to cognitive and communication-related
disabilities, are incapable of understanding the terms
of the settlement agreement or submitting intelligible
comments on them.

The court heard the views of the

parties as to this proposal.

Instead of appointing a

guardian ad litem, it found that ADAP, which has a
federal

mandate

to

advocate

for

and

ensure

the

protection of disabled Alabamians, was best situated to
voice the concerns of these class members.
The court explained that, although “this court did
not

appoint

a

[guardian

ad

litem]

to

represent

incompetent class members in a previous class action
challenge

regarding

the

State's

mental

health

and

mental retardation system[,] [it] then explained ...
that ‘a court should be even more circumspect about
accepting

a

settlement

where

...

members

of

the

plaintiff class are not themselves capable of assessing
the settlement and voicing their views on whether it is
fair,

reasonable

and

adequate,

and

the

court

must

therefore rely on comments from such secondary sources

73

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 74 of 116

as public interest groups and organizations.’”

See

Dunn v. Dunn, -- F. Supp. 3d --, 2016 WL 3869905, at *2
(M.D. Ala. July 7, 2016) (Thompson, J.) (quoting Wyatt
ex rel. Rawlins v. Wallis, 1986 WL 69194, at *3 (M.D.
Ala. Sept. 22, 1986) (Thompson, J.), and citing William
B. Rubenstein, The Fairness Hearing: Adversarial and
Regulatory Approaches, 53 UCLA L. Rev. 1435, 1450-52
(2006)

(discussing

the

related

roles

that

public

interest groups and court-appointed guardians can play
in

monitoring

ADAP

is

the

the

fairness

primary

of

public

class
interest

settlements)).
organization

devoted to disability rights issues in Alabama.
The court also declined to appoint a guardian ad
litem because, practically speaking, such an individual
would be hard-pressed to even identify class members
with cognitive and communication-related disabilities,
given

that

the

lack

of

a

system

to

identify

such

prisoners is one of the problems to be remedied under
the settlement.

By contrast, ADAP is familiar with the

needs of these class members in light of its statutory

74

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 75 of 116

role

as

their

litigation.
file

a

advocate

The

brief

and

its

involvement

court therefore
discussing

in

this

instructed ADAP to

whether

the

settlement

agreement was a fair resolution of the claims of class
members with severe cognitive and communication-related
disabilities.
In its brief, ADAP explains that the settlement
agreement is a fair resolution of these claims because
it provides benefits to all disabled prisoners as well
as particular benefits to the subset with cognitive and
communication-related

disabilities.

The

settlement

agreement’s provisions relating to identification and
tracking of disabled prisoners, access to programs and
services, and the ADA request and grievance process,
inure to the benefit of all disabled prisoners.
Additionally,

the

settlement

agreement

includes

detailed specifications for testing to assess prisoners
for
allow

cognitive

disabilities;

defendants

prisoners

who

to

provide

require

them.

75

these

evaluations

accommodations
Prisoners

to

with

will
those
severe

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 76 of 116

communication-related
from

the

program

disabilities

provisions

access,

note-takers,

which

readers,

regarding

much

auxiliary

require
and

have

defendants

tutors,

other

to

gain

aids

and

to

supply

aides,

and

communication devices.

v.

Court’s Assessment

The court must also assess for itself, based on the
evidence and argument presented by the parties and by
class members who submitted comments and objections,
whether

the

reasonable.

settlement

is

fair,

adequate,

and

“Relevant factors include the stage in the

proceedings; the plaintiffs’ likelihood of success at
trial; the complexity, expense, and likely duration of
the

lawsuit;

and

the

range

of

possible

recovery.”

Laube, 333 F. Supp. 2d at 1246.
As to the substantive provisions of the agreement,
the court finds that they represent a highly favorable
result for the plaintiff class.

The plaintiffs in this

case challenged the Department’s treatment of disabled

76

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 77 of 116

prisoners at a systemic level.
Department’s

policies

and

They argued that the

procedures

were

grossly

inadequate to ensure compliance with the ADA and the
Rehabilitation
inadequate

Act,

and

policies

that

and

because

of

procedures,

these

disability

discrimination was prevalent.
The
class

settlement

all

of

the

agreement
remedies

outset of this litigation.

essentially

plaintiffs

gives

sought

at

the
the

Notably, even if plaintiffs

had proceeded to and prevailed at trial on their Phase
1 claims, the parties would have still been confronted
with the task of fashioning a remedial plan.

Any such

plan would likely have closely resembled that contained
in the settlement agreement currently before the court.
Notably, because there are a variety of ways in which
the

Department

(for

example,

may

accommodate

either

by

moving

certain
a

disabilities

prisoner

or

by

renovating the facility where he is housed), the court
would as an initial matter have permitted defendants to
select

the

manner

in

which

77

they

would

come

into

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 78 of 116

compliance with federal law.
systemic

changes

are

Moreover, because such

involved

(for

example,

the

creation and implementation of a new computer system,
and assessment and training of tens of thousands of
people),

it

would

significantly

not

more

have
rapid

been

feasible

compliance

contemplated in the settlement agreement.

to

order

than

is

If anything,

settlement means that change will come more quickly.
During

and

shortly

approval

hearing,

concerns

regarding

settlement

the

court

two

agreement:

following
did

express

particular
a

the

provision

preliminary
significant

provisions
stating

of

the

that

the

claims being settled had been raised only against the
Department,

and

not

against

the

official-capacity

defendants, and a provision outlining a mechanism for
arbitration
implementation

of

disputes

period.

arising

However,

after

during

the

considerable

discussion, the parties have resolved these issues to
the satisfaction of the court by entering into binding
stipulations regarding these provisions.

78

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1.

Official-Capacity Defendants

The settlement agreement states that the plaintiffs
brought no ADA or Rehabilitation Act claims against the
two official-capacity defendants (who are defendants to
plaintiffs’ Eighth Amendment claims in Phase 2 of this
litigation), and that the Department is therefore the
only defendant involved in the settlement of Phase 1.
The court expressed concern that the exclusion of
the

official-capacity

settlement

could

defendants

potentially

from

create

a

the

Phase

problem

1

were

plaintiffs later to return to court in an effort to
enforce

the

Alabama’s

terms

of

Eleventh

or

extend

Amendment

the

consent

immunity

decree.

has

been

abrogated by the express terms of the Rehabilitation
Act.

See Garrett v. Univ. of Ala. at Birmingham Bd. of

Trs., 344 F.3d 1288, 1290-93 (11th Cir. 2003).

The

ADA, by contrast, abrogated sovereign immunity only to
the

extent

that

the

claims

brought

under

it

allege

actions that constitute violations of the Fourteenth

79

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 80 of 116

Amendment.

See United States v. Georgia, 546 U.S. 151,

159 (2006).
Absent
defendant

the
subject

inclusion
to

of

suit

an

official-capacity

under

Ex

parte

Young,

plaintiffs would be unable to challenge any

ongoing

violations of the ADA (but not the Rehabilitation Act)
that did not constitute violations of the Fourteenth
Amendment.

Although

these

are

often

described

as

largely overlapping statutes, see Cash v. Smith, 231
F.3d

1301,

1305

(11th

Cir.

2000),

there

are

some

disability-rights claims that can be brought only or
are easier to bring under the ADA, because the ADA’s
causation

requirement

is

more

relaxed--that

is,

“because of,” rather than “solely by reasons of.”

See

Soledad v. U.S. Dep’t of Treasury, 304 F.3d 500, 504-05
(5th Cir. 2002).
The State was unable simply to waive its immunity
for purposes of this suit, because a provision of the
Alabama Constitution has been interpreted to bar waiver
“by

the

Legislature

or

any

80

other

State

authority.”

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 81 of 116

Stroud v. McIntosh, 722 F.3d 1294, 1299 n.2 (11th Cir.
2013) (citation omitted); see also Alabama v. Pugh, 438
U.S. 781, 782 (1978) (same).
have

stipulated

that

Therefore, the parties

“without

the

necessity

of

a

separate amendment to the Complaint, Commissioner Dunn,
in his official capacity as Commissioner of the Alabama
Department of Corrections, be added (a) as a defendant
to

the

claims

addressed

in

the

proposed

Phase

1

settlement agreement and (b) as a named party to that
agreement.”

Joint Br. Addressing Ct.’s Question Re.

Addition of Official-Capacity Defs. to Phase 1 Claims
and

Settl.

resolves

(doc.

the

no.

576)

court’s

at

1.

concern;

This
both

stipulation
the

Alabama

Department of Corrections and Commission Jefferson Dunn
are defendants to the Phase 1 claims.

2.
The

settlement

Arbitration
agreement

provides

for

the

arbitration of disputes arising during the pendency of
the consent decree.

Because the court requested and

81

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the

parties

provided

a

number

of

clarifications

regarding the scope and effect of this provision, it is
reproduced here in full for ease of discussion:
“VII.

DISPUTE RESOLUTION PROCESS

1. During the assessment, implementation,
or monitoring periods of this Amended Agreement
(see Sections V-VI, above), if Plaintiffs’
counsel or the monitor believe that ADOC is not
complying with some aspect of the Amended
Agreement, they will notify counsel for the
ADOC, in writing, of such a belief identifying
any facts supporting the belief. ADOC will
investigate the allegations and respond in
writing through its counsel within thirty (30)
days after receipt of the notification.
If
Plaintiffs’ counsel or the monitor is not
satisfied with ADOC’s response, the Parties
will negotiate in good faith to resolve the
issue(s). If the Parties are unable to resolve
the issue(s) timely and satisfactorily, the
Parties agree to present the issue(s) for
binding arbitration before Hon. John E. Ott,
U.S. Magistrate Judge for the Northern District
of Alabama.15 This provision regarding binding
arbitration applies regardless of whether the
issue affects twelve (12) or more inmates, as
discussed below.
15. If, at any time during the
term this Amended Agreement is in
effect, Judge Ott or any successor
arbitrator
becomes
unavailable
to
arbitrate disputes, the Parties will
agree upon a replacement arbitrator.
If the Parties are unable to agree
upon a replacement arbitrator, they
82

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will petition the Court to appoint a
replacement arbitrator who will be a
current or former U.S. Magistrate
Judge from one of the U.S. District
Courts sitting in Northern, Middle or
Southern Districts of Alabama.
2. If the issue is one that impacts fewer
than twelve (12) inmates, resolution through
the arbitration process shall be the final
resolution
under
this
Amended
Agreement.
Nothing in this Amended Agreement establishes a
compulsory administrative prerequisite with
which an Inmate must comply prior to the
initiation of a lawsuit alleging violations of
the Acts suffered during the Inmate's term of
incarceration. Nothing in this agreement shall
prevent an Inmate from exercising his/her
rights under ADOC’s ADA Grievance Process.
3. If the issue is one that impacts
twelve (12) or more Inmates and the Parties are
unable to resolve the issue(s) timely and
satisfactorily
through
negotiation
or
the
arbitration process, either party may bring the
issue before the Court for resolution.
Any
issue brought before [t]he Court will be
decided on an abuse of discretion standard.
4. Issues relating to ADOC system-wide or
facility
specific
policies,
or
physical
barriers within a specific facility, shall be
presumed to impact twelve (12) or more inmates.
The Arbitrator shall have the authority to
decide whether an issue impacts twelve (12) or
more inmates.
5. In the event that the arbitrator or
Court, acting as final decision-maker, finds
that ADOC has failed to comply with this
83

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Amended Agreement, ADOC will submit a plan to
remedy
the
deficiencies
identified
within
thirty (30) days of the decision. In the event
that such a plan does not timely remedy the
deficiencies, the Court retains the authority
to enforce this Amended Agreement through all
remedies provided by law. Any attorneys’ fees
awarded are subject to the provisions of
Section XII of this Amended Agreement.
6. The Court will be the sole forum for
enforcement of this Amended Agreement.
Any
order to achieve Substantial Compliance with
the provisions of this Amended Agreement will
be subject to the provisions of the Prison
Litigation Reform Act, 18 U.S.C. § 3626.”
Am. and Restated Settl. Agmt. (doc. no. 518) at 70-72.
In its order preliminarily approving the settlement
and in subsequent briefing orders, the court expressed
concerns and sought clarification regarding the extent
to

which

arbitration

would

be

binding

(or,

put

differently, not subject to judicial review), mandatory
(or, put differently, the exclusive avenue for relief),
and enforceable.
In a number of subsequent stipulations, the parties
have addressed the court’s questions and significantly
assuaged its concerns.

84

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a.

When Is Arbitration Binding?

As a preliminary matter, the parties have addressed
the court’s concern that the language in this provision
is somewhat inconsistent, in describing the arbitration
in subsection 1 as “binding” but then explaining that
the arbitrator’s decisions will be appealable if the
issues

decided

affect

12

or

more

prisoners.

The

parties have entered a binding stipulation confirming
that the word “binding” should be omitted from this
subsection and that “the decision of the arbitrator is
binding (that is, not subject to appeal) only if the
issue

affects

fewer

than

twelve

(12)

inmates.”

Parties’ Joint Stip. (doc. no. 638) at 1.
Additionally, the court anticipated the possibility
that a dispute could arise over whether the arbitrator
had correctly decided that an issue affected fewer than
12 prisoners.

The court therefore sought clarification

as to whether the parties intended their agreement--in
stating that the arbitrator “shall have the authority

85

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 86 of 116

to decide whether an issue impacts twelve (12) or more
inmates”--to vest him with the exclusive (unreviewable)
authority to decide this issue.

In response to this

concern, the parties have entered a binding stipulation
in which they “agree that the arbitrator’s decision as
to whether a particular issue affects more than 12 16
inmates will be subject to review by the District Court
for abuse of discretion.”
Lastly,

the

court

Id.

sought

clarification

regarding

the relationship between the arbitration process and
motions the parties might file to terminate or extend
the consent decree.

The parties confirmed in a binding

stipulation that such motions may be heard and decided
only

by

the

court.

Phase

1

Parties’

Joint

Stip.

Concern. Provs. of PLRA as Relates to Phase 1 Settl.
(doc. no. 560) at 3.

16. The court understands the parties to mean “12
or more,” rather than “more than 12.” According to the
arbitration provision, decisions affecting exactly 12
prisoners are appealable.
86

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The parties further explained that although many of
the arbitrator’s factual findings would be binding on
this court in considering such a motion, some factual
findings,

and

the

would not be. 17

arbitrator’s

conclusions

Specifically, they stated

of

law,

that the

arbitrator’s decisions would be binding on a motion to
terminate

or

asserted

the

estoppel.
Order

extend

only

if

affirmative

defendants
defense

successfully

of

collateral

See Joint Resp. to Ct.’s Second Suppl. Br.

(doc.

no.

563)

at

explained--correctly--that

to

7

&

the

n.5.

extent

They
an

issue

raised in a motion to terminate or extend was identical
to

one

actually

opportunity

to

do

litigated
so)

in

(with
front

a

of,

full
and

and

fair

necessarily

decided by, the arbitrator, his decision would preclude

17. This discussion pertains only to factual
findings made by the arbitrator which relate to fewer
than 12 prisoners.
Because the arbitration provision
sets no deadline by which decisions affecting 12 or
more prisoners must be appealed, any factual findings
pertaining to 12 or more prisoners could simply be
appealed in conjunction with a motion to terminate or
extend.
87

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relitigation of that issue on a motion to terminate or
extend.
(11th

See Christo v. Padgett, 223 F.3d 1324, 1339
Cir.

2000)

(setting

forth

requirements

for

collateral estoppel); Freecharm Ltd. v. Atlas Wealth
Holdings Corp., 499 F. App’x 941, 943-45 (11th Cir.
2012)

(holding

that

collateral

estoppel

barred

relitigation of an issue decided in arbitration).
Moreover, the parties agreed that the arbitrator’s
conclusions
doctrine

of

of

law

would

collateral

not

be

binding

under

estoppel,

because

the

the

legal

question whether defendants had violated the consent
decree with respect to any individual unnamed

class

member

named

would

not

have

been

litigated

by

the

plaintiffs and, perhaps more important, would be very
much distinct from the legal issues before the court on
a motion to terminate or extend: whether defendants
were

in

substantial

compliance

88

with

the

decree

and

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 89 of 116

whether they were committing ongoing violations of the
ADA. 18
Helpfully,
example
asserts

of

the

an

in

accommodation

parties

unnamed

an

offer

class

arbitration

request

for

member,
that

a

an

cane

illustrative

Mr.

he

Jones,

who

submitted

an

received

no

but

response, in violation of the consent decree.

Suppose,

they say, that the arbitrator decides that defendants
have not violated the decree because Mr. Jones did not
in fact submit the accommodation request.

Suppose as

well that plaintiffs later seek to avoid termination of
the decree based (in part or in whole) on a showing

18. In the fifth year, the question (per the terms
of
the
settlement
agreement)
would
be
whether
defendants had been in substantial compliance with the
terms of the decree for at least one year.
Were plaintiffs to seek to extend jurisdiction into
a sixth year and beyond, the court would need to
determine--pursuant to the PLRA--whether “prospective
relief remain[ed] necessary to correct a current and
ongoing violation of [a] Federal right, extend[ed] no
further than necessary to correct the violation of the
Federal right, and [was] narrowly drawn and the least
intrusive means to correct the violation.”
18 U.S.C.
§ 36526(b)(3).
89

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that defendants are repeatedly failing to respond to
accommodations requests.
In such a circumstance, the parties agree that the
arbitrator’s factual finding that Mr. Jones did not
submit an accommodation request would be binding on the
court.

However, plaintiffs would not be estopped from

arguing that other class members had submitted requests
but received no responses, or indeed that Mr. Jones had
suffered some other violation of the consent decree or
the ADA (including that the failure to provide him with
a cane was, per se, a violation of either the decree or
the statute).

Moreover, as discussed, the specific

legal issue decided by the arbitrator--that defendants
had not violated the decree by failing to respond to
Mr. Jones’s accommodation request--would not again be
at issue on a motion to extend or terminate, so his
determination would therefore not bind the court.

90

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b.
The

When Is Arbitration Mandatory?

court’s

most

significant

concern

about

the

arbitration provision, based on representations made by
defense

counsel

during

the

preliminary

approval

hearing, was that it could prevent class members from
raising

in

federal

court

(this

one

or

another

one)

claims that had not been raised or settled in this
case. 19

Had it swept so broadly, the court might well

have been unwilling to approve it.
However, the parties have agreed to construe the
arbitration
member

to

provision
submit

to

to

require

arbitration

an
only

unnamed
if

class

seeking

to

19. See Pride v. Correa, 719 F.3d 1130, 1134-37
(9th Cir. 2013) (holding that a consent decree
governing the provision of medical care to prisoners
across the state did not preclude an individual
prisoner’s Eighth Amendment claims regarding specific
medical treatment allegedly denied to him, because the
consent decree governed “a broad category of conduct”
and the “specific issues raised [by the plaintiff]
ha[d] not already been addressed conclusively by the
decree[],” and that “individual claims for injunctive
relief related to medical treatment are discrete from
the claims for systemic reform addressed in [the
consent decree]” (citations and internal quotation
marks omitted)).
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enforce the terms of the settlement agreement.

See

Joint Br. Re. Scope of Arbitration (doc. no. 575).
prisoner
claim

who

seeks

alleging

to

a

assert

a

violation

new

of

and

the

A

independent

ADA

or

the

Rehabilitation Act is free to file such a lawsuit in
federal

court.

Of

course,

defendants

would

be

at

liberty to argue that the claims in that complaint were
precluded

by

the

settlement

in

this

case,

but

they

would have to do so based on the substantive provisions
of

the

consent

decree

and

not

on

the

arbitration

provision itself.
Based on this stipulation, and in light of circuit
case law regarding enforcement of consent decrees by
unnamed

class

members,

the

court

concludes

that

on

balance, the arbitration provision expands, rather than
limits,

the

remedies

available

to

an

unnamed

class

member who contends that the consent decree has been
violated

to

that

individual’s

detriment.

In

the

Eleventh Circuit, consent decrees are enforceable only
through contempt proceedings, see Reynolds v. McInnes,

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338 F.3d 1201, 1208 (11th Cir. 2003), and “unnamed,
non-intervening

members

of

a

class

...

standing to enforce [a] consent decree.”

do

not

have

Reynolds v.

Butts, 312 F.3d 1247, 1250 (11th Cir. 2002).

But see

Clarkson v. Coughlin, 2006 WL 587345 (S.D.N.Y. Mar. 10,
2006)

(Sweet,

J.)

(discussing

the

adjudication

of

contempt motions brought by unnamed class members to
enforce

a

provision,

consent
an

decree).

unnamed

class

Absent
member

the

arbitration

unrepresented

by

class counsel could not obtain relief for a violation
of the consent decree.

The arbitration provision gives

such a prisoner an avenue by which to appeal the denial
of accommodation to an adjudicator unaffiliated with
the Department.
Additionally, the court expressed the concern that
the remainder of the consent decree not be undermined
were

a

court

provision,

for

later

to

invalidate

whatever

reason.

the

arbitration
During

an

on-the-record conference call to address this issue,
the parties stipulated that the arbitration provision

93

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is to be “governed by the Federal Arbitration Act and
case law interpreting it,” and, pursuant to that case
law, “is severable from the remainder of the settlement
agreement, such that were a court to invalidate the
arbitration provision at some point during the pendency
of the consent decree, the remainder of the consent
decree

would

remain

in

full

force.”

Arbitration

Severability Stip. (doc. no. 719) at 4.
Check

Cashing,

(2006)

(“[A]s

Inc.
a

v.

Cardegna,

matter

of

546

See Buckeye

U.S.

440,

substantive

445

federal

arbitration law, an arbitration provision is severable
from the remainder of the contract.” (interpreting § 2
of the Federal Arbitration Act, 9 U.S.C. §§ 1-16)).

c.

How Is Arbitration Enforceable?

The court sought confirmation that the arbitrator’s
decisions
parties

would

confirmed

meaningfully
their

be

agreement

enforceable.
that

although

The
the

arbitrator will not himself exercise enforcement power,
the consent decree requires compliance with decisions

94

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of the arbitrator, such that failure to do so would be
a “straightforward” basis for a finding of contempt.
Joint Resp. to Ct.’s Second Suppl. Br. Order (doc. no.
563) at 3-6.
failed

to

(Of course, whether defendants had indeed

comply

with

a

decision

by

the

arbitrator

would be a question for the court to decide.)
extent

that

prisoners

a

and

appealed

to

dispute
the

the

concerns

arbitrator’s

court,

a

dozen

decision

failure

to

is

comply

To the
or

more

in

fact

with

the

resulting court order would obviously be a basis for a
finding of contempt. 20

d.

Conclusion

The court evaluated the arbitration provision in
the parties’ settlement agreement with extreme care,
given

the

host

adjudications
shunted

from

of

of

serious

individual

the

federal

concerns

that

civil-rights
courts

to

arise
claims

when
are

alternative

20. In such a case, the movant would need to show
by clear and convincing evidence that the non-movant
(continued...)
95

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mechanisms of dispute resolution.
Diffusing

Disputes:

The

Public

See Judith Resnik,
in

the

Private

of

Arbitration, the Private in Courts, and the Erasure of
Rights, 124 Yale L.J. 2680 (2015); Kathryn A. Sabbeth &
David C. Vladeck, Contracting (Out) Rights, 36 Fordham
Urb. L.J. 803 (2009).
However, the arbitration provision at issue here
offers some benefits to class members in facilitating
prompt resolution of disputes regarding noncompliance,
and avoids many of the most significant pitfalls that
often attend such clauses.

Although some arbitration

clauses expressly preclude aggregation of claims, see
Judith Resnik, Fairness in Numbers: A Comment on AT&T
v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers,
125 Harv. L. Rev. 78 (2011); Jean R. Sternlight, As
Mandatory Binding Arbitration Meets the Class Action,
Will the Class Action Survive?, 42 Wm. & Mary L. Rev. 1
(2000),

this

provision

both

permits

aggregation

and

preserves judicial review of any dispute that affects
had failed to comply with the court’s order.
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numerous

prisoners

facility-wide
clauses

sweep

or

policies.
very

implicates
And

broadly

while
(or

systemic

some

are

or

arbitration

interpreted

by

courts to do so), requiring arbitration of a wide array
of disputes might arise between the parties, see Dasher
v. RBC Bank (USA), 745 F.3d 1111, 1115 (11th Cir. 2014)
(discussing the presumption in favor of arbitrability),
this provision applies only to disputes arising from
the terms of the parties’ settlement agreement and not
to freestanding claims that defendants have violated
the ADA or the Rehabilitation Act.
After

close

consideration,

the

court

therefore

concludes that the arbitration provision, as construed
by

the

parties’

binding

stipulations,

is

fair

and

reasonable to the class members.
Finally, the court notes that, to the extent the
parties’ stipulations clarify the meaning of a portion
of the provision by expressly adopting one of multiple
possible

interpretations

interpretation

that

is

of

it,

least

97

they

all

restrictive

adopt
of

the

class

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 98 of 116

members’ rights to raise disputes in federal court.
The court therefore concludes that additional notice of
the parties’ stipulations need not be provided to the
members of the class prior to final approval and entry
of the consent decree.

See Keepseagle, 102 F. Supp. 3d

at 313-14; Harris, 615 F. Supp. at 244.
However,
prepare

a

describing

the

court

notice,
the

will

require

intelligible

arbitration

these stipulations.

to

process

the
the
as

parties
lay

to

reader,

construed

by

This notice should be posted or

distributed to class members either in advance of or in
conjunction

with

the

notice

defendants

will

provide

regarding the availability of the new ADA request and
grievance process.

C.

Class Counsel and Fees: Rules 23(g) and (h)
i.

Rule 23(g)

Rule 23(g) requires the court to appoint (and also
to assess the suitability of plaintiffs’ counsel to
serve as) class counsel.

The rule requires the court

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to

consider

“(i) the

work

counsel

has

done

in

identifying or investigating potential claims in the
action;

(ii) counsel’s

experience

in

handling

class

actions, other complex litigation, and the types of
claims

asserted

in

the

action;

(iii) counsel’s

knowledge of the applicable law; and (iv) the resources
that counsel will commit to representing the class.”
Fed. R. Civ. P. 23(g)(1)(A).
that

class

counsel

will

The court must conclude
“fairly

and

represent the interests of the class.”

adequately

Fed. R. Civ. P.

23(g)(4).
Lawyers affiliated with the Southern Poverty Law
Center, the Alabama Disabilities Advocacy Program, and
the law firm of Baker, Donelson, Bearman, Caldwell &
Berkowitz

have

represented

named

plaintiffs

in

litigating and negotiating the settlement of this case,
and seek appointment as class counsel. 21

As previously

21. The
law
firm
of
Zarzaur,
Mujumdar,
and
Debrosse, has also participated extensively in the
Phase 1 litigation, in representing ADAP. Because its
attorneys do not represent the individual named class
(continued...)
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discussed,

the

record

reflects

that

these

attorneys

have substantial experience in litigating class actions
and

in

the

complex

substantive

areas

of

both

prisoners’-rights and disability-rights law.
These lawyers have also devoted an extraordinary
amount of time and energy to identifying and developing
the claims and evidence in this case.

They identified

plaintiffs, investigated their allegations, drafted a
lengthy complaint, engaged in very extensive discovery
(and litigation over it), appeared at numerous court
hearings

and

conferences,

participated

in

days

of

mediation, briefed a motion for class certification,
and

responded

to

questions

raised

by

the

court

and

comments made by class members regarding the settlement
agreement.
Finally,

the

court

cannot

identify--and

neither

defendants nor the prisoners who have commented on the

members, they have not been named class counsel.
However, the court understands that they are due to
receive a portion of the attorneys’ fees discussed
below.
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settlement
believe

agreement

that

these

have

suggested--any

attorneys

have

not

reason
fairly

to
and

adequately represented the interests of the class, or
will not do so in the future.
The

court

therefore

concludes

that

plaintiffs’

counsel should be appointed class counsel.

ii.

Rule 23(h)

Federal Rule of Civil Procedure 23(h) requires that
when

class

counsel

seek

fees

and

costs

“that

are

authorized by law or by the parties’ agreement,” they
move for those fees and provide notice to the class.
Fed. R. Civ. P. 23(h)(1).

Class members (and also

defendants, absent a settlement) must be given notice
and an opportunity to object, and the court must find
that the award sought is reasonable.

Fed. R. Civ. P.

23(h)(2), (h)(3).
The settlement agreement provides that defendants
will pay plaintiffs’ counsel $ 1.25 million for their
litigation of the Phase 1 claims up until settlement,

101

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as

well

as

additional

(subject

to

caps)

litigation

fees

for

arising

of

$ 195.00

monitoring

out

of

per

hour

services.

the

consent

For
decree,

plaintiffs’ counsel will be entitled to fees (again,
subject to caps) only if the court finds that their
services

were

necessary

and

that

they

attempted

to

resolve the issue informally.
Because

this

provision

was

included

in

the

settlement agreement, class members received notice of
it.

A few prisoners objected to the fee provision,

arguing that the fees class counsel would receive were
excessive.

One

prisoner

argued

that

class

counsel

should receive a larger fee award.

For the reasons

that

that

follow,

contemplated

the

court

by

the

concludes
settlement

the

fees

agreement

are

appropriate.
Even when both parties agree to an award, the court
has

an

independent

responsibility

to

assess

its

reasonableness, in order to guard against the risk that
class counsel might agree to enter into a settlement

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less

favorable

to

their

inappropriately high fees.

clients

method,

exchange

for

See Piambino v. Bailey, 610

F.2d 1306, 1328 (5th Cir. 1980). 22
lodestar

in

multiplying

The court uses the

the

number

of

hours

reasonably expended by a reasonable hourly rate, see
Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292,
1299 (11th Cir. 1988), and then considering whether an
upward or downward adjustment is warranted in light of
the

factors

set

out

in

Johnson

v.

Georgia

Highway

Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). 23

22. The Eleventh Circuit has adopted as precedent
all decisions of the former Fifth Circuit rendered
prior to October 1, 1981. See Bonner v. Prichard, 661
F.2d 1206, 1207 (11th Cir. 1981) (en banc).
23. These factors are: (1) the time and labor
required; (2) the novelty and difficulty of the
questions; (3) the skill required to perform the legal
services
properly;
(4) the
preclusion
of
other
employment by the attorney due to acceptance of the
case;
(5) the
customary
fee
in
the
community;
(6) whether the fee is fixed or contingent; (7) time
limitations imposed by the client or circumstances;
(8) the amount involved and the results obtained;
(9) the experience, reputation, and ability of the
attorneys; (10) the “undesirability” of the case;
(11) the
nature
and
length
of
the
professional
(continued...)
103

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In
have

support

of

their

submitted

motion,

evidence

plaintiffs’

that

they

counsel
incurred

approximately $ 261,000 in expenses litigating Phase 1
of this case; a portion of the award would cover those
expenses.
As

to

the

remainder

of

the

award,

plaintiffs’

counsel request compensation at a blended hourly rate
of $ 196 per hour.

Evidence submitted by plaintiffs

shows that this rate is consistent with or below the
blended hourly rates deemed reasonable in other civil
rights cases in Alabama, and very substantially below
the rates at which the lawyers employed by law firms
ordinarily bill their clients.
class

counsel’s

The court also finds

contention--supported

by

affidavits--that they have expended (at least) 5,050
hours

in

litigating

convincing,

given

Phase

the

1

of

court’s

this

own

case

knowledge

entirely
of

the

amount of time numerous attorneys have spent in court,

relationship with
similar cases.

the

client;

104

and

(12) awards

in

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 105 of 116

in mediation, in depositions, and in site inspections.
Based on these findings, the lodestar figure amounts to
the $ 989,000 provided for in the settlement agreement.
After considering the Johnson factors, the court
finds

that

no

downward

figure is warranted.

adjustment

of

the

lodestar

This litigation, which has been

ongoing since 2014, is extraordinarily large in scope;
it concerns both current and future disabled prisoners
at

all

state

achieved

a

prison

remedial

facilities,
order

that

and

it

mandates

sought
a

and

dramatic

transformation in the way that the Department treats
such prisoners.

The range of complex legal and factual

questions presented by the plaintiffs’ claims, and the
amount

of

time

plaintiffs’

attorneys

spent

both

in

preparing this case for trial and, more recently, in
negotiating

and

securing

approval

of

the

settlement

agreement, warrant the sizeable fee award.

Moreover,

the court is convinced that the experienced attorneys
who litigated this case, and who took it on without any
guarantee of compensation, would have been entitled to

105

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a higher hourly rate had they litigated a contested fee
motion.
Finally, the court notes that class counsel seek
these fees pursuant to the fee provisions contained in
the ADA (42 U.S.C. § 12205) and the Rehabilitation Act
(29 U.S.C. § 794a), so their award is not limited by
the PLRA’s restrictions on attorneys’ fees in prison
litigation,

which

apply

only

to

cases

in

which

the

attorneys’ fees are authorized under 42 U.S.C. § 1988.
42 U.S.C. § 1997e(d)(1).

D.

Prison Litigation Reform Act

“The PLRA strictly limits the prospective relief a
federal

court

conditions.”

may

order

in

cases

concerning

prison

Gaddis v. Campbell, 301 F. Supp. 2d 1310,

1313 (M.D. Ala. 2004) (Thompson, J.).

These strictures

apply to consent decrees, and hence to this settlement.
18 U.S.C. § 3626(c)(1).
The PLRA provides that a “court shall not grant or
approve any prospective relief unless the court finds

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that such relief is narrowly drawn, extends no further
than necessary to correct the violation of a Federal
right, and is the least intrusive means necessary to
correct the violation of the Federal right.”
§ 3626(a)(1)(A).

Furthermore,

in

18 U.S.C.

conducting

“need-narrowness-intrusiveness” inquiry,

this

the court is

required to “give substantial weight to any adverse
impact on public safety or the operation of a criminal
justice system caused by the relief.”

Id.

In some circumstances--such as when a court extends
prospective relief by making renewed findings that the
need-narrowness-intrusiveness requirements continue to
be

met

in

violation”--the
specific,
consent

light
PLRA

of

a

“current

requires

it

provision-by-provision

decree[],

measuring

the statutory criteria.”

each

to

and

ongoing

“engage

examination
requirement

in
of

a
[a]

against

Cason v. Steckinger, 231 F.3d

777, 785 (11th Cir. 2000).

However, in the case of

such an extension or, as here, in submitting to the
court an initial settlement agreement, “[t]he parties

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are free to make any concessions or enter into any
stipulations they deem appropriate,” and the court does
not need to “conduct an evidentiary hearing about or
enter particularized findings concerning any facts or
factors about which there is not dispute.”

Id. at 785

n.8.
In this case, the parties agree that the consent
decree

satisfies

the

need-narrowness-intrusiveness

requirements of 18 U.S.C. § 3626(a)(1)(A).
stipulate in the settlement agreement.

They so

Based on the

court’s independent review of the settlement agreement,
the court agrees.
The court further finds that the consent decree
will not have an adverse effect on public safety or the
operation

of

the

criminal-justice

U.S.C. § 3626(a)(1)(A).
primary

purpose

of

the

system.

See

Quite the opposite is true.
State’s

prison

system

is

18
A
to

rehabilitate prisoners in its custody, many of whom
will be released to rejoin society.

See ADOC Admin.

Reg. 002 at 2 (“The mission of the Alabama Department

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of

Corrections

is

to

confine,

manage

and

provide

rehabilitative programs for convicted felons in a safe,
secure and humane environment ....”).

When the Alabama

Department of Corrections provides accommodations for
prisoners

with

disabilities

in

a

manner

and

to

an

extent compliant with federal law, those prisoners will
be significantly better able to access and benefit from
the range of services and programming available during
their incarceration.
Two other portions of the PLRA warrant discussion.
First,

18

U.S.C.

§ 3626(b)(1)(A)

provides

that

prospective relief orders “shall be terminable upon the
motion of any party or intervener ... 2 years after the
date

the

court

granted

or

approved

the

prospective

relief [or] ... 1 year after the date the court has
entered

an

order

denying

termination

relief under this paragraph ....”

of

prospective

However, because the

remedial steps set forth in the parties’ consent decree
will require more than two years to implement, they
have

agreed,

both

in

the

109

agreement

and

by

filing

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 110 of 116

written
have

stipulations,

waived

the

that

right

defendants

to

seek

may

waive

termination

of

and
the

consent decree pursuant to § 3626(b) until at least
five

years

after

the

date

of

final

approval.

See

Depriest v. Walnut Grove Corr. Auth., 2015 WL 3795020,
at *6 (S.D. Miss. June 10, 2015) (Reeves, J.) (“Nothing
about

the

PLRA

prohibits

parties

from

agreeing

to

termination conditions different from those contained
in the PLRA.” (citing cases)). The parties also agree
that the consent decree will automatically terminate
six

years

after

plaintiffs

seek

extension

the
to

warranted

date

of

extend

final

it

pursuant

and
to

approval,
the

unless

court

finds

§ 3626(b)(3).

The

court concludes that the termination provisions of the
consent decree comply with the PLRA, and that they are
appropriate

in

light

of

the

significance

of

the

transformational reforms the agreement contemplates and
this court will require.
Second, 18 U.S.C. § 3626(f) imposes requirements on
a

district

court

appointing

110

a

special

master

in

a

Case 2:14-cv-00601-MHT-TFM Document 727 Filed 09/09/16 Page 111 of 116

prison case.

In order for such an appointment to be

permissible during the remedial phase of a case, the
court

must

find

“sufficiently

that

complex

§ 3626(f)(1)(B).

the
to

remedial
warrant

phase

the

will

be

appointment.”

Additionally, the statute prescribes

a mechanism for selecting a special master from lists
submitted by the parties; it appears that the consent
of

both

parties

perhaps

not

the

§ 3626(f)(2).

would

satisfy

letter,

of

the

the

spirit,

though

provision.

See
---

Also, § 3626(f)(5) requires the court to

review whether a special master remains necessary on a
twice-yearly

basis,

and

§ 3626(f)(6)

imposes

certain

limitations on the special master’s power.
Furthermore,
master”

to

mean

the
“any

PLRA

defines

person

the

appointed

term
by

“special
a

Federal

court pursuant to Rule 53 of the Federal Rules of Civil
Procedure

or

pursuant

to

any

inherent

power

of

the

court to exercise the powers of a master, regardless of
the

title

§ 3626(g)(8).

or

description

given

by

the

court.”

Pursuant to Rule 53, a special master

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ordinarily makes recommended factual findings which a
district court reviews de novo upon objection; however,
parties to a case may stipulate that a special master
appointed upon their consent has the authority to make
final, unreviewable factual findings.

See Fed. R. Civ.

P. 53(f)(3)(B).
The
consent

arbitrator
decree,

to

be

however,

appointed
is

not

a

pursuant
special

to

the

master.

Neither the court nor the parties have ever suggested
as

much,

§ 3626(f)

and
is

the
not

parties

stipulated

applicable

to

the

that

18

U.S.C.

arbitrator,

and

expressly waived the right to challenge his decision or
the consent decree on the basis of this provision.
In sum, the court is satisfied that its entry of
the consent decree is in full compliance with the PLRA.

IV.

CONCLUSION

In Alexander v. Choate, Justice Marshall explained
that Congress passed the Rehabilitation Act to ensure
that people with disabilities were no longer “shunted

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aside, hidden, and ignored.”

469 U.S. 287, 296 (1985)

(quoting 117 Cong. Rec. 45974 (1971) (statement of Rep.
Vanik)).

Prisoners, looked down upon by society and

hidden from public view, are likewise at risk of such
treatment.
processes

Absent
mandated

the
by

protections

the

ADA

and

created

and

accompanying

regulations, and without effective oversight, prisoners
with disabilities are doubly damned.
This settlement reflects the Alabama Department of
Corrections’ commitment to making manifest the rights
of disabled prisoners in its custody; it represents the
shouldering of significant responsibility, and presents
an equally significant opportunity, by delineating a
years-long
dictates

process
of

of

federal

ensuring
disability

compliance
law.

with
The

the

court

understands defendants’ investment in this process to
be genuine, and commends them for it.
The court also recognizes the important role played
by

prisoners

with

disabilities

in

bringing

this

litigation, and commends both the named plaintiffs and

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the numerous prisoners who submitted comments for their
advocacy on behalf both of themselves and of others.
Finally, the court expresses its appreciation to
Magistrate Judge Ott, for his truly tireless efforts in
helping the parties to reach this settlement agreement,
and for his willingness to serve as the arbitrator.

* * *
In accordance with the foregoing opinion, it is
ORDERED as follows:
(1) An injunctive-relief settlement class, defined
as

“any

current

or

future

inmate

in

the

physical custody of the Alabama Department of
Correction who has a disability as defined in
42 U.S.C. § 12012 and 29 U.S.C. § 705(9)(B),
excluding

those

inmates

whose

disabilities

relate solely to or arise solely from mental
disease,

illness,

or

defect,”

is

certified

under Federal Rule of Civil Procedure 23(a) and
(b)(2).

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(2) The Southern Poverty Law Center, the Alabama
Disabilities Advocacy Program, and the law firm
of

Baker,

Berkowitz

Donelson,
are

appointed

Bearman,
as

Caldwell

&

counsel

to

class

represent the settlement class under Federal
Rule of Civil Procedure 23(g).
(3) The

parties’

settlement

agreement

(doc.

no.

518), as amended, is approved.
(4) The

objections

to

the

settlement

agreement

(doc. nos. 578, 582, 593, 596, 606, 612, 623,
641, 652, 659, and 663) are overruled.
(5) The parties’ stipulations (doc. nos. 560, 563,
575, 576, 638, 696, 709, and 719) are adopted.
(6) The

settlement

entered

as

a

agreement,
separate

as

amended,

consent

is

decree.

Defendants are to commence compliance with its
terms

as

interpreted

stipulations.

115

by

the

above-entered

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(7) United

States

Magistrate

Judge

John

Ott

is

appointed arbitrator pursuant to Section VII of
the consent decree.
(8) Plaintiffs’ motion for attorneys’ fees (doc.
no. 703) is granted.
(9) The parties are to meet and confer and submit
to the court by no later than September 23,
2016,

a

plan

for

providing

notice

to

class

members of the entry of this consent decree and
for ensuring that they have access during the
pendency of the consent decree to both it and
this opinion.

In particular, this notice must

describe in lay terms the accommodation request
and grievance processes set out in the decree,
and must note the availability of arbitration.
DONE, this the 9th day of September, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE