Appendix — Parent-Guardian Ass'n of Arlington Developmental Center v. People First of Tennessee
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APPENDIX A
Case No: 97-5232
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
July 16, 1998
LEONARD GREEN, Clerk
PEOPLE FIRST OF TENNESSEE, on behalf of its members;
CARL BEARD, nfr Wendy Kurland; SANDRA HOWARD;
HERMAN WALTER RUNIONS, nfr Sarah R. Todd;
HARVEY RICHARD WATSON, orf Bonita Scott;
CLARENCE WILSON, nfr Wilma Williamson; STEVELYN
DANIEL TUCKER; KEITH COLLINS
Plaintiffs - Appellees
V.
ARLINGTON DEVELOPMENTAL CENTER; NED
MCWHERTER; MONA REEVES-WINFREY, sued in her
official capacity as superintendent of Arlington Developmental
Center; MENTAL HEALTH, TN; EVELYN C.
ROBERTSON, JR., sued in his official capacity as
commissioner of Mental Health and Mental Retardation;
MARJORIE NELLE CARDWELL; TENNESSEE HEALTH
DEPARTMENT; RUSSELL WHITE, sued in his official
capacity as commissioner of Health; MANNIE MARTIN,
sued in his official capacity as director of Bureau of Medicaid;
TENNESSEE DEPARTMENT OF HUMAN SERVICES;
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Order - No. 92-02213, 7/16/98
ROBERT GRUNOW, sued in his official capacity as
commissioner of Human Services; BETTY GAYLE, sued in
her official capacity as assistant commissioner for Social
Services; PATSY MATTHEWS, sued in her official capacity
as assistant commissioner for Rehabilitation Services
Defendants - Appellees
PARENT-GUARDIAN ASSOCIATION OF ARLINGTON
DEVELOPMENTAL CENTER
Intervenor-Appellant
BEFORE: KRUPANSKY, NELSON and
BATCHELDER, Circuit Judges.
Upon consideration of the motion filed by the
appellant to stay the mandate pending the filing of a Petition
of Writ of Certiorari,
It is ORDERED that the motion be, and it hereby is,
GRANTED.
The mandate is stayed for thirty days from this Order
unless the Court is advised that the Petition for Writ of
Certiorari has been filed.
ENTERED BY ORDER OF THE COURT
/s/
Leonard Green, Clerk
APPENDIX B
97-5232
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
July 1, 1998
LEONARD GREEN, Clerk
PEOPLE FIRST OF TENNESSEE, )
ON BEHALF OF ITS MEMBERS, )
ET AL.,
Plaintiffs-Appellees,
ORDER
)
)
)
V. )
)
ARLINGTON DEVELOPMENTAL )
CENTER, ET AL.,
Defendants-Appellees,
ASSOCIATION OF ARLINGTON
DEVELOPMENTAL CENTER,
)
)
)
PARENT-GUARDIAN )
)
)
Intervenor-Appellant. )
/
BEFORE: KRUPANSKY, NELSON, and
BATCHELDER, Circuit Judges.
The court having received a petition for rehearing en
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— a
SERS PS RD eS DEO 0 Lh a Re oe SP MRE, Pe ee Se eng Ca ae ee
banc, and the petition having been circulated not only to the
original panel members but also to all other active judges of
this court, and no judge of this court having requested a vote
on the suggestion for rehearing en banc, the petition for
rehearing has been referred to the original panel.
The panel has further reviewed the petition for
rehearing and concludes that the issues raised in the petition
were fully considered upon the original submission and
decision of the case. Accordingly, the petition is denied.
ENTERED BY ORDER OF THE COURT
/s/
Leonard Green, Clerk
APPENDIX C
FILED
May 7, 1998
LEONARD GREEN, Clerk
No. 97-5232
NOT RECOMMENDED FOR FULL-TEXT
PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT
OF TENNESSEE
PEOPLE FIRST OF TENNESSEE, on behalf
of its members; CARL BEARD, nfr Wendy
Kurland; SANDRA HOWARD; HERMAN
WALTER RUNIONS, nfr Sarah R. Todd;
HARVY RICHARD WATSON, nfr Bonita
Scott; CLARENCE WILSON, nfr Wilma
Williamson; STEVELYN DANIEL TUCKER;
KEITH COLLINS,
Plaintiffs-Appellees
Vv.
ARLINGTON DEVELOPMENTAL CENTER;
Sa
ee
Opinion - No. 97-5232, 5/7/98
NED MCWHERTER; MONA REEVES-
WINFREY, sued in her official capacity as
Superintendent of Arlington Developmental
Center; MENTAL HEALTH, TN; EVELYN
C. ROBERTSON, JR., sued in his official
capacity as Commissioner of Mental Health
and Mental Retardation; MARJORIE NELLIE
CARDWELL; TENNESSEE HEALTH
DEPARTMENT; RUSSELL WHITE, sued in
his official capacity as Commissioner of
Health; MANNIE MARTIN, sued in his
official capacity as Director of Bureau of
Medicaid; TENNESSEE DEPARTMENT OF
HUMAN SERVICES; ROBERT GRUNOW,
sued in his official capacity as Commissioner
of Human Services; BETTY GAYLE, sued in
her official capacity as Assistant Commissioner
for Social Services; PATSY MATTHEWS,
sued in her official capacity as Assistant
Commissioner for Rehabilitation Services,
Defendants-Appellees,
PARENT-GUARDIAN ASSOCIATION OF
ARLINGTON DEVELOPMENTAL CENTER,
ee eee eee aes
Intervenor-Appellant.
Before: KRUPANSKY, NELSON, and
BATCHELDER, Circuit Judges.
PER CURIAM. This is a class action involving alleged
violations of the constitutional rights of developmentally
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Opinion - No. 97-5232, 5/7/98
disabled residents of a state institution. The parents and
guardians of a number of the residents intervened to oppose
class action status, but the class was certified and the case was
ultimately resolved in a settlement approved by the district
court. The intervenors have appealed, asking us to overturn
the certification of the class, the approval of the settlement,
and three related rulings. We find no basis for doing so.
I
In December of 1991 an entity called "People First of
Tennessee" brought suit against the Arlington Developmental
Center ("ADC"), seeking injunctive and declaratory relief on
behalf of ADC's residents. ADC is an institution owned and
operated by the state of Tennessee to care for mentally
retarded people. Approximately 400 individuals were housed
at ADC when the suit was filed.
People First of Tennessee is a non-profit advocacy
organization composed of (and allegedly governed by) people
with disabilities. Joining with six individual ADC residents,’
the organization sued ADC and other state agencies and
officials” on claims that residents of the institution were being
deprived of basic care and medical treatment, habilitation and
training programs, adequate behavior and nutritional
management, physical therapy, adequate communication
services, and rights of personal choice, privacy, and freedom
' The initial complaint included four individual plaintiffs, but an
amended complaint, filed in February of 1993, added two more.
The plaintiffs will be referred to collectively as "People First."
> The defendants will be referred to collectively as "the state."
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Opinion - No. 97-5232, 5/7/98
of association. It was also alleged that the residents suffered
frequent injury and abuse, unnecessary restraint, and loss of
skills caused by inadequate therapy programs and inadequate
staffing. Some of People First's claims were based on the
"substantive" component of the Due Process Clause of the
Fourteenth Amendment, others were based on the First
Amendment as made applicable to the state by the Fourteenth
Amendment, and still others had a statutory basis.
Acting on behalf of relatives and guardians of ADC
residents, the Parent-Guardian Association of Arlington
Developmental Center ("PGA") moved to intervene. PGA
objected to People First's representation of the class and
expressed concern that People First would eventually seek to
close ADC.
On January 26, 1993, the district court granted PGA's
motion to intervene and dismissed many of People First's
claims. The court's ruling left certain due process and
freedom of association claims to be adjudicated, but none of
the statutory claims.
While the class action was pending, the federal
government sued the State of Tennessee under the Civil
Rights of Institutionalized Persons Act, asserting claims
similar to those advanced in the People First case. United
States v. Tennessee, 92-2062 M1/A (W.D. Tenn.) (hereinafter
referred to as "the U.S. case"). The U.S. case went to trial in
the fall of 1993, and the court found that constitutional rights
of ADC residents were indeed being violated. On September
2, 1994, the court entered a 54-page remedial order.
Extensive training and monitoring programs were mandated,
and the state was directed to reduce the ADC population to
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Opinion - No. 97-5232, 5/7/98
200 residents. The reduction was to be accomplished by
transferring appropriate residents to community living
arrangements designed to meet individual needs.
At this point the court entered a temporary stay of
proceedings in the People First case. All motions in this case
were denied without prejudice, and the parties were instructed
to review the Remedial Order and then renew any motions
they wished to press further. Among the pending motions was
one in which PGA had moved to consolidate the class action
with the U.S. case. PGA did not renew the consolidation
motion.
People First renewed its motion for class certification,
and on September 26, 1995 -- over objection from PGA -- the
court certified a plaintiff class. The class included
"all persons who on or after December 12,
1989, have resided, or are residing at the
Arlington Developmental Center; all persons
who have been transferred from Arlington
Developmental Center to other settings such as
intermediate care facilities or skilled nursing
facilities but remain defendants’ responsibility;
and all persons at risk of being placed at
Arlington Developmental Center."
The court went on to hold that the relief granted in the
U.S. case disposed of People First's due process claims. The
court adopted the findings of fact from the U.S. case and
entered the remedial order from that case "as the final order
in this matter as a remedy for defendants’ violation of
plaintiffs' Fourteenth Amendment rights." The First
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Opinion - No. 97-5232, 5/7/98
Amendment claims remained at issue.
Meanwhile, in June of 1995 -- almost 30 months after
it had been allowed to intervene -- PGA moved for leave to
file a complaint against the state alleging that the placement of
residents in community living arrangements would be harmful
to the residents so placed. Treating the complaint as a cross-
claim, the court denied the motion as both untimely and
inappropriate because no substantive due process issues
remained to be decided.
People First and the state settled the remaining issues
in January of 1997. Having stipulated to violations of the
residents' First Amendment associational fights, the state
agreed to develop a right-of-association policy, to train staff
members to allow free exercise of the right of association, to
implement a program for disciplining staff who violated
residents' rights, and to allow "advocates, religious
organizations, and community organizations reasonable
opportunity to communicate with residents and allow[]
residents the opportunity to participate in community
activities."
PGA objected to the settlement, contending that there
should have been no stipulation without proffered evidence
and expressing concern that the settlement would limit
parental access to residents. After considering the objections
and other factors, the district court approved the settlement as
fair, adequate, and reasonable.
PGA now appeals the class certification and the
approval of the settlement, as well as the denial of the motion
to consolidate, the denial of the motion for leave to file a
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Opinion - No. 97-5232, 5/7/98
cross-claim, and the entering of findings from the U.S. case.
II
Most of the challenged rulings are subject to review
under an abuse of discretion standard. See Weaver v.
University of Cincinnati, 970 F.2d 1523, 1531 (6th Cir.
1992), cert. denied, 507 U.S. 917 (1993) (class certification);
Bailey v. Great Lakes Canning, Inc., 908 F.2d 38, 42 (6th
Cir. 1.990) (class settlement); Cantrell v. GAF Corp., 999
F.2d 1007, 1011 (6th Cir. 1993) (motion to consolidate);
Shearson/Am. Express, Inc. v. Mann, 814 F.2d 301,308 (6th
Cir. 1987) (counterclaim). The entry of final judgment on the
substantive due process claims is reviewed de novo. See
Parrett v. Am. Ship Bldg. Co., 990 F.2d 854, 857 (6th Cir.
1993).
A
The propriety of class certification in a case such as
this, where injunctive and declaratory relief has been sought
with respect to allegedly unlawful conditions at a state
institution, turns in part on Fed. R. Civ. P. 23(b)(2).° Before
certifying a class under Rule 23(b)(2), the district court must
conduct a rigorous analysis to determine whether
> Rule 23(b)(2) allows class actions, under certain conditions, in
cases in which "the party opposing the class has acted or refused to
act on grounds generally applicable to the class, thereby making
appropriate final injunctive relief or corresponding declaratory
relief with respect to the class as a whole."
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Opinion - No. 97-5232, 5/7/98
"(1) the class is so numerous that joinder of all
members is impracticable, (2) there are
questions of law or fact common to the class,
(3) the claims or defenses of the representative
Parties are typical of the claims or defenses of
the class, and (4) the representative parties will
fairly and adequately protect the interests of
the class." Fed. R. Civ. P. 23(a).
Considering each of these provisions, the district court
concluded that the class certification requirements of Rules
23(a) and 23(b)(2) were met. At the time of certification ADC
had approximately 385 residents. Although residents' medical
and habilitation needs varied, the court found that "whether
defendants are prohibiting residents from associating with
certain individuals in violation of their First Amendment
rights" was a question common to the class. The claims
against the state arose from the same patterns and practices,
moreover, and were based on the same legal theory. See Jn re
Am. Med Sys., Inc., 75 F.3d 1069, 1082 (6th Cir. 1996)
(discussing the typicality requirement). Finally, the court
determined that the named plaintiffs would fairly and
adequately protect the interests of the class. The plaintiffs’
counsel was qualified and competent to prosecute the action
vigorously, and there was no evidence, that People First had
interests that were antagonistic to those of the other residents.
See id., at 1083; Senter v. General Motors Corp., 532 F.2d
511,525 (6th Cir.), cert. denied, 429 U.S. 870 (1976).
PGA's primary objection to class certification was that
many of the residents' parents and guardians opposed
representation by People First. There were thus conflicts of
interest between the representative and the Class, according to
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Opinion - No. 97-5232, 5/7/98
PGA, and there were not enough residents allied with People
First for the class to be numerous.
Noting that Tennessee law does not give guardians
exclusive control over the exercise of their wards’ legal
rights, the district court rejected this argument. We find no
abuse of discretion in this or any other aspect of the district
court's treatment of the class certification issue. We cannot
say the certification was improper.‘
B
Where settlement of a class action is proposed, Fed.
R. Civ. P. 23(e) directs the court to hold a hearing to
determine whether the proposed settlement is "fair, adequate,
and reasonable, as well as consistent with the public interest."
The district court held the requisite heating in this case, after
appropriate notice, and carefully considered (among other
things) the likelihood of success on the merits, the complexity
of the litigation, the stage of discovery, the opinions of the
parties’ counsel, the concerns of the class members and other
interested parties, and the public interest. Cf. Williams v.
Vukovich, 720 F.2d 909, 922-924 (6th Cir. 1983). The
settlement was held to be fair, adequate, and reasonable in
light of the pertinent factors.
We find no abuse of discretion in the court's decision.
* Responding to PGA's appeal of the certification, the state itself
questioned certain aspects of the class definition. Inasmuch as the
State has not. appealed, however, these matters are not properly
before the court.
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Opinion - No. 97-5232, 5/7/98
The settlement assured that residents' First Amendment rights
would be protected without the expense and effort of a trial.
PGA's concerns about impairment of parental access to
residents are unsupported; the language of the settlement
protects residents’ rights to associate with others, but in no
way abridges the rights of parents and guardians.
Cc
As to the denial of PGA's motion to consolidate, we
note that the motion was denied without prejudice. PGA never
having filed a new motion to consolidate, as the court invited
it to do, we find it hard to see how PGA can complain of the
failure to consolidate. PGA was allowed to intervene in the
U.S. case, in any event, and the concerns about community
placement were more properly addressed there.
As to the denial of PGA's motion for leave to file a
complaint against the state, we note that the motion came
some two and one-half years after PGA's intervention. The
proposed complaint, moreover, addressed only the due
process issues dealt with in the U.S. case. The district court
did not abuse its discretion in denying the motion.
Finally, PGA challenges the court's entry of findings
from the U.S. case, a proceeding in which PGA maintains
that its interests were not represented. The question, however,
is whether the state -- the defendant against which the
remedial order was directed had a full and fair opportunity
to contest the allegation that it had violated the substantive due
process rights of the ADC residents. The court properly held
that the state had such an opportunity. The remedial order in
the U.S. case addressed the conditions underlying People
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Opinion - No. 97-5232, 5/7/98
First's due process claims, and collateral estoppel barred
relitigation of the due process issues in this case. PGA cannot
effectively challenge the remedial order in the U.S. case as an
intervenor here.
AFFIRMED.
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APPENDIX D
CASE NO: 92-2213-M1/V
FILED
January 7, 1997
ROBERT R. DI TROLIO
CLERK, U.S. DIST. CT.
W.D. OF TEN, MEMPHIS
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
PEOPLE FIRST OF TENNESSEE
on behalf of its members,
et al.
)
)
)
)
VS. )
)
THE ARLINGTON DEVELOPMENTAL )
INVESTIGATION, et al. )
)
PARENT GUARDIAN ASSOCIATION OF)
THE ARLINGTON DEVELOPMENTAL )
CENTER )
/
JUDGMENT IN A CIVIL CASE
DECISION BY COURT. This action came to consideration
before the Court. The issues have been considered and a
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decision has been rendered.
IT IS SO ORDERED AND ADJUDGED that In accordance
with the Order Approving Settlement of Class Action entered
on January 6, 1997, the Court approves the proposed
settlement and enters judgment in accordance with the
settlement agreement. The Court shall retain jurisdiction over
the parties, including all members of the settlement class, and
the administration and enforcement of the settlement
agreement.
APPROVED:
/s/
JON PHIPPS MCCALLA
UNITED STATES DISTRICT COURT
January 6, 1997 _
Date
/s/
ROBERT R. DI TROLIO
/s/
(By) Wendy Bachledge-Ellis
Deputy Clerk
APPENDIX E
FILED
January 7, 1997
Clerk
No. 92-2213 M1/V
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
PEOPLE FIRST OF TENNESSEE
on behalf of its members,
et al.
Plaintiffs,
¥,
THE ARLINGTON DEVELOPMENTAL
INVESTIGATION, et al.
Defendants,
ee eee twee wes GS
PARENT GUARDIAN ASSOCIATION OF
THE ARLINGTON DEVELOPMENTAL )
CENTER, )
Intervenor. )
2 /
—
ORDER APPROVING SETTLEMENT OF
CLASS ACTION
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Order - No. 92-2213 M1/V - 1/6/97
This matter is before the Court on plaintiffs' and
defendants' Proposed Stipulation and Order of Compromise
and Dismissal, filed July 29, 1996, and plaintiffs' Motion for
Final Approval of the Proposed Settlement Agreement, filed
September 13, 1996. For the reasons set forth below, the
proposed settlement of the class action is APPROVED.
BACKGROUND
This case was originally filed on December 12, 1991,
by five Arlington Development Center ("ADC") residents and
by People First of Tennessee. The case was transferred to this
Court on March 5, 1992. Plaintiffs alleged that the conditions
at Arlington Developmental Center violated the constitutional
and statutory rights of the Arlington residents and those at
risk of placement there. Plaintiffs sought injunctive and
declaratory relief from the conditions at ADC.
On January 26, 1993, the Court dismissed plaintiffs’
statutory claims and certain of their First and Fourteenth
Amendment claims and granted the Parent Guardian
Association's motion to intervene. The remaining First
Amendment claims asserted that the defendants violated the
plaintiffs’ rights to freedom of expression and association by
preventing Arlington residents from associating with others,
and by preventing the residents from communicating with
others of their choice.
Meanwhile, in January, 1992, the United States filed
an action against the State of Tennessee under 42 U.S.C. §
1997 et seq, alleging that the state had failed to provide
humane conditions and adequate treatment at Arlington
Developmental Center. United States v. Tennessee, Civ. No.
Order - No. 92-2213 M1/V - 1/6/97
92-2062. Each of the parties to the present action were parties
to that case. After a lengthy trial, this Court entered judgment
against the defendants finding that the conditions at ADC
violated the residents’ due process rights.
On September 27, 1995, the Court granted plaintiffs'
motion for class certification, defining the class as: “all
persons who after December 12, 1989, have resided or are
residing at the Ariington Developmental Center, all persons
who have been transferred to other facilities but who remain
the defendants, responsibility, and all persons at risk of being
placed in the Center." In addition, the Court granted partial
summary judgment on plaintiff's claims under the Fourteenth
Amendment relating to care, services, abuse, and neglect in
light of the Court's decision in United States v. Tennessee,
Civ. No. 92-2062.
As a result of the September 27, 1995 Order, the only
remaining issues in the case are the plaintiffs' First
Amendment claims. By order dated January 11, 1996, the
Court set a trial for these issues to begin on July 29, 1996.
On July 29, 1996, however, plaintiffs and defendants filed a
proposed stipulation and order of compromise and dismissal
under Federal Rule of Civil Procedure 23(e). Parent Guardian
Association, the intervenor, Opposes the proposed settlement.
The proposed settlement agreement provides:
1. The plaintiffs and defendants acknowledge that past
violations of the residents' First Amendment rights did
occur. Plaintiff/residents were prevented from
communicating, associating and assembling with
persons of their choice.
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Order - No. 92-2213 M1/V - 1/6/97
2.
According to the proposed settlement, the Defendants
will protect the rights of the Plaintiff/residents by:
(a)
(b)
(c)
(d)
developing a policy to enable residents to
communicate, associate, and assemble with
others of their choice both publicly and
privately;
telling the staff of the Arlington
Developmental Center and agencies who work
with the Center about the policy so that staff
will not discourage residents from exercising
their right to freely communicate, associate
and assemble with others of their choice;
establishing a process to discipline staff
members who violate the right of residents to
freely communicate, associate and assemble
with others; and
allowing advocates, religious organizations,
and community organizations reasonable
opportunity to communicate with residents and
allowing residents the opportunity to
participate in community activities.
DISCUSSION
Federal Rule of Civil Procedure 23(e) provides that a
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Order - No. 92-2213 M1/V - 1/6/97
Class action cannot be settled without court approval.' "Three
Steps are required [for approving a class action settlement]: 1)
the court must preliminarily approve the proposed settlement;
2) members of the class must be given notice of the proposed
settlement; and 3) a hearing must be held to determine
whether the proposed settlement is fair, reasonable and
adequate." Reed v, Rhodes, 869 F. Supp. 1274, 1278 (N.D.
Ohio 1994) (citing Williams v. Vukovich. 720 F.2d 909, 921-
22 (6th Cir. 1983)).
By Order dated August 15, 1996, this Court
preliminarily approved the proposed settlement agreement. In
that same Order, the Court ordered counsel for the plaintiffs
and defendants to mail notice to all class members and other
interested parties by Friday, August 30, 1996, at 5:00 p.m.
That notice also advised all parties interested in commenting
on or objecting to the settlement to submit comments by
September 20, 1996, at 5:00 p.m. Likewise, the notice
advised all those wishing to participate in the hearing to notify
the Court by September 20, 1996, at 5:00 p.m.
On September 27, 1996, the Court held a hearing so
that any class member or family member, guardian, or next
friend of a class member could comment on the proposed
settlement. At that hearing, the Court heard testimony from
interested parties and accepted written comments from
' Federal Rule of Civil Procedure 23(e) provides:
A class action shall not be dismissed or compromised
without the approval of the court, and the proposed
dismissal or compromise shall be given to all members of
the class in such manner as the court directs.
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Order - No. 92-2213 M1/V - 1/6/97
members of the intervenor.
A court should approve a settlement if it is
fundamentally "fair, adequate and reasonable, as well as
consistent with the public interest." Bailey v. Great Lakes
Canning. Inc., 908 F.2d 38, 42 (6th Cir. 1990) (citing United
States v. Jones & Laughlin Steel Corp. 804 F.2d 348, 351
(6th Cir. 1986)). In determining whether the proposed
settlement is "fundamentally fair, adequate, and reasonable,"
the court should consider the following factors:
1. Plaintiffs likelihood of success on the merits
balanced against the relief offered by the
proposed settlement agreement;
2. The complexity, expense, and likely duration
of the litigation;
3. The stage of the proceedings and the amount
of
discovery;
4. The judgment of experienced trial counsel;
> The nature of the negotiations;
6. The concerns and comments of the class
members and other interested parties; and
2 The public interest.
Bronson v. Board of Education, 604 F. Supp. 68, 74-82 (S.D.
Ohio 1984) (citing Vukovich, 720 F.2d at 922); accord
Granada Investments. Inc. v. DWG Corp., 962 F.2d 1203,
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Order - No. 92-2213 M1/V - 1/6/97
1205 (6th Cir. 1992) (holding that a court should balance "the
likelihood of success on the merits, the risk associated with
and the expense and complexity of litigation, and the
objections raised by class members"). Applying these factors
to the present case, the Court finds that the proposed
settlement is fundamentally fair, adequate, and reasonable.
Re Plaintiff's likelihood of success on the merits
balanced against the relief offered by the
proposed settlement agreement.
In their suit, plaintiffs seek to establish that the
defendants have deprived the residents of Arlington
Developmental Corporation of their First Amendment rights
and seek injunctive and declaratory relief against any such
future infringements. In the proposed settlement, the
defendants stipulate to past First Amendment violations and
agree to institute a plan to ensure that no such violations occur
in the future. Thus, even if the plaintiffs were to succeed at
trial, the plaintiffs could not conceivably obtain more relief
than that offered in the proposed settlement. In going to trial,
however, the plaintiffs would run the inescapable risk of
obtaining no relief. Accordingly, the Court finds that this
factor weighs in favor of approving the settlement.
z: The complexity, expense and likely duration of the
litigation.
This case was originally filed in December 1991, and
has involved costly, time-consuming litigation. Although the
trial of the alleged First Amendment violations is estimated to
last only one to one and one-half days, if the court were to
find a First Amendment violation, remedial hearings would
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Order - No. 92-2213 M1/V - 1/6/97
have to be held and appeals could be taken prior to any
resolution of the alleged violations. Consequently, the relief
sought by the plaintiffs could be delayed significantly. In
contrast, the settlement agreement allows the plaintiffs to
enjoy the benefits of the agreement almost immediately.
Accordingly, the Court finds that this factor also weighs in
favor of approving the settlement.
3. The stage of the proceedings and the amount
of discovery completed.
The purpose of considering the stage of the
proceedings and the amount of discovery taken is to ensure
that plaintiffs had access to sufficient material to evaluate the
case and to assess the adequacy of the settlement proposal
with an informed judgment of the strengths and weaknesses of
their position. See In re General Motors Corp., 846 F. Supp.
330, 334-35 (E.D. Pa. 1993). As noted above, this case was
originally filed almost five years ago. Thus, this is not a
settlement that was reached in the early stages of litigation
without significant consideration or deliberation. In contrast,
significant amounts of discovery have occurred and a related
trial has exposed the conditions existing at Arlington
Developmental Center. As a result, the parties have been able
to make an informed decision about the alleged First
Amendment violations and the merits of the proposed
settlement. Given the amount of information available to the
parties, the Court concludes that this factor weighs in favor of
the proposed settlement.
4. The opinion of counsel
In appraising the fairness of a proposed settlement, the
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Order - No. 92-2213 M1/V - 1/6/97
view of experienced counsel favoring a settlement is entitled
to significant weight.
Physicians Ass'n, 124 F.R.D. 154, 159 (S.D. Ohio 1988);
Bronson, 604 F. Supp. at 73 (holding that "when significant
discovery has been completed, the Court should defer to the
judgment of trial counsel who has reviewed the strength of his
case"). As noted above, a significant amount of discovery has
taken place in this case. In addition, counsel has benefitted
from the discovery and trial conducted in United States v.
Tennessee, Thus, counsel for both sides was able to fully
evaluate the strengths and weaknesses of their respective
cases. See Bronson, 604 F. Supp. at 73. Consequently, the
Court finds that the extensive discovery conducted in this case
and other information available to the parties warrants placing
great weight on the opinion of counsel that the settlement is
fair, adequate, and reasonable.
3: The nature of the negotiations
There is no indication that the proposed settlement is
the product of collusion. Instead, the settlement was the
product of' "intense, arms-length negotiations between the
parties," Bronson, 604 F. Supp. at 78, after almost five years
of litigation. Counsel for the intervenor asserts that the
agreement is the product of collusion on the grounds that
there is no evidence of any First Amendment violations. In
approving a settlement decree, however, "[t]he Court has no
occasion to determine the merits of the controversy or the
factual underpinning of the legal authorities advanced by the
parties." Vukovich, 720 F.2d at 921. The only question
before the Court is whether the settlement agreement is fair,
adequate, and reasonable. Id. Moreover, even assuming that
there were no First Amendment violations, this does not
26a
Order - No. 92-2213 M1/V - 1/6/97
change the fact that the agreement is fair, adequate, and
reasonable. The settlement provides the plaintiff class with the
full range of protection sought in their complaint. It is
difficult to see how this agreement is the result of collusion
when the plaintiff class gets everything it wanted and the
opposing parties include the state of Tennessee and various
state agencies. This Court notes that there is little doubt that
the state of Tennessee is quite capable of protecting itself and
its agencies.
Finally, requiring the plaintiffs to prove the existence
of the First Amendment violations before settlement would
undermine the overriding public policy interest in favor of
settlement. See Schaeffer v. Tannian, 1995 WL 871134 at *5
(E.D. Mich. 1995) ("The policy in federal court favoring the
voluntary resolution of litigation through settlement is
particularly strong in the-class action context."). The entire
point of a settlement is to resolve the case in a manner
acceptable to the parties without an actual in-court
determination of liability. Accordingly, the Court finds that
the intervenor's objections do not merit a finding that the
settlement is not fair, adequate, and reasonable.
6. The concerns and comments of class members
and other interesied parties.
The Court must also consider any objections to the
proposed settlement. Stotts v. Memphis Fire Dep't, 679 F.2d
541, 554 (6th Cir. 1982), rev'd on other grounds sub nom,
Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561
(1984); Bronson, 604 F. Supp. at 78. Although the Court
must consider any objections made, the fact that there are
objections does not mean that the settlement cannot be
27a
Order - No. 92-2213. M1/V - 1/6/97
approved. Stotts 679 F.2d at 554. The ultimate issue remains
whether the proposed settlement is fair, adequate, and
reasonable. :
In this case, the Court has received comments from a
number of members of the Parent Guardian Association
("PGA") and from ComCare Inc., a court appointed guardian
for a number of ADC residents.” After careful consideration
of all the views expressed both in writing and at the hearing,
the Court finds that the settlement is fair, adequate, and
reasonable.
One major area of concern voiced by the intervenor is
that there was no evidence of any First Amendment
infringement. As discussed above, this argument does not
prevent the court from approving the settlement.
A second area of concern raised by PGA and ComCare
is that the settlement will interfere with the parents' and
guardians’ rights to represent and speak for their children and
wards. The settlement, however, does not strip the parents
and guardians of their duties and responsibilities to their
children and wards at the Arlington Developmental Center.
Instead, the settlement merely provides Safeguards to the
ADC residents that their First Amendment rights will not be
violated by the staff at ADC. The parents and guardians will
retain their voice and ability to influence the care"of their
children and/or wards -- within constitutional constraints of
> By Order dated November 6, 1996, the Court agreed to consider
comments submitted by Comcare, Inc., even though the comments
were received after the deadline for submitting such comments.
28a
ee EE
Order - No. 92-2213 M1/V - 1/6/97
course.
A third area of concern is that the settlement will allow
third parties, including advocates, religious organizations, and
community organizations, unfettered access to the residents of
Arlington Developmental Center. Again, such a concern is
overstated. The settlement merely provides that the ADC will
allow such parties "reasonable opportunity to communicate
with residents." Reasonable opportunity does not mean
unfettered access. Instead, the use of the term "reasonable
opportunity" recognizes that a policy protecting the First
Amendment rights of the Arlington residents cannoi be rigidly
fixed; rather, it must remain flexible to accommodate the
unique needs of the residents while at the same time
protecting their First Amendment rights.
A final area of concern surrounds the wording of the
settlement decree. In particular, concerns were raised as to the
meaning of "discourage" in paragraph 2(b) of the proposed
settlement agreement. Once again, a settlement of this kind
cannot be reduced to specific and exacting standards. The
unique challenges facing both the residents and the staff of
ADC require that such a policy remain somewhat flexible.
In sum, although the Court recognizes the thoughtful
and heartfelt concern expressed by the parents and guardians
of the residents of Arlington Developmental Center, the Court
nonetheless finds that the objections raised do not warrant a
finding that the settlement is not fair, adequate, and
reasonable to the plaintiff class.
vs The public interest
29a
Order - No. 92-2213 M1/V - 1/6/97
Finally, the Court must consider whether the
settlement is in the public interest. Vukovich, 720 F.2d at
923. There is little doubt that the proposed agreement is in the
public interest. Not only does the settlement agreement bring
an end to nearly 5 years of litigation, but, more importantly ,
it improves the quality of services provided to the residents of
the Arlington Development Center by guaranteeing protection
of their constitutional rights under the First Amendment.
CONCLUSION
Having examined and weighed the above factors, the
Court concludes that the proposed settlement agreement is
fair, adequate, and reasonable. Accordingly, the Court
APPROVES the proposed settlement and directs that a
judgment, in accordance with the settlement agreement, be
entered by the clerk. The Court shall RETAIN jurisdiction
over the parties, including all members of the settlement Class,
and the administration and enforcement of the settlement
agreement.
IT IS SO ORDERED this 6 day of January 1997.
/s/
JON P. McCALLA
STATES DISTRICT JUDGE
30a
PEOPLE FIRST OF TENNESSEE; et. al.,
V.
ARLINGTON DEVELOPMENTAL CENTER
et. al,
APPENDIX F
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
FILED
August 15, 1996
No. 92-2213 M1/V
CERTIFIED TRUE COPY
ROBERT R. DI TROLIO
U.S. DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
/s/
DEPUTY CLERK
Plaintiffs,
i i a a a a
Defendants.
ORDER
On July 29, 1996, plaintiffs and defendants submitted
a proposed stipulation and order of compromise and
3la
Order - No. 92-2213 M1/V, 8/15/96
dismissal. Intervenor filed an objection to the proposed
Stipulation and order. Accordingly, on July 30, 1996, the
Court conducted a conference by telephone on the issues
raised in intervenor's objection. On July 31, 1996, the Court
entered an order directing plaintiffs to submit a plan for
compliance with Fed. R. Civ. P. 23(e) by 5:00 p.m. on
August 6, 1996, and intervenor to submit any comments on
plaintiff's plan by 5:00 p.m. on August 13, 1996. On August
6, 1996, plaintiffs submitted a proposed plan for compliance
along with a proposed notice of proposed settlement. On
August 13, 1996, intervenor submitted comments on
plaintiffs' proposed plan.
Under Fed. R. Civ. P. 23(e),
A class action shall not be dismissed or compromised
without the approval of the court, and notice of the
proposed dismissal or compromise shall be given to all
members of the class in such manner as the court
directs.
Upon consideration of the filings of the parties with respect to
compliance with Fed. R. Civ. P. 23(e), it appears that the
following is necessary to provide proper notice to the class
certified by order of September 27, 1995. The proposed
stipulation and order of compromise and dismissal attached
hereto as exhibit 1 is hereby PRELIMINARILY APPROVED
pending final order of the Court after the hearing described
hereinafter: The notice of proposed settlement attached hereto
as exhibit 2 is hereby APPROVED. Counsel for plaintiffs are
hereby ORDERED to arrange to have the notice of proposed
settlement published in The Commercial Appeal (Memphis)
newspaper on three occasions: 1) once during .the week of
32a
Order - No. 92-2213 M1/V, 8/15/96
August 25, 1996, to August 31, 1996; 2) once during the
week of September 1, 1996, to September 7, 1996; and 3)
once during the week of September 8, 1996, to September 14,
1996. Counsel for defendants are hereby ORDERED to
provide counsel for plaintiffs a current list of the following by
5:00 p.m. on Friday, August 23, 1996: 1) the names and
addresses of all Arlington Developmental Center (“ADC”)
residents discharged on or after December 12, 1989; 2) the
names and address of the family members, guardians, or next
friends of all ADC residents discharged on or after December
12, 1989; 3) the names and addresses of the family members,
guardians, and next friends of all current ADC residents.
Counsel for plaintiffs are hereby ORDERED to mail copies of
the notice of proposed settlement via first class mail, postage
prepaid, to ADC residents discharged on or after December
12, 1989, and to the family members, guardians, or next
friends of ADC residents discharged on or after December 12,
1989, by 5:00 p.m on Friday, August 30, 1996. Counsel for
defendants are hereby ORDERED to deliver a copy of the
notice of proposed settlement to each current ADC resident by
5:00 p.m. on Friday, August 30, 1996. Counsel for plaintiffs
are hereby ORDERED to mail copies of the notice of
proposed settlement via first class mail, postage prepaid, to
family members, guardians, or next friends of all current
ADC residents. Counsel for defendants are hereby
ORDERED to mail copies of the notice of proposed
settlement via first class mail, postage prepaid, to community:
service providers by 5:00 p.m. on Friday, August 30, 1996,
for subsequent distribut.sn to class members served by such
community service providers.
A hearing on the proposed settlement is hereby
SCHEDULED for 2:00 p.m. on Friday, September 27, 1996.
33a
Order - No. 92-2213 M1/V, 8/15/96
Any class member or family member, guardian, or next friend
of a class member who wishes to attend and/or participate in
the hearing MUST notify the Court by 5:00 p.m. on Friday,
September 20, 1996, by filing with the Clerk of Court a
typewritten document no more than one page in length (on
8 2" by 11" paper) that refers to this case by docket number.
Any class member or family member, guardian, or next friend
of a class member who wishes to submit any comments in
support of or in opposition to the proposed settlement MUST
file such comments with the Clerk of Court by 5:00 p.m. on
Friday, September 20, 1996, in a typewritten document no
more than five pages in length (on 8 %” by 11" paper in no
smaller than a ten point font) that refers to this case by docket
number. Any class member or family member, guardian, or
next friend of a class member who files such comments
MUST also contemporaneously mail copies of such comments
to one of the. attorneys for plaintiffs, one of the attorneys for
defendants, and one of the attorneys for intervenor. Any party
that wishes to file a memorandum of law on the proposed
settlement MUST do so by 5:00 p.m. on Friday, September
13, 1996.
SO ORDERED this 15 day of August 1996.
/s/
JON P. McCALLA
UNITED STATES DISTRICT JUDGE
34a
Order - No. 92-2213 M1/V, 8/15/96
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
NO. 92-2213 M1/V
PEOPLE FIRST OF TENNESSEE; et. al.,
Plaintiffs,
V.
ARLINGTON DEVELOPMENTAL CENTER;
et. al.,
Defendants.
ACTION LAWSUIT
TO: A) ALL PERSONS WHO ON OR AFTER
DECEMBER 12, 1989, HAVE RESIDED, OR ARE
RESIDING AT THE ARLINGTON
DEVELOPMENTAL CENTER:
B) ALL PERSONS HAVE BEEN
TRANSFERRED FROM ARLINGTON
DEVELOPMENTAL CENTER TO OTHER
SETTINGS, SUCH AS INTERMEDIATE CARE
FACILITIES OR SKILLED NURSING FACILITIES, h
BUT REMAIN DEFENDANTS'
RESPONSIBILITY;
C) ALL PERSONS AT RISK OF BEING
35a
Order - No. 92-2213 M1/V, 8/15/96
PLACED AT ARLINGTON DEVELOPMENTAL
CENTER;
D) FAMILY MEMBERS, GUARDIANS, AND
NEXT FRIENDS OF PERSONS LISTED IN A), B),
AND C).
This notice describes a Proposed settlement agreement
of a lawsuit against the Arlington Developmental Center, its
superintendent, the Governor of Tennessee, and officials of
six State departments and agencies -- the Department of
Mental Health and Mental Retardation, the Department of
Health, the Medicaid Bureau, and the Department of Human
Services including Social Services and Rehabilitation
Services. This notice tells you what the lawsuit is about, how
to get more information, and how to object to the proposed
settlement agreement if you think it is not fair.
The Lawsuit
This class action lawsuit was filed in December 1991
by five residents of the Arlington Developmental Center on
behalf of all Center residents, and by People First of
Tennessee, a Self-advocacy group for persons with
disabilities. They wanted to prevent further abuse and neglect
in the institution, receive better services for the residents, and
secure their legal and constitutional rights, including the fight
to freely associate with persons of their choice as guaranteed
under the First Amendment of the United States Constitution.
In September 1995 the Court certified the class,
defining it as: all persons who after December 12, 1989, have
resided or are residing at the Arlington Developmental
36a
Order - No. 92-2213 M1/V, 8/15/96
Center, all persons who have been transferred to other
facilities but who remain the defendants’ responsibility and all
persons at risk of being placed in the Center. Also, in 1995,
the Court addressed the issue of care, services, abuse and
neglect by entering a remedial Order in United State v. State
of Tennessee, Case No. 92-2062-M1-A, as a final order in
this case. Thus, the only remaining issue is the First
Amendment rights of the residents. In order to avoid costly
litigation on that issue, the parties reached an agreement
which would secure the rights of the class members to
exercise their freedom to associate and assemble with others
of their choice.
The Proposed Settlement
1. The plaintiffs and defendants acknowledge that
past violations of the residents' First Amendment rights did
occur. Pilaintiff/residents were prevented from
communicating, associating and assembling with persons of
their choice.
2 According to the proposed settlement, the
Defendants will protect the rights of the Plaintiff/residents by:
(a) developing a policy to enable residents to
communicate, associate, and. assemble with others of their
choice both publicly and privately;
(b) telling the staff of the Arlington Developmental
Center and agencies who work with the Center about the
policy so that the staff will not discourage residents from
exercising their fight to freely communicate, associate and
assemble with others of their choice;
37a
Order - No. 92-2213 M1/V, 8/15/96
(c) establishing a process to discipline staff
members who violate the right of residents to freely
communicate, associate and assemble with others; and
(d) allowing advocates, religious organizations,
and community organizations reasonable opportunity to
communicate with residents and allowing residents the
opportunity to participate in community activities.
How the Settlement Affects Your Rights
The settlement is a complete settlement of all class
members’ claims regarding the Defendants’ interference with
Plaintiff/residents' First Amendment rights to freely
communicate, associate and assemble with persons of their
choice.
How to Comment on the Proposed Settlement
If you do not want to object to this proposed
settlement, then it is not necessary for you to take any action.
If, however, you want to comment on the proposed settlement
or object to it as not being far, reasonable, or adequate, then
you or your attorney on your behalf may file no more than
five (5) pages of typewritten objections on 8 %" by 11"
paper, in no smaller than a ten (10) point font, by 5:00 p.m.
on Friday, September 20, 1996. Comments and objections
must refer to this case by docket number and be submitted to
the Court at this address:
Office of the Clerk
United States District Court
for the Western District of Tennessee
38a
Order - No. 92-2213 M1/V, 8/15/96
167 N. Main Street
Room 242
Memphis, Tennessee 38103
If you file comments or objections, then, at the same time,
you must also send copies of the filed comments or objections
to one of the attorneys for the plaintiffs, one of the attorneys
for the defendants, and one of the attorneys for the intervenor.
The attorneys’ names and addresses are set out below.
y Obtain More Inf ;
You can get a complete copy of the proposed
settlement by writing to plaintiffs' attorneys, at one of the
addresses listed below. You may also examine the court
papers filed in this case, which can be viewed at the Office of
the Clerk for the United States District Court, at the above
address by asking to see the file in People First of Tennessee
y. The Arlington Developmental Center, Case No. 92-2213
MI/V.
If you have any questions or would like more
information about this notice, you may contact your own
lawyer or the lawyers for the plaintiffs.
- Hearing
A hearing on the proposed settlement will be held at
2:00 p.m. on Friday, September 27, 1996, in Courtroom 4 on
the 9th Floor of the Federal Building, Memphis, Tennessee.
Any class member or family member, guardian, or next friend
of a class member who wishes to attend and/or participate in
the hearing must notify the Court by 5:00 p.m. on Friday,
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Order - No. 92-2213 M1/V, 8/15/96
September 20, 1996, by filing with the Clerk of Court at the
above address a typewritten document no more than one page
in length (on 8 4" by 11” paper) that refers to this case by
docket number.
Attorneys for Plaintiffs:
Edward G. Connette Jack Derryberry
Lesesne & Connette 1720 Parkway Towers
1001 Elizabeth Ave., Suite 1D 404 James Robertson
Charlotte, NC 28204 Nashville, TN 37219
(704) 372-5700 (625) 244-0554
Earle Schwartz Frank J. Laski
WARING COX Judith A. Gran
1300 Morgan Keegan Tower Public Interest Law
50 N. Front St. Center of Philadelphia
Memphis, TN 38103-1190 125 South Ninth Street
(901) 543-8000 Suite 700
Philadelphia, PA 19107
(215) 627-7100
Attorney for Defendants:
Diane Dycus, Senior Counsel
General Civil Division
Office of Attorney General
404 James Robertson Parkway
Nashville, TN 37243-0499
(615) 741-6420
Attorneys for Intervenor:
Order - No. 92-2213 M1/V, 8/15/96
William F. Sherman Kaye C. Thurmond, Esq.
504 Pyramid Place Neely, Green, Gargarson
Little Rock, AR 72201 & Brooks
(501) 372-3148 615 Union Avenue, 9" Floor
Memphis, TN 38103
(901) 523-2500
4la
APPENDIX G
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ‘TENNESSEE
WESTERN DIVISION
No. 92-2213 M1/V
FILED
March 21, 1996
CERTIFIED TRUE COPY
ROBERT R. DI TROLIO
U.S. DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
/s/
BY: DEPUTY CLERK
PEOPLE FIRST OF TENNESSEE; et. al.,
Plaintiffs,
v.
ARLINGTON DEVELOPMENTAL CENTER
et. al.,
)
)
)
)
)
)
)
Defendants. )
/
ORDER
On June 9, 1995, intervenor Parent-Guardian
42a
Opinion and Order - No. 92-2213 M1/V, 3/21/96
Association of Arlington Developmental Center filed a motion
for leave to file a complaint and change intervenor's status,
Intervenor seeks leave "to modify its status to independent"
and file a complaint against defendants. Intervenor's proposed
complaint states that it is "asserting a claim that those ADC
residents who will be moved from ADC to community
settings may suffer injury and deprivation of their rights in the
new community settings,” and request that the Court: 1)
Retain jurisdiction of the action as long as necessary to assure
tha: former ADC residents who are moved into community
living arrangements are protected from harm," 2) "Issue such
preliminary and permanent injunction orders as may be
necessary to protect ADC residents (past - present - future)
from harm, wherever they should reside, and from violation
of their constitutional rights," and 3) “Assure that all
community living arrangements for former ADC residents
comply with constitutional and all applicable statutory
standards.” Plaintiffs filed a response on July 12, 1995, and
defendants filed a response on July 14, 1995.
There is no such thing as an "independent" intervenor.
Therefore, intervenor's motion to change status is hereby
DENIED.
Intervenor's motion also seeks leave to file a cross-
claim against defendants. The facts of this case indicate that
leave should not be granted. The Parent-Guardian Association
of Arlington Developmental Center was permitted to intervene
in the instant case by order of January 26, 1993. Thereafter,
the intervenor filed an answer to plaintiffs' complaint and did
not attempt to file a cross-claim against defendants until June
9, 1993. Thus, the current attempt is untimely. Furthermore,
the relief that intervenor seeks in its proposed cross-claim is
43a
Opinion and Order - No. 92-2213 M1/V, 3/21/96
no longer available in this case and can be addressed only in
United State, v. Tennessee, No. 92-2062 MI/A (W.D. Tenn.)
(McCalla, J.). The order entered in the instant case on
September 27, 1995, leaves only plaintiff's claims for
violation of the First Amendment as incorporated by the
Fourteenth Amendment. The substantive due process and
statutory rights of the residents at Arlington Developmental
Center are being dealt with exclusively in United States v.
Tennessee -- in which all the parties to the instant case are
also parties. Thus, allowing intervenor to file its proposed
cross-claim would run contrary to the Court's efforts in
previous orders in the two cases to avoid duplication of issues
and potentially inconsistent results. Accordingly, intervenor’s
motion to file a complaint is hereby DENIED.
SO ORDERED this 21 day of March 1996.
/s/
JON P. McCALLA
UNITED STATES DISTRICT JUDGE
APPENDIX H
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
No. 92-2213 M1/V
FILED
September 26, 1995
ROBERT R. DI TROLIO
CLERK, U.S. DIST. CT.
W.D. OF TN, MEMPHIS
ORDER GRANTING CLASS CERTIFICATION
Before the Court is plaintiffs' motion for class
certification, renewed on June 12, 1995.' For those reasons
On February 11, 1992, the plaintiffs moved for class
certification. The Parent-Guardian Association of the Arlington
Developmental Center (PGA) filed a motion for leave to intervene
for the purpose of opposing class certification, which leave was
granted. A brief evidentiary hearing was held on the Motion for
class certification on April 28, 1993, after which the Court allowed
the parties to supplement the record until July 1, 1993.
U.S.A. vy. State of Tennessee, Civil Actiom No. 92-2062
On January 21, 1992, the United States of America filed suit
against the State.of Tennessee and named defendants, including the
Superintendent of Arlington Developmental Center, pursuant to the
45a
Order - No. 92-2213-M1/V, 9/27/95
Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C.
§ 1997, et seq. Trial began in that case, Uni
v.State of Tennessee, et al.. No. 92-2062 MI/A, on August 30,
1993 (while the motion for class certification in the present case
was pending), and the Court issued a comprehensive opinion in
open court on November 22, 1993, followed by written
Supplemental Findings of Fact on February 17, 1994. The Court
found pervasive violations of Arlington residents’ rights under the
Fourteenth Amendment in almost every aspect of care and services.
In its ruling on November 22, 1993, the Court issued a preliminary
injunction to deal with the immediate threat to human life at
Arlington. As to permanent injunctive relief, the Court afforded the
State of Tennessee an opportunity to comment upon the proposed
injunctive order submitted by the United States and directed the
Commissioner of the Tennessee Department of Mental
Health/Mental Retardation to submit a plan to remedy the violations
of constitutional rights and educational opportunities.
Upon motion by the United States, filed February 9, 1994, and by
Order docketed April 5, 1994, the Court appointed Dr. Linda
O'Neall, an expert with extensive experience in mental retardation,
program evaluation, and systemic reform and restructuring of
mental retardation, services, to serve as Expert Facilitator to assist
the parties in to develop an
acceptable plan for remedying the conditions at Arlington, or, if no
agreement could be reached, to develop a remedial plan for
consideration by the Court. In August, 1994, the United States and
the State of Tennessee reached agreement on the terms of a
Remedial Order to correct the violations of Arlington residents’
constitutional rights. The agreement was entered as a stipulated
Remedial Order, and filed on September 2, 1994. The order
provides for extensive improvements in care and services at
Arlington and obligates the State of Tennessee to reduce the
- population. of Arlington to no more than 200 persons, subject to the
State's receiving approval from the Federal Health Care Financing
46a
Order - No. 92-2213-M1/V, 9/27/95
stated below, the motion is GRANTED.’
Statement of the Case
This case was filed on December 12, 1991, by People
First of Tennessee, a statewide advocacy organization
governed by people with disabilities, on behalf of its
Administration to use federal funds for community placement of
Arlington residents.
The Instant Case: People First, et al. v.
Arlington Developmental Center, et al.
In the instant case, in February 1994, plaintiffs filed a Motion for
Partial Summary Judgment asking the Court to enter its findings on
liability as findings in this case. A hearing was held on this motion
on April 29, 1994. The Court did not decide plaintiffs’ outstanding
motions for class certification, partial summary judgment, or other
motions. Rather, on September 30, 1994, the Court entered an
Order Staying Proceedings and denying all outstanding motions
without prejudice. The Court instructed the parties to review the
Remedial Order and advise the Court how they wished to proceed
in this case. At a status conference on March 31, 1995, the
plaintiffs informed the Court that they wished to refile the motions
and proceed to trial.
2 The motion for class certification was filed on June 12, 1995,
along with a motion to eitter the court's findings and order on
liability in ULS.A. v. State of Tenn... et al., as findings and orders
in this case, a motion for consolidation, and a motion for further
relief. These motions will be addressed in a separate order(s).
47a
Order - No. 92-2213-M1/V, 9/27/95
members, and by five residents of Arlington Developmental
Center ("Arlington") to redress unlawful conditions at
Arlington, on behalf of themselves and all others similarly
situated. Two other individual residents of Arlington were
added as named plaintiffs in subsequent motions for leave to
amend the complaint. Plaintiffs asserted inat defendants
denied them minimally adequate living arrangements,
habilitation and services at Arlington, in violation of their
rights under the First. and Fourteenth Amendments, and
certain federal statutes.
The case was filed in the Middle District of Tennessee
and subsequently transferred to this Court on the defendants’
motion for change of venue. Defendants also filed a motion to
dismiss the complaint which was denied as to plaintiffs' Due
Process and First Amendment claims.? More recently,
defendants have filed a motion to dismiss the complaint.
With regard to the motion for class certification,
plaintiffs have proposed the following class definition:
All persons who on or after December 12, 1989, have
resided, or are residing or will reside at the Arlington
Developmental Center; all persons who have been
transferred to Arlington from other settings such as
* The court dismissed plaintiffs’ claims uncer Title XIX of the
Social Security Act, Sections 100 and 504 of the Rehabilitation Act
of 1973, Title II of the Americans with Disabilities Act of 1990, -
certain First Amendment claims set out in Count IV(b), (d), and (e)
of plaintiffs’ Amended Complaint, and claims under the Equal
- Protection Clause. (See Order on Motion to Dismiss, Dec. 22,
1992.)
48a
Order - No. 92-2213-M1/V, 9/27/95
intermediate care facilities or skilled nursing facilities
but remain defendants' responsibility; and all persons
at risk of being placed at Arlington Developmental
Center.*
Defendants contend, inter alia, that the proposed class
definition is too expansive in that it includes former residents
and those "at risk" of being placed at ADC. Moreover, .they
argue that because a number of parents and/or legal guardians
oppose their children's or wards’ participation in this law suit,
there are an insufficient number of residents to meet the
numerosity requirement of a class action suit.
Rule 23(a) of the Federal Rules of Civil Procedure
provides:
Prerequisites to a Class Action. One or more
members of a class may sue or be sued as
representative parties on behalf of all only if (1) the
class is so numerous that joinder of all members is
impracticable, (2) there are questions of law or fact
common to the class, (3) the claims or defenses of the
representative parties are typical of the claims or
defenses of the class, and (4) the representative parties
will fairly and adequately protect the interests of the
Class.
* Included within the proposed class are three categories: those
who have resided at Arlington at any time from December 12, 1989
to present; those who are residing at Arlington currently; and all
persons at risk of being placed at Arlington in the future.
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The Court will address each of these prerequisites
below.°
Numerosity
Rule 23(a) (1) requires that the class of similarly
Situated individuals be so numerous that joinder of all
members would be impracticable. Numerosity, however, is
judged on the particular facts and circumstances of this case,
and not on the basis of mere numbers, Senter v. General
Motors Corporation, 532 F.2d 511, 523 n.24 (6th Cir. »
1976), cert. denied, 429 U.S. 870 (1976) (citing Cash v.
Swifton Land Corp., 434 F.2d 569, 571 (6th Cir. 1970)..
Further, plaintiffs need not show the precise number of class
members. 696
F.2d 925, 930 (11th Cir. 1983).
Central to the resolution of the issues in this case is the
contention by the defendants and intervenor that the majority
of the parents and guardians of Arlington residents oppose the
goals of this lawsuit and thus there is an insufficient number
of_residents to form a class for this suit. In support of this
contention, the Parent Guardian Association ("PGA") has
submitted for the Court's consideration the responses to two
" Commonality and typicality will be discussed even though the
Court has already indicated that typicality and commonality have
been adequately addressed by plaintiffs, as indicated in a telephonic
conference on May 3, 1995, regarding plaintiffs' motion to compel
discovery, wherein the Court sustained defendants’ objections to
plaintiffs' discovery requests designed to establish commonality and
typicality.
50a
Order - No. 92-2213-M1/V, 9/27/95
questionnaires previously sent by the PGA to parents,
relatives and guardians of Arlington residents in January and
April 1992, indicating disagreement with this suit; and has
provided the Court with declarations from parents and
guardians stating their opposition to plaintiffs’ claims for class
certification as well as to the request ot People First of —
Tennessee to serve as a class representative.
Although these submittals from the parents and/or
guardians do indicate that a number of guardians and
conservators object to their wards' participation in the lawsuit
for those reasons discussed infra, these objections do not
defeat the numerosity requirement of class certification.
At present, the population of Arlington Developmental
Center is approximately 385 persons. During the time of the
first class certification hearing and at the time of trial in
United States of America v. State of Tennessee, et al., Civil
Action No. 922062, the population was approximately 423
persons, thirty of them minors. The attrition is because some
Arlington residents have died during the last two years, and
some have left the institution for other settings.
All but approximately 150 of the residents have
guardians, conservators or parents who hold various rights
and powers of the resident. The guardianship orders for many
residents are not uniform. Some have limited guardians and
others have plenary guardians.
Examples of limited guardianship orders would be
those original probate court orders appointing limited
guardians for plaintiffs Watson and Runions, dated April 8,
1986 and November 16, 1987 respectively. Appendix A.
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Order - No. 92-2213-M1/V, 9/27/95
These give the limited guardians the responsibility to consent
or make decisions relative to medical and mental
examinations, including administration of psychotropic
medication; participation in studies supervised by qualified
individuals; and participation in activities which are
reasonable and necessary for the habilitation of the resident.
The limited guardianship order for plaintiff Wilson is identical
to those of Watson and Runions, except that it does not
contain a provision for consent for participation in studies.
Appendix A, p. 6-8.
Before this lawsuit was filed, guardianship orders
typically assigned the same powers and duties to the limited
guardian .as were assigned to the guardians of Runions and
Watson.° See
© On March 16, 1992, Mona Reeves-Winfrey, Superintendent of
ADC petitioned the Probate Court of Shelby County to substitute
Comcare, Inc. for Guardianship and Trust Corporation (GTC) as
guardian for Runions and Watson. Comcare, Inc. has a contract
with the State of Tennessee and ADC "to provide guardianship
services to Arlington residents who require guardians but who have
no family members available to act as guardian." Order of March
16, 1992, In re: Herman Walter Runions, Probate Ct. No. 8-5506
(Appendix B, p. 1). In addition to substituting Comcare for GTC,
the power "to protect the respondent's personal well-being and
legal interests" was also added to the orders substituting
guardianship. Appendix B, p. 2. When this lawsuit was filed, GTC
expressed no position on Runions' and Watson's Participation in
this suit. (But see Declaration of Comcare, Inc. at 4, filed July 14,
1995.)
As of April 28, 1993, 220 adult residents at Arlington had court-
appointed guardians or conservators; 176 adult residents at
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Order - No. 92-2213-M1/V, 9/27/95
Appendices C & D. That language with relatively minor
Variations is contained in the great majority of Guardianship
Orders for ADC residents. See Appendixes C & D.
Arlington did not nave court-appointed guardians or conservators;
and 30 Arlington tesidents were minors. Affidavit of Dianna Taylor
(filed May 12, 1993). Of the 220 adult residents at Arlington who
hac court-appoinied guardians or conservators, approximately
(some documents were incomplete) 178 had individuals appointed
aS guardians or conservators, and 42 had a contract corporate
guardian or cCorservator appointed (either Comcare, Inc. or
Guardianship and Trust Corporation of Tennessee). (2-Volume
submission by State of Tennessee Relating to ADC Guardianship
Orders, filed under seal May 12, 1993.)
On July 24, 1995, updated lists, reflecting changes in the ‘resident
population since the May 12, 1993 submittal, and copies of
additional guardianship orders Were filed. (Exhibit 30, Hearing
July 24, 1995.) Exhibit 30 does not contain copies of all orders to
which reference s made in the exhibit. (See Exhibit 30, Hearing,
July 24, 1995.) At least one (1) pre-1993 Order Appointing
Limited Guardiat was included in the list and exhibit (Exhibit 30
was to contain ony post April 28, 1993 orders). (See Exhibit 30,
In the Matter of Annie B. /Hardeman County Chancery No. 8393
(Dec. 20, 1989).) Twenty (20) conservatorship or guardianship
orders are contained in Exhibit 30 (Hearing, July 24, 1995).
One hundred thirty-seven (137) declarations have been filed by
intervenor in Opposition to class certification. (See Intervenors'
Notice of Filing Declarations (104 declarations), filed June 9, 1995;
Intervenor's Notite of Filing Declarations (second submission) (29
declarations) filej] July 13, 1995; Intervenor's Notice of Filing
Declarations -(third submission) (4 declarations) filed July 21,
1995.)
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After the lawsuit was filed, the format Changed and an
additional power -- "[t]o protect [the resident's] personal well-
being and legal interests" -- was added. Appendix B.
Although plaintiffs seek a finding that those guardianship
orders which add the power "to protect the person's well-
being and legal interests" are an obvious effort by defendants
to prevent ADC residents from participating in this suit
without the guardian's permission, the Court need not reach
this point to make a ruling on the motion for Class
certification.’
Two of the individual named plaintiffs, Carl Beard
and Stevelyn Tucker, have limited or natural guardians who
have consented to their participation as plaintiffs in this case.
Beard brings this action by a next friend with the consent of
his limited guardian. Tucker brings this action by her parents
and natural guardians. A third plaintiff, Keith Collins, is an
adult without a guardian. He brings this action by his mother
as his next friend.
It is clear from the applicable Tennessee guardianship
statutory provisions and the guardianship orders entered that
the guardians of most Arlington residents have only limited
powers. A new Tennessee conservatorship statute became
effective on January 1, 1993, T.C.A. § 34 chs. 11-13: most
Arlington residents' guardians were appointed under the
previous statute, T.C.A. § 34-1-101, et seq. Under both
Statutes, all powers tha: have not specifically been removed
This evidence may have some bearing on the issue of whether
defendants violated plaintiffs' First Amendment rights. The Court,
however, is not ruling on that question at this time.
54a
Order - No. 92-2213-M1/V, 9/27/95
from the ward and vested in the guardian are retained and
may be exercised by the ward. The current law provides that
If the court determines a conservator is needed, the
court shall enter an order which shali enter an order which
shall
* * *
(2) | Enumerate the powers removed from the
respondent and vested in the conservator. To the
extent not specifically removed, the respondent retains
and shall exercise all powers of a person who has not
been found to be a disabled person.
T.C.A. §34-13-107.°
Moe of the limited guardianship and conservatorship
orders of Arlington residents contain provisions purporting to
deprive wards of the right to associate with others, to confer
with counsel of their choice, or to participate in litigation
through a next friend or class representative. Thus, Arlington
residents, with limited guardianship and conservatorship
orders retain the right to do anything not specifically deprived
* Similarly, the pre-1993 statute provided:
Deprivation of respondent's rights -- The court may
deprive the respondent of the right to vote, dispose of
property, execute instruments, make purchases, enter into
contractual relationships, hold a valid Tennessee driver's
license, give consent to medical and mental examinations
and treatment, or do such other act of legal significance the
court deems necessary or advisablc.
T.C.A. 34-4-111, repealed by Act of 1992, ch. 794, § 50.
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Order - No. 92-2213-M1/V, 9/27/95
of them by the limited guardianship orders.”
Further, it is settled law in Tennessee that the rights of
minors and other persons under legal disability may not be
waived by a natural or legal guardian. "The general rule is
that a guardian may not waive the rights of an infant or an
incompetent." Childress vy. Madison County, 777 S.W.2d. 1,
6 (Tenn. Ct. App., 1989) (citing 39 Am. Jur. 2d Guardian &
Ward § 102 (1968); 42 Am. Jur. 2d Infants § 152 (1969).
Indeed, legal authority supports the proposition that
minors and other persons under a legal disability retain the
rights of other citizens and that parents and guardians lack the
power to waive the fundamental rights of their children and
wards. Thus, a minor or ward has standing to sue to enjoin
violatious of his or her constitutional rights despite the
parent's or guardian's consent to the practices or conditions
being challenged. See Milonas v. Williams, 691 F.2d 931,
943 (10th Cir. 1982), cert. denied, 460 U.S. 1069 (1983)
(parent cannot authorize the state to limit a child's liberty
without showing good cause); see also Doe by Doe v. Austin.
” It is also clear that under Tennessee law that, except as narrowly
limited by orders of guardianship, Arlington resicents retain their
other basic civil rights and liberties. For example, T.C.A. 33-3-101
provides that, "[nJo person shall be deprived of his [or her] liberty
on the grounds that ie [or she] is, or is supposed to be, mentally ill,
mentally retarded, or in need of mental treatment, except in
accordance with the provisions of this title." At Part II of Title 33
Tennessee adopted, as a matter of public policy, a declaration of
special rights of the mentally retarded which at Article | provides
that a "mentally retarded person has the same basic rights as other
citizens of the same country and same age." T.C.A. 33-5-201.
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Order - No. 92-2213-M1/V, 9/27/95
848 F.2d 1386, 1392 (6th Cir.), cert. denied, 488 U.S. 967
(1988) (the commitment of mentally retarded adults upon
application by a parent or guardian is to be considered
involuntary); Thomas S. by Brooks v. Morrow, 601 F.Supp.
1055 (W.D.N.C. 1984), aff'd, 781 F.2d 367 (4th Cir. 1986),
cert. denied sub. nom. Kirk v. Thomas S. by Brooks, 476
U.S. 1124 (1986) (young man with retardation whose court-
appointed guardian had consented to his admission to a state
institution had standing to sue the Secretary of the North
Carolina Department of Human Resources and his guardian
for violating his right to minimally adequate habilitation and
unnecessarily restraining his liberty).
As for the Arlington residents whose guardians have
the authority “to protect their well-being and legal interest,"
even if this clause is interpreted to authorize the guardian to
bring civil litigation on behalf of the ward, such authority
cannot be exclusive. Bonnie S. v. Altman, civ. No. 87-3709;
slip. op. at 5 (D.N.J. April 19, 1988) (quoting S. BRAKEL,
ET AL., THE MENTALLY DISABLED AND THE LAW
437 (3d ed. 1985) ("[mJodern authorities generally regard the
requirement that a guardian sue or be sued for the
incompetent person as a protection of the interests of the
incompetent person rather than as a limitation on ‘his or her
Capacity to institute suit" (emphasis added by the court)).
(Decision is attached to Plaintiffs' Proposed Findings of Fact
and Conclusions of Law dated July 4, 1993, as Appendix C).
To hold that a person confined to an institution must
obtain the consent of his or her appointed guardian to sue for
violations of constitutional rights would render those rights
meaningless. Altman at 1. In a lawsuit in which plaintiffs
challenge conditions to which their guardians have acceded
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Order - No. 92-2213-M1/V, 9/27/95
is unlikely to be forthcoming." Id. at 5 (citations omitted).
Given the complexity of the housing, habititation and
service issues experienced by members of the proposed Class,
given the application of a common legal standard of review to
all putative class members, plaintiffs satisfy the requirement
of numerosity under Rule 23(a) (1) in that joinder of all
members would be impracticable.
Commonality and Typicality
The second and third requirements of Rule 23(a) are
that there be questions of law and fact common to the class
and that the claims of the named plaintiffs be typical of those
in the class. Since "the commonality and typicality
requirements of
Rule 23(a) tend to merge ...,”
Falcon, 457 U.S. 147, 157 n.13 (1982), these will be
discussed together.
Rule 23(a) (2) requires that there be "questions of law
and fact common to the class." Similarly, the requirement of
Rule 23(a) (3) requires that for typicality to exist there must
be a common element of fact or law. Senter, 532 F.2d at
523. Plaintiffs’ claims are typical of those of the class as long
as "the claims or defenses of the Class and the class
representatives arise from the same event or pattern or
practice and are based on the same legal theory."
i ise Li 741 F.2d 1332, 1337 (11th Cir.
1984), cert. denied 470 U.S. 1004 (1985); see also Penn v.
San_Juan Hospital, Inc., 528 F.2d 1181, 1189 (10th Cir.
58a
Order - No. 92-2213-M1/V, 9/27/95
= 1975). eee. sierra
The defendants apparently do not challenge the
‘commonality of the proposed class. However, the intervenor
contends that the commonality requirement is not met because
of the diverse circumstances and unique characteristics of each
Arlington resident. Since commonality refers to the
____________defendants' conduct and is not defeated by the presence of
individual differences among class members, intervenor's
argument is without merit. See Adamson vy. Bowen, 855 F.2d
668, 676 (10th Cir.- 1988); Appleyard v. Wallace, 754 F.2d
955, 958 (11th Cir. 1985); and see Baby Neal v. Casey, 43
F.3d 48, 56-57 (3d Cir. 1994) (commonality requirement can
be met even though class members have individual
circumstances, relying on Califano v. Yamasaki, 442.U.S.
682, 99 S.Ct. 2545, 61 L. Ed. 2d 176 (1979).)
While each individual class member in the instant
case, requires individualized services, class members as a
whole need similar types of habilitation and services, such as
adequate physical therapy, proper feeding techniques,
habilitation plans and behavioral programming. The common
factual inquiry with respect to all class members is whether
defendants are providing constitutionally adequate habilitation
as well as whether defendants are prohibiting residents from
associating with certain individuals in. violation of their First
Amendment rights. Furthermore, based on the record before
the Court, the claims of the proposed plaintiff class arises
from the same patterns and practices and are based on the
same legal theory.
Adequacy of Representation
Order - No. 92-2213-M1/V, 9/27/95
Rule 23(a) (4) requires the representative parties to be
able to fairly and adequately protect the interests of the class
as a whole. This prerequisite contains two requirements: that
the named plaintiff themselves have no interests antagonistic
to those of the rest of the class, and that plaintiffs’ counsel be
qualified, experienced and generally able to conduct the
proposed litigation. See Griffin v. Carlin, 755 F.2d 1516,
1533 (11th cir. 1985) (citing ia Hi
Express, Inc., 417 F.2d 122, 1125 (Sth Cir. 1969)).
As discussed above, the central issue with regard to
Class certification appears to be whether the lack of consent by
parents and guardians for the Participation of their sons,
daughters and wards in the litigation, renders plaintiffs
inadequate represetatives of the class. This issue arises from
the fact that the great majority of Arlington residents cannot
express a choice regarding whether to participate in this
lawsuit or a choice regarding the relief that should be entered.
This, for a substantial number of the residents, is so because
of their particular disabilities along with lack of experience,
training and/or assistance in communicating.
'© People First has Standing to bring this action on behalf of its
mbers who are members of the proposed class, as well as to
defendants' alleged refusal to allow People First to communicate
with its members and to allow members to attend People First
60a
Order - No. 92-2213-M1/V, 9/27/95
that the individual named plaintiffs have the same remedial
objective(s) as People First and further do not appear to object
to the participation of plaintiffs Carl Beard, Keith Collins and
Stevelyn Tucker in this lawsuit through their next friends and
parents. Thus, defendants and intervenor appear to concede
that at least three individual plaintiffs in this action are proper
class representatives under Rule 23(a) (4).
meetings, see Simon v. Eastern Kentucky Welfare Rights’
Organization, 426 U.S. 26 (1976) (to establish standing as
representative organization, proposed representative must show that
members have been injured in fact and that members could have
brought suit in their own right); also see Warth v. Seldin, 422 U.S.
490 (1975) . At least nine members of the proposed class,
including individual plaintiffs Sandra Howard and Clarence Wilson,
are members of People First of Tennessee who have formal
membership applications on file with the organization. At least nine
additional members of the proposed class have attended People
First meetings.
The testimony at the hearing showed that People First has been
interested in problems at Arlington since March 1991, when the
Department of Justice issued its Letter of Finding to Governor
McWherter. After the Letter of Finding was issued, People First
convened a special board meeting to discuss the findings. The
‘officers of People First also met with the Commissioner of Mental
Health/Mental Retardation and left the meeting convinced that the
state would not resolve the problems voluntarily.
At the March 1991 special People First board meeting, after
discussion of the findings, a motion was made to ask attorneys to
come to the next regular board meeting, in June 1991, to discuss
litigation.
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Order - No. 92-2213-M1/V, 9/27/95
The defendants and intervenor, however, contend that
plaintiffs cannot represent the majority of Arlington residents,
and that four of the seven named plaintiffs (Sandra Howard,
Herman Runions, Harvey Watson, and Clarence Wilson) are
precluded from serving as class representatives, because they
have limited guardians who have not consented to their
participation as plaintiffs in this action.
As discussed more fully above, the parents and
guardians lack the authority to waive the fundamental rights
of their children and wards; moreover, any authority by the
parents or guardians to bring civil litigation on behalf of their
ward is not exclusive.
Additionally, a court may not refuse to certify a class
merely because some class members may prefer to leave a
potential violation of their rights unremedied. Martino vy.
McDonald's System, Inc, 81 F.R.D. 81, 85 (N.D. Ill. 1979),
(citing 3B MOORE'S FEDERAL PRACTICE, ¢ 23.06-2, 23-
197 (1978)); ivi
Commission, 435 F.Supp. 546, 559 (E.D.N.Y. 1977), appeal
dismissed, 566 F.2d 846 (2d Cir. 1977).
The holding of the Court of Appeals in Halderman y.
Pennhurst, 612 F.2d 84, 109-111 (3d Cir. 1979) is squarely
on point in this regard. Pennhurst was a class action suit
brought by the Pennsylvania Association for Retarded
Citizens and named plaintiffs who were residents of the
institution or at risk of placement there. The state defendants
challenged certification of the class as proposed by plaintiffs,
arguing that a "conflict" existed between the plaintiff
organization, which supported community placement, and the
vast majority of the parents and guardians, who wished the
62a
Order - No. 92-2213-M1/V, 9/27/95
institution to remain open. The Court of Appeals rejected the
defendants' argument and held that the Pennsylvania -
Association for Retarded citizens, the named plaintiffs and
next friends were proper class representatives because they
had alleged and proved violations of Pennhurst residents’
constitutional rights that affected all of the residents, not
simply those who wished a transfer from Pennhurst. Where
the issue was the defendants’ liability, disagreement over
relief had no bearing on class certification:
At the liability stage, therefore, important
questions of law were common to all members
of the class. Thus, regardless of any
subsequent disagreement as to the appropriate
relief, we can think of no persuasive reason to
have fractionated the class at that early
juncture.
612 F.2d at 109 (emphasis added).
Additionally, courts have found individualized
decisions at the remedial stage fully compatible with class
certification, see Pennhurst, 612 F.2d 84, 110-111 (3d Cir.
1979), rev'd on other grounds, 451 U.S. 1 (1981).
In the instant case, ample protection exists for the
interest of any class member who opposes the relief sought by
plaintiffs. It is clear that the interest of any class member who
desires to maintain the status quo will be adequately
represented by the intervenor or, perhaps, by the defendants.
Plaintiffs need not show that the whole or a majority of the
class considers his [or her] representation adequate." Eisen v.
Carlisle & Jacquelin, 391 F.2d 555, 563 (2d Cir. 1968).
63a
Pena aameretnlendebaclsernescie en
Hee DNA oe Oe.
ET an a OS wr
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Order - No. 92-2213-M1/V, 9/27/95
In Richard C. v. Snider, 1993 WL 757634 (W.D.
Pa.), the court was faced with an objection by an intervenor
parent association, similar to that voiced here against People
First, to the class representative status of the Pennsylvania
Association for Retarded citizens (PARC) and the
Pennsylvania Protection & Advocacy Association. The
intervenor claimed that the organizations were not proper
class representatives because "they follow a philosophy that
institutions such as Western Center are unnecessary and
obsolete, are never appropriate for the placement of mentally
retarded persons and should be closed." Id. at *5. In
response, the court found that
Although opposing intervenors overstate the
position of these organizational plaintiffs, it is
true that they advocate the community
placement and support, where it is appropriate,
of persons residing in Western Center and
similar institutions. Their position, however,
is not antagonistic to the interests of the class
members, notwithstanding the disagreement of
the opposing intervenors.
Id.
Based on the foregoing, the Court finds that the named
plaintiffs, together with People First of Tennessee, are
appropriate representatives in this case. In making such a
determination, the court is mindful that to the extent that the
views or goals of the parents and guardians are in conflict
with those of the named plaintiffs and People First of
Tennessee, those views or goals appear to be adequately
represented by the Parent Guardian Association which has
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Order - No. 92-2213-M1/V, 9/27/95
been allowed to intervene in this action. By allowing
intervention by the PGA and by certifying the class, the Court
is assuring all affected parties the opportunity to be heard on
the merits of plaintiffs’ claims. ,
Competency Of Counsel
There appears to be no dispute as to the competency
of plaintiffs‘ counsel to represent the class. They are
experienced in class action litigation, appear to have extensive
knowledge of community service systems and extensive
experience enforcing the rights of former institutional
residents after they move to the ‘community. A brief outline
of each counsel's experience is set out below.
Jack Derryberry has handled class action litigation in
antitrust actions, employment discrimination actions, and
actions under the Equal Protection Clause. He has an
extensive practice in the educational rights of persons with
disabilities, and also has extensively represented persons with
disabilities in civil commitment cases. He serves as a Land
Commissioner for the United States District Court for the
Middle District of Tennessee.
Edward G. ("Woody") Connette graduated from
Davidson College in 1974 and from University of North
Carolina Law School in 1977. He has been engaged in the
practice of law since graduation from law school. Since 1987,
Connette has been a partner in Lesesne & Connette, where his
primary emphasis is general civil trial work.
He has served as lead counsel or co-counsel in numerous class
actions.
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Order - No. 92-2213-M1/V, 9/27/95
Earle J. Schwarz graduated from Brown University in
1975 and received his J.D. from Vanderbilt University in
1980, where he served as Authorities Editor for the
Vanderbilt Journal of Transnational Law. He is a diplomate
of the Court Practice Institute, a recipient of the Pro Bono
Panel for Senior Citizens Service Award in 1984, and member
of the Panel of Arbitrators of the American Arbitration
Association. Mr. Schwarz is a partner in the Waring Cox law
firm in Memphis, Tennessee. He has served as counsel in
federal and state class action lawsuits.
Judith Gran and Frank Laski of the Public Interest
Law Center of Philadelphia are class counsel for many of
institutional residents and former residents who now live in
the community. Ms. Gran graduated from Wellesley College,
the University of Chicago, and Temple University School of
Law, where she served on the Temple Law Quarterly. Mr.
Laski graduated from the University of Massachusetts and
Harvard University School of Law. He is President of TASH
(the Association for Persons with Severe Handicaps), a
leading professional organization in the field of services for
persons with severe disabilities.
In addition to meeting the requirements of Rule 23(a),
the Court concludes that the requirements of Rule 23(b) (2)
have also been satisfied.
For the reasons set out above, it is hereby ORDERED
that a class of plaintiffs is certified to include: all persons who
on or after December 12, 1989, have resided, or are residing
at the Arlington Developmental Center; all persons who have
been transferred from Arlington Developmental Center to
other settings such as intermediate care facilities or skilled
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Order - No. 92-2213-M1/V, 9/27/95
nursing facilities but remain defendants’ responsibility; and all
persons at risk of being placed at Arlington Developmental
Center.
Entered this 26 day of September 1995.
/s/
JON PHiPPS McCALLA
UNITED STATES DISTRICT JUDGE
67a
APPENDIX I
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
No. 92-2213 M1/V
FILED
September 27, 1995
ROBERT R. DI TROLIO
CLERK, U.S. DIST. CT.
W.D. OF TN, MEMPHIS
ORDER GRANTING MOTION TO ENTER
FINDINGS FROM 92-2062 IN THIS CASE
AND
GRANTING MOTION TO INTERVENE IN CIVIL
ACTION NO. 92-2062
Before the Court is plaintiffs' Motion for Entry of The
Court's Findings And Orders on Liability in United States of
i aL. civil Action No. 92-
2062, as Findings of Fact in This Case, and Motion to
Consolidated, filed June 12, 1995. More specifically ,
plaintiffs assert that defendants should be prevented from
litigating the issue of defendants’ liability for violation of
plaintiffs’ substantive due process rights' because that issue
' ‘The-parties both agree,-and the.Court has previously noted, that
the substantive due process claim in the present matter is identical
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Order - No. 92-2213-M1/V, 9/27/95
has already been decided by the Court in U.S.A. v. State of
Tennessee, civil Action No. 92-2062. Plaintiffs are not
seeking issue preclusion on their First Amendment claim since
that claim was not litigated in Civil Action No. 92-2062; but
they argue that for purposes of judicial economy both cases
should be consolidated. For those reasons stated below, the
Motion to Enter Findings is GRANTED and the Motion for
Consolidation will be treated as a Motion to Intervene, which
is GRANTED.
The doctrine of issue preclusion, also known as
collateral estoppel, is used to prevent unnecessary relitigation
of issues that previously have been decided. Generally, issue
preclusion is appropriate where an issue in a prior action was
raised, litigated, and actually determined and where the
estopped party (defendants) had a full and fair opportunity to
be heard on this issue in the prior action. See NLRB v.
Master Slack Corp., 773 F.2d 77, 81-81 (6th Cir. 1985). The
doctrine, in federal cases, is no longer limited by the need for
mutuality of the parties. Allen v. McCurry, 449 U.S. 90, 94-
95 (1980) (citing Blinder-Tongue Laboratories, Inc. v.
University of Illinois Foundation, 402 U.S. 313 (1971)).
Thus, a plaintiff who was not a party to a prior federal suit
can, under many circumstances, use collateral estoppel
"offensively" in a subsequent case against the party who lost
in the earlier suit. See Parklane Hosiery Co. v. Shore, 439
U.S. 322 (1979).
The trial in U.S.A. vy, State of Tennessee, et al. began
to the substantive due process claim litigated in U.S.A. v. State of
IN.
69a
Order - No. 92-2213-M1/V, 9/27/95
on August 30, 1993 and ended on October 26, 1993. During
the trial the United States presented a total of 17 witnesses,
together with a large number of depositions and deposition
excerpts. The state of Tennessee began its defense on
September 10, 1993, ultimately presenting the live testimony
of 20 witnesses plus a large number of depositions. In rebuttal
the United States presented the testimony of three witnesses
and the video deposition of Dr. Susan Hyman. Over 440
exhibits were introduced at trial and considered by the court.
Based on the extensive evidence presented in this case, the
Court entered detailed findings of fact, assessing credibility of
witnesses, resolving conflicts in testimony, and weighing the
sufficiency of evidence. Specifically, in oral findings of
November 22, 1993 (Addendum docketed February 18, 1994)
and Supplemental Findings of Fact filed February 18, 1994,
the Court found that conditions at Arlington did not meet
minimally adequate constitutional standards and, therefore,
defendants were found to have violated the due process rights
of residents at Arlington Developmental Center.
All of the defendants named in U.S.A... v, State of
Tennessee, et al., are officials of the State of Tennessee who
are sued in their official capacity. Named defendants include
Don Sundquist, Governor of the State of Tennessee, Marjorie
Nelle Cardwell, Commissioner of the Tennessee Department
of Mental Health and Mental Retardation, and Max Jackson,
Superintendent of Arlington Developmental Center.
In the matter currently before the Court, all defendants
are named in their official capacity as well. As this Court has
previously noted, "When a suit is brought against employees
of a state or a county or other political subdivision in their
official capacity, the governmental entity with whom they are
70a
Order - No. 92-2213-M1/V, 9/27/95
employed is, for all practical purposes, the actual party in the
case." (Addendum to Supp. Find. of Fact at 3.) Thus, both
cases share a common defendant, the State of Tennessee.
A review of the record of U.S.A. v. State of
Tennessee, et al. reflects that defendants had a full and fair
opportunity to litigate the key issue of whether conditions at
Arlington met minimally adequate due process standards
prescribed by the Constitution. Additicnally, allowing
defendants a second opportunity to litigate the same issues
already decided by the Court in U.S.A. v. State of Tennessee,
et_a, would be a waste of judicial resources. Furthermore,
defendants agree in their motion to dismiss that collateral
estoppel or res judicata applies to this case, although they
argue that application of either doctrine should result in
dismissal of the case. See Motion to Dismiss, filed June 12,
1995.” Thus, defendants are barred by the doctrine of issue
preclusion from again litigating their liability under this
substantive due process claim.’ Accordingly, the Motion for
Entry of the Court's Findings is GRANTED.
Since plaintiffs have established that they meet the
2 The motion to dismiss will be addressed by the Court in a
separate order of the Court.
> In so ruling, the Court, upon reviewing the record, notes that
nonmutual offensive collateral estoppel is applicable against the
State of Tennessee under the facts in this case and thus the
limitation of this doctrine by United States v. Mensoza, 464 U.S.
154 (1984), is not Ls pay See, e. g., tee
F. Supp. 1475 (Ds Col 1987).
Tla
Order - No. 92-2213-M1/V, 9/27/95
conditions for applying the doctrine of issue preclusion, the
prior findings of fact, including supplemental findings of fact
(Supplemental Findings, docketed February 18, 1994 (docket
entry #251); Addendum docketed. February 18, 1994 (docket
entry #252)), by the Court in civil Action No. 92-2062 ARE
HEREBY ENTERED as findings of fact in this case.
Furthermore, the Court having previously found that the
Remedial Order, docketed September 2, 1994 (docket entry
#338), is the appropriate remedy in this matter for violation
of the plaintiffs' due process rights, IT IS HEREBY
ORDERED that the Remedial Order, docketed September 2,
1995, IS ENTERED as the final Order in this matter as a
remedy for defendants' violation of plaintiffs' Fourteenth
Amendment rights.
Consolidation
Plaintiffs have additionally moved for consolidation of
the present case with Civil Action No. 92-2062 pursuant to
Federal Rule of Civil Procedure 42(a) which allows a Court
to consolidate cases when pending actions involve a common
question of law or fact to avoid unnecessary costs or delay.
Upon consideration of the motion in this matter, it appears
that consolidation is not applicable. See
LS.D. et al., 980 F.2d 1514, 1531-32 (5th Cir. 1993).
However, it appears that plaintiffs are actually seeking
to intervene in Civil Action No. 92-2062, under Federal Rule
of Civil Procedure 24. Based on the record before the Court
72a
Order - No. 92-2213-M1/V, 9/27/95
and the facts and circumstances in this case,’ it is the opinion
of this Court that the interest of plaintiffs in Civil Action No
92-2213, as well as the intervenors', are not adequately
represented in Civil Action No. 92-2062 and that those
interests would be adversely affected if plaintiffs and
intervenors were not allowed to intervene in the case of
U.S.A. v. State of Tennessee.° See United States v. Detroit
International Bridge Company, 7 F.3d 497 (6th Cir. 1993)
(district court's denial of motion to intervene filed
approximately 8 month after the settlement agreement was
* Since December 11, 1992 plaintiffs and intervenor in this case
have been allowed to attend depositions and receive documents in
USA vy. State of Tennessee, et al., Civil Action No. 92-2062. Rule
16(b) Scheduling Order (docketed December 11, 1992). Plaintiffs
first sought consolidation with Case No. 92-2062 by motion filed
February 7, 1994. See also, Order Directing Plaintiffs and
Intervenor to Execute Protective Order (filed December 28, 1992)
(allowing presence and receipt of discovery materials by People
First plaintiffs and intervenor). Intervention in Civil Action No. 92-
2062 will not unduly delay or prejudice the adjudication of the
rights of the original parties in that case; moreover, the intervening
parties’ interests (both the People First plaintiffs and the Parent-
Guardian Association) are not adequately represented by the
existing parties. Thus, intervention in case no. 92-2062 is
appropriate under both Rule 24(a) and 24(b). See U.S. v. Oregon,
839 F.2d 635, 638 (9th Cir. 1988) (state mental health facility
residents entitled, as a matter of right, to intervene in federal
government civil rights action against state).
° Since defendants addressed this issue in their Response to the
motion to consolidate, the Court has considered the question of
prejudice and determines that intervention would best serve the
interests of justice.
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Order - No. 92-2213-M1/V, 9/27/95
dated was an abuse of discretion).
Based on the foregoing, the Motion to Enter Findings
is GRANTED and the Motion to Consolidate will be treated
as a motion to Intervene which is GRANTED.
Because First Amendment association rights remain to
be resolved in this case, a Rule 16(b) follow-up scheduling
conference has been set at 9:00 a.m. on Thursday, October
19, 1995 in this case to establish final discovery and motion
deadlines on those issues and to set trial and pretrial dates.
Counsel should be prepared to address all issues set out in the
Court's Standing Order on Rule 16(b) conferences.
Intervenors People First, et al. and the Parent-
Guardian Association are also hereby given notice of hearings
currently set for 9:30 a.m. on Tuesday. October 10, 1995 and
9:00 a.m. on Friday, October 27, 1995 in Civil Action No.
92-2062.
SO ORDERED this 27 day of September 1995.
/s/
JON PHIPPS McCALLA
UNITED STATES DISTRICT JUDGE
74a
APPENDIX J
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
No. 92-2213-M1/Bro
FILED
September 29, 1994
W.D. OF TN, MEMPHIS
PEOPLE FIRST OF TENNESSEE
etal.,
Plaintiffs,
¥-
ARLINGTON DEVELOPMENTAL
CENTER, et al.,
Defendants.
i i a a ee a ee
/
ORDER STAYING PROCEEDINGS
Currently there are several pending motions before the
court, including but not limited to a motion for class
certification, for appointment of next of friends, for partial
summary judgment and for consolidation with civil action
number 92-2062. This court filed a stipulated Remedial Order
in Civil action number 92-2062 on September 2, 1994. That
Order addresses the agreed remedy for the unconstitutional
75a
conditions found to exist at Arlington Developmental Center.
The motions pending in the instant matter were filed
prior to entry of the Remedial Order in civil action no. 92-
2062. The germane claim in the above-styled matter
(substantive due process) is identical to the claim resolved in
civil action no. 92-2062 which resulted in the entry of a
Remedial Order. Accordingly, proceedings in the instant
matter are stayed until January 15, 1994, and all motions are
denied without prejudice. During the interim the parties to
this case are instructed to review the stipulated Remedial
Order and determine whether they wish to pursue any of the
previously filed motions, wish to file different motions or
wish to have the case dismissed without prejudice.
SO ORDERED this 29 day of September, 1994.
/s/
JON PHIPPS McCALLA
UNITED STATES DISTRICT JUDGE
76a
APPENDIX K
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
No. 92-2213-M1/A
FILED
January 26, 1993
W.D. OF TN, MEMPHIS
PEOPLE FIRST OF TENNESSEE )
etal.,
Plaintiffs,
V.
a
ARLINGTON DEVELOPMENTAL
CENTER, et al.,
Defendants.
— a"
/
ORDER ON MOTION TO DISMISS
This cause is before the Court on defendants’ motion
to dismiss the complaint in its entirety for failure to state a
claim under Federal Rule of Civil Procedure 12(b) (6).' For
| The motion.to dismiss included an assertion that Plaintiff People
First did not have standing to sue as "next friend" under FRCP
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Order - No. 92-2213 M1/A, 1/26/93
the reasons stated below, the motion to dismiss is GRANTED
in part and DENIED in part. Claims under Title XIX of the
Social Security Act, Sections 100 and 504 of the
Rehabilitation Act of 1973, Title II of the American With
Disabilities Act of 1990, the Equal Protection Clause, and the
First Amendment as set out in Count IV(b), (d), & (e) are
DISMISSED. The claims remaining are those under the First
Amendment as set out in Count IV(a) and (c) and the Due
Process Clause.
Because this case raises important issues and
controlling questions of law as to which there is substantial
ground for difference of opinion and that an immediate appeal
from this order with respect to certain claims may materially
advance the ultimate termination of litigation, the following
claims are certified for appeal: (1) Title XIX of the Social
Security Act; (2) Sections 100 and 504 of the Rehabilitation
Act of 1973; and (3) Title II of the Americans With
Disabilities Act of 1990.
This action is brought by People First of Tennessee,
a state wide advocacy organization governed entirely by
people with disabilities, on behalf of its members and by five
17(c) because four of the five originally named individual plaintiffs
had legal guardians who apparently are opposed to the suit. Even
if four of the named plaintiffs did not have standing, at least one
plaintiff would and, therefore, this Court can appropriately consider
the other issues raised in the motion to dismiss. The issue of
standing will not be addressed in this opinion, but will be
subsequently considered. See Order filed Oct. 1, 1992, allowing
plaintiffs additional time to request discovery on the issue of
standing, if warranted.
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Order - No. 92-2213 M1/A, 1/26/93
mentally retarded residents of Arlington Developmental
Center ("Arlington") to redress allegedly unlawful conditions
at Arlington. The plaintiffs assert that they are denied living
arrangements (placement in-small,. individualized, family-scale
community residential programs) and services because of the
severity of their retardation and physical disabilities and that
defendants have failed to meet their federal statutory and
regulatory obligations with regard to placing, monitoring and
discharging plaintiffs to alternative non-institutional services.
The original complaint raised claims under five (5)
statutory and constitutional provisions.* By motion filed
January 31, 1992, defendants moved to dismiss the complaint
in its entirety. On January 30, 1992, the plaintiffs filed an
amended complaint which added a sixth count: Title II of the
Americans With Disabilities Act of 1990 ("ADA"), which
became effective on January 26, 1992. Defendants moved to
dismiss the ADA claim by motion filed February 11, 1992.
For purposes of judicial economy, the defendants' two
motions to dismiss will be treated as a single motion to
dismiss all six counts of the Amended Complaint.
The defendants contend, in the context of this case,
that neither Title XIX nor its regulations create rights
enforceable under 42 U.S.C. § 1983 against the defendants as
providers of service and that the defendants have failed to
2 These claims were: (1) Title XIX of the Social Security Act; (2)
Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794);
(3) the Due Process Clause of the Fourteenth Amendment, U.S.
Constitution; (4) the Equal Protection Clause of the Fourteenth
Amendment, U.S. Constitution;.and (5) the First Amendment to the
U.S. Constitution.
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Order - No. 92-2213 M1/A, 1/26/93
allege any deficiency in the state administrative structure
sufficient to state a cause of action. They also argue that the
plaintiffs’ claims are not cognizable under the Rehabilitation
Act; that due process rights are not implicated in this case:
that only First Amendment claims pertaining to named
individuals are actionable; that the plaintiffs have failed to
state an Equal Protection claim; and that the Eleventh
Amendment is a bar to some of the claims.? Each one of these
contentions will be dealt with in turn.
Under the standard of review for a motion to dismiss
for failure to state a claim under Rule 12(b) (6), the defendant
Cir. 1983), rehearing denied, 726 F.2d 277, cert. denied, 469
U.S. 826 (1984). In reviewing the motion, the court must
accept as true all factual allegations in the complaint. Windsor
at 1103. All reasonable inferences are resolved in favor of the
plaintiff and dismissal is only appropriate if it appears beyond
a doubt that the plaintiff can prove no set of facts in support
of the claim which would entitle him or her to relief. Conley
v. Gibson, 355 U.S. 41, 45-46 (1957): Ang vy. Gamble Co.,
932 F.2d 540, 541 (6th Cir. 1991).
Eleventh Amendment
Defendants argue that the Eleventh Amendment is a
bar to the plaintiffs’ claims against defendants Arlington
’ The motion to dismiss also raised the issue of standing. See note
1, supra.
80a
Order - No. 92-2213 M1/A, 1/26/93
Developmentai Center, the Tennessee Department of Mental
Health and Mental Retardation, the Tennessee Department of
Health, and the Tennessee Department of Human Services for
relief under Counts I (social Security Act), III (due process
clause), IV (First Amendment) and V (equal protection).
Courts are limited by the Eleventh Amendment to providing
for only "prospective injunctive relief" against state officials
sued in their official capacity. Graham v. National Collegiate
Athletic Ass'n, 804 F.2d 953, 959 (6th Cir. 1986).
Accordingly, the claims against the above-listed agencies
pursuant to the Social Security Act, the due process clause,
First Amendment and the equal protection clause are
dismissed.* However, this Court can consider the merits of
the plaintiffs' claims against individual defendant state
officials sued in their official capacities since, if successful,
plaintiffs could be entitled to prospective injunctive relief.
Title XIX of the social Security Act
The plaintiffs assert that Title XIX of the Social
Security Act creates judicially enforceable rights against state
officials under 42 U.S.C. § 1983. The defendants agree that
the plaintiffs may sue under the Social Security Act when the
actions of state officials have denied a direct right to payment,
See Maine v. Thiboutot, 448 U.S. 1 (1980), but that the
plaintiffs cannot sue the defendants for failure to meet any
minimum standards of care -- standards of care which the
4 Defendants do not contend the Eleventh Amendment is a bar to
plaintiffs' claims pursuant to the Rehabilitation. Act. Thus, the
Court's analysis under the Rehabilitative act is not only applicable
to the named individual defendants, but.is.also applicable to the
defendant agencies.
8la
Order - No. 92-2213 M1/A, 1/26/93
facility must meet in order to retain federal funding under the
Act, which are indirect benefits.
When determining whether a federal statute creates
implied rights of action,’ the primary focus is on
congressional intent. Cabinet for Human Resources, Com. of
‘n, 954 F.2d
1179, 1181 (6th Cir. 1992). The Supreme Court in Cort y.
Ash, 422 U.S. 66 (1975) set out four factors to consider when
determining whether a private remedy is implicit in the
statute. These factors are as follows:
(1) Is the plaintiff one of the class for whose special benefit
the statute was enacted? (2) Did Congress indicate any intent
either to create or deny a remedy? (3) Would implying a
remedy for the plaintiff be consistent with the underlying
purpose of the legislative scheme? and (4) Would the cause of
action be one traditionally delegated to state law such that it
should be inappropriate tc imply a federal remedy? Cabinet
for Human Resources at 1181.
The defendants assert that the courts should not
second-guess certification decisions, thereby rendering
superfluous the entire administrative review and oversight
mechanism developed by Congress through the Medicaid
program. Such enforcement by the federal courts would
interfere with the administrative system which each state has
been required to implement.
* The parties agree that Title XIX does not expressly provide for
a private right of action.
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Order - No. 92-2213 M1/A, 1/26/93
Defendants arguments are compelling. This Court is
not persuaded that Congress in enacting Title XIX of the
Social Security Act intended to create a private cause of action
for enforcement of the standards of care which.a facility must
meet in order to retain funding. Accordingly, plaintiffs’
claims under Title XIX are dismissed.°
Rehabilitation Act of 1973, and Title II of the American
With Disabilities Act of 1990
In order to state a claim under § 504 and Title II ’
plaintiffs must prove (1) that they are handicapped within the
meaning of the Act (2) that they are "otherwise qualified" for
the services sought, (3) that they were excluded from the
services sought solely by reason of these handicaps, and (4)
that the program in question receives federal financial
assistance. Clark v. Cohen, 613 F. Supp. 684, 692 (D.C.Pa.
1985), affirm'd on other grounds, 794, F.2d 79 (3rd Cir.),
cert denied, 479 U.S. 962 (1986); See also Doherty v.
Southern College of Optometry, 862 F.2d 570 (6th Cir.
1988).
® Although Title XIX does not provide the mechanism for private
enforcement of standards of care, the essence of some of these
claims is remedied through the due process clause of the Fourteenth
Amendment. See substantive due process analysis, infra.
’ Plaintiffs and defendants agree that the analysis under § 504 and
Title II would be the same under the facts and claims asserted by
the plaintiffs. Additionally, the parties agree that the Eleventh
-Amendment is.not a bar-to claims arising under Title II of the ADA
and § 504.
83a
ME SARE OM NRE = eo a iad eras enn
> oe ae oF we
Order - No. 92-2213 MI1/A, 1/26/93
Plaintiffs are claiming, inter alia, that some Arlington
residents are being excluded from community services,
because of the severity of their retardation or physical
disabilities, but that other handicapped persons are receiving
such services. However, an action asserting that certain
plaintiffs have been the victim of discrimination vis-a-vis
other handicapped people must fail because § 504 does not
cover discrimination among similarly handicapped persons.
Clark at 653; Johnson v. Thompson, No. 90-6107. slip op. at
5 (10th Cir., August 7, 1992). Accordingly, plaintiffs claims
under the Rehabilitation Act and Title II of the ADA are
dismissed.
Due Process
With respect to the due process clause of the
Fourteenth Amendment, the complaint primarily sets out
substantive due process issues, although there appears to be
at least one allegation which goes toward a procedural due
process claim. This Court has already recognized the
substantive due process rights of institutionalized individuals.
See USA v. State of TN, Docket No. 92-2062.° Since the
, Although the vast majority of residents at Arlington were placed
there at the request of their parents or guardians, as opposed to a
court commitment procedure, it is reasonable to infer from the facts
as alleged that there is sufficient state action in the process used to
admit residents into the facility to trigger substantive due process
rights under the Fourteenth Amendment. See Parham v. LR., 442
U.S. 584, 600 (1979) ("It is not disputed that a child, in common
with adults, has a substantial liberty interest in not being confined
‘unnecessarily for medical treatment and that the state's involvement
in the commitment decision constitutes state action under the
84a
Order - No. 92-2213 M1/A, 1/26/93
plaintiff has alleged sufficient facts to support a claim of
violations of substantive rights, dismissal is not appropriate.
Accordingly, the defendants motion to dismiss the substantive
due process claim is denied.
The plaintiffs contend that they have been denied an
opportunity to be heard on the appropriateness of their
habilitative plans, programs and environment. Under the
standard of a motion to dismiss, the Court must take as true
the allegations in the complaint. At this point in time, it
appears that Arlington residents are entitled to some review or
hearing during the course of their stay. See Clark at 697-701.
Without further evidence on this point, this Court is reluctant
to dismiss this claim. Therefore, the procedural due process
claim, if any, will not be dismissed until this court has further
information regarding any hearings that may have been
conducted during the confinement of some of the plaintiffs.
Accordingly, defendants' motion to dismiss the procedural
due process claims is denied.
First Amendment
Fourteenth Amendment"). Also, under Tennessee law, once an
individual is confined to Arlington the mentally retarded person is
under the "exclusive care, custody and control of the commissioner
and superintendent.” Tenn. Code Ann. § 33-5-103. Once the state
has accepted the individual into its custody and control, the state
has assumed some responsibility for the safety and well-being of the
resident. See DeShaney at 1005. Moreover, the alleged harm is
caused by state actors who control every aspect of the resident's
daily. life, including treatment, care and his or her movement in and
out of the institution.
85a
Order - No. 92-2213 MI/A, 1/26/93
Under Count IV, the plaintiffs aver that their First
Amendment rights of freedom of expression and association
and religion have been violated by defendants. Although the
defendant concede that the plaintiffs may have stated a claim
under the First Amendment because of certain alleged
incidents not related to any policy at Arlington, subsections
(b), (d) and (e) are dismiss because none of the plaintiffs have
alleged any injury with respect to these allegations. However,
plaintiffs have sufficiently alleged facts to Support their claims
under Count IV(a) (c) and, therefore, defendants motion
to dismiss those claims is denied.
Equal Protection
The plaintiffs additionally assert equal protection
violations. Defendants claim that mental retardation is not a
Suspect or quasi-suspect class, that institutionalization is a
rational choice, and thus there is no equal protection claim.
This Court agrees that the equal protection claim should be
dismissed.
Mentally retarded persons are not a suspect
classification and, therefore, the court only applies rational
basis scrutiny. Ci ivi
473 U.S. 432 (1985). There is sufficient logical rationale for
the defendants’ actions to overcome the plaintiffs’ challenge.
Accordingly, plaintiffs’ equal protection claim is dismissed.
Moreover, Section 504 codified the equal protection clause
with respect to persons with disabilities. Since the § 504 claim
is dismissed, plaintiffs' equal protection claim likewise fails.
Based on the foregoing, defendants' motion to dismiss
is GRANTED in part and DENIED in part. Claims under
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Order - No. 92-2213 M1/A, 1/26/93
Title XIX of the Social Security Act, Sections 100 and 504 of
the Rehabilitation Act of 1973, Title II of the American With
Disabilities Act of 1990, the Equal Protection Clause, and the
First Amendment as set out in Count IV(b),(d), & (e) are
DISMISSED. The claims remaining are those under the First
Amendment as set out in Count [V(a) and (c) and the Due
Process Clause.
As: already noted above, because this case raises
important issues and controlling questions of law as to which
there is substantial ground for difference of opinion and that
an immediate appeal from this order with respect to certain
claims may materially advance the ultimate termination of
litigation, the following claims are certified for appeal: (1)
claims under Title XIX of the Social Security Act; (2) claims
under Sections 100 and 504 of the Rehabilitation Act of 1973;
and (3) claims under Title I] of the Americans With
Disabilities Act of 1990.
SO ORDERED this 25 day of January, 1993.
/s/
JON PHIPPS McCALLA
DISTRICT COURT JUDGE
87a
a oe Seo Loe ek on ee re ee
APPENDIX L
Civil Action No. 92-2062
CERTIFIED TRUE COPY
ROBERT R. DI TROLIO
U.S. DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
BY:/S/
DEPUTY CLERK
I'm going to go through some comments in this case
and it will take me a little time to do that. I also want to make
it clear, and it will be clear from my written comments, that
the defendant in this case, of course, is the State of
Tennessee. I point that out because, obviously, sometimes it
is necessary for me to make comments which seem to be
directed at individuals. Now, that is because no institution,
whether it is the state or the federal government, can act
through anyone other than those people who work for that
entity. But it is, of course, the State of Tennessee that has the
responsibilities in this case, and it is to the State of Tennessee
' The following are the comments made by Judge Jon Phipps
McCalla on November 22,. 1993. Clerical corrections have been
made.
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USA v. State of Tennessee - No. 92-2062 M1/A
and to the United States that I direct my comments.
I also point out in this case, that the rights of those
individuals who are being litigated are the rights of
individuals whose condition precludes them often from
making their own complaint. Often they are individuals who,
while they enjoy all of the constitutional rights of every
citizen of this country, are unable, because of physical or
mental disability, to articulate their own claim. While that
does not give them special rights, it points out the problem
that each of us must recognize, and that is that often it is the
circumstantial evidence which has great weight in these cases.
We are generally unable to hear from those individuals who
would in many cases be the ones to articulate the claim.
Ladies and gentlemen, it is important that each of you
recognizes that this is a court of law and a nation of laws,
and. that the settlement of disputes between people through a
lawsuit is a strong and necessary foundation upon which our
civilization rests. It is proper, under our system of justice,
when there is a dispute between parties regarding the
application of the law, that those parties resolve their case in
court. It is the responsibility of the federal district courts to
hear those claims, and specifically to hear those claims arising
under the Constitution and laws of the United States, and to
render a prompt decision regarding the application of the law
to the facts as established by the record during the trial.
In making that decision, the law requires that the
Court not be influenced by sympathy, bias, prejudice or
passion. This is a case in which there has been much
testimony, much testimony which might be very sympathetic
for one side or the other; but, the Court must make its
89a
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USA vy. State of Tennessee - No. 92-2062 M1/A
decision not based on a Sympathetic reaction, but on the
objective facts as established on the record.
Additionally, the Court must consider all of the
applicable law and not a single principle in reaching its
conclusion. The Court may not disregard a portion of the law
and make its decision only on a single law, but must regard
all of the law, and each law, in light of all of the other
applicable laws. The United States, in accordance with the
authority granted by Congress under the Civil Rights of
itutionalized Persons Act, which is sometimes referred to
as CRIPA, is the plaintiff in this case. While the United States
appears as a frequent litigant in federal district courts, it is
entitled to no special consideration and appears before the
Court as any other litigant.
The burden placed on the United States is no different
from the burden placed on other litigants before the Court in
similar cases. And if the United States fails to satisfy any
portion of that burden by the standard placed upon it by the
law, it cannot prevail on that claim or Claims.
In this case, the State of Tennessee and several
individuals named in their official Capacity as employees of
subdivision in their official Capacity, the governmental entity
with whom they are employed is, for all practical purposes,
the actual party in the case. The State of Tennessee, merely
because it is a state, is not entitled to special consideration in
this case. Just as the United States, the State of Tennessee, as
with every other litigant, is entitled to no preferential
treatment under the laws in this case.
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USA vy. State of Tennessee - No. 92-2062 M1/A
As I previously noted, the United States has brought
this case pursuant to the civil Rights of Institutionalized
Persons Act and asserts that the State of Tennessee, in its
operation of. the Arlington Developmental Center, has failed
to comply with those laws protecting the civil rights of
disabled individuals and has failed to provide to those
individuals educational opportunities as required under the
Individuals with Disabilities Education Act. The United States
more specifically claims that the defendants have failed to
provide adequate food, medical care, reasonable safety and
training, freedom from unreasonable restraints and adequate
psychological and psychiatric services as required under the
Fourteenth Amendment of the United States Constitution, and
has failed to provide Arlington residents under the age of 22
with the educational services required by IDEA.
The State of Tennessee, the governor of the State of
Tennessee, the director of the Department of Mental Health
and Mental Retardation, and the Superintendent of the
Arlington Developmental Center are the defendants in this
case. All of the individuals named in this case, as I have
indicated, are named in their official capacities.
The defendants contend that their operation of the
Arlington Developmental Center has not fallen so far below
the standard of acceptable care for individuals with mental
retardation as to constitute a violation of those individuals'
civil rights. The defendants further contend that the
educational opportunities provided to the residents of
Arlington Developmental Center below the age of 22 are in
compliance with the Individuals with Disabilities Education
Act.
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I will explain to you somewhat the procedure that the
Court goes through in deciding a case of this nature or, for
that matter, any case. The Court in this case, and... I refer to
the Court, because it sounds funny to say me all the time, but
I have to act as the Court in this case. Now, when a person
acts as the Court or the judge, you no longer act as an
individual. Your individual beliefs or perceptions are not what
govern your conduct, but rather the laws of the United States
and the Constitution of the United States. The Court also acts
in the capacity as a fact-finder. The Court has to decide what
are the true facts in this case. So when I say the Court, I think
it is best for you to understand that I am not confused about
who I am and who the Court is, but it is important for each of
you to understand that the Court does not act like me. The
Court is, in fact, something that is more than just an
individual speaking. The Court, in this case, is the judge of
the facts concerning the controversy in this lawsuit.
The trial of this case began on August 30, 1993, with
the testimony of Dr. Walter P. Christian, the first witness
presented by the United States. sixteen additional witnesses
testified in the courtroom, many of whom or some of whom
were seen by individual members here, and all of whom were
seen by the lawyers. And, a large number of depositions or
portions of depositions were placed in the record.
On September 10, 1993, the State of Tennessee presented
its first witness, Mona Reeves-Winfrey, the Superintendent of
the Arlington Developmental Center. Seven other witnesses
testified for the state. The case was then recessed from
September 17, 1993, to October 18, 1993, at which time the
State resumed its proof with the testimony of Dr. Alexander
Horwitz. The state presented an additional 11 witnesses,
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including the testimony of Dr. Philip Robert Ziring. The
United States then presented three rebuttal witnesses by live
testimony, Dr. Walter Christian, Dr. Victoria Therriault, and
Dr. Irene McEwen, all of whom had previously testified in
the case, and also presented by video deposition the testimony
of Dr. Susan Hyman. The parties were allowed to submit
post-trial proposed findings of fact and post-trial memoranda;
and the United States submitted a proposed order in this case.
It is now for the Court to determine what the true facts
are in this case and to apply the law to those facts. Now, in
order for a fact-finder to determine what the true facts are, the
fact-finder is called upon to weigh the testimony of every
witness who has appeared before it or whose testimony has
been submitted into evidence and to give the testimony of the
witnesses the weight, faith, credit and value to which the
Court determines it is entitled. In determining which
testimony to Believe and, where necessary, which testimony
not to believe, the Court considers a number of factors. The
factors that the Court has considered in determining the
credibility or believability of each witness include the manner
and demeanor of the witness while on the witness stand;
whether the witness impressed the Court as one who was
telling the truth or one who was telling a falsehood; and
whether or not the witness was a frank witness. The Court
also considered the reasonableness or unreasonableness of the
testimony of the witness; the opportunity or lack of
opportunity of the witness to know the facts about which he
or she testified; the intelligence or lack of intelligence of the
witness; the interest of the witness in the result of the lawsuit,
if any; the relationship of the witness to any of the parties to
the lawsuit, if any; and whether the witness testified
inconsistently while on the witness stand or if the witness said
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or did something or failed to say or do something at any other
time that is inconsistent with what that witness said while
testifying.
If there is a conflict in the testimony of the witnesses,
it is the Court's duty to reconcile that conflict, if it can be
reconciled, because the law presumes that every witness has
attempted to and has testified to the truth. But if there is a
conflict in the testimony of the witnesses that the Court is not
able to reconcile, then the Court has to determine which ones
of the witnesses to believe and which ones it cannot believe --
that is which witnesses testified to a falsehood. Of course,
immaterial discrepancies do not affect a witness’ testimony,
but material discrepancies do. It should be noted that the
greater weight of the evidence in a case is not determined by
the number of witnesses testifying to a particular fact or a
particular state of facts, rather it depends on the weight, credit
and value of the total evidence on either side of the issue.
As I previously noted, the Court may also consider
circumstantial evidence, as well as direct evidence, in
deciding a case and, obviously, the law permits the Court to
give equal weight to both direct and circumstantial evidence.
Of course, it is up to the Court to decide what weight to give
any of it.
In this case, particularly for those of you who have
Participated in this case and for those of you who have
attended portions of it, there have been a large number of
individuals who are called expert witnesses. You may not, if
you are not a lawyer, understand or know that the Rules of
Evidence do not normally permit a person to testify as to
opinion or conclusions. An exception to this rule exists for
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those who testify under the Rules of Evidence as an expert
witness.
An expert witness is a person, who by education and
experience, has become an expert in some art, science,
profession or calling. Expert witnesses are allowed to state
their opinions as to those things which are relevant and
material and, of course, as to those things to which they
profess to be expert and they may give their reasons for that
opinion.
In this case, the Court has considered each expert
opinion received as evidence in the case and has given each
expert's opinion that weight, if any, the Court thinks it
deserves. Where an expert opinion is not based on sufficient
education and experience, or if the Court concludes that the
reasons given in support of the opinion are not supported by
the record, or if the Court finds that the opinion is outweighed
by other evidence or is unsupported by the facts in the case,
the Court may disregard an expert opinion, or at least portions
of that opinion.
In this case, there have been three categories of
individuals supplying testimony. Additionally, there have
been over 440 exhibits. Actually, many of those have not been
paper exhibits, but there have been many, many exhibits,
some of which are long documents, others of which are
videotapes. These exhibits include records from Arlington
Developmental Center. They include videotapes of the
facility and of practices at the facility. They include
photographs of patients and they include charts and graphs
containing summary information.
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Now, the testimony has been from three basic groups
of people. First, current and former employees of Arlington
Developmental Center. Second, parents and family members
of individuals who are or were residents at Arlington
Developmental Center and, third, experts and consultants
retained either by the United States or the State of Tennessee
in connection with this case or in connection with contracts to
provide services to Arlington Developmental Center.
As is often the case, the documents generated at the
time of the occurrence of events often provide some of the
most reliable information concerning the events in this case.
I will talk a little bit more about some of those documents
later. However, I have considered all of those documents in
reaching my conclusions in this case. Additionally, those
individuals who are currently at Arlington, Developmental
Center or who have previously worked there are in a
particularly good position to provide information regarding
the ordinary practices and policies of the institution,
Parents and family members are in a position to
provide some information, and their testimony has been
appreciated add has been helpful. Of course, the Court must
recognize that individuals who have made the choice to place
their loved one in any institution have a strong desire for that
institution to provide the best possible care. Additionally, and
understandably, their view of the institution may be strongly
affected by whether they have a continuing interest in the
institution as a care provider or whether they no longer have
that interest.
The testimony of experts, of course, is affected by the
reliability of the information they receive on which they base
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their expert testimony. If they receive inaccurate or
incomplete information, then the testimony provided by the
expert may be of limited or little value. Similarly, if their
inquiry is a narrow inquiry as to a specific aspect of the
institution, their opinion may have little or no application to
other parts of that institution. Finally, if they can be
demonstrated to have previously existing biases or prejudices
or to have previously committed to a position without
examination of the facts at the institution, their testimony may
be severely impeached. Before I proceed to tell you my
assessment of the evidence, I am going to review with you in
some more detail what the United States must prove in order
to meet its burden of proof on its claim that the State of
Tennessee has violated the Fourteenth Amendment rights of
the residents at that institution.
Again, in order for the plaintiff to establish a violation
of the Fourteenth Amendment, the plaintiff must show that the
defendants committed the acts alleged by the plaintiff, that
those facts caused the residents of Arlington Developmental
Center to suffer the loss of a federal right, and that, in
performing the acts alleged, the defendants’ actions were a
substantial departure from accepted professional judgment,
practice or standards as to demonstrate that the person
responsible actually did not base a decision on such a
judgment. A mere negligent act by the defendants causing
harm does not constitute a violation of the Fourteenth
Amendment even though those acts would constitute
malpractice. Thus, a mere lack of due care by the state official
does not deprive a resident of a constitutional right under the
Fourteenth Amendment.
I now also want to review with you more particularly
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some of the language from the United States Supreme Court
in the case of Youngberg v. Romeo which, I believe, sets out
the principles governing the Fourteenth Amendment claim in
this case.
In Youngberg, the Supreme Court specifically stated
When a person is institutionalized and wholly
dependent on the state-. . . a duty to provide
certain services and care does exist, although
even then a state necessarily has considerable
discretion in determining the nature and scope
of its responsibilities.
The Supreme Court in Youngberg went on to
specifically raise the question of what is the proper standard
for determining whether a state adequately has protected the
rights of the mentally retarded. The Court pointed out that the
Constitution only requires that the courts make certain that
professional judgment in fact was exercised. It is not
appropriate for the courts to specify which of several
professionally acceptable choices should have been made.
"...[The mentally retarded] are entitled to more considerate
treatment and conditions of confinement better than criminals
whose conditions of confinement are designed to punish."
Obviously, the Supreme Court points that out because
we have always recognized in the United States, or at least for
a number of years, that individuals who are incarcerated
involuntarily for the purpose of punishment give up many
rights. So the court points out in Youngberg that individuals
in institutions of this nature have rights and that those rights
are different from the rights of those people who are
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involuntarily incarcerated for purposes of punishment.
In Youngberg, the Supreme Court also observed
that courts must show deference to the
judgment exercised by a qualified professional.
By so limiting judicial review of challenges to
conditions in state institutions, interference by
the federal judiciary with the internal
operations of these institutions should be
minimized.
The Court noted that "courts should not ‘second-guess the
expert administrators on matters on which they are better
informed.'" The Court indicated that
for those reasons, the decision, if made by a
professional, is presumed valid; liability may
be imposed only when the decision by the
professional is such a substantial departure
from accepted professional judgment, practice
or standards as to demonstrate that the person
responsible actually did not base the decision
on such a judgment.
Youngberg reminds us that the state has "a duty to
provide adequate food, shelter, clothing and medical care.
These are the essentials of the care that the state must
provide." The state also has the unquestioned duty to provide
reasonable safety for all residents and personnel within the
institution. "(Residents enjoy] constitutionally protected
interests in the conditions of reasonable care and safety,
reasonable non-restrictive confinement conditions, and such
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training as may be required by these interests." It is these
principles that govern the determination made by the Court
today.
In reviewing the evidence in this Case, there is much
testimony and documentation which appears to be
reconcilable. As a general proposition, it appears that even the
defense experts do not seriously question that conditions at
Arlington Developmental Center in 1990 and 1991 failed to
comply with minimal requirements established under the
Fourteenth Amendment for individuals with mental
retardation. In 1990 and 1991, key positions at the institutions
were unfilled; psychiatric and psychological services were
virtually nonexistent; outside consultants were rarely, if ever,
used; and, staff lacked the training or direction to properly
feed, train, monitor and care for this population.
Even at the time of his testimony on September 14,
1993, Dr. John Scott Bailey, a Fellow of the American
Psychological Association and a professor at Florida State
University and a consultant for the State of Tennessee stated
that he is only now beginning to see people who are "starting
to be sensitive" to the needs of residents at Arlington
Developmental Center. Dr. Bailey appeared to concede that
data collection at Arlington Developmental Center is "really
not quite good enough to develop behavior development
plans." Dr. Bailey described the work of one of his
colleagues, Dr. Riordan, in one of the resident cottages at
Arlington Developmental Center, indicating that in the Spruce
Unit "they are doing much better" and that in other areas they
are "not as good."
Dr. Bailey described the psychology staff as "in
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transition" and acknowledged that since December 1992,
"some of them have quit and some have been added." He also
stated that "none of the masters level psychologists have a
background in behavior analysis." He also said "we have
asked a lot of people to change the way they are doing things -
they are getting more interested, more involved, morale has
improved a little bit on the two units we have been most
involved in." Dr. Bailey acknowledged that he is not a clinical
psychologist and confirmed that he did not independently
verify any of the data submitted by Arlington Developmental
Center for some of his calculations.
I should also note that Dr. Bailey submitted a
document entitled Some Common Characteristics of Severely
and Profoundly Retarded Persons, marked as Exhibit 308,
which, on cross-examination of Dr. Bailey and on explanation
by other witnesses, was thoroughly discredited.
Dr. Alexander B. Horwitz, a doctor of psychiatry and
a consultant for Arlington Developmental Center, had only,
as of the month of his testimony, recently been increased from
16 hours of consultation per month to 44 hours of consultation
per month at Arlington Developmental Center. Dr. Horwitz,
again, an expert for the defendants, gave testimony contrary
to the testimony of the Director of Psychology of Arlington
Developmental Center, Dr. Beverly Cox. Dr. Cox had given
testimony to the effect that some or many of Arlington
residents would prefer to be alone, whereas Dr. Horwitz's
testimony was that "sitting alone - not socializing - is a
behavioral problem." Dr. Horwitz, of course, is a trained
psychiatrist, whereas Dr. Cox has a Ph.D. in education and
a masters in guidance. While Dr. Horwitz has been a
consultant for Arlington Developmental Center for over one
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year, he acknowledged that he has "never performed a data
collection check" and that he would "be concerned" if he
found that certain patients were "not getting behavioral
reinforcement. "
Dr. Michael J. Levine, a developmental
neuropsychiatrist in. the State of Louisiana and medical
director for the Office for Citizens With Development
Disabilities of the State of Louisiana, also testified as an
expert for the State of Tennessee. Dr. Levine, more bluntly
than Dr. Horwitz, stated his candid opinion, as the Court
understood, that Dr. Cox, the Director of Psychology at
Arlington Developmental Center, "did not have the level of
training" required. He went on to state the opinion that
"experts from out of state are fun to have.., but you have to
‘grow your own’ internal expertise." Moreover, in his initial
deposition, Dr. Levine stated that "Arlington Developmental
Center did not meet common practice in neuropsychiatry" and
he stated that a good initial evaluation of five to seven pages
is essential, and normal in Louisiana, but that he saw none of
that at Arlington Developmental Center. He was careful to say
that he did not evaluate the quality and quantity of Staffing at
Arlington Developmental Center, but noted that he did find
things missing in records and found "no particular pattern in
charts." He admitted that Arlington Developmental Center
"did not have data collection under control." Dr. Levine
described going to Arlington Developmental Center's
psychiatric program as "like going to Samoa and asking where
is your nuclear reactor." He also compared Arlington
Developmental Center with the research program at the
University of California, Los Angeles, indicating that it was
like comparing a Cadillac factory, that is UCLA, to an ox cart
factory, Arlington Developmental Center. He stated that he
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did not see training taking place at meal time at the time he
gave his deposition, and he also confirmed that he saw very
little social skill program development. Dr. Levine criticized
the way in which Arlington Developmental's records are
oriented, indicating that they are problem oriented records and
that they should have been service oriented records.
While the State of Tennessee's experts and consultants
were very cautious in their testimony regarding psychological
and psychiatric services, the experts presented by the United
States were unequivocal in their insistence that the services,
processes, procedures, medications and treatments provided
in this institution fall so far below any acceptable standard as
to constitute a failure to exercise professional judgment in
their entirety.
Dr. Walter Christian, a Ph.D. clinical psychologist
and president of the May Institute in Chatham, Massachusetts,
testified both in the United States initial presentation of proof
and in rebuttal. Dr. Christian visited Arlington Developmental
Center on October 14 and 15, 1993. You will recall that we
had a break in the presentation of the testimony and he visited
it again having previously gone several other times.
He visited the Arlington Developmental Center, as I
indicated, on October 14 and 15, 1993, to determine whether
psychological services had improved since his previous visits
to' Arlington. The visit was a surprise visit as authorized by
the Court, and Dr. Christian found "that most patients were
idle" and he saw “more self-injury than on any previous
tour." Because his October visit was a surprise visit, he
concluded that the previous visits "were staged for my
benefit," in his words.
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He testified that conditions in his October visit were
worse than the visit in July of 1991, his first visit to the
facility. He found that the staff was poorly trained; that there
was no evidence that the staff was better trained; that the
staff-to-patient ratio remained inadequate; and that the number
of psychologists remained totally inadequate. He found that
the Daniel Boone cottage, which had been the subject of work
by
Dr. Bailey, whom I have previously mentioned, was, in
October of 1993, in "worse shape than many base line units"
and he observed that this was after the consultants had
essentially finished their work at Daniel Boone. He testified
that the problems with self-injury, inability of staff to react to
Situations, and inadequate or no data collection were,
according to Dr. Christian, still in existence during his
October visit.
Dr. Christian even described his observations of a
resident -- in fact, he described his observations of several
residents but he described his observations of Candace T. who
had previously been observed self-injuring herself in order to
obtain reinforcement with orange juice. During his visit in
October, she was found sitting in a line of nonambulatory
patients facing a wali. It appeared that no one was observing
this group of residents and certainly that no one was
interacting with them. Ultimately, after waiting some period
of time, he determined that these residents had apparently
been placed in line facing the wall so that a staff member
could sit in an office at a desk and look out the office door to
see the patients or the residents lined up.
Dr. Christian found that the "blue cards," described at
some length by Dennis Mozingo in his testimony on behalf of
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the United States, were, in Dr. Christian's words, "just a bell
and whistle which was not being properly used to. record
behavior." Dr. Christian observed, in Daniel Boone 3 at 9:00
a.m. during his visit, that 11 people had still not had breakfast
because of the new improved feeding program adopted by
Arlington Developmental Center.
In reconciling the testimony of Dr. Christian, Dr.
Bailey, Dr. Horwitz, Dr. Cox, Dr. Szymanski and others,
there is no credible testimony that conditions have
substantially improved from the period of July, 1991, when
it is virtually conceded by the State of Tennessee that
psychiatric and psychological services were virtually
nonexistent. While it is true that some limited progress may
have been made in identifying and analyzing the problem,
and, in that regard, the State of Tennessee should be
commended, the actual delivery of services to the vast
majority of Arlington Developmental Center residents who
are in need of them, and the development of a system to
provide for the delivery, monitoring and sustaining of those
services, has yet to occur.
The pattern demonstrated by the experiences of Drs.
Bailey, Riordan, Mozingo, and others consulting to provide
improved care at Arlington Developmental Center has been
repeated in other areas as well. Thus, while improvements
have been planned by Dr. William Hinkle in feeding
programs and efforts to implement improvements have been
undertaken by Carla LyDn Andreas, the lack of any judgment
in implementing that. advice has resulted in a failure, thus far,
of the institution to meet any minimal standards.
In a surprise visit authorized by the Court on October
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1 and 2, 1993, Victoria Therriault observed the same problem
as Dr. Christian concerning long delays in residents being
allowed to eat. Additionally, while there may be some
improvement in the preparation of actual feeding plans, Nurse
Therriault testified that those individuals who were actually
feeding residents generally had not been trained on any
feeding plan at all or had specifically not been trained on the
feeding plan for the resident they were feeding.
Apparently, because it was a surprise visit and not a
planned visit, Nurse Therriault was also able to consistently
observe inadequate staff-to-resident ratios and failure of staff
to interact with residents. She found as Many as ten people in
the Holly Unit who were completely unsupervised, that is,
alone. This is significant and was significant to Nurse
Therriault because those individuals had been identified as
individuals at high risk. As she had observed in her earlier
visits in October, she saw food trays which were given to the
wrong patient - a particular problem since many patients
require specialized diets and the consumption of the wrong or
wrongly textured food may result in immediate harm or even
death. Nurse Therriault also saw, during her October, 1993
visit, continued improper nursing care in connection with the
administration of medication, and the repositioning of a
patient by a nurse in which the nurse actually pulled up on a
fractured arm, causing the patient to cry out. Once again,
Nurse Therriault was able to observe records in which no
vital signs had been taken when appropriate and where
patients with greater than therapeutic drug levels were
experiencing a complication which nursing personnel should
have, but did not, identify.
Weighing all of the expert testimony in this case,
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including the testimony of individuals who were consultants
or employees of Arlington Developmental Center, it is clear
that the care actually provided to residents at Arlington
Developmental Center falls well below any minimum standard
and well below the medical malpractice standard. It further
appears, and the Court finds, that the care at Arlington
Developmental Center fails to meet the constitutional test
which I told you about earlier, as set out by the Supreme
Court, in Youngberg v. Romeo.
A similar analysis, when applied to the testimony
concerning compliance with the Individuals with Disabilities
Education Act, reveals that the requirements of that act are
not being satisfied. It is clear that in this area, some progress
may be being made and that the consultants in this area have
perhaps had the most satisfactory effect.
The evidence from the State of Tennessee itself,
however, reflects that the principal within the Arlington
Developmental Center has recently almost been terminated
and that the best teacher, and the teacher who was shown in
the videotape as illustrative of good teaching at Arlington
Developmental Center, has now left Arlington Developmental
Center.
It is clear from the testimony of the defendants’ own
expert, Dr. Gene Alvin Vergason, President of Vergason
Associates, Inc., that the individual education plans are, in
fact, inadequate under the Act and that Arlington
Developmental Center does not meet the standard for the use
of assessment data. Dr. Vergason observed that it was
necessary for him to combine the individual habilitation plan
and the individual education plan in order to obtain sufficient
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data to create an adequate IEP. Dr. Vergason concedes that
the IEP should have all of the education goals contained in
that plan. Dr. Vergason testified that the Arlington
Developmental Center is doing well in placing students in the
least restrictive environment and that he has observed
improvements in attitude, institutional technique, materials
and activities. His testimony was that Arlington
Developmental Center is moving "in the right direction." Dr.
Vergason's credibility, however, was placed at issue and in
question because his initial opinions were given without the
benefit of an adequate review. His conclusions, generally,
however, are not irreconcilable with the proof submitted by
the United States through Dr. Susan Thibadeaux, the May
Center program director. Dr. Thibadeaux pointed out, from
her three visits to Arlington Developmental Center, that the
Individual Educational Plans, IEP's, are inadequate under
IDEA standards. Specifically, the goals and objectives are
not sufficiently comprehensive and the system is inadequate
to measure progress. In fact, that was very, very clearly
demonstrated. Dr. Thibadeaux gave numerous examples from
actual students at Arlington Developmental Center in that
regard. She also testified that related services are not
adequately incorporated into the educational process. For
example, the physical therapist interviewed did not even know
what an Individual Education Plan was. Yet, with this student
population, physical therapy must work Closely with education
in order to achieve educational objectives since many of those
objectives are functional in nature. Reviewing the testimony
of Dr. Vergason in conjunction with the testimony of Dr.
Thibadeaux, the evidence weighs heavily in favor of a
determination that Arlington Developmental Center is not in
compliance with the IDEA.
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Now, while I have told you about failure to comply
with the Fourteenth Amendment, I am compelled to make one
additional observation regarding the danger that Arlington
residents currently face. The Court has indicated. that in each
of the areas cited by the United States, the United States has
carried its burden of proof. But the Court should note
specifically that in the medical care area, and in the area of
direct staff supervision of patients or residents, conditions at
Arlington Developmental Center pose an immediate danger of
irreparable harm, including an active risk of death to patients
at Arlington Developmental Center. Medical care within the
institution, particularly for patients with seizure disorders, is
so deviant from any recognized principles of medical care that
any patient suffering prolonged seizures or status epilepticus
may be in immediate peril of his or her life.
The testimony is virtually uncontradicted that no
standard of care recognizes the administration of
intramuscular valium for status epilepticus and that the only
appropriate treatment for status epilepticus involving the use
of valium is IV valium. Similarly, the failure of direct care
staff to directly and properly supervise individuals with
known behavior disorders, including eating disorders, has
resulted in deaths which were entirely preventable. In fact,
during these proceedings one resident of Arlington
Developmental Center, Jane E., died. Jane E. died on
Thursday, September 14, 1993, at 8:32 p.m., on the 9th day
of the trial of this case. This is evidenced in Trial Exhibit
384. The cause of her death, the Court finds, was lack of
supervision, complicated by lack of adequate emergency
medical treatment.
While the State of Tennessee, it may be argued, has
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begun to make improvements or to at least institute processes
that might lead to improvements at Arlington Developmental
Center, it does not appear that, at this time, those
improvements have either been sufficiently implemented or
are continuing to be implemented in such a way as to preclude
the necessity of injunctive relief.
In analyzing the appropriate relief in this case, the
plaintiffs argue that the defendants have demonstrated
unwillingness to provide Arlington Developmental Center
residents with constitutional levels of care. The United States
further argues that their resistance to taking meaningful,
voluntary corrective action is so pronounced as to be
deliberate. Plaintiff points to the defendants’ refusal to
acknowledge the existence of deficiencies from the time of the
issuance by the United States of its findings letter in March of
1991. The United States points to the extraordinary step taken
by the Tennessee General Assembly to repeal state statutes
that suggested that the defendants were responsible for the
care of mentally retarded persons at Arlington Developmental
Center.
There has been proof in this case, some of which has
already been referred to, which supports the position taken by
t
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