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Case 1:04-cv-01416-TWT Document 314 Filed 11/25/13 Page 1 of 14







NO. 1:04-CV-1416-TWT





This is a class action involving conditions at the Fulton County Jail. It is before the Court on the Plaintiffs' Motion to Order the Defendants1 to Show Cause Why They Should not be Held in Contempt [Doc. 300]. For the reasons set forth below, the motion is granted.

I. Background On May 19, 2004, the Plaintiff Frederick Harper, an inmate at the Fulton County Jail, filed this action pro se, alleging the use of excessive force by jail staff.

On June 22, 2004, attorneys from the Southern Center for Human Rights entered their 1 Fulton County and the individual members of the Fulton County Board of Commissioners will be referred to collectively as the “Fulton County Defendants.” T:\ORDERS\04\Harper\contempt.wpd Case 1:04-cv-01416-TWT Document 314 Filed 11/25/13 Page 2 of 14 appearance on behalf of the Plaintiffs and filed an amended class action complaint on behalf of all inmates at the Fulton County Jail seeking declaratory and injunctive relief with regard to allegedly deplorable conditions at the jail. The amended complaint alleged, among other things, that the jail was dangerously overcrowded and understaffed, and that the locks on many of the cells did not work. Am. Compl. [4] 24-26.

In December 2005, the parties reached a settlement and presented the Court with a comprehensive Consent Order enumerating the actions the Defendants had agreed to undertake to remedy the conditions at the jail. Following a fairness hearing, the Court approved the settlement and entered the Consent Order on February 7, 2006.

Among other things, the Consent Order placed a cap of 2,500 on the number of inmates that may be housed at the jail's Rice Street facility2 and provides that "[n]o inmate shall be required to sleep on the floor." Consent Order [89] 18-19. The Consent Order also established mandatory minimum staffing levels for each cellblock and required that "[a]ll cell doors at the Jail shall be equipped with functioning locks which can be opened remotely from the tower," and that "[t]hese locks shall be maintained in good working order." Id. 16, 25-26.

2 The Consent Order originally set a cap of 2,250, but the Court later agreed to increase the cap to 2,500. Order of April 29, 2010 [247] at 2.

-2- T:\ORDERS\04\Harper\contempt.wpd Case 1:04-cv-01416-TWT Document 314 Filed 11/25/13 Page 3 of 14 Pursuant to the terms of the Consent Order, a monitor selected by the parties inspects the jail at least once a quarter and provides a report to the Court and the parties on the Defendants' compliance. Id. 103. The current monitor, Calvin Lightfoot, inspects the jail every month and produces a quarterly report. The monitor's latest report, issued last month, states that due to an increase in the number of inmates and the Fulton County Defendants' decision to eliminate funding for outsourcing inmates to other jails, the population at the Rice Street facility has exceeded the cap of 2,500. Twenty-Eighth Quarterly Report of the Court Monitor [303] at 7. Consequently, large numbers of inmates are sleeping on the floor. Id. The monitor also reports that the jail continues to be understaffed, with officer and supervisor mandated posts achieving only 88% and 78% coverage, respectively. Id.

at 6-7. Finally, the monitor reports that a contractor hired by the County has begun replacing malfunctioning locks at the jail, but that the process will not be completed until April or May of 2014. Id. at 9. As a result of overcrowding, understaffing, and the continued existence of malfunctioning locks, it is the monitor's opinion that "the Fulton County Jail, at this juncture, is an unsafe facility for inmates and staff." Id. at 11.

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allege that the Defendants are violating the Consent Order by forcing inmates to sleep on the floor, failing to staff all mandated posts in the jail, and continuing to detain inmates in cells whose locks are broken or compromised. The Plaintiffs allege that these violations have led to unconstitutional conditions of confinement and violations of the constitutional rights of inmates by creating an objectively substantial risk of serious harm. The Plaintiffs seek an order imposing monetary sanctions until compliance with the Consent Order is achieved, and requiring the Defendants to submit a plan to the Court to bring themselves into compliance with the Consent Order.

In response to the Plaintiffs' motion, Sheriff Jackson does not dispute that inmates are sleeping on the floor, that the jail is not adequately staffed, and that the population of the Rice Street facility has exceeded 2,500 in recent months.3 The Sheriff contends, however, that he cannot be held in contempt for these admitted violations of the Consent Order because he is unable to comply with its provisions.

The Sheriff argues that he is unable to comply with the provisions regarding the population cap and inmates sleeping on the floor because the Fulton County Board of 3 The Sheriff does not directly address the issue of malfunctioning locks, but he does note that the County is in the process of installing new locks in the cells, which has exacerbated the overcrowding problem because inmates must be moved from the cell blocks where new locks are being installed.

-4T:\ORDERS\04\Harper\contempt.wpd Case 1:04-cv-01416-TWT Document 314 Filed 11/25/13 Page 5 of 14 Commissioners has eliminated all funding for outsourcing inmates to other jails. The Sheriff states that he has negotiated agreements with other jurisdictions willing to house Fulton County inmates, and that he could eliminate overcrowding at the Rice Street facility if the Commissioners would provide the necessary funding.

With regard to staffing, the Sheriff cites several conditions that he says prevent him from complying with the Consent Order's requirements, all of which relate either to a lack of adequate funding or a lack of cooperation by the Fulton County Defendants. First, the Sheriff argues that despite numerous requests, the County has not funded a staffing analysis to determine exactly how many positions at the jail should be funded and how those positions should be allocated. Second, the Sheriff contends that the County has decreased his staffing total for the last three years in a row, making it impossible for him to adequately staff the jail and also fulfill his other obligations to provide court security, serve legal process, and transport inmates for court appearances. Third, the Sheriff contends that County regulations prevent him from filling vacant positions until the County has paid out accrued leave time to the former staff member, and that the County has refused to modify this requirement.

Fourth, although the County's hiring freeze does not apply to the Sheriff's Office, the Sheriff points out that he is still required to obtain approvals from multiple County departments before filling a position, as a result of which it takes a candidate

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approximately seven months to navigate the hiring process. Finally, the Sheriff notes that all of these conditions contribute to a high attrition rate as deputies seek employment elsewhere rather than remaining in a jail that is regularly understaffed and where they are subject to a dangerous work environment and frequent overtime.

In their response to the Plaintiffs' motion, the Fulton County Defendants deny that they are violating any provision of the Consent Order. They contend that their only obligation is to adequately fund sufficient positions for the Sheriff to be able to perform his statutory duties and to maintain the physical plant of the jail, and that they have done so. The Fulton County Defendants do not dispute that the Rice Street facility has recently exceeded the population cap and that inmates are being required to sleep on the floor. They argue, however, that they cannot be held in contempt for such violations because the provisions of the Consent Order relating to these matters do not unambiguously apply to them. In addition, the Fulton County Defendants argue that the parties' course of dealing and the Court's previous orders indicate that these requirements are solely the Sheriff's responsibility. The Fulton County Defendants also contend that provisions in the Consent Order addressing actions to be taken if the population exceeds the cap show that the parties anticipated the cap would be violated, and that such a violation therefore cannot serve as a basis for contempt. Finally, the Fulton County Defendants argue that they cannot be held in

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contempt for eliminating funding for outsourcing because the Consent Order does not require outsourcing. And when the inmate population increased after funding for outsourcing was eliminated, the County agreed to lease the South Fulton Municipal Regional Jail in Union City to provide additional bed space.

With regard to staffing, the Fulton County Defendants contend that their sole obligation is to fund the number of positions set out in Appendix B to the Consent Order and not to freeze or otherwise prevent the filling of these positions. They contend that they have complied with this obligation. In stark contrast to the Sheriff's argument, the Fulton County Defendants argue that rather than hindering the Sheriff in filling these positions, they have actually taken steps to speed up the Sheriff's hiring process. The Fulton County Defendants note that the total number of positions approved for the Sheriff's Office for 2012 far exceeded the number of positions needed to staff the positions mandated by the Consent Order.

Finally, with regard to the locks, the Fulton County Defendants acknowledge that they have undertaken to replace all of the existing locks at the jail. Nevertheless, the Fulton County Defendants contend that the old locks continue to be maintained and are in compliance with the terms of the Consent Order. Even if the locks are not in compliance, the Fulton County Defendants argue that they cannot be held in contempt for failing to maintain functioning locks because it is the Plaintiffs

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"[I]njunctions, including consent decrees,... are enforced through the trial court's civil contempt power." Reynolds v. Roberts, 207 F.3d 1288, 1298 (11th Cir.

2000) (citation omitted). A petitioner "must [first] establish by clear and convincing evidence that the alleged contemnor violated [a] court's earlier order." United States v. Roberts, 858 F.2d 698, 700 (11th Cir. 1988) (citation omitted). Once this prima facie showing of a violation is made, the burden then shifts to the respondent "to produce evidence explaining his noncompliance" at a "show cause" hearing.

Citronelle-Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297, 1301 (11th Cir. 1991).

At the show cause hearing, the respondent is allowed to show either that he did not violate the court order or that he was excused from complying. Chairs v. Burgess, 143 F.3d 1432, 1436 (11th Cir. 1998) The respondent may be excused because of an "inability" to comply with the terms of the order. Id. To satisfy this burden, the respondent must "offer proof beyond the mere assertion of an inability." Id. (quoting (Watkins, 943 F.2d at 1301). Instead, the respondent "demonstrate [s] an inability to comply only by showing that [he has] made ‘in good faith all reasonable efforts to comply.’" Id. (quoting Watkins, 943 F.2d at 1301).

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In this case, the Plaintiffs have clearly stated a case of non-compliance. First, they have cited provisions of the Consent Order capping the population of the Rice Street facility at 2,500 inmates, stating that no inmate shall be required to sleep on the floor, mandating certain minimum staffing levels, and requiring that cell doors be equipped with functioning locks. Next, they have produced evidence that the jail's population has frequently exceeded the cap in recent months, that large numbers of inmates have been required to sleep on the floor, that the jail remains chronically understaffed, and that locks in most areas of the jail do not function properly and permit inmates to leave their cells at will. The Defendants do not seriously dispute the Plaintiffs' factual allegations. Instead, they argue that a show cause order should not issue because they cannot legally be held in contempt. The Court finds the Defendants' arguments without merit.

First, the Sheriff confuses the findings this Court must make to hold him in contempt with the Plaintiffs' burden to obtain a show cause hearing. At this stage, the Plaintiffs must show only that the Consent Order has been violated, a showing that the Sheriff concedes that the Plaintiffs have made. Once this prima facie showing of a violation is made, the burden then shifts to the Sheriff to produce evidence explaining his non-compliance at a show cause hearing. The Sheriff asserts that he is unable to comply because of a lack of funding and cooperation from the Fulton County

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Defendants, but to satisfy his burden the Sheriff must offer proof beyond the mere assertion of an inability. He must show that he has made in good faith all reasonable efforts to comply.

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