in the united states district court of the united...

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

IN THE MATTER OF: )

)

UNITED STATES OF AMERICA, )

)

Petitioner, )

) CASE NO. 2:18mc38371

v. ) (Miscellaneous Filing)

)

JEFFERSON S. DUNN, in his official )

Capacity as Commissioner of the )

Alabama Department of Corrections, )

)

Respondent. )

)

)

RESPONDENT JEFFERSON S. DUNN’S RESPONSE TO COURT ORDER [DOC. 14]

COMES NOW Jefferson S. Dunn, Commissioner of the Alabama Department of

Corrections (hereinafter referred to as, “the Commissioner”), to respond to DOJ’s Petition to

Enforce U.S. Department of Justice Subpoena filed on October 3, 2018 and later amended, as

directed by the Court in its October 24, 2017 Order. (Docs. 1, 8, 14) The Amended Petition to

Enforce U.S. Department of Justice Subpoena is due to be denied, and the subpoena should be

quashed in full or, alternatively, modified or quashed in part.

INTRODUCTION

I. CRIPA background.

The Civil Rights of Institutionalized Persons Act (CRIPA) of 1980, CRIPA for short, is a

federal law passed to promote and protect the rights of incarcerated individuals. From any fair

reading of CRIPA, the statute is not designed to be a “gotcha” mechanism, particularly where, as

1There is currently no pending civil or criminal action relating to this subpoena. Nonetheless, 42 U.S.C. § 1997a-1

authorizes the use of CRIPA subpoenas even in the absence of pending litigation.

Case 2:18-mc-03837-WKW-GMB Document 15 Filed 11/14/18 Page 1 of 28

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here, prison administrators are doing everything within their power to remedy long-standing and

difficult-to-resolve issues. Instead, its provisions set up the framework for a cooperative effort

between DOJ and local prison officials as they seek to improve prison conditions, a goal that

both parties should share.

For instance, before a CRIPA action is instituted, the Attorney General must certify that

he “has made a reasonable good faith effort to consult with the Governor or chief executive

officer and attorney general or chief legal officer of the appropriate State or political subdivision

and the director of the institution, or their designees, regarding financial, technical, or other

assistance which may be available from the United States and which the Attorney General

believes may assist in the correction of such conditions and pattern or practice of resistance.” 42

U.S.C. § 1997b (2)(A). The Attorney General must also certify that he “has encouraged the

appropriate officials to correct the alleged conditions and pattern or practice of resistance

through informal methods of conference, conciliation and persuasion, including, to the extent

feasible, discussion of the possible costs and fiscal impacts of alternative minimum corrective

measures, and it is the Attorney General's opinion that reasonable efforts at voluntary correction

have not succeeded.” 42 U.S.C. 1997b (2)(B). Finally, the Attorney General must certify that he

“is satisfied that the appropriate officials have had a reasonable time to take appropriate action to

correct such conditions and pattern or practice, taking into consideration the time required to

remodel or make necessary changes in physical facilities or relocate residents, reasonable legal

or procedural requirements, the urgency of the need to correct such conditions, and other

circumstances involved in correcting such conditions.” 42 U.S.C. 1997b (2)(C).

ADOC’s construction of CRIPA is consistent with the construction of the statute given it

by the Western District of Michigan:


3

Given its setting in a statute that, on its face, authorizes the initiation of a lawsuit

when certain stringent requirements are met, the undefined use of the word

“investigation” in the certification and notice sections of the statute does not

provide a plausible basis for the assertion that Congress intended to vest the

Attorney General with broad and unique investigative powers prior to litigation.

Furthermore, in light of the explicit statutory requirements the Attorney General

must meet before suit can be initiated and discovery is available pursuant to the

Federal Rules of Civil Procedure, including the requirement that the Attorney

General personally certify that extensive pre-litigation requirements have been

met, it is wholly implausible to argue that CRIPA allows the Attorney General to

merely make unsupported general allegations, notify the State of her intent to

investigate, and then authorizes the Attorney General to force her (and her

agents') way into secure State facilities over the objection of the State before suit

has been filed or any of the certifications required by the Act have been made

United States v. State of Mich., 868 F. Supp. 890, 895 (W.D. Mich. 1994). Admittedly, this case

was decided before DOJ was given CRIPA subpoena power in 2010 as part of the Affordable

Care Act,2 but the importance of cooperation in the general CRIPA framework has not changed.

This spirit of cooperation described in CRIPA and sought by ADOC is consistent with

instructions set out in the newly revised DOJ manual relating to possible DOJ litigation against

state governments:

[E]ach United States Attorney or the Assistant Attorney General in charge

of such litigation shall:

Prior to the filing of each action or claim against a state government,

agency or entity;

a. Advise the Governor and the Attorney General of the affected state of the nature of the contemplated action or claim and terms of the remedy

sought; and notify the Deputy Attorney General and, if appropriate, the

Associate Attorney General of compliance with subsection (a).

b. Ensure that such prior notice is given sufficiently in advance of the filing of the suit or claim to: permit the state government, agency or

entity to bring to the Department's attention facts or issues relevant to

whether the action or claim should be filed; or result in settlement of

the action or claim in advance of its filing on terms acceptable to the

United States.

Justice Manual, § 1-10.000 “Litigation Against State Governments.”

II. Background of DOJ/ADOC Investigation.

2 Public Law 111-148, section 3A.


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ADOC has worked closely with DOJ representatives in the past year and a half since this

investigation of unparalleled scope began. ADOC has taken every reasonable step to comply

with DOJ’s requests, not just for documents, but also for site visits, inmate interviews, and

access to ADOC officials and staff. During this time frame, ADOC has allowed unprecedented

access to its facilities, personnel, inmates, documents, and data. Specifically, ADOC has

participated in a least three meetings with DOJ officials from Washington D.C. (with

representatives from three U.S. Attorneys in each of Alabama’s three districts), and exchanged

hundreds of letters, emails, and telephone calls. ADOC has facilitated three full-scale site

inspections and twelve total visits to ADOC facilities for document scanning and/or interviews;

produced more than 270,000 separate documents; produced approximately 120 gigabytes of data;

facilitated face-to-face interviews of approximately 70 ADOC employees and 144 inmates; and

agreed to produce an additional 80,000 items/documents shortly before DOJ’s petition to enforce

was filed. (See Exhibit A, Timeline of DOJ Investigation).

A. ADOC has worked for 18 months in an effort to comply with DOJ’s subpoena.

On May 8, 2017, DOJ issued a subpoena to ADOC that commanded production of

documents in fourteen areas. On May 23, 2017, ADOC filed objections to the subpoena. The

subpoena and the objections led to a meeting between Alabama Attorney General Steve

Marshall, ADOC officials, and numerous DOJ officials at the Alabama AG’s office. By the end

of the meeting, ADOC produced (or agreed to produce in one month) all responsive documents

to date.3 ADOC informed DOJ that request #14 sought documents that were no longer

maintained (quarterly maintenance reports), but nonetheless identified daily maintenance

requests or logs kept at each individual facility that could provide the same information. As a

3 Documents that were to be produced within one month were those responsive to subpoena items 4, 9 and 14.


5

result, ADOC offered to make available, and DOJ agreed to copy or scan, the documentation

referenced in requests #9 (duty post rosters and logs for Donaldson, Holman, Elmore, Bibb,

Draper, Ventress, and Staton) and #14 (daily maintenance requests/logs) during the on-site

inspections at these facilities, leaving only request #4 (“[a]ny documents related to prisoner

claims or complaints of, and the investigation of, incidents or threats of: excessive force, sexual

abuse, and extortion by A[DOC] … employees, agents, or contractors”) at issue (See Doc. 8-6 at

pp.9-10). ADOC also agreed to withdraw its motion to modify the subpoena and objections

based on DOJ’s representations and the agreements reached during the May 24, 2017 meeting to

suspend the subpoena time line and provide ADOC with lists to aid in production, when

necessary.

It is important to note that ADOC never considered itself to be responding to DOJ’s

subpoena. To the contrary, following these initial discussions ADOC took the position that it

was voluntarily producing documents to DOJ. Nonetheless, DOJ has insisted that it is enforcing

a subpoena.

B. ADOC’s extensive cooperation with DOJ leaves only four matters to be resolved.

On October 1 and October 2, 2018, ADOC and DOJ representatives joined together for a

“meet and confer,” but they were unable to resolve their differences. The only remaining items

at issue relative to DOJ’s subpoena were the following: 1) I&I investigative files; 2) attachments

to the second production of incident reports; 3) all inmate autopsies in the ADOC’s possession

from 2016 until present; 4) 12 inmate medical files; and 5) the I&I weekly reports for September

2016-September 2017. ADOC agreed to produce all but the open I&I files.4 With respect to the

autopsy reports, DOJ agreed to accept all of the UAB reports that the ADOC has, with the

4DOJ has continued to make requests for additional documentation and updates not covered by the subpoena’s

original date range.


6

understanding that if there are any other reports that DOJ believes should exist, it will identify

those cases, and the ADOC will examine its records to determine whether it has such a report.

Despite ADOC agreeing to produce everything but the open and active I&I files, on

October 3, 2018, DOJ filed its petition to enforce the subpoena now before the court.

Specifically, the Petition asked the Court for the following:

An order that we show cause as to why you should not comply with the subpoena

and produce the five categories of documents identified below;

An order that ADOC produce within 30 days 1) all of the I&I files, or, in the

alternative, the “factual documents supporting the investigations; and 2) the

77,873 attachments to the incident reports; and

In the event the autopsy reports, open investigative reports, weekly I&I reports,

and 12 remaining medical records are not produced by November 2, 2018, an

order that they be produced within 30 days.

(See Doc. 1 at pp. 16-17). DOJ’s petition, therefore, includes a request that the Court order

ADOC to produce what it had already agreed to produce in addition to the open I&I files that it

has admittedly refused to produce.

Before ADOC had an opportunity to file a response to the petition, DOJ filed an

Amended Petition to Enforce U.S. Department of Justice Subpoena (CRIPA subpoena No. 2017-

01), on Friday, October 12, 2018, moving the Court to:

1. Issue an Order to Show Cause, directing Commissioner Dunn to show why he should not comply with and obey the aforementioned CRIPA subpoena No.

2017-01 and provide the specific documents identified in the Department’s

subpoena….;

2. Enter an Order directing Commissioner Dunn to, within 30 days, obey the aforementioned CRIPA Subpoena No. 2017-01 by producing: (1) all

individual prisoner investigative files specifically identified by the

Department, or, in the alternative, the investigative files for the identified

closed investigations and the underlying factual documents supporting

identified open investigations; (2) the attachments the attachments to ADOC’s

second production of incident reports; (3) any autopsy reports not previously

produced to the Department; (4) the I&I Division’s weekly report drafted by


7

Director Mercado for September 2016 through September 2017; and (5)

copies of certain individual medical records that were not made available for

the Department to scan on-site at certain correctional facilities[;]

3. Grant any such other relief as is just and proper.

(See Doc. 8).

As a further sign of good faith on the part of ADOC, since the October meetings and

even after DOJ filed its petition, ADOC has continued to work with DOJ and has provided the 12

outstanding inmate medical files as well as the inmate autopsy reports from UAB, items

numbered 2 and 4 above.5 This leaves only issues 1, 3, and 5 to be resolved by the Court from

DOJ’s perspective, and only the open I&I files related to issue 1 from the ADOC’s perspective.

GROUNDS TO QUASH (OR MODIFY) SUBPOENA AND OTHER OBJECTIONS TO

ENFORCEMENT OF THE SUBPOENA

I. The Subpoena Should be Quashed in Its Entirety.

Before ADOC answers the specific questions set out in in the Court’s order of October 4,

2018 (Doc. 14), the Department wants to assert more broad-based objections that go to the heart

of DOJ’s authority to pursue this investigation and enforce this subpoena.

A. CRIPA does not authorize system-wide investigations.

CRIPA on its face applies only to investigations of a particular institution and not system-

wide investigations or simultaneous investigations of multiple institutions within a prison

system. See 42 U.S.C. §1997(a) (defining institution singularly); 42 U.S.C. §1997a (describing

when the Attorney General can initiate an action relating to persons residing in or confined to

“an institution”); 42 U.S.C. §1997b and 1997c (describing notice given to, inter alia, the

“director of the institution”).

5 These documents were provided to DOJ on October 18, 2018.


8

CRIPA’s frequent use of the term “institution” rather than the terms “institutions” or

“prison system” is instructive as to Congress’s intent relating to the scope of the statute. CRIPA

was never meant to be applied on such a broad scale.6

The Tenth Circuit Court of Appeals stressed the importance of such word choice in Ellis

v. J.R.'s Country Stores, Inc., 779 F.3d 1184 (10th Cir. 2015).

We find especially telling the Secretary's use of the term deductions (rather

than deduction) multiple times in the text of the FLSA's implementing

regulations. See generally 29 C.F.R. §§ 541.603(a)-(c). The Supreme Court has

instructed that such word choices should be considered deliberate. See, e.g., Hertz

Corp. v. Friend, 559 U.S. 77, 93, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010)

(finding the fact that “[t]he word ‘place’ is in the singular, not the plural” critical

in interpreting the relevant statute); Metro. Stevedore Co. v. Rambo, 515 U.S. 291,

296, 115 S.Ct. 2144, 132 L.Ed.2d 226 (1995) (“The use of ‘conditions,’ a word in

the plural, suggests that Congress did not intend to limit the bases for modifying

awards to a single condition.”).

779 F. 3d at 1195-96.

An Iowa federal district court reasoned similarly.

Because Congress chose to use “element” rather than “elements,” the element

requirement appears only to modify the use of force element that the language

immediately precedes. See e.g. United States v. Green, 902 F.2d 1311, 1312 (8th

Cir.1990) (Congress would have chosen plural, not singular, words had its intent

been to effectuate Defendant's interpretation); United States v. Freisinger, 937

F.2d 383, 390 (8th Cir.1991) (“A statute which prefaces the object of the offense

with the word ‘a’ unambiguously authorizes singular units of prosecution.”).

United States v. Smith, 964 F. Supp. 286, 291–92 (N.D. Iowa 1997), aff'd, 171 F.3d 617 (8th Cir.

1999). See also In re Burnett, 303 B.R. 684, 686 (Bankr. M.D. Ga. 2003) (explaining that, “[t]he

sentence uses the phrase ‘who is a debtor,’ which uses a singular verb, rather than the plural form

‘who are debtors,’ so that it refers to the ‘one’ spouse holding title.”) DOJ’s system-wide

investigation into the ADOC male prisons is, therefore, not supported by the plain language of

CRIPA rendering the subpoena at issue unlawful.

6 According to former DOJ civil rights attorney Lisa Graybill: “It’s a giant investigation. This is rare.” The

Guardian, “DOJ to investigate Alabama prisons in 'possibly unprecedented' move,” (October 6, 2016).


9

Moreover, the course of this investigation demonstrates precisely why system-wide

investigations are improper under CRIPA. The focus on a single institution authorized by

CRIPA necessarily entails a more limited inquiry. The facility at issue may be inspected, its

inmates and staff interviewed, and its documents obtained and reviewed within a relatively short

period of time. As noted in the section immediately below, an institution lies in a single federal

district court’s jurisdiction making enforcement of subpoenas practical.

The instant investigation has dragged on for so long not because of recalcitrance on the

part of the ADOC as is claimed by DOJ, but because of the sheer volume of work that needs to

be done based upon the scope of the investigation. DOJ has used its inability to get to every

facility, interview every potential witness, and obtain every conceivable document touching upon

male inmates as grounds to demand “updated” production and new document requests as it

becomes aware of additional incidents occurring outside of the original timeframes in its

subpoena. This investigation has become what the drafters of CRIPA must have recognized –

the breadth of a system-wide investigation invites a never-ending investigation.

Accordingly, because the explicit text of the CRIPA statute does not authorize the

investigation that is being conducted in the instant case, and because DOJ has misused CRIPA to

set itself up as a de facto monitor under the guise of a never-ending investigation, the subpoena

at issue should be quashed in its entirety.

B. CRIPA subpoenas may be issued and enforced only in the district where the prison lies that is under investigation.

The subpoena power given DOJ is limited to “any institution that is the subject of an

investigation.” See 42 U.S.C. § 1997a-1(a). For enforcement of the subpoena, DOJ must look

to the federal district of the federal district “where the institution is located.” See 42 U.S.C.

§1997a-1(b)(2). DOJ is not authorized to enforce subpoenas in a judicial district outside the one


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where the particular prison they are investigating lies.7 Yet DOJ has attempted to file one

subpoena that pertains primarily to prisons that are outside the Middle District of Alabama.

C. The subpoena lacks the proper authorization required by CRIPA.

The subpoena sought to be enforced by DOJ does not comply with the dictates of 42 U.S.C.

§1997a-1 (b)(10(A) because the subpoena does not bear the signature of the current Attorney

General or his designee, nor does it appear that it was served by the proper party as described in

the statute. As of the filing of this response, there is no evidence that the subpoena reflects the

policy of either the current acting Attorney General, Matthew Whitaker, nor the immediate

former Attorney General Jeff Sessions. The authorization for this subpoena goes back to a

former attorney general under a former administration.

D. This CRIPA investigation was initiated by and is being carried out by local U.S. Attorneys in a manner not contemplated by CRIPA and contrary to the

DOJ Manual for U.S. Attorneys.

While the term “Attorney General” is used 43 times in the CRIPA statute, there are no

references to United States Attorneys from the various districts nor are they given any role in

CRIPA investigations by the statute itself or the newly revised Justice Manual issued by DOJ.

CRIPA provides that prior to commencing an action the Attorney General must certify: “that the

Attorney General has notified in writing the Governor . . . of the appropriate State or political

subdivision and the director of the institution of the Attorney General’s intention to commence

an investigation of such institution . . .” 42 U.S.C. § 1997b(a)(2). The Court should note that

this section contains no language authorizing the Attorney General to delegate this responsibility.

In its Petition, DOJ relies upon a blanket and non-Alabama specific delegation of

authority from former Attorney General Loretta E. Lynch (Doc 1-3 at p. 2) and an October 6,

7 To the extent this argument is contrary to the Court’s statement in its Order of October 24, 2018, ADOC requests

that the Court revisit such a conclusion. (Doc. 14 at p. 1).


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2016 notice that was not signed by the then-serving attorney general (Doc 1-4 at pp. 2-3).

Instead, the notice was signed by the then-serving DOJ Principal Deputy Assistant Attorney

General for the Civil Rights Division and the then-current attorney generals for the three

Alabama federal districts. (Doc 1-4 at p. 3.) Because the investigation was not instituted by any

Attorney General, and the notice required by CRIPA was not signed by any Attorney General,

the investigation underlying the subpoena at issue is unlawful. As the subpoena was issued in

furtherance of an unauthorized investigation, it is due to be quashed in its entirety.

II. Alternatively, the Subpoena Should be Modified or Quashed in Part.

Even if the Court finds that DOJ has the authority to pursue such an all-encompassing

investigation, and properly instituted its investigation under CRIPA, ADOC objects to certain

aspects of the subpoena at issue and the manner in which DOJ is seeking compliance.

A. ADOC has substantially complied with the May 17, 2017 subpoena.

As detailed in the introduction to this response and set out further below, ADOC has

substantially complied with the subpoena by either producing, or agreeing to produce, all

fourteen document requests contained in Appendix A of CRIPA Subpoena 2017-01. (See

Exhibit B, Chart of ADOC’s Compliance with CRIPA Subpoena No. 2017-01). The only

content-based objection ADOC has consistently maintained is its refusal to produce “open” or

“pending” I&I investigative files.

B. The subpoena fails to allow a reasonable time to comply.

The ADOC has worked tirelessly throughout this investigation to prioritize DOJ’s

endless document requests in an attempt to produce them as quickly as possible. Admittedly,

ADOC has been unable to produce many of the requests in the time allotted by DOJ and, on

occasion, has underestimated the amount of work involved and time it would take to produce


12

some of DOJ’s requests, especially in light of the non-disclosure requirements. However,

ADOC’s inability to meet these deadlines is not a stall tactic or in any way retaliatory in nature

and should not be construed as such. ADOC simply lacks the legal and support staff necessary

to gather, review, mark, and transmit the hundreds of thousands of pages of documents DOJ has

demanded over the last year and a half while simultaneously facilitating numerous facility visits

for DOJ on top of their existing substantial work loads. (See Exhibit C, Kristi Simpson’s

Declaration).

Following the “meet and confer” that took place on Oct. 1 and Oct. 2, 2018, ADOC

agreed to turn over the 77,873 documents (all in .pdf, Word, Excel, and picture data files)

responsive to the requests for files attached to the incident reports provided. However, the non-

disclosure agreement (“NDA”) signed by ADOC, Corizon, and DOJ requires that the ADOC

individually stamp each document. This is a labor-intensive and time-consuming process.

During the “meet and confer,” DOJ offered to stamp the documents “confidential” using its

document review contractor, and ADOC agreed, provided that once the marking was complete

DOJ would provide ADOC with a copy of the files containing the confidential stamp as proof

that the documents had been marked in accordance with the NDA. DOJ refused to provide the

requested stamped copies (suggesting instead that the ADOC simply take their word for it

because they are the federal government) unless ADOC paid for those copies, leaving the parties

at an impasse on this issue. As it currently stands, ADOC will have to convert the documents to

.pdf files and then manually stamp or mark the documents. The parties had agreed to a December

1, 2018 deadline for production; however, this deadline is now stayed pending the outcome of


13

the instant Petition to Enforce filed on Oct. 3, 2018. 8

While ADOC, on a good faith basis, refused to provide any “open” or “pending” I&I

investigative files (see below), it instead offered an alternative solution to address what was

DOJ’s second justification9 for demanding open and active criminal investigation files – to

ensure that I&I was investigating certain incidents. The ADOC offered to provide the case

number and the name of the assigned agent for each of the incidents the DOJ identified. Such a

list does not exist and would be created specifically for DOJ. DOJ indicated some interest in this

on October 2, 2018, but no timeframe from production was agreed upon. (See Exhibit D, “meet

and confer” emails). The Petition to Enforce the Subpoena requested this documentation by

Nov. 2, 2018.

The Court should note that DOJ has not backed off of its demand for the entire open and

active investigative files. Instead, they are now demanding both that ADOC create the list it

offered as a compromise and the open and active investigative files. Should the Court decide

that the open and active files must be produced, the offered list is redundant and should not be

required.

C. ADOC requests the Court to set a deadline for DOJ’s discovery requests, otherwise DOJ’s continuing demand for document request degenerates into a

de facto monitoring of ADOC.

DOJ has repeatedly refused or ignored ADOC’s requests to set an end date for their

investigation and document requests and, instead, continues to expand its original requests

contained in the subpoena, to include numerous requests for updates to information previously

provided and additional (new) document requests following their on-site visits and staff/inmate

8 The ADOC agreed to provide the attachments to the incident reports – all 77,873 documents. It is unclear as to

why DOJ included this item in their Petition other than to take issue with the amount of time the ADOC needs to

produce tens of thousands of pages of appropriately stamped documents. 9 The first justification was to ensure I&I was properly conducting investigations.


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interviews. In fact, DOJ officials have indicated that they will continue to initiate new document

requests as long as new incidents occur within ADOC’s facilities. This type of de facto

monitoring situation at the investigative stage is not authorized by the CRIPA statute. Assuming,

arguendo, that the Court does not quash the subpoena, the ADOC requests that the Court set a

reasonable deadline after which no further requests may be made or subpoenas issued.

D. The subpoena subjects ADOC to undue burden, disproportionate to DOJ’s

need.

Rule 45(d)(3)(A) of the Federal Rules of Civil Procedure provides that, “[up]on timely

motion, the court for the district where compliance is required must quash or modify a subpoena

that “(i) fails to allow a reasonable time to comply; ... (iii) requires disclosure of privileged or

other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue

burden.” Rule 26(b)(1) of the Federal Rules of Civil Procedure, as amended in 2015, maintains

that discovery sought must be “proportional to the needs of the case, considering the importance

of the issues at stake in the action, the amount in controversy, the parties’ relative access to

relevant information, the parties’ resources, the importance of the discovery in resolving the

issues, and whether the burden or expense of the proposed discovery outweighs its likely

benefit.” Because DOJ’s subpoena does not allow a reasonable time to comply, seeks the

disclosure of privileged or protected matters, subjects ADOC to an undue burden, is

disproportionate to the needs of its investigation, as well as other grounds listed below, the

subpoena should be modified or quashed, in part.

ADOC’s compliance with DOJ’s document requests, despite any clear indication of what

it is that DOJ is investigating, has imposed and continues to impose an undue burden on the


15

Department.10 As evident from recent federal court orders, the Department is underfunded,

understaffed, and otherwise ill-equipped to handle requests for production of this scope and

magnitude. See, e.g., Braggs v. Dunn, 257 F. Supp. 2d 1171, 1197-1200 (M.D. Ala. 2017)

(finding a “chronic and severe correctional understaffing” in the ADOC). From production

expenses to travel expenses to drive to and from each of the fourteen major male facilities

subject to this investigation (often times on more than one occasion), ADOC has expended and

continues to expend unprecedented amounts of time and taxpayer dollars attempting to comply

with DOJ’s endless requests for production.

The burden in terms of time, labor, and expense placed on ADOC by DOJ’s unreasonable

demands should not be considered in a vacuum. Besides its normal litigation and administrative

caseload, ADOC is in the midst of system-wide class action litigation in a case before this very

Court, Braggs v. Dunn, as well as major settlement agreement implementations at Tutwiler

Women’s Facility (involving DOJ) and at St. Clair Correctional Facility (arising from Equal

Justice Initiative litigation). The human capital drawn away from those cases by the demands of

DOJ in this case jeopardizes ADOC’s ability to comply with courts orders and settlements

provisions in the other cases.

For instance, the production of I & I weekly reports is extremely burdensome. ADOC has

already produced two months of weekly reports and agreed to produce the remaining 10 months

(or 44 weeks) by November 1, 2018. This request also involves the redaction of open

investigations, which requires that the ADOC Legal Division check each of the individual items

listed in the report in the AIM system to determine the status of the investigation. If the status of

the investigation is in question at the conclusion of the initial AIM search, an in-depth review of

10 Two years in with demands for hundreds of thousands of documents, assertions that the recent demands are not

the last demands, and promises of more requests to come if there are any new incidents, it is hard to characterize

DOJ’s “investigation” as anything other than the proverbial fishing expedition.


16

that particular item is conducted by the I&I Division to determine whether or not it can be

produced. The “in-depth review” step of the process takes approximately 3 hours for a month’s

worth of reports. Once the open investigations have been identified, the reports must be redacted

and individually stamped for confidentiality. The production of this request has been, and

continues to be, incredibly time consuming for both the Legal and I&I Divisions. This deadline

is now stayed pending the outcome of the instant Petition to Enforce filed on October 3, 2018.

DOJ’s response to the burden it has placed on ADOC has been marked by at best, a lack

of concern, and at worst, a calculated tactic in which demands are knowingly made when

available ADOC resources are at their minimum. This attitude is contained in the email

correspondence provided to the Court by DOJ in its Petition. After being informed that the

ADOC Legal Division would be short staffed, and after ADOC had requested for months that

DOJ provide a list of specific incidents they were interested in rather than ADOC handing over

tens of thousands of files, DOJ presented the list of incidents and new requests. (Doc 1-19 at pp.

6-7.) After being informed that the requests could not have come at a “worse time” in light of

the shortage of attorneys, the Braggs litigation, and other trials, DOJ’s response was “business is

not an excuse for not responding. Neither is the Braggs litigation.” (Id. at p. 3.) Worse, DOJ

provided yet another list of investigative files that it wanted.

This Court is well-aware of the ADOC’s limitations with respect to document production.

DOJ’s requests are overly burdensome in and of themselves as demonstrated by the tremendous

amount of production that has already occurred and is yet to occur. Accordingly, to the extent

the Court orders any further production, the ADOC request that the Court provide a sufficient

amount of time taking into consideration not just the limited capabilities of the ADOC, but the

existing burden of litigation such as Braggs that DOJ appears to view as a mere “excuse.”


17

E. Open or pending investigative files are privileged, should remain

confidential, and they will not provide the best source of information for

DOJ to evaluate the effectiveness of I&I’s investigative capabilities anyway.

The law enforcement privilege is designed to foster the confidentiality necessary for on-

going criminal investigations. Disclosure of these files to DOJ could compromise those

investigations, and DOJ has demonstrated no need to have access to these files. Its goals can be

achieved through the review of other information.

1. The law enforcement privilege is well-established in federal and state

law.

The law enforcement privilege exists to “prevent disclosure of law enforcement

techniques and procedures, to preserve the confidentiality of sources, to protect witness and law

enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and

otherwise to prevent interference with an investigation.” In re Dep't of Investigation, 856 F.2d

481, 484 (2d Cir. 1988) (citations omitted); accord In re U.S. Dep't of Homeland Sec., 459 F.3d

565, 569 n.1 (5th Cir. 2006). To decide whether the privilege applies, a court “must balance ‘the

government's interest in confidentiality against the litigant's need for the [information].’” In re

U.S. Dep't of Homeland Sec., 459 F.3d at 570 (quoting Coughlin v. Lee, 946 F.2d 1152, 1160

(5th Cir. 1991)). In making this determination, a number of courts weigh the ten factors

developed in Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973). See, e.g., In re U.S.

Dep't of Homeland Sec., 459 F.3d at 570; Tuite v. Henry, 98 F.3d 1411, 1417 (D.C. Cir. 1996).

These factors are:

(1) the extent to which disclosure will thwart governmental processes by

discouraging citizens from giving the government information; (2) the impact

upon persons who have given information of having their identities disclosed; (3)

the degree to which governmental self-evaluation and consequent program

improvement will be chilled by disclosure; (4) whether the information sought is

factual data or evaluative summary; (5) whether the party seeking discovery is an

actual or potential defendant in any criminal proceeding either pending or


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reasonably likely to follow from the incident in question; (6) whether the police

investigation has been completed; (7) whether any interdepartmental disciplinary

proceedings have arisen or may arise from the investigation; (8) whether the

plaintiff's suit is non-frivolous and brought in good faith; (9) whether the

information sought is available through other discovery or from other sources;

(10) the importance of the information sought to the plaintiff's case.

Hickey, 2008 WL 450561 at *4-*5 (quoting Frankenhauser, 59 F.R.D. at 344). See also, e.g.,

Dellwood Farms v. Cargill, Inc., 128 F.3d 1122, 1125 (7th Cir. 1997) (recognizing “law

enforcement investigatory privilege”); Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991)

(“Federal common law recognizes a qualified privilege protecting investigative files in an

ongoing criminal investigation.”); In re Department of Investigation, 856 F.2d 481, 483-84 (2d

Cir. 1988) (stating that the law enforcement privilege exists and prevents the “disclosure of law

enforcement techniques and procedures, [preserves] the confidentiality of sources, [protects]

witnesses and law enforcement personnel, [safeguards] the privacy of individuals involved in an

investigation, and otherwise [prevents] interference with an investigation”); United States v.

Winner, 641 F.2d 825, 831 (10th Cir. 1981) (stating that the “law enforcement investigative

privilege is based primarily on the harm to law enforcement efforts which might arise from

public disclosure of investigatory files”) (internal quotation marks and ellipse omitted); Tuite v.

Henry, 181 F.R.D. 175, 176-77 (D. D.C. 1998) (“The federal law enforcement privilege is a

qualified privilege designed to prevent disclosure of information that would be contrary to the

public interest in the effective functioning of law enforcement. [It] serves to preserve the

integrity of law enforcement techniques and confidential sources, protects witnesses and law

enforcement personnel, safeguards the privacy of individuals under investigation, and prevents

interference with investigations.”), aff'd, 203 F.3d 53 (D.C. Cir. 1999) (Table).


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The Supreme Court and Eleventh Circuit clearly have recognized “the Government's

privilege to withhold from disclosure the identity of persons who furnish information of

violations of law to officers charged with enforcement of that law”: i.e., “confidential

informants.” Rovario v. United States, 353 U.S. 53, 59 (1959). See also United States v.

Rutherford, 175 F.3d 899, 901 (11th Cir. 1999) (“[t]he government has the privilege to withhold

from disclosure the identity of its informants.”). However, the Rovario Court held that the

government's privilege to withhold the identity of confidential informants is not absolute. 353

U.S. at 59-60. Rather, “[w]here the disclosure of an informer’s identity, or of the contents of his

communication ... is essential to a fair determination of a cause, the privilege must give way.” Id.

at 60-61.

It is also the public policy of Alabama, as set out in both the Alabama Code and ADOC

administrative regulation, to prevent disclosure of information relating to on-going or pending

criminal investigations. Alabama Code Section 12-21-3.1 provides that, “[n]either law

enforcement investigative reports nor the testimony of a law enforcement officer may be subject

to a civil or administrative subpoena except as provided in subsection (c). . .. (c) Under no

circumstance may a party to a civil or administrative proceeding discover material which is not

authorized discoverable by a defendant in a criminal matter. . . . Such discovery order may be

issued by a court of record upon proof by substantial evidence, that the moving party will suffer

undue hardship and that the records, photographs or witnesses are unavailable from other

reasonable sources.” Further, regardless of the status of the case internally, cases are not

considered fully closed until such time as there is a final resolution with any pending or potential

criminal matter. (See Exhibit E, I&I SOP No. 23; see also Ala. Code Section 12-21-3.1).


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2. DOJ does not need to review all open and active I&I investigative files.

As an initial matter, the I&I investigative files are outside the broad scope of the three

areas identified in the October 6, 2016 notice to Governor Bentley. (Doc 1-4 at p. 1.) The notice

listed three areas of inquiry, “whether Alabama: (1) adequately protects prisoners from physical

harm and sexual abuse at the hands of other prisoners; (2) adequately protects prisoners from use

of excessive force and staff sexual abuse by correctional officers; and (3) provides prisoners with

sanitary, secure, and safe living conditions.” (Id.) Whether Alabama properly conducts

investigations of incidents occurring inside its penal facilities is not a listed subject of the

investigation. Accordingly, DOJ has no need for any investigative files, let alone open files.

Even if investigations could be construed as being part of the October 6, 2016 notice, it is

axiomatic that the more agencies and individuals that have access to confidential information, the

more likely it is that sensitive information will be compromised either accidentally or

deliberately. For this reason, the federal government itself grants access to confidential

information based not only upon possession of a security clearance, but the need to know

specific confidential information. Furthermore, if the ADOC is forced to provide the open

investigative files, the information contained therein will be available not only to DOJ personnel

but their civilian contractors who are participating in this investigation. Consequently, there is

significant risk that any information obtained by DOJ in open investigative files could be

compromised.

Arnoldo Mercado, the Director of I&I, has personally reviewed DOJ’s demand for the

open investigative files. He has determined that production of the files with invade the privacy

of witnesses and law enforcement personnel. Disclosure could also interfere or hinder future

criminal prosecutions. (See Exhibit F, Arnaldo Mercado Affidavit.)


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Given this risk, the relevant Hickey factors strongly favor the Commissioner.11 First,

there can be no doubt that the disclosure of confidential information and the identities of

confidential informants would have a chilling impact on I&I’s ability to encourage ADOC

inmates to provide information during investigations. Second, should any of the information

contained in I&I’s open files be compromised, the identities of confidential informants could

become known and their lives put at risk. Hickey’s second element is particularly relevant in the

instant case because of the underlying purpose of a CRIPA investigation – to protect the rights of

incarcerated persons. There is little doubt that lives could be endangered if the identities of

inmate confidential informants became known.

The open I&I files contain both kinds of information referenced in the fourth Hickey

factor – factual and evaluative summary. The open I&I files contain factual documents, such as

incident reports, duty officer reports, and body charts. However, they also contain investigative

reports (which are summaries of the investigation, including the investigator’s impressions and

conclusions).

To justify its demand for the open I&I files, the DOJ has proffered three successive

reasons: 1) to ensure that I&I is properly conducting investigations; 2) to ensure that incidents

are actually being investigated; and 3) most recently, to obtain “corroborating documentation” on

statements purportedly obtained from inmates. It is the latter justification that is relevant to the

fourth Hickey factor. To the extent that DOJ seeks factual documentation to corroborate what it

is being told by inmates, there is no need to obtain them from the I&I file, and, certainly, it is no

justification to obtain any document constituting an evaluative summary. DOJ has provided a

list of specific incidents for which it wants I&I files. This means DOJ knows names, dates,

11 Hickey factors three and five are not relevant to the instant case because “self-evaluation” is not part of an open

I&I investigative file, and DOJ is not a target in any of the open investigative files.


22

facilities, and other information from which it can do one of two things: 1) check the hundreds of

thousands of documents it already has for incident reports, duty officer reports, body charts and

other documents; or 2) specifically request such documents if they are not already in DOJ’s

possession.

To the extent DOJ still relies upon its other stated reasons, there is still no reason to

obtain open I&I files. Evaluative summaries and other documents generated by agents can be

obtained from closed files for purposes of determining whether I&I is properly conducting

investigations. Closed files would show everything that the assigned agent did or failed to do.

Conversely, open and active investigations are not complete. There are things the investigator

still needs to do: interview witnesses, take photographs, gather documents, etc. Moreover, things

change in the course of an open and active investigation. Subsequently developed evidence may

cast doubt on the veracity of a witness statement. New suspects may be developed. Additional

witnesses and other evidence may be discovered. Closed files are, therefore, the best source to

fairly evaluate the effectiveness of I&I’s investigative techniques and efforts. ADOC has offered

to provide closed files to DOJ.

ADOC has also offered to create and provide a list to DOJ containing the case number

and agent assigned to all open investigations in which DOJ claims an interest. This is more than

sufficient to demonstrate whether a recent incident is being investigated. ADOC’s offer satisfies

DOJ’s stated need without the risk of compromising open investigations.

The sixth Hickey factor clearly favors the Commissioner – the entire point of contention

here is that the open files are not completed. There has been no criminal prosecution yet.

Interdepartmental disciplinary proceedings could very well arise out of I&I’s open files.

Every case is reviewed with an eye towards examining the conduct of the ADOC employees


23

involved in the matter. (See Exhibit F, Arnoldo affidavit at p. 2.) Where warranted, criminal

charges may be brought or disciplinary action may be taken against involved employees. (Id.)

Accordingly, the seventh Hickey factor favors the Commissioner.

As noted above, ADOC contends that DOJ does not have the authority under CRIPA to

conduct a system-wide investigation. DOJ has also demonstrated that it is not approaching this

investigation in good faith.

Since the onset of this investigation, the ADOC has acknowledged the challenges that

exist in the male prison system and offered, on multiple occasions, to meet with DOJ officials to

discuss the corrective measures that can and are being taken in an effort to address DOJ’s

concerns about these prison conditions. In fact, ADOC proposed that DOJ skip the burdensome,

adversarial, and unnecessary step of issuing a findings letter and, instead, shift its focus to

working collaboratively with ADOC to correct these issues through “informal methods of

conference, conciliation, and persuasion”, as encouraged by § 1997b(a)(1) of the CRIPA statute.

(See Exhibit G, February 23, 2017 letter from Anne Hill to Carla Ward). DOJ rejected these

offers, claiming, among other things, that ADOC had “incorrectly interpret[ed] the CRIPA

statute” and insinuating that it would be ludicrous to “discuss ‘corrective’ measures and provide

financial and technical assistance to problems [they] are still investigating.” (See Exhibit H,

March 23, 2017 letter from Steven H. Rosenbaum to Anne Hill).

DOJ’s refusal to work collaboratively with ADOC was further evidenced by the

December 15 and December 20, 2017 email exchanges between DOJ expert Eugene Atherton

and ADOC Inspector General Mark Fassl. (See Exhibit I, Mark Fassl’s Affidavit, and Exhibit J,

Dec. 15 and Dec. 20, 2017 emails exchanged between Mark Fassl and Eugene Atherton).

During the December 13, 2017 interview between Mr. Atherton and ADOC I.G. Mark Fassl at


24

ADOC’s central office in Montgomery, Mr. Atherton offered to provide I.G. Fassl with various

IG and security audit principals, procedures, and policies to aid him in his relatively new role as

ADOC I.G. However, when I.G. Fassl followed up on Mr. Atherton’s offer to provide these

materials, Mr. Atherton, responded as follows:

Mark, thanks for the follow-up. Serving you, your department, and ADOC via

DOJ is my ultimate aim. I have discussed our relationship with great optimism

with the DOJ principals. They are positive but remind me, we are little early in

the process to do such things. I have to wait for the “green light” from them. I

look forward to that event and the beginning of our working relationship. Thanks,

Gene.

(See Exhibit J).

It is evident from these and other similar exchanges that DOJ’s intent is to issue a

findings letter that will no doubt cast the ADOC in the worst possible light before initiating a

civil action that will further negatively impact staffing and departmental morale and effectively

negate all of the positive changes that have been made to date. Accordingly, the eighth Hickey

factor favors the Commissioner, as DOJ does not have the statutory authority to conduct this

kind of a CRIPA investigation, and even if it did, has not demonstrated good faith by honoring

the spirit of the CRIPA statute – providing assistance to institutions to ensure that the rights of

institutionalized persons are protect.

Hickey factor nine also favors the Commissioner for reasons similar to the fourth factor –

the information DOJ seeks is obtainable from sources other than the I&I files. DOJ likely

already has the relevant incident reports – if not, they can be obtained from a source that is not

I&I. The same is true for duty officer reports, body charts, medical records, and other documents

that are not generated by the I&I agents as part of conducting an investigation. (See Exhibit F,

Mercado affidavit, at p. 2.) Additionally, once ADOC has provided the 77,873 attachments to

incident reports it has already agreed to provide, DOJ will have access to even more factual


25

documents that can satisfy their “corroborative” need. Because the documents DOJ seeks may

be obtained outside of the I&I files, the ninth Hickey factor favors the Commissioner.

All of the preceding discussion also demonstrates that the open investigative files have

minimal, if any, importance in DOJ’s investigation. Not one of DOJ’s stated reasons justify

production of open investigative files. DOJ can best evaluate I&I’s effectiveness with closed

and complete files. The proffered list of case numbers and assigned agents will satisfy DOJ’s

claimed need to know that certain matters are being investigated. Finally, DOJ either has the

factual documents that would be contained in the I&I files in its possession, will get the

documents when ADOC turns over another 77,873 documents, or can be separately requested

from non-I&I sources. Accordingly, the open I&I files have no importance whatsoever to DOJ’s

investigation placing the tenth Hickey factor strongly on the Commissioner’s side of the ledger.

3. The Court needs to limit DOJ’s requests which are ever-changing and ever-growing.

In Assistant U.S. Attorney Carla Ward’s March 23, 2018 letter to ADOC Attorney Mary-

Coleman Roberts, she states in footnote 3, “I note that this request is much more narrow than the

documents that were demanded in the subpoena. We are only seeking the Investigative Reports

(and not supporting documents) and we have substantially narrowed the time frame for requested

documents.” (See Exhibit K, AUSA Carla Ward’s March 23, 2018 letter to ADOC Attorney

Mary-Coleman Roberts.) Since that time, however, DOJ has reversed its course and is now

demanding that ADOC produce the entire investigative file. Nevertheless, during the “meet and

confer” that took place on October 1 and October 2, 2018, DOJ agreed to receive the


26

investigative reports on the approximately 167 closed files that remain, review those reports, and

request any investigative files they deemed necessary at a later date.12

Because the balancing factors weigh more heavily in favor of non-disclosure, the

investigative privilege should apply to these ongoing criminal investigative files, and the

requested relief outlined in the Petition is due to be denied.

F. ADOC is unable to produce the requested “in native electronic format” and

convert it to a pdf, which is necessary to stamp or mark it “confidential”

pursuant to the NDA.

ADOC simply lacks the resources and capabilities to comply with DOJ’s demands with

respect to native format, document conversion, and the required stamping. (See Exhibit L,

Confidentiality and Non-Disclosure Agreement). The only other viable alternative available to

ADOC is to print out the thousands of remaining pages of requested documentation and

manually rubber stamp them, which is equally time consuming, is an unreasonable demand, and

is disproportionate to DOJ’s needs. Accordingly, the Court should modify the subpoena to

remove any requirement that the ADOC provide documents “in native electronic format.”

CONCLUSION

Based upon the foregoing, Commissioner Jefferson Dunn requests that the Petition be

denied, and that the underlying subpoena be quashed in its entirety, or, alternatively, quashed in

part and modified as set forth above.

FILED this day, the 14th day of November, 2018.

STEVE MARSHALL

Attorney General

/s/ Gary L. Willford, Jr.

Gary L. Willford, Jr. (WIL198)

Assistant Attorney General

12 The parties agreed the reports were to have been provided by Tuesday, October 9, 2018. This deadline is now

stayed pending the outcome of the instant Petition to Enforce filed on October 3, 2018.


27

Mary-Coleman M. Roberts (BUT038)


ADDRESS OF COUNSEL:

ALABAMA DEPARTMENT OF CORRECTIONS

LEGAL DIVISION

301 RIPLEY STREET

P.O. BOX 301501

MONTGOMERY, ALABAMA 36130

334-353-5495

[email protected]

CERTIFICATE OF SERVICE

I hereby certify that on the 14th day of November, 2018, I electronically filed the

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

such filing to the following (or by U.S. Mail to the non-CM-ECF participants):

John M. Gore

Steven H. Rosenbaum

Judith Preston

U.S Department of Justice

Civil Rights Division

Office of the Assistant Attorney General

Washington, D.C.20530

Jay E. Town

United States Attorney

Northern District of Alabama

1729 5th Avenue North

Birmingham, AL 35203

Richard W. Moore


Southern District of Alabama

113 St. Joseph Street

Mobile, AL 36602

Louis V. Franklin


Middle District of Alabama

1 Church St

Montgomery, AL 36104

Jason R. Cheek

Carla C. Ward

U.S. Attorney’s Office

Northern District of Alabama

1801 Fourth Avenue North

Birmingham, AL 35203

Jerusha T. Adams

U.S. Attorney’s Office

Middle District of Alabama

131 Clayton Street

Montgomery, AL 36104


28

/s/ Gary L. Willford, Jr.

Gary L. Willford, Jr. (WIL198)

