Case 2:20-cv-01971-RDP Document 57 Filed 10/08/21 Page 1 of 9 FILED

2021 Oct-08 PM 03:00

U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

UNITED STATES OF AMERICA, }

}
Plaintiff, }
}
v. } Case No.: 2:20-CV-01971-RDP
}
STATE OF ALABAMA, et al., }
}
Defendants. }

MEMORANDUM OPINION

Before the court is Defendants’ Motion for Partial Dismissal. (Doc. # 38). The motion has

been fully briefed (Docs. # 39, 41, 44) and is ripe for decision. For the reasons discussed below,

the Motion is due to be granted in part and denied in part.

I. Background

The United States brings this action against the State of Alabama and the Alabama

Department of Corrections pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA).

(Doc. # 37 at 1). Plaintiff alleges that the State has violated the Eighth and Fourteenth Amendments

to the Constitution of the United States by “failing to prevent prisoner-on-prisoner violence and

sexual abuse, failing to protect prisoners from the use of excessive force by security staff, and

failing to provide safe conditions of confinement.” (Id.).

The current iteration of Plaintiff’s complaint (Doc. # 37) results from the court ordering

Plaintiff to separate its allegations by facility. (See Doc. # 31). Plaintiff’s Amended Complaint

consists of one count that re-alleges paragraphs eighteen through one hundred ninety-three (the

fact section of the current complaint). (Doc. # 37 at 40-41). The single count alleges that

Defendants have acted with deliberate indifference through acts or omissions that constitute a
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pattern or practice that violate the Eighth and Fourteenth Amendments to the Constitution of the

United States. (Id.). The fact section, in turn, contains five sub-parts that address four causes of

action: (1) Defendants failed to protect prisoners from prisoner-on-prisoner violence; (2)

Defendants failed to protect prisoners from prisoner-on-prisoner sexual abuse; (3) Defendants

failed to protect prisoners from excessive force; (4) Defendants failed to provide safe and sanitary

conditions; and, (5) Defendants acted with deliberate indifference regarding the preceding four

sub-parts. (Doc. # 37 at 7-40). Within the first, second, and fourth allegations, Plaintiffs contend

that several deficiencies in Alabama’s prison system contribute to the constitutional violations,

including understaffing. (Doc. # 37 at 14, 24, 35).

Defendants move the court to dismiss the failure to provide safe and sanitary conditions

allegation for failure to state a plausible claim. (Doc. # 39 at 8). Defendants also argue that any

allegation of correctional understaffing is due to be dismissed for failure to timely assert the matter.

(Doc. # 39 at 12). In addition to the two main arguments, Defendants request the court to recognize

a heightened pleading standard for CRIPA actions, to review the Attorney General’s certification

of the action, and to dismiss the Amended Complaint for seeking improper relief. (Doc. # 39 at 5-

8, 11).

II. Standard of Review

The Federal Rules of Civil Procedure require that a complaint provide “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

However, the complaint must include enough facts “to raise a right to relief above the speculative

level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain nothing more

than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards,

nor do pleadings suffice that are based merely upon “labels and conclusions” or “naked

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assertion[s]” without supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6)

motion to dismiss, courts view the allegations in the complaint in the light most favorable to the

non-moving party. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).

To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible

on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although “[t]he

plausibility standard is not akin to a ‘probability requirement,’” the complaint must demonstrate

“more than a sheer possibility that a defendant has acted unlawfully.” Id. A plausible claim for

relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal

evidence” to support the claim. Twombly, 550 U.S. at 556.

In considering a motion to dismiss, a court should “1) eliminate any allegations in the

complaint that are merely legal conclusions; and 2) where there are well-pleaded factual

allegations, ‘assume their veracity and then determine whether they plausibly give rise to an

entitlement to relief.’” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App’x 136, 138

(11th Cir. 2011) (quoting Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)).

That task is context specific and, to survive the motion, the allegations must permit the court based

on its “judicial experience and common sense ... to infer more than the mere possibility of

misconduct.” Iqbal, 556 U.S. at 679. If the court determines that the well-pleaded facts, accepted

as true, do not state a claim that is plausible, the claims are due to be dismissed. Twombly, 550

U.S. at 570.

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III. Analysis

Plaintiff’s Amended Complaint is a shotgun pleading. As a result, Plaintiff must replead

its allegations in accordance with Weiland v. Palm Beach Cty. Sherriff’s Office, 792 F.3d 1313

(11th Cir. 2015). Additionally, the court concludes that Plaintiff can continue to allege

understaffing as a contributing factor to its separate causes of actions of Eighth Amendment

violations. Also, the court determines that it does not possess the power of judicial review

regarding the Attorney General’s decision to certify the CRIPA action.

A. Shotgun Pleading

As a general rule, the Eleventh Circuit divides shotgun pleadings into four categories.

Weiland, 792 F.3d at 1321-23. It has explained that a shotgun complaint is one that:

(1) contain[s] multiple counts where each adopts the allegations of all preceding
counts; (2) [is] filled with “conclusory, vague, and immaterial facts not obviously
connected to any particular cause of action”; (3) do[es] not separate each cause of
action or claim into separate counts; or (4) assert[s] multiple claims against multiple
defendants but do[es] not specify which defendant is responsible for which acts or
omissions.

Brown v. Air Line Pilots Assoc, 813 Fed. App’x. 353, 355 (11th Cir. 2020) (citing Weiland, 792

F.3d at 1321-23 (11th Cir. 2015)). The common characteristic between all four types is the failure

“to give defendants adequate notice of the claims against them and the grounds which each claim

rests.” Weiland, 792 F.3d at 1323.

Plaintiff’s Amended Complaint is an example of the third type of shotgun pleading: it fails

to divide its separate causes of actions into different counts. In its current form, the Amended

Complaint contains a single count, but the fact section contains at least four different causes of

actions: (1) failure to protect prisoners from prisoner-on-prisoner violence, (2) failure to protect

prisoners from prisoner-on-prisoner sexual abuse, (3) failure to protect prisoners from excessive

force, (4) failure to provide safe and sanitary conditions. Under the Eleventh Circuit’s decision in

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Weiland, Plaintiff must divide each of these cause of actions into separate counts. And, Plaintiff

must provide sufficient factual content of both the objective and subjective elements of an Eighth

Amendment violation within each count to satisfy the pleading standards of Twombly and Iqbal.1

Plaintiff is also reminded to continue to abide by the court’s previous Order (Doc. # 31)

and separate its allegations by facility. Specifically, Plaintiff should assert which facilities fail to

provide safe and sanitary conditions. For example, paragraphs 175, 176, and 181 make the broad

assertion that “lack of adequate surveillance cameras,” “defective locks,” and “insufficient convex

mirrors” contribute to unsafe conditions, but Plaintiff fails to allege which specific facilities

contain these purported problems.2

B. Understaffing and the Braggs Class Action

Defendants also ask the court to dismiss Plaintiff’s allegations of deficiencies in

correctional staffing considering the ongoing class action Braggs v. Dunn, No. 2:14-cv-601-MHT-

JTA (M.D. Ala.). Plaintiff’s Amended Complaint does not contain a cause of action for

understaffing. Rather, understaffing is alleged to be a contributing factor in relation to Plaintiff’s

allegations of failure to prevent prisoner-on-prisoner violence and sexual abuse as well as failure

to provide safe and sanitary conditions. Furthermore, the Braggs class action has no preclusive

effect in the present action, and Defendant’s motion to dismiss allegations of understaffing is due

to be denied.

1
The United States should be warned that as currently pled, it is a close call as to whether it has adequately
alleged a claim for the failure to provide safe and sanitary conditions.
2
Defendants also argue that Plaintiff’s prayer for relief is too far reaching. (Doc. # 39 at 11). But, as the
Plaintiff concedes in its Response, “any prospective relief awarded by the Court will have to comply with the Prison
Litigation Reform Act’s requirement that such relief be narrowly drawn, extend no further than necessary to correct
the constitutional violations, and is the least intrusive means necessary to do so.” (Doc. # 41 at 20) (citing 18 U.S.C.
§ 3626(a)(1)(A)).

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Defendants classify Braggs as a class action “consisting of all persons with a serious mental

illness who are, or will be confined within ADOC’s facilities.” (Doc. # 39 at 12). While the Braggs

court has filed a preliminary remedial order that addresses staffing issues in the Alabama prison

system and is reportedly drafting a final remedial order, the Braggs case has no preclusive effect

in the present action.

Defendants support their argument by citing a proposition articulated by the Tenth Circuit:

“Individual suits for injunctive and equitable relief from alleged unconstitutional prison conditions

cannot be brought where there is an existing class action. To permit them would allow interference

with the ongoing class action.” (Doc. # 39 at 14) (citing McNeil v. Guthrie, 945 F.2d 1163, 1165

(10th Cir. 1991). But the principle in McNeil does not apply to the current action brought by the

United States under CRIPA. McNeil involved an individual, private party seeking injunctive relief

identical to an ongoing class action. In this case, the United States of America has brought the

action rather than an individual, private party. Additionally, the current action is being litigated

outside the boundaries of the Braggs class action. According to Defendants’ memorandum, the

Braggs class action is specific to the effects of understaffing on mental-health care. However, the

current action concerns the effects of purported understaffing on prisoner-on-prisoner violence and

sexual abuse as well as prison conditions.

Also, the Eleventh Circuit recognizes “the well-established general principle that the

government is not bound by private litigation when the government’s action seeks to enforce a

federal statute that implicates both public and private interests.” Herman v. South Carolina Nat.

Bank, 140 F.3d 1413, 1425 (11th Cir. 1998). As Defendants note, Herman is an ERISA case, but

the Herman court cited three voting rights actions and an antitrust suit to support this general

principle. Id. In other words, the legal principle that the government is not bound by private

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litigation when it enforces a federal statute that implicates both public and private interests extends

beyond ERISA actions.

CRIPA provides that the Attorney General must certify “that such an action by the United

States is of general public importance and will materially further the vindication of rights,

privileges, or immunities secured or protected by the Constitution or laws of the United States.”

42 U.S.C. § 1997b(a)(3). Put differently, in a CRIPA action the United States represents the public

interest rather than individual inmates. See United States v. Michigan, 680 F. Supp. 928, 968 (W.D.

Mich. 1987) (citing 42 U.S.C. § 1997a(a); S. Rep. No. 416, 96 Cong., 2d Sess., at 31. In this case,

the United States seeks to enforce a federal statute that implicates both public and private interests.

Following the Eleventh Circuit’s well-established general principle, even if the scope of Briggs

paralleled the current action, Briggs would not preclude relief here.

C. Preconditions to a CRIPA Action & the Attorney General’s Certification

CRIPA provides for certain preconditions and certification requirements that the Attorney

General must meet before filing an action. See 42 U.S.C. § 1997a, 1997b. One of the preconditions

is that “the Attorney General has reasonable cause to believe that [the] State … is subjecting

persons … to egregious or flagrant conditions … and that such deprivation is pursuant to a patter

or practice.” 42 U.S.C. § 1997a(a). Defendants argue that these preconditions place an elevated

pleading requirement on Plaintiff to overcome a Rule 12(b)(6) motion. (Doc. # 39 at 5-6). The

court disagrees.

CRIPA is a statutory vehicle that confers standing on the Attorney General to enforce

existing constitutional rights and federal statutory rights. Patsy v. Board of Regents, 457 U.S. 496,

507-08 (1982); see United States v. Erie County, 724 F. Supp. 2d 357, 366 (W.D. N.Y. 2010). The

plain language of § 1997a indicates that the expressed preconditions apply only to the Attorney

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General’s reasonable cause determination. CRIPA does not create a heightened pleading standard.

Erie County, 724 F. Supp. 2d at 365; United States v. Pennsylvania, 902 F. Supp. 565, 578-79

(W.D. Pa. 1995). Instead, the Attorney General must abide by the same pleading standards as an

individual, private plaintiff asserting the same allegations. United States v. Pennsylvania, 863 F.

Supp. 217, 220 (E.D. Pa. 1994). In other words, the court will apply the principles established by

the Supreme Court in Twombly and Iqbal as well as the Eleventh Circuit’s interpretation.

Section 1997b provides the certification requirements that the Attorney General must

follow. This court agrees with the vast majority of district courts to decide this issue: the Attorney

General’s certification is not subject to judicial review. E.g., United States v. Erie County, 724 F.

Supp. 2d 357, 366 (holding that the court is not authorized to review the Attorney General’s

certification of a CRIPA action because Congress left the decision to the Attorney General’s

prosecutorial discretion); United States v. Pennsylvania, 832 F. Supp. 122, 126 (E.D. Pa. 1993);

United States v. Illinois, 803 F. Supp. 1338, 1340-41 (N.D. Ill. 1992); United States v. New York,

690 F. Supp. 1201, 1204 (W.D. N.Y. 1988) (holding that CRIPA certification, like other civil

rights statutes, is non-reviewable); United States v. Oregon, No. CIV. 86-961LE, 1987 WL 39761,

at *4 (D. Or. Apr. 8, 1987) (noting that the joint congressional statement concluded that CRIPA

certification, like other statutory certificate requirements, are not judicially reviewable); United

States v. Massachusetts, No. 85–0632–M, slip op. (D. Mass. June 5, 1985). But see United States

v. Hawaii, 564 F. Supp. 189 (D. Haw. 1983) (reviewing the certification for the limited reason that

the Attorney General’s certification stated that he complied with the statutory requirements “to the

fullest extent possible”).

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Accordingly, the portion of Defendants’ Motion predicated on a request that the court

review the Attorney General’s certification of the action is due to be denied. Similarly, Defendants’

argument that CRIPA demands a heightened pleading standard is off the mark.

IV. Conclusion

The court concludes that Defendants’ Motion for Partial Dismissal is due to be granted in

part and denied in part. Plaintiff shall replead the Amended Complaint to cure its deficiencies as a

shotgun pleading. However, Defendants’ requests for the court to dismiss allegations predicated

on understaffing, to recognize a heightened pleading standard for the CRIPA action, and to review

the Attorney General’s certification of the action are due to be denied. A separate order in

accordance with this Memorandum Opinion will be entered contemporaneously.

DONE and ORDERED this October 8, 2021.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE