Case 1:15-cv-01949-RBJ-MJW Document 169-1 Filed 08/02/17 USDC Colorado Page 1 of

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-01949-RBJ-MJW

CARL HALL, )
)
Plaintiff, )
)
v. )
)
JOHN OLIVER, and )
U.S. FEDERAL BUREAU OF PRISONS, )
)
Defendants. )

Memorandum of Points and Authorities in Support

of Plaintiff's Motion for Reconsideration or for a New
Trial Pursuant to Rules 52(b), 59(e) and 60(b)

Paul Wolf, CO Bar #42107

Attorney for Carl Hall
P.O. Box 46213
Denver, CO 80201
(202) 431-6986
paulwolf@yahoo.com
fax: n/a

August 2, 2017
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TABLE OF CONTENTS

TABLE OF CONTENTS .............................................................................. i

TABLE OF AUTHORITIES ......................................................................... ii

FACTUAL SUMMARY ............................................................................... 1

SUMMARY OF ARGUMENT ..................................................................... 2

ARGUMENT ................................................................................................ 3

I. The Court didn't apply a standard of review as required by the

Administrative Procedure Act. ......................................................... 3

A. The Court didn't determine whether the Bureau of

Prisons applied the correct legal standards in making
its decision to transfer the Plaintiff to the ADX. ................... 5

1. The evidence at trial showed that the Defendant

doesn't classify Anti Social Personality Disorder
as a Serious Mental Illness, despite its written
policy. ........................................................................ 5

2. The evidence at trial showed that the Due Process

Hearing made no mention of the real reason
the Plaintiff was transferred to the ADX, which
was that he failed the Special Management Unit
program. .................................................................... 7

B. The decisions in the Hearing Administrator's Report

and Psychological Evaluation for ADX Transfer were
not supported by substantial evidence in the record. ............ 8

II. The evidence at trial showed that the settlement in Cunningham v.

v. BOP didn't adequately represent the interests of persons with
Anti Social Personality Disorder and six other mental illnesses. ..... 9

CONCLUSION .............................................................................................. 13

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TABLE OF AUTHORITIES

CASES

Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) ............................ 11

Andrade v. Secretary of Health and Human Services,

985 F.2d 1045, 1047 (1993) .......................................................................... 3

Ark Initiative v. Tidwell, 816 F.3d 119 (D.C. Cir. 2016) ............................. 4

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) ..................... 1

Butte Cty. v. Hogen, 613 F.3d 190 (D.C. Cir. 2010) .................................... 5

Byron v. Heckler, 742 F.2d 1232 (10th Cir. 1984) ....................................... 4

Cty. of L.A. v. Shalala, 192 F.3d 1005 (D.C. Cir. 1999) .............................. 4

Cunningham v. Bureau of Prisons, 12-cv-1570-RPM (D.Colo.) ............... 1-2, 9-13

Elzour v. Ashcroft, 378 F.3d 1143 (10th Cir.2004) ...................................... 5

General Telephone Co. of Southwest v. Falcon,

457 U.S. 147 (1982) ...................................................................................... 11

James Madison Ltd. ex rel. Hecht v. Ludwig,

82 F.3d 1085 (D.C. Cir. 1996) ...................................................................... 4

Judulang v. Holder, 132 S.Ct. 476 (2011) .................................................... 4

Karki v. Holder, 715 F.3d 792 (10th Cir. 2013) ........................................... 4

Mosier v. Maynard, 937 F.2d 1521 (10th Cir. 1991) .................................... 1

Select Specialty Hosp.Bloomington, Inc. v. Burwell,

757 F.3d 308 (D.C. Cir. 2014) ...................................................................... 4

Stewart v. Kempthorne, 554 F.3d 1245 (2009) ............................................ 3

Trevizo v. Adams, 455 F.3d 1155 (10th Cir. 2006) ..................................... 11

Williams v. Bowen, 844 F.2d 748 (10th Cir.1988) ...................................... 4

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CONSTITUTION AND STATUES

U.S. CONST. AMEND. 1 ............................................................................. 1-2

U.S. CONST. AMEND. 8 ............................................................................. 1-2, 10

5 U.S.C. 551 et seq. (Administrative Procedure Act) ................................ 1, 3

28 U.S.C. 1331 ........................................................................................... 3

42 U.S.C. 1997e (Prison Litigation Reform Act) ....................................... 3

RULES

Federal Rule of Civil Procedure 23 (a) ........................................................ 10-11

Federal Rule of Civil Procedure 23 (b) (2) ................................................... 11

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FACTUAL SUMMARY

This case began as a pro se Bivens action about an alleged assault of the Plaintiff

by several prison guards. On December 29, 2016, undersigned counsel was appointed by

the Court's Pro Bono Program. D.E. 105. After reviewing the evidence in discovery,

counsel moved the Court to file a Third Amended Complaint ("TAC") on February 23,

2017, D.E. 117, which the Court granted. The TAC no longer contained the Bivens

claim, but made claims under the Administrative Procedure Act that Plaintiff's transfer to

the ADX prison violated his rights under the First and Eighth Amendments. TAC, D.E.

117-2.

The Court dismissed the Eighth Amendment claim, finding that it was barred by

the class action settlement in Cunningham v. Bureau of Prisons, 12-cv-1570-RPM

(D.Colo.). Order, D.E. 142, see Exhibit 5, Cunningham settlement, attached hereto. The

Court denied the Defendants' 12(b)(6) Motion to Dismiss the First Amendment claim,

finding that Plaintiff had stated a claim.1

1
The Court's reasoning was as follows: "Legitimate penological interests include
security, rehabilitation, and deterrence. Mosier v. Maynard, 937 F.2d 1521, 1525 (10th
Cir. 1991). Mr. Hall argues there are no such interests here because [a]lthough [he] may
be a danger to himself, he is not a danger to other prisoners, prison staff, or the public.
ECF No. 123 at 66. He explains: Unlike many ADX prisoners, Mr. Hall is not a gang
member, a psychopath, a terrorist, or an obvious danger to other prisoners. Although Mr.
Hall has a continuous history of disciplinary violations, only one incident, about a decade
ago, involved a physical fight with another inmate. Id. at 2. He admits that his conduct,
such as throwing feces at prison staff, is at times extremely offensive, but he insists
that he is not actually dangerous, and that this antisocial behavior is a symptom[] of
his serious mental illness. Id. at 2, 19.2 He also avers that this bad conduct is not
reformed or deterred by solitary confinement, but aggravated by it. Id. at 2, 13. And he
asserts: Although [he] is still unsure of the reason for his ADX placement, it appears
designed solely for the convenience of the Bureau of Prisons. Id. at 4. Viewing these
allegations in the light most favorable to Mr. Hall, I conclude that he has pled sufficient
facts to support a plausible inference that his placement in ADX is not reasonably related
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The case went to trial on July 17, 2017 on the First Amendment claim only. On

July 19, 2017, at the close of Plaintiff's case-in-chief, the Court granted Defendants Rule

52(c) Motion for Judgment on Partial Findings. The Court's findings of fact and

conclusions of law were read into the record, but no trial transcript has been ordered by

either party to date. References to the trial record are made on the basis of counsel's

memory and notes.

SUMMARY OF ARGUMENT

The Court had no jurisdiction to review the case de novo, but should have

restricted its review to whether the Defendant applied the correct legal standards, and

whether its decision to transfer the Plaintiff to the ADX was based on substantial

evidence in the record. Had it done so, it would have found that a BOP psychologist

applied the wrong legal standard to determine whether Plaintiff's mental illness was

serious, and therefore a bar to his placement in the ADX. It would also have found that

the Hearing Administrator's Report did not state the true reason for the Plaintiff's transfer,

which was not because he was especially dangerous, but because he failed the SMU

program. The Plaintiff's transfer to the ADX was unlawful for both of these reasons.

The evidence at trial also showed why the Court should reconsider aspects of its

April 21, 2017 Order dismissing Plaintiff's Eighth Amendment claim as being barred by

the Cunningham settlement. D.E. 142. Prisoners diagnosed with Anti Social Personality

Disorder and six other mental illnesses are categorically excluded from the settlement,

because these illnesses are not classified as serious. And even if the Defendant were to

to a legitimate penological interest. Defendants motion to dismiss Mr. Halls First

Amendment claim is therefore denied." D.E. 142 at 10-11.

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use the "sufficiently severe, persistent, and disabling" test in its Program Statement, there

are no standards to apply, at least known to any of the witnesses in this case.

ARGUMENT

I. The Court didn't apply a standard of review as required by the

Administrative Procedure Act.

The Court's jurisdiction to hear the Plaintiff's constitutional claims was based

solely on the Administrative Procedure Act ("APA"), 5 U.S.C. 551 et seq., Third

Amended Complaint ("TAC") at 6.2 D.E. 117-2. The Prison Litigation Reform Act

(PLRA) states that "[n]o action shall be brought with respect to prison conditions under ...

any ... Federal law, by a prisoner ... until such administrative remedies as are available are

exhausted." 42 U.S.C. 1997e(a). The Court reviews the agency's decision to transfer

the Plaintiff to the ADX under one of the standards of review available under the APA.

Under the APA, the Court's power of review is limited to whether [the

Administrative Agency's] findings are supported by substantial evidence in the record

and whether [it] applied the correct legal standards. Stewart v. Kempthorne, 554 F.3d

1245 (10th Cir. 2009); Andrade v. Secretary of Health and Human Services, 985 F.2d

1045, 1047 (10th Cir. 1993). The [f]ailure to apply the correct legal standard or to

2
Paragraph 6 of the Third Amended Complaint states the following: "The Court has
Federal Question jurisdiction over this case pursuant to 28 USC 1331. The Plaintiff's
claims are for injunctive relief under 5 U.S.C. 551 et seq., the Administrative
Procedure Act ("APA"). Under the APA, a person suffering a legal wrong because of
agency action, or adversely affected or aggrieved by agency action within the meaning of
a relevant statute, is entitled to judicial review thereof. 5 U.S.C. 702. The Court may
hold unlawful and set aside agency action, findings, and conclusions found to be
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, id.
at 706 (2) (A); contrary to constitutional right, power, privilege, or immunity, id. at
706 (2) (B); without observance of procedure required by law, id. at 706 (2) (D);
unsupported by substantial evidence on the record, id. at 706 (2) (E); or unwarranted by
the facts to the extent that the facts are subject to trial de novo by the reviewing court, id.
at 706 (2) (F)."

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provide this court with a sufficient basis to determine that appropriate legal principles

have been followed is grounds for reversal. Byron v. Heckler, 742 F.2d 1232, 1235

(10th Cir. 1984)

The Court must reverse if the agencys findings are not supported by substantial

evidence in the record. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). Under

the substantial evidence standard, the reviewing courts duty is to guarantee that factual

determinations are supported by reasonable, substantial and probative evidence

considering the record as a whole. Karki v. Holder, 715 F.3d 792, 800 (10th Cir. 2013).

Generally speaking, district courts reviewing agency action under the APAs

arbitrary and capricious standard do not resolve factual issues, but operate instead as

appellate courts resolving legal questions. James Madison Ltd. ex rel. Hecht v. Ludwig,

82 F.3d 1085, 1096 (D.C. Cir. 1996). Yet courts retain a role, and an important one, in

ensuring that agencies have engaged in reasoned decisionmaking. Judulang v. Holder,

132 S.Ct. 476, 483-484 (2011) When an agency fail[s] to provide a reasoned

explanation, or where the record belies the agencys conclusion, [the court] must undo its

action. Cty. of L.A. v. Shalala, 192 F.3d 1005, 1021 (D.C. Cir. 1999); Select Specialty

Hosp.Bloomington, Inc. v. Burwell, 757 F.3d 308, 312 (D.C. Cir. 2014) (when an

agencys failure to state its reasoning or to adopt an intelligible decisional standard is ...

glaring ... we can declare with confidence that the agency action was arbitrary and

capricious). At the very least, the agency must have reviewed relevant data and

articulated a satisfactory explanation establishing a rational connection between the facts

found and the choice made. Ark Initiative v. Tidwell, 816 F.3d 119, 127 (D.C. Cir.

2016). [A]n agencys refusal to consider evidence bearing on the issue before it

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constitutes arbitrary agency action within the meaning of 706, as does ignoring

evidence contradicting its position. Butte Cty. v. Hogen, 613 F.3d 190, 194 (D.C. Cir.

2010).

The Court should also review whether the agency has applied the correct legal

standards. 985 F.2d at 1047. A courts review of an agency decision is confined to the

reasoning given by the agency in the record. Id., citing Elzour v. Ashcroft, 378 F.3d

1143, 1150 (10th Cir. 2004). A court will not independently search the record for

alternative bases to affirm. Id.

Instead of reviewing whether the Plaintiff's transfer to the ADX was based on

substantial evidence in the record and the correct legal standards, the District Court

reviewed the case de novo, which it had no jurisdiction to do.

A. The Court didn't determine whether the Bureau of Prisons applied

the correct legal standards in making its decision to transfer the
Plaintiff to the ADX.

1. The evidence at trial showed that the Defendant doesn't

classify Anti Social Personality Disorder as a Serious Mental
Illness, despite its written policy.

First, the Defendant failed to apply the correct legal standard with regard to

whether the Plaintiff has a Serious Mental Illness. Two psychologists employed by the

Bureau of Prisons, Dr. Charlotte Francia and Dr. Erika Woolf, both testified at first that

Anti Social Personality Disorder was not the type of illness that would be considered a

Serious Mental Illness, regardless of the details. The Mental Health Evaluation for ADX

Transfer, see Exhibit 2 attached hereto, written by Dr. Francia, confirms this view.

When confronted with the BOP Program Statement on the Treatment of Prisoners

with Mental Illness, both psychologists changed their position. Under the Program

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Statement, Anti Social Personality Disorder is "often" characterized as a Serious Mental

Illness, "especially" when it is "sufficiently severe, persistent, and disabling." See

Exhibit 3 attached hereto at 2. When asked what symptoms would indicate a "severe"

illness, Dr. Francia proposed self-harm behaviors such as cutting. Then she was asked if

she knew that the Plaintiff had received seven incident reports for cutting, and has

received other reports for other self-harm behaviors. The "persistent" factor is satisfied

since the Plaintiff's diagnosis hasn't changed in many years. When asked if the Plaintiff's

illness was "disabling," Dr. Francia replied that the Plaintiff was not disabled because he

could take a shower without help and speak normally.

A similar exchange took place with the Defendant's expert witness, Dr. Woolf,

who also tried to argue the Program Statement factors after first claiming that the

Plaintiff's illness categorically didn't qualify as one of the serious ones. (Schizophrenia,

Bipolar and Major Depressive types, see Exhibit 3 at 1) She had to be shown that

Personality Disorders are "often" classified as serious mental illness, according to the

Program Statement. Exhibit 3 at 2. According to Dr. Woolf, the Plaintiff's illness isn't

serious because there are no symptoms such as psychosis or mood disorder. These are

different illnesses, which are "generally" considered to be serious mental illness. Exhibit

3 at 1. This is also evidence that the "sufficiently severe, persistent and disabling" test is

not used in practice.

Regardless of this testimony, and whether the witnesses convincingly argued the

factors, the Court should begin by looking at Dr. Francia's report, entitled Psychological

Evaluation for ADX Placement. Exhibit 2. After diagnosing the Plaintiff with Anti

Social Personality Disorder, Exhibit 2 at 5, she stated that

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Mr. Hall appears appropriate for an ADX placement. He does not appear to suffer
from a serious mental illness that would preclude him from being housed in a
locked down setting. He is able to engage in activities of daily living and function
adequately in his current locked down setting in the Special Housing Unit and
prior to that in the Special Management Unit. Any conduct problems exhibited in
those settings appear to the result of character pathology rather than serious
mental illness.

This confirms the testimony of Dr. Francia and Dr. Woolf, who both thought at first that

Anti Social Personality Disorder was not in the category of serious mental illnesses. In

addition, the Defendant doesn't have clear standards for whether the illness is sufficiently

severe or disabling. If it does, neither witness could articulate them. Although some

deference to professional judgment is warranted, the witnesses should still be able to

point to specific facts to support their conclusions. Neither of them could.

2. The evidence at trial showed that the Due Process Hearing

made no mention of the real reason the Plaintiff was
transferred to the ADX, which was that he failed the Special
Management Unit program.

The District Court should have considered whether the Bureau of Prisons

transferred the Plaintiff to the ADX because of the reason given in the Hearing

Administator's Report. See Exhibit 1, attached hereto. The Plaintiff proved at trial, and

Assistant Warden Mark Collins admitted, that the Plaintiff's transfer to the ADX was

"automatic" after he failed the Special Management Unit ("SMU") program three times.

See e.g., Exhibit 6, attached hereto.3 It was not because of any inherent dangerousness of

the Plaintiff. Mr. Collins referred to the Bureau of Prisons' Program Statement on

3
"According to PDS records, inmate Hall was in SMU and moved up from B unit to C
unit (Level 3 SMU, February, 2013). Inmate displayed a willingness and ability to control
his behavior, as evidenced by a lack of incident reports while housed in C unit. Inmate
also refrained from self-injurious behavior while in C unit. In May, 2013, inmate was
moved back to B unit due, and received incident reports for self-mutilation and refusing
an order. Inmate was then moved to SHU, pending ADX referral as inmate was
considered a SMU Failure."

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Special Management Units, attached hereto as Exhibit 4, and a memorandum by former

ADX Warden Blake Davis establishing the policy that requires an ADX transfer for an

imnate who has not completed the SMU program within 18-24 months.

However, nowhere in the Hearing Administrator's Report, see Exhibit 1 attached

hereto, is the SMU failure mentioned as a reason for the Plaintiff's transfer to the ADX.

The recitation of the Plaintiff's pre-incarceration history, taken from his Pre Sentence

Report, and the list of Incident Reports the Plaintiff received while in the USP Florence,

were not the reasons for Plaintiff's ADX transfer. The evidence at trial showed that the

Plaintiff failed to complete the assignments he was given, and received numerous minor

Incident Reports while being punished in the SMU, and then failed the program for the

third and last time after receiving Incident Reports for self-mutilation and refusing to

obey an order. See Exhibit 6, attached hereto. The decision to transfer the Plaintiff to the

ADX was arbitrary and capricious because the reason given in the Hearing

Administrator's Report was not the real reason.4

B. The decisions in the Hearing Administrator's Report and

Psychological Evaluation for ADX Transfer were not supported by
substantial evidence in the record.

Although the complete "administrative record" may not have been in evidence, 5

the determinations made in the Hearing Administrator's Report, Exhibit 1, and

Psychological Evaluation for ADX Transfer, Exhibit 2, were not supported by substantial

4
The Plaintiff need not bring a separate Due Process claim, because the APA is supposed
to protect his procedural rights. Under 706 (2)(D), the court may hold unlawful agency
action that is "without observance of procedure required by law."
5
Assistant Warden Mark Collins testifed that in addition to these documents, an ADX
referral also normally contains a document called a progress report. Counsel could not
find any such document in the discovery, or among Defendant's exhibits, either during or
after the trial. In addition to these documents, the administrative record contains the
Plaintiff's Administrative Remedy Program correspondence.

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evidence. Specifically, the Hearing Administrator's Report neglected to mention the

reason for the Plaintiff's placement in the ADX, which was his third failure of the SMU

program, and the Psychological Evaluation for ADX Transfer failed to consider the

factors to be weighed to determine whether Plaintiff's mental illness is serious.

The real evidence in the case was reduced to a graph of the Plaintiff's Incident

Reports over time, which is attached hereto as Exhibit 7.6 This chart shows that solitary

confinement in the SMU and the SHU exacerbated the Plaintiff's illness, which is the

same conclusion reached by Dr. Wachtel, and was not contested by any other witness.7

II. The evidence at trial showed that the Cunningham settlement didn't
adequately represent the interests of persons with Anti Social Personality
Disorder and six other mental illnesses.

Both of the Bureau Of Prisons psychologists who testified, Dr. Charlotte Francia

and Dr. Erika Woolf, said that Mr. Hall's illness was categorically not a type of illness

that would be considered a Serious Mental Illness. This confirms what Plaintiff argued in

his Opposition to Defendant's Motion to Dismiss, D.E. 137: that prisoners diagnosed with

illnesses other than schizophrenia, bipolar disorder, and major depressive disorder were

not adequately represented in the class action settlement. There is a clear division, at

6
This was admitted into evidence as Plaintiff's Exhibit 47. Although the Defendant
stated that it had found errors in this graph - the spreadsheet and data used were all
provided to the Defendant, and the Court stated that the Defendant may point out any
errors, the Defendant has never done so.
7
The Court should have placed little weight on the testimony of Dr. Erika Woolf on this
subject. She testified that neither the published research of Dr. Craig Haney, nor that of
Dr. Richard Metzner, who have both studied the effects of long term solitary
confinement, were applicable to the ADX. She also said she didn't know that Dr. Haney
was the plaintiffs' expert witness in the Cunningham class action case, or that Dr.
Metzner was one of the Monitors.
The Court should have placed greater weight on the testimony of Mark Collins, who
admitted that the ADX is the most restrictive prison in the federal system. That is,
prisoners spend more time in isolation in the ADX than in any other federal prison. The
Court should also have afforded some weight to the published research itself.

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least in practice, between these three, which are "generally" considered serious mental

illnesses, and the seven others, including: Anxiety Disorders, Obsessive-Compulsive and

Related Disorders, Trauma and Stressor-Related Disorders, Intellectual Disabilities and

Autism Spectrum Disorders, Major Neurocognitive Disorders, and Personality Disorders.

The latter were all left out of the settlement, which provides no benefits to them since

they are categorically not serious mental illnesses. The evidence presented at trial

showed that the factors "severe, persistent or disabling" are not applied in practice, and

the witnesses couldn't even suggest any standards to use.

Their testimony, as well as Dr. Francia's Evaluation, see Exhibit 2, shows that in

practice, prisoners suffering from Anxiety Disorders, Obsessive-Compulsive and Related

Disorders, Trauma and Stressor-Related Disorders, Intellectual Disabilities and Autism

Spectrum Disorders, Major Neurocognitive Disorders, or Personality Disorders were not

adequately represented in the class and didn't get anything out of the settlement. Like

Mr. Hall, they were categorically excluded. The Court should reconsider its holding in

D.E. 142 that the Cunningham settlement barred Mr. Hall's Eighth Amendment claim.8

Rule 23(a) lists four prerequisites for any class: (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

8
Plaintiff preserves his argument for appeal that the Notice provided to class members by
Arnold & Porter, see D.E. 137-1, was deficient, since a person of ordinary intelligence
would think it would not bar their individual claim. It says "If the judge approves the
proposed settlement, and if you are a member of the Settlement Class or Settlement Sub-
Cllass, the settlement will prevent you from seeking certain changes to the policies for
diagnosing and treating mental illness at ADX. However, the proposed settlement would
not affice your ability to go to court over your own personal mental health diagnoses or
for damages." D.E. 137-1 at 4.

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protect the interests of the class. F.R.C.P. 23(a). These elements are referred to as

numerosity, commonality, typicality and adequacy of representation. Trevizo v. Adams,

455 F.3d 1155, 116162 (10th Cir. 2006). The adequacy-of-representation requirement

tend[s] to merge with the commonality and typicality criteria, which serve as

guideposts for determining whether ... maintenance of a class action is economical and

whether the named plaintiffs claim and the class claims are so interrelated that the

interests of the class members will be fairly and adequately protected in their absence.

General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157, n. 13 (1982).

An action is maintainable under Rule 23(b)(2) when the defendant 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. F.R.C.P. 23(b)(2).

In Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), the Supreme Court

found inadequate representation where class members did not have identical interests.

Quoting the Third Circuit decision below, the Supreme Court found that the settlement

does more than simply provide a general recovery fund [r]ather, it makes important

judgments on how recovery is to be allocated among different kinds of plaintiffs,

decisions that necessarily favor some claimants over others. Id. at 610, quoting 83 F.3d

at 630. In Amchem, some plaintiffs had already been injured by asbestos, and others had

not manifested any injury but sought prospective relief. 521 U.S. at 610. The Supreme

Court affirmed, holding that the different interests of these sub-classes precluded

determining their interests as a single class. Id. at 628. The Third Circuit had also found

that the notice provided to these non-injured class members was inadequate, but the

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Supreme Court never reached this issue, since the class could not satisfy the requirements

of common issue predominance and adequacy of representation.

Here, the settlement doesn't adequately represent prisoners diagnosed with

Anxiety Disorders, Obsessive-Compulsive and Related Disorders, Trauma and Stressor-

Related Disorders, Intellectual Disabilities and Autism Spectrum Disorders, Major

Neurocognitive Disorders, or Personality Disorders. Although the Court pointed out that

the class representatives had superior legal representation and an excellent judge, this

doesn't mean that prisoners with the above-mentioned mental illnesses were adequately

represented. They appear to have gotten nothing at all from the settlement. In addition,

whatever may have been proven in the Cunningham case wasn't in evidence in this case.

Finally, the Court seemed swayed by the argument that ADX is a good place to

put prisoners with mental health problems. The evidence actually showed that solitary

confinement can actually be the cause of the illness. (See Haney and Metzner research at

Plaintiff's Exhibit 32) The Court remarked on the testimony of Dr. Peterson, that group

therapy with inmates enclosed in cages was an innovative solution to the extreme

isolation experienced in the ADX supermax. This relates to the treatment regime for

mentally ill ADX prisoners, which was purportedly settled in Cunningham. What wasn't

settled in Cunningham was Plaintiff's right to challenge his mental health diagnosis,

which should be classified as serious.9

9
The language in the Release Clause of the Cunningham settlement contains an
exemption for Plaintiffs individual claim for his own mental health diagnosis. It states
that in no event shall this Release be deemed to release or otherwise affect in any way:
(1) any claim for money damages; (2) any claim by any inmate for a judicial
determination concerning the inmates personal mental health diagnosis; or (3) any claim
based in whole or substantial part on events occurring during the Compliance Period and
that does not concern one of the Monitored Initiatives. See Exhibit 5 at 31, 73.

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Conclusion

For the foregoing reasons, the Court should reconsider aspects of its Order of

April 21, 2017, and findings of fact and conclusions of law made at the close of Plaintiff's

case-in-chief on July 19, 2017.

Respectfully submitted,

/s/ Paul Wolf

_________________________
Paul Wolf, CO Bar #42107
Attorney for Carl Hall
PO Box 46213
Denver, CO 80201
(202) 431-6986
paulwolf@yahoo.com
fax: n/a

August 2, 2017

Certificate of Service

I hereby certify that on the 2nd day of August 2017, I filed the foregoing
document, as well as the Motion, Declaration of Paul Wolf, and all Exhibits, with the
clerk of the court through the Court's Electronic Case Filing (ECF) system, which will
send notification to the attorneys of record for all other parties in this litigation.

/s/ Paul Wolf

____________________
Paul Wolf

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