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Case Name McNeil v. Community Probation Services CJ-TN-0012
Docket / Court 1:18-cv-00033 ( M.D. Tenn. )
State/Territory Tennessee
Case Type(s) Criminal Justice (Other)
Special Collection Fines/Fees/Bail Reform (Criminalization of poverty)
Attorney Organization Civil Rights Corps
Case Summary
On April 23, 2018, five residents of Tennessee filed this putative class action lawsuit in the U.S. District Court for the Middle District of Tennessee. The plaintiffs sued the Tennessee Correctional Services, and two for-profit probation companies, Community Probation Services (CPS) and ... read more >
On April 23, 2018, five residents of Tennessee filed this putative class action lawsuit in the U.S. District Court for the Middle District of Tennessee. The plaintiffs sued the Tennessee Correctional Services, and two for-profit probation companies, Community Probation Services (CPS) and Progressive Sentencing, Inc. (PSI), all under the Racketeer Influenced and Corrupt Organizations Act (RICO) and 42 U.S.C. § 1983. The plaintiffs, represented by the Civil Rights Corps and private counsel, sought declaratory, injunctive, and monetary relief, as well as attorneys’ fees and costs. The case was originally assigned to Chief Judge Waverly D. Crenshaw, Jr.

The plaintiffs claimed that CPS and PSI, through their contract with Tennessee Correctional Services, acted as "for profit probation officers" overseeing the collection of fines and other court debts on behalf of Giles County. In this role, the defendants allegedly maximized their own profits for the purposes of collecting court debts by adding additional fees and surchages on top of the existing debt owed by probationers. The companies' supervision of probation payments, according to the plaintiffs, consisted of charging monthly fees' the probationers often could not afford, repeatedly making threats of jail time to induce payment, and humiliating supervision of drug testing. They also alleged that this created a conflict of interest: purportedly neutral probation officers were financially inclined to impose higher costs on indigent probationers.

Claims

The plaintiffs claimed that the defendants violated RICO by acting as an extortionate enterprise focused on creating financial hardship. Individuals who were supervised by the companies had lost homes, jobs, and personal belongings, suffered severe medical problems; they had gone without food, clothing, and medicine for themselves and their children to pay for the escalating supervision fees that the companies demanded under threat of arrest and jailing.

Additionally, the plaintiffs argued that Giles County's process for setting bail violated the Equal Protection and Due Process Clause of the Fourteenth Amendment. They alleged that judges set bail for probationers alleged violations without an inquiry into their ability to pay. Consequently, the plaintiffs faced the prospect, and in some instances were, jailed for up to 10 days. The plaintiffs alleged that this deprivation of liberty violated the constitutional prohibition against wealth-based detention and discriminated against them on the basis of their indigence.

Early Procedural History
On the same day the complaint was filed, the plaintiffs moved to certify two classes, a class for equitable relief encompassing “[a]ll persons who, at any time since April 23, 2014, (1) have incurred, or will incur, court-imposed financial obligations arising from a traffic or misdemeanor case in Giles County General Sessions or Circuit Court; and (2) are currently being supervised, or will be supervised, on probation in that case by any of the defendants” and a separate damages class under the same definition.

On July 13, 2018 the case was transferred to Judge William L. Campbell, Jr. On the same day, plaintiffs moved for a temporary restraining order barring the defendant from jailing one of the named plaintiffs. The order was granted. Judge Campbell held that the plaintiff had demonstrated she was likely to succeed on the merits of both Fourteenth Amendment challenges. Further, the Court held that her jailing would cause an immediate and irreparable harm to her and the four children she supports.

On July 30, 2018, the plaintiffs moved for a class-wide preliminary injunction. Giles County moved to dismiss the complaint on August 6, 2018. They argued that the plaintiffs' claims were misplaced; judicial actions, not Giles County policy or custom, were the source of the plaintiffs' alleged constitutional violations. Additionally, they argued that Giles County retained sovereign immunity for any abuse of process claim, and therefore could not be liable for the plaintiff's allegations of wealth-based detentions.

For the next few months, the parties traded motions on the preliminary injunction and class action certification. U.S. Magistrate Judge Jeffrey S. Frensley denied a non-party's motion to quash testimony. 2018 WL 5728527. The court also held that private parties would not be subject to adjudications on injunctive relief on January 3, 2019. On January 7, 2019, Judge William L. Campbell Jr denied as moot a number of motions related to exclusion of testimony and evidence. 2019 WL 298474.

Preliminary Injunction
On February 14, 2019, the judge granted the plaintiffs' preliminary injunction against the county's enforcement of bail requirements for an indefinite period. 2019 WL 633012. Judge William L. Campbell Jr. held that the county's failure to inquire into the probationers' failure to pay, and subsequent jailing for that failure to pay, likely violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The Court found that the county's secured bail policy was entitled to heightened judicial scrutiny because "plaintiffs have demonstrated an inability to afford bail and an absence of meaningful consideration of alternatives to secured bail." Further, the defendants' failure to make factual findings concerning the arrestee's ability to pay, the necessity of detention, or the adequacy of alternative conditions of release was also held likely to be unconstitutional. Judge Campbell rejected the defendants' argument that they were following the statutorily-defined process, finding that there was "no state statute requiring such a procedure" and holding that the Supremacy Clause allowed the Court to enjoin the process.

The order stated that the defendant correctional services agency was enjoined from detaining any person on misdemeanor probation for a secured bail amount unless there was (1) notice to the arrestee and an opportunity to be heard by an appropriate judicial officer; and (2) findings by that judicial officer concerning the arrestee’s ability to pay, alternatives to secured bail, and whether pre-revocation detention is necessary to meet a compelling governmental interest. Giles County and the Sheriff appealed this order on March 20, 2019 to the Sixth Circuit.

Summary Judgement and Appellate Proceedings
On April 18, 2019, CPS and one of its employees moved for summary judgment, claiming qualified and sovereign immunity for their actions. Over the next few months, the parties began discovery and attempted to settle the dispute. On June 14, 2019, Judge William L. Campbell Jr. denied the motion for summary judgment without prejudice as premature, allowing discovery to continue. The defendants appealed on June 19, 2019.

United States Magistrate Judge Jeffrey S. Frensley held on October 29, 2019 that the named defendant PSI was compelled to produce electronically stored information, rejecting the defendant's motion to stay discovery pending a decision on the previous motion for summary judgment. 2019 WL 5957004.

Meanwhile, the Sixth Circuit affirmed the preliminary injunction on December 23, 2019 in an opinion written by Judge Jeffrey S. Sutton. The court rejected the argument that the plaintiffs should have sued the state judges rather than the sheriffs and county officials who enforced the bail requirements. 945 F.3d 991. Judge Sutton held that the alleged violation was the product of two actions - the judge's determination of bail without consideration of financial condition and Giles County's jailing of the probationer. Both were actionable. Consequently, the court found that since the plaintiff is the "master of the complaint" they were free to choose which parties to sue. In addition, the Court found that since the sheriff was "actively administering" the alleged unconstitutional policy, sovereign immunity did not apply, rejecting the defendant's argument that the preliminary injunction unduly expanded ex Parte Young liability.

On February 28, 2020 the Sixth Circuit affirmed the denial of summary judgment for CPS and one of its employees. 803 Fed.Appx. 846. The court held that qualified immunity did not apply to the defendants because they faced "no prospect of damages liability." Judge Sutton also rejected CPS's argument that they acted in an official capacity barring any money damages of relief. The threshold question was whether CPS acted for the state or the county. The court held that because the county paid judgment, CPS's actions were county actions. Consequently, since county actions are not eligible for sovereign immunity, neither was CPS's action; the court indicated it knew of "no case in which a private probation company has successfully invoked sovereign immunity."

Current Status
As of June 7, 2020 the case is ongoing and is in discovery with class certification and motions for summary judgment and dismissal pending. The most recent docket entry was filed on June 4, 2020 and was a motion to dismiss for lack of jurisdiction filed by the defendant PSI.

Jake Parker - 06/13/2018
Graham Rotenberg - 06/02/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Equal Protection
Content of Injunction
Preliminary relief granted
Defendant-type
Corrections
General
Bail/Bond
Fines/Fees/Bail/Bond
Placement in detention facilities
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Declaratory Judgment Act, 28 U.S.C. § 2201
Ex parte Young (federal or state officials)
Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961 et seq.
Defendant(s) Community Probation Services, LLC
Giles County
Progressive Sentencing, Inc.
Tennessee Correctional Services, LLC
Plaintiff Description All persons who, at any time since April 23, 2014, (1) have incurred court-imposed financial obligations arising from a traffic or misdemeanor case in Giles County General Sessions or Circuit Court; and (2) have been assigned to be supervised on probation in that case by any of the defendants.
Indexed Lawyer Organizations Civil Rights Corps
Class action status sought Yes
Class action status granted Pending
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Preliminary injunction / Temp. restraining order
Source of Relief Litigation
None yet
Filed 04/23/2018
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Giles County, TN: Private Probation
http://www.civilrightscorps.org/
Date: Dec. 23, 2019
By: Civil Rights Corps
[ Detail ] [ External Link ]

Docket(s)
1:18-cv-33 (M.D. Tenn.)
CJ-TN-0012-9000.pdf | Detail
Date: 06/17/2020
Source: PACER [Public Access to Court Electronic Records]
General Documents
Class Action Complaint [ECF# 1]
CJ-TN-0012-0001.pdf | Detail
Date: 04/23/2018
Source: PACER [Public Access to Court Electronic Records]
Temporary Restraining Order [ECF# 45] (M.D. Tenn.)
CJ-TN-0012-0002.pdf | Detail
Date: 07/13/2018
Source: PACER [Public Access to Court Electronic Records]
Brief of Community Probation Services, LLC and Patricia McNair Concerning Standing to Oppose Plaintiff's Motion for Preliminary Injunction [ECF# 180]
CJ-TN-0012-0009.pdf | Detail
Date: 11/26/2018
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 198] (2019 WL 298474) (M.D. Tenn.)
CJ-TN-0012-0007.pdf | WESTLAW | Detail
Date: 01/07/2019
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 199] (2019 WL 5958322) (M.D. Tenn.)
CJ-TN-0012-0003.pdf | WESTLAW | Detail
Date: 01/07/2019
Source: PACER [Public Access to Court Electronic Records]
Preliminary Injunction Order [ECF# 225] (2019 WL 6330212) (M.D. Tenn.)
CJ-TN-0012-0005.pdf | WESTLAW | Detail
Date: 02/14/2019
Source: PACER [Public Access to Court Electronic Records]
Second Amended Complaint - Class Action [ECF# 256]
CJ-TN-0012-0006.pdf | Detail
Date: 04/23/2019
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 340] (2019 WL 5957004) (M.D. Tenn.)
CJ-TN-0012-0008.pdf | WESTLAW | Detail
Date: 10/29/2019
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Campbell, William Lynn Jr. (M.D. Tenn.) show/hide docs
CJ-TN-0012-0002 | CJ-TN-0012-0003 | CJ-TN-0012-0005 | CJ-TN-0012-0007
Crenshaw, Waverly David Jr. (M.D. Tenn.) show/hide docs
CJ-TN-0012-9000
Frensley, Jeffrey S Court not on record show/hide docs
CJ-TN-0012-0008 | CJ-TN-0012-9000
Plaintiff's Lawyers Badlani, Chirag (Illinois) show/hide docs
CJ-TN-0012-0006 | CJ-TN-0012-9000
Garrison, David W. (Tennessee) show/hide docs
CJ-TN-0012-0006 | CJ-TN-0012-9000
Halperin, Eric I. (District of Columbia) show/hide docs
CJ-TN-0012-0006 | CJ-TN-0012-9000
Mothershead, Kyle F. (Tennessee) show/hide docs
CJ-TN-0012-0006 | CJ-TN-0012-9000
Piers, Matthew J. (Illinois) show/hide docs
CJ-TN-0012-0006 | CJ-TN-0012-9000
Rossi, Elizabeth Anne (District of Columbia) show/hide docs
CJ-TN-0012-0006 | CJ-TN-0012-9000
Schwartz, Kate E. (Illinois) show/hide docs
CJ-TN-0012-0006 | CJ-TN-0012-9000
Tift, Scott P. (Tennessee) show/hide docs
CJ-TN-0012-0006 | CJ-TN-0012-9000
Twinem, Alexandria (District of Columbia) show/hide docs
CJ-TN-0012-9000
Wang, Jonas (District of Columbia) show/hide docs
CJ-TN-0012-0006 | CJ-TN-0012-9000
Defendant's Lawyers Crane, Cassandra M (Tennessee) show/hide docs
CJ-TN-0012-9000
Greppin, Andre S. (Tennessee) show/hide docs
CJ-TN-0012-9000
Henson, Lucy D. (Tennessee) show/hide docs
CJ-TN-0012-9000
McMillan, Brandt M (Tennessee) show/hide docs
CJ-TN-0012-9000
O'Connor, Timothy Nei; (Tennessee) show/hide docs
CJ-TN-0012-9000
Rader, Daniel Hurley III (Tennessee) show/hide docs
CJ-TN-0012-0009 | CJ-TN-0012-9000
Williams, John Christopher (Tennessee) show/hide docs
CJ-TN-0012-9000
Williams, Robyn Beale (Tennessee) show/hide docs
CJ-TN-0012-9000
Other Lawyers Ahillen, Joseph Paul (Tennessee) show/hide docs
CJ-TN-0012-9000
Ross, Heather Cairns (Tennessee) show/hide docs
CJ-TN-0012-9000
Saulters, Donald A. (Tennessee) show/hide docs
CJ-TN-0012-9000

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