The opinion of the court was delivered by: WOODS
On October 5, 1987, the court held an evidentiary hearing on the plaintiffs' May 1 and May 26, 1987, motions for contempt, in which the plaintiffs alleged the defendants to be in violation of the March 12, 1987, consent decree entered herein and the court's order of May 23, 1985, respectively. For the reasons that follow, these motions are denied.
This case was filed in November, 1983, as a class action on behalf of patients confined at the Arkansas State Hospital, residents of the Human Development Centers (HDC), and residents of the Benton Services Center (BSC). The complaint was brought pursuant to 42 U.S.C. § 1983, to redress alleged deprivations of rights secured by the First, Eighth and Fourteenth Amendments to the United States Constitution,
and pursuant to 29 U.S.C. § 794 and 42 U.S.C. § 1396d(c). It alleged that the Department of Human Services (DHS), and its divisions of Mental Health (DMH) and Developmental Disabilities Services (DDS), failed to provide adequate treatment, training and appropriate placement for certain individuals within its institutions. Both declaratory and injunctive relief were prayed for.
A class was certified and defined to include the named plaintiffs and all other institutionalized persons who now, or in the future, are in the custody of the DHS, including DMH and DDS, and who have been identified by appropriate professionals as receiving inadequate treatment, care and/or training, or being inappropriately placed. The parties stipulated to the relevant facts on May 18, 1984, and on January 17, 1985, they entered into a consent order. That order was based in part on the stipulations (1) that some of the named plaintiffs were identified by appropriate professionals as requiring services and training in a behavioral disorder unit, and (2) that a certain number of residents within the institutions had been identified by qualified professionals as requiring different placements and services.
On May 23, 1985, the court entered an order which endorsed the comprehensive recommendations in Dr. Marr's Report and required the defendants to incorporate those recommendations into their plans. That order also required that Dr. Marr be retained for at least one additional year to monitor the defendants' progress and report to the court on a quarterly basis. In Dr. Marr's fourth quarterly report, dated July 1, 1986, he found that, to date, only three of his original fourteen recommendations had been fulfilled. It was this conclusion which prompted the plaintiffs to file their first motion for contempt, on which a hearing was set for March 16, 1987. That hearing did not take place, however, because on March 12, 1987, the parties entered into a second consent decree which is the subject of the present motion for contempt.
In the March 12, 1987, order the defendants agreed to take the steps necessary to bring themselves into compliance with Dr. Marr's recommendations, and by implication with the court's May 23, 1985, order. Specifically, the defendants agreed to:
(1) immediately request the 76th Arkansas General Assembly to appropriate sufficient funds for construction or renovation of Rogers Hall;
(2) request immediately the 76th Arkansas General Assembly to amend the proper appropriation bill(s) to allow DHS to hire psychologists (L 124) at a special entry rate of Grade 23, Step 8; and
(3) request immediately the 76th Arkansas General Assembly to amend the proper appropriation bill(s) to allow DHS to hire, at an increase of two grade levels, employees classified as MR Aide Trainee, MR Aide I and II, MR Aide Supervisor, Mental Health Aide and MH Worker.
The order further provided that Dr. Marr was to continue to monitor each of the six areas stated therein
and report to the court on a semiannual basis.
The plaintiffs now move the court to hold the defendants in contempt for their alleged failure to comply with the terms of the May 23, 1985, order requiring them to implement Dr. Marr's recommendations, and the March 12, 1987, order setting forth the steps to be taken toward achievement of that goal. The motion alleges that the Arkansas Legislature failed to fund the Rogers Hall project and to increase salaries of direct care personnel and psychologists as described in the consent decree. The plaintiffs argue that because of these failures the defendants are unable to provide adequate treatment, training and care. ...