Dunn et al v. Thomas et al

Filing 1011

PHASE 2A INDIVIDUAL PLAINTIFFS SUMMARY JUDGMENT OPINION. Signed by Honorable Judge Myron H. Thompson on 11/25/16. (djy,).

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

JOSHUA DUNN, et al.,
Plaintiffs,
v.
JEFFERSON S. DUNN, in his
official capacity as
Commissioner of
the Alabama Department of
Corrections, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO.
2:14cv601-MHT
(WO)

PHASE 2A INDIVIDUAL PLAINTIFFS
SUMMARY JUDGMENT OPINION
The

plaintiffs

in

this

putative

class-action

lawsuit are dozens of state prisoners and the Alabama
Disabilities Advocacy Program (ADAP).

The defendants

are officials of the Alabama Department of Corrections
(ADOC): the Commissioner and the Associate Commissioner

of Health Services.1

They are sued in their official

capacities only.
In Phase 2A of this case, with which this opinion
is

concerned,

ADAP

and

a

subset

of

individual

plaintiffs assert the following mental-health claims:
constitutionally inadequate mental-health treatment in
Alabama

prison

without

due

facilities

process.

and

They

involuntary

rely

on

the

medication
Eighth

and

Fourteenth Amendments, as enforced through 42 U.S.C.
§ 1983.
relief.

Plaintiffs

seek

declaratory

and

injunctive

Jurisdiction is proper under 28 U.S.C. § 1331

1. ADOC itself is also a party, but with respect
to only claims under the Americans with Disabilities
Act (ADA), codified at 42 U.S.C. § 12131 et seq., and
§ 504 of the Rehabilitation Act of 1973, codified at 29
U.S.C. § 794, which are nearly settled and therefore
not discussed in this opinion. See Joint Status Report
(doc. no. 968) at 968 (“Plaintiffs and Defendants ADOC
have agreed in substance to a settlement that resolves
the Phase 2A ADA issues.
These parties continue to
work to resolve the Plaintiffs’ claims for attorneys
and monitoring fees for these issues.”). To the extent
that the parties are not successful in reaching a final
resolution of these claims, they have reserved them for
later adjudication. See Phase 2 Order on Remaining ADA
Claims (doc. no. 981).
2

(federal question) and § 1343 (civil rights).2
is

proceeding

on

two

parallel

tracks

The case

consisting

of

ADAP’s claims and the individual plaintiffs’ claims.
In September 2016, more than two years after this
case

was

filed

and

after

extensive

discovery,

defendants moved for summary judgment on the individual
plaintiffs’ Phase 2 claims.3

This motion is now before

2. This case has twice been bifurcated for the
administrative convenience of the court and the
parties.
The claims in Phase 1, which the parties
settled with a consent decree approved by the court,
involved ADA claims alleging discrimination on the
basis
of
and
non-accommodation
of
physical
disabilities. See Dunn v. Dunn, -- F.R.D. --, 2016 WL
4718216 (M.D. Ala. Sept. 9, 2016) (Thompson, J.). The
claims in Phase 2B, which are set to go to trial after
the Phase 2A claims (should they survive summary
judgment), involve Eighth Amendment claims related to
medical and dental care.
3. In defendants’ motion for summary judgment,
they specify that they are requesting “judgment as a
matter of law as to the claims of Named Plaintiffs.”
Motion for Summary Judgment (doc. no. 768) at 2. In a
footnote, defendants expressly define the phrase “Named
Plaintiffs”
by
listing
every
individual
prisoner
plaintiff, but not ADAP. Id. at 2 n.2.
3

the court.

The court will, at this time, decide the

motion only as to the Phase 2A claims.4
As
regard

defendants
to

addresses

only
only

requested

individual
the

summary

judgment

plaintiffs,

claims

by

this

those

with

opinion

individual

prisoners, and hereinafter ‘plaintiffs’ refers to only
individual plaintiffs, excluding ADAP.
summary-judgment

motion

will

be

The defendants'

granted

in

part

and

denied in part.

4. Both parties consented to the schedule of
motions deadlines in this case, and to the simultaneous
disposition of the motions for summary judgment and
class certification.
In light of the need for
extensive evidentiary development prior to considering
class certification, this approach was both appropriate
and necessary.
See Rubenstein, Newberg on Class
Actions § 7:10 (5th ed.) (explaining that “Wal-Mart
[Stores,
Inc.
v.
Dukes,
564
U.S.
338
(2011),]
authorized courts to look at the merits of a case in
deciding the certification motion; that look at the
merits may be aided by discovery, hence forestalling
the certification decision to a point not dissimilar
from the summary judgment point of a lawsuit”; and that
“the Advisory Committee of Civil Rules, in 2003,
changed the language of the timing rule [for decisions
on class certification] from “as soon as practicable”
to “at an early practicable time”; and that the
(continued...)
4

I.

Background

ADOC confines about 23,500 prisoners in 28 prison
facilities, including 15 major facilities, which are
close custody or medium custody, and 13 work release
centers,

which

are

minimum

custody.

Of

the

major

correctional facilities, Tutwiler is the only one that
houses

female

correctional
Tutwiler--there

prisoners.

At

three

facilities--Bullock,
are

Residential

of

the

Donaldson,
Treatment

major
and
Units

(“RTUs”), which house mentally ill prisoners who need
more direct monitoring and intensive treatment than is
available in general population.

Bullock and Tutwiler

also have Intensive Stabilization Units (“SUs”), which
house

mentally

ill

prisoners

in

need

of

direct

monitoring and stabilization after crises.
Based on an intake screening, which takes place at
Kilby for men and Tutwiler for women, prisoners receive

“Committee supported this change, in part, on the need
(continued...)
5

a mental-health code ranging from MH-0, which indicates
that a prisoner does not need any mental-health care,
to

MH-6,

treated

which
in

indicates

ADOC

custody

that
and

a

prisoner

requires

cannot

referral

inpatient treatment in a state hospital.

be
for

Codes of MH-1

to MH-2 are for prisoners who ADOC believes can be
housed in general population, while the higher codes
(MH-3

to

MH-5)

indicate

housed in an RTU or SU.
the

mental-health

that

a

prisoner

should

be

Prisoners can also be added to

caseload

during

a

post-intake

classification review, based on a referral by staff, or
by self-referral.

At different points in early 2016,

the mental-health caseload included between 2,700 and
3,400 prisoners.
ADOC has contracted with MHM Correctional Services,
Inc. (MHM) to provide mental-health services--including
medication, individual counseling, and group therapy-to mentally ill prisoners.

MHM’s current contract with

for discovery prior to certification”).
6

ADOC

went

into

effect

on

October

1,

2013.

MHM’s

program in Alabama is led by Dr. Robert Hunter, who has
been the Medical Director and Chief Psychiatrist since
2003, and Teresa Houser, who is the Program Manager (an
administrative position) and has been working for MHM
since

2008.

providers,

MHM

employs

a

including

range

of

mental-health

psychiatrists,

certified

registered nurse practitioners (CRNPs), psychologists,
‘mental health professionals’ (MHPs), registered nurses
(RNs),

licensed

practical

nurses

(LPNs),

activity

technicians (ATs), and clerical support staff.5
Although
mental-health

MHM

provides

treatment

virtually

for

all

prisoners,

of

ADOC

the
also

employs two psychologists who assist with the intake
process,

‘psychological

screening

and

may

associates’

provide

some

who

therapeutic

do

some

care

to

5. The numbers and qualifications of, and the
relationships
among,
these
various
categories
of
practitioners will be discussed at some length later in
this opinion.
7

prisoners with very low-level mental illness,6 and a
chief psychologist who is responsible for oversight of
mental-health staff.
Commissioner

Jefferson

Dunn,

April 2015, leads the ADOC.

who

took

office

in

Associate Commissioner for

Health Services Ruth Naglich, who has served in this
role since 2004, has a nursing license and 20 years of
experience

in

correctional

medicine.

She

is

responsible for managing and overseeing ADOC’s medical
and

mental-health

services,

including

those

services

delivered by MHM.

II.

Summary Judgment Standard

Summary judgment is appropriate under Federal Rule
of

Civil

Procedure

56(a)

“if

the

movant

shows

that

there is no genuine dispute as to any material fact and

6. These
psychological
associates
are
not
psychiatrists or psychologists.
There is conflicting
record evidence regarding the role that they play-specifically, as to whether they provide treatment to
(continued...)
8

the movant is entitled to judgment as a matter of law.”
With

respect

to

issues

where

“the

non-moving

party

bears the burden of proof ... at trial [such as, here,
the merits of plaintiffs’ claims], the moving party, in
order to prevail, must do one of two things: show that
the

nonmoving

case,

or

party

present

has

no

evidence

affirmative

to

evidence

support

its

demonstrating

that the nonmoving party will be unable to prove its
case at trial.”

Hammer v. Slater, 20 F. 3d 1137, 1141

(11th Cir. 1994) (citation and internal quotation marks
omitted).
On issues as to which the movant has the burden of
proof

at

trial

administrative
affirmatively

(such

as,

remedies),
the

here,

the

absence

of

exhaustion

movant
a

“must

genuine

issue

of
show
of

material fact: it must support its motion with credible
evidence that would entitle it to a directed verdict if
not controverted at trial.”

any prisoners who
(continued...)

are

Rich v. Sec’y, Fla. Dep’t

actually
9

on

the

mental-health

of Corr., 716 F.3d 525, 530 (11th Cir. 2013) (citation
and internal quotation marks omitted).
Once the party seeking summary judgment has met its
initial
party

burden,

to

the

demonstrate

inappropriate.
317,

331

burden
why

summary

to

the

judgment

nonmoving
would

be

See Celotex Corp. v. Catrett, 477 U.S.

(1986).

affirmatively

shifts

set

The
forth

nonmoving

specific

party

facts

must

showing

a

genuine issue for trial, and may not rest upon mere
allegations or denials in pleadings.

See Fed. R. Civ.

P. 56(c)(1).
The court's role at the summary-judgment stage is
not to weigh the evidence or to determine the truth of
the

matter,

genuine

but

issue

rather

exists

to

for

determine
trial.

only
See

whether

Anderson

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
making

this

determination,

the

court

must

view

a
v.
In

the

evidence in the light most favorable to the nonmoving

caseload, or only to prisoners who are not.
10

party,

drawing

party’s

favor.

all

reasonable

See

inferences

Matsushita

Elec.

in

Indus.

that

Co.

v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986); see also
Am. Tel. & Tel. Co. v. Delta Commc’ns Corp., 590 F.2d
100, 101-02 (5th Cir. 1979) (“If a frog be found in the
party punch bowl, the presence of a mischievous guest
but not the occurrence of spontaneous generation may
reasonably be inferred.”).

The court is not to weigh

conflicting evidence or make credibility determinations
at summary judgment.

Mize v. Jefferson City Bd. of

Educ., 93 F.3d 739, 742 (11th Cir. 1996).

III.

Procedural Arguments
A.

Defendants
claims

of

six

Mootness

contend
of

that

the

the

named

mental-health

care

plaintiffs--Businelle,

Carter, Dillard, Dunn, Moncrief, and Terrell--are due
to be dismissed as moot, based on “‘[t]he general rule
... that a prisoner’s transfer or release from a jail
moots

his

individual

[and
11

pre-certification

class]

claim for declaratory and injunctive relief’” regarding
conditions of confinement.7

Dunn v. Dunn, 148 F. Supp.

3d 1329, 1337 (M.D. Ala. 2015) (Thompson, J.) (quoting
McKinnon v. Talladega Cty., 745 F.2d 1360, 1363 (11th
Cir.

1984)).

plaintiffs’
because:

Plaintiffs

argue

pre-certification

(1)

all

of

them

that

class
but

none

claims

Terrell

of

these

are

moot

have

been

conditionally released and are subject to the terms of
probation or parole, (2) Dunn has been arrested and
charged with another crime, making it likely that he
will be incarcerated again either if he is convicted of
that crime or if his parole is revoked, (3) Businelle
is subject to the “picking-off” exception to mootness
for pre-certification class claims; and (4) Dillard's,
Moncrief's,

and

Terrell’s

claims

fall

within

the

7. Although defendants also contend that some of
the named plaintiffs’ claims regarding medical care
have been mooted by the provision--subsequent to the
filing
of
the
lawsuit--of
care
they
requested,
defendants have not raised such an argument with
respect to any mental-health claims. As a result, the
court need not address this contention here.
(continued...)
12

“inherently

transitory”

exception

pre-certification class claims.
fail;

therefore,

the

court

to

mootness

for

All of these arguments

will

dismiss

these

named

plaintiffs.8
The

court

arguments.

easily

Plaintiffs

rejects
cite

the
no

first

case

law

of

these

for

the

proposition that a prisoner released on probation or
parole remains, as they contend, in the custody of the
Department of Corrections; he certainly does not remain
in its custody for purposes relevant here, since he is
free
cannot

to

receive
receive

Department.
there

are

free-world
mental-health

mental-health
care

care

and

by

the

provided

Although plaintiffs note generally that
high

rates

of

recidivism

among

state

prisoners and that three individuals have previously
been

re-incarcerated,

they

have

not

attempted

to

8. Plaintiffs remain free, of course, to call
these individuals as witnesses and to offer evidence
about their care in proving their case at trial. They
will not, however, remain parties to the case.
13

explain

the

exception

to

relevance

of

this

mootness,

instead

information
suggesting

to

that

any
they

remain free to proceed on claims to the same extent as
if they were still imprisoned.
Plaintiffs also contend that Dunn’s claims are not
moot

because

they

fall

within

the

“capable

of

repetition, yet evading review” exception to mootness
for individual claims.
147, 149 (1975).

Weinstein v. Bradford, 423 U.S.

Based on Honig v. Doe, 484 U.S. 305,

317-23 (1988), they argue that there is a “reasonable
expectation” that Dunn will again be subject to the
challenged conduct.

He has been arrested and charged

with

they

a

felony,

and

contend

that

he

is

likely

either to be convicted of this offense or to have his
parole revoked.

In either event, plaintiffs argue, he

will be returned to the custody of defendants and again
subject to their mental-health care system.

Plaintiffs

have not submitted any record evidence to support these
claims.

But even if they had submitted evidence to

this effect, plaintiffs’ reliance on the “reasonable
14

expectation” standard elaborated upon in Honig would be
misplaced.
claims

A party seeking to employ the exception for

that

review”

are

must

“capable

show

“two

of

repetition,

elements

yet

combined:

evading
(1)

the

challenged action was, in its duration, too short to be
fully litigated prior to its cessation or expiration,
and (2) there was a reasonable expectation that the
same complaining party would be subject to the same
action

again.”

(1982)

(emphasis

Murphy

v.

added).

Hunt,

455

Honig

U.S.

478,

addresses,

482
and

plaintiffs have addressed, only the latter of these two
elements; Dunn has not shown that the duration of a
future term in prison would be “so short as to evade
review.”

Spencer v. Kemna, 523 U.S. 1, 18 (1998).

Plaintiffs next argue that Businelle’s claims are
subject to the “picking-off” exception because he was
denied parole in May but granted it in September, just
as class-certification briefing was in progress.

See

Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1050
(5th

Cir.

1981)

(finding
15

that

the

relation-back

doctrine

applies

to

defeat

mootness

with

respect

to

class claims “when the defendants have the ability by
tender to each named plaintiff effectively to prevent
any plaintiff in the class from procuring a decision on
class
Ltd.

certification”);
P’ship,

772

F.3d

see
698,

also

Stein

706-07

v.

(11th

Buccaneers
Cir.

2014)

(recognizing this as the law of the Eleventh Circuit).
Although this quick reconsideration is perhaps somewhat
suspicious, plaintiffs have not offered any evidence to
show that defendants or their employees were in any way
responsible

for

or

involved

in

the

decision

independent parole board to grant him release.

by

the

Without

any such evidence, the court cannot conclude that the
exception applies.9

9. Although there is some support in the case law
for application of this exception even when there is no
evidence that the defendant actually did act with the
intent of picking-off the plaintiffs at issue, see
White v. Matthews, 559 F.2d 852, 857 (2d Cir. 1977),
when the defendant could easily have acted in this
fashion to prevent certification, plaintiffs have cited
no case law suggesting either that the exception
applies to acts other than those “specific[ally] ...
(continued...)
16

Finally,

plaintiffs’

fourth

argument--that

the

claims of Dillard, Moncrief, and Terrell fall within
the

exception

to

mootness

for

class claims--fares no better.

inherently

transitory

As the court explained

in detail in a prior opinion: “A claim is inherently
transitory not only if there exists no plaintiff who
could

both

establish

standing

at

the

outset

of

litigation and retain an active stake by the time class
certification

is

decided,

but

also

if

it

would

be

difficult to identify which prospective plaintiff that
would be at the time of filing.
explained

in

Gerstein

v.

As the Supreme Court

Pugh,

a

claim

should

be

considered inherently transitory when ‘[i]t is by no
means

certain

that

any

given

individual,

named

as

plaintiff, would be in ... custody long enough for a

demanded in the lawsuit.”
Zeidman, 651 F.3d at
1050-51.
In other words, while the picking-off
exception
would
squarely
apply
to
decisions
by
defendants to provide health care the named plaintiffs
alleged they had long been denied, it is not clear that
it applies to parole decisions not challenged in the
lawsuit.
17

district judge to certify the class.’
110 n.11 (1975) (emphasis added).

420 U.S. 103,

Both the Second and

Seventh Circuits have held that, although ‘the ultimate
length of confinement does affect the applicability of
the ‘inherently transitory’ exception, the essence of
the exception is uncertainty about whether a claim will
remain alive for any given plaintiff long enough for a
district court to certify the class.’”

Dunn, 148 F.

Supp. 3d at 1340 (quoting Olson v. Brown, 594 F.3d 577,
582 (7th Cir. 2010) (emphasis added), and citing Zurak
v. Regan, 550 F.2d 86, 90-92 (2d Cir. 1977); and Thorpe
v. District of Columbia, 916 F. Supp. 2d 65, 67 (D.D.C.
2013) (Huvelle, J.)).
Although

claims

that

“derive

from

potentially

imminent release from custody are ‘a classic example of
a transitory claim,’” id. (quoting Wade v. Kirkland,
118 F.3d 667, 670 (9th Cir. 1997)), plaintiffs have
endeavored to identify another category of issues that
they contend are inherently transitory: those related
to

the

mental-health

care
18

provided

in

ADOC’s

RTUs.

They note that there were only about 200 male prisoners
housed in the RTUs at the time the complaint was filed,
and have suggested that the prisoners frequently move
into and out of the RTUs.
But the question here is not whether incarcerated
plaintiffs who are not currently housed in the RTUs but
have been in the past and may be again in the future
can challenge the level of treatment provided in those
units.
have

Instead, the question is whether plaintiffs who
been

released

from

custody

altogether

can

challenge certain conditions they experience in prison.
Defendants point out that there are a number of easily
identifiable

prisoners

who

are

virtually

certain

to

remain in custody for years (because they are serving
extremely long sentences, including in some instances
life without the possibility of parole) and who have
experienced
therefore

or

are

properly

RTUs going forward.

likely

to

challenge,

experience,

the

conditions

and

can

in

the

Indeed, some of these prisoners

remain as named plaintiffs in this case.
19

Plaintiffs also contend that Dillard and Terrell
also represent a small number of prisoners who are both
mentally

ill

plaintiffs
prisoners

and

fail
are

to

intellectually
explain

inherently

why

disabled.

the

transitory;

claims
the

But
of

such

fact

that

there are relatively few of them (how many, plaintiffs
do not say) is not enough.

Although the court can

imagine ways in which the provision of mental-health
care

to

shaped

prisoners

by

those

with

intellectual

disabilities,

it

is

disabilities
not

aware

is

that

plaintiffs have made any allegations in their complaint
of systemic problems specific to this circumstance.10
Dillard's,

Moncrief's,

and

Terrell’s

claims

are

therefore not inherently transitory.

10. The due-process claims raised by Dillard and
Terrell do appear potentially to relate to their
intellectual disabilities, to the extent that these
disabilities may impact their ability to give informed
consent to medication.
Because the court will not be
certifying this portion of plaintiffs’ due-process
claim for class-wide adjudication, it does not matter
whether or not the due-process class claims these two
named plaintiffs brought are moot.
20

B.
Defendants
plaintiffs

Exhaustion

contend

have

failed

that

many

of

to

exhaust

the

named

administrative

remedies and that their claims are therefore barred.
They rely for evidence on the admissions of seven named
plaintiffs

(Businelle,

Carter,

Jackson,

McCoy,

Moncrief, Wallace, and Williams) in their depositions
that they did not file a mental-health grievance within
the last five years; the declaration of an MHM employee
that a review of MHM files revealed another five named
plaintiffs (Bui, Dillard, Hardy, Johnson, and Pruitt)
who

did

January

not
1,

admission

file

2012,
that

a
and

mental-health
July

another

1,

grievance

2014;

(Hartley)

and
never

between

plaintiffs’
filed

a

grievance with respect to his claims in this case.11

11. These plaintiffs did not concede that there was
a grievance process available to them with respect to
these claims.
Moreover, “[w]hether an administrative
remedy was available to a prisoner in a particular
prison or prison system, and whether such remedy was
applicable to the grievance underlying the prisoner’s
(continued...)
21

Defendants do not contend that one of the remaining
Phase 2A plaintiffs (Braggs) failed to exhaust.
The Prison Litigation Reform Act (PLRA) imposes the
following exhaustion requirement: “No action shall be
brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a
prisoner

confined

correctional

in

facility

any

jail,

until

prison,

such

exhaustion

other

administrative

remedies as are available are exhausted.”
§ 1997e(a).

or

42 U.S.C.

The Supreme Court has squarely held that
is

an

affirmative

defense,

defendants bear the burden of proof.
549 U.S. 199, 216-17 (2007).

on

which

Jones v. Bock,

And, as the Supreme Court

recently reiterated, proper exhaustion is a mandatory
predicate to suit, with one exception: administrative
remedies must be “available,” meaning that “an inmate

suit, are not questions of fact.
They either are, or
inevitably contain, questions of law ... [which] [t]he
court cannot properly determine ... on the basis of a
party’s concession....”
Snider v. Melindez, 199 F.3d
108, 113-14 (2d Cir. 1999).
22

is required to exhaust those, but only those, grievance
procedures that are ‘capable of use’ to obtain ‘some
relief for the action complained of.’”
136

S.

Ct.

1850,

1858-59

(2016)

Ross v. Blake,

(quoting

Booth

v.

Churner, 532 U.S. 731, 738 (2001)).
Defendants have not borne their burden of proof
with respect to any of the named plaintiffs at issue in
Phase 2A for a number of reasons.

As a preliminary

matter, it is critical to note that ADOC is a highly
unusual

state

operate

its

prisoners;

prison
own

system,

general

therefore,

in

that

it

grievance

the

question

does

process
is

whether

not
for
a

grievance process operated entirely by MHM, which is
not a general grievance process and functions without
any

involvement

by

correctional

officials,

was

available for exhaustion of the specific claims in this
case,

which

officials.

are

brought

only

against

correctional

See Henderson v. Thomas, 1311 (M.D. Ala.

2012) (Thompson, J.) (“[W]ith no generalized grievance
system, ADOC inmates have lost ‘a way of attempting to
23

improve

prison

lawsuit.’

In

conditions
turn,

without

corrections

having

to

officials

file

‘lose

a

the

substantial benefits that administrative remedies were
intended

to

provide

them.’”

(quoting

Turner

v.

Burnside, 541 F.3d 1077, 1084-85 (11th Cir. 2008))).
Of course, the court recognizes that the PLRA’s
exhaustion

requirement,

requirement,

does

remedies

“effective,”

be

exception.

not

Alexander

(11th Cir. 1998).

unlike

require
and

v.

Hawk,

the

that

administrative

contains
159

pre-PLRA

no

F.3d

futility

1321,

1326

Again, Alabama is an outlier; it is

one of the few “state penal institutions [that do] not
have an administrative remedy program to address prison
conditions,

and

administrative

thus

remedies

there
to

are

exhaust”

many conditions-related claims.

no

‘available’

with

respect

Id. at 1327.

to

Instead,

ADOC’s contractors have provided (or not, in light of
the discussion below) grievance processes for discrete
issues.

Obviously,

the

provision

of

a

grievance

procedure with respect to one issue does not result in
24

a

requirement

that

prisoners

exhaust

it

as

to

all

issues; the court is forced to determine which issues
are covered and which are not.12
With respect to plaintiffs’ claims that defendants’
policies of custodial understaffing, and placement of
prisoners in prolonged segregation without regard to
their

mental

serious

harm

illness,
by

create

impeding

a

access

substantial
to,

and

risk

of

increasing

demand for, mental-health care, the grievance process
was obviously not available; MHM has nothing to do with
custodial

staffing

segregation.

and

the

placement

of

prisoner

in

As this court explained in Henderson, in

12. Defendants cite to this court’s decision in
Edwards v. Ala. Dep’t of Corr., 81 F. Supp. 2d 1242,
1256-57 (M.D. Ala. 2000), for the proposition that
“[r]egardless of their chances of success using the
defendants’ grievance procedures, the PLRA requires the
plaintiffs to exhaust them.”
This statement is
accurate, with one caveat: prisoners need not exhaust
when the chance of success is zero, because the
grievance process at issue does not encompass the
subject of the prisoner’s complaint.
(At the time
Edwards
was
decided,
ADOC
did
offer
its
own,
all-encompassing grievance process.
This no longer
exists.)
25

concluding that the medical-grievance process operated
by

ADOC’s

medical

care

contractor

was

not

available

with respect to “broader disputes about ADOC housing
and transfer policy” and could not “be used to complain
to

prison

Medical

officials--as
Services

opposed

to

the

personnel--about

Correctional

accommodations

policy,” “defendants have submitted no evidence that
the

medical

grievance

professionals

forms

had

any

reviewing

authority

over

issues or ADOC policy more generally.
characterize

the

generalized

system

plaintiffs.”

891

medical

F.

Supp.

medical

nonmedical

Allowing ADOC to

grievance

would

the

process

as

bait-and-switch
2d

at

1310-11

a
the

(citation

omitted).
The same argument can fairly be made with respect
to

plaintiffs’

prospectively

contentions

violating

the

that
Eighth

defendants
Amendment

are
by

providing in their contract with MHM for too little
funding and too few qualified practitioners.

Even were

it true (this issue is taken up later) that MHM made
26

available

a

grievance

process

for

plaintiffs

to

challenge discrete instances of inadequate care at the
hands of practitioners employed by MHM, there is no
evidence

to

authority

suggest

that

MHM

unilaterally

to

administrators
increase

had

their

any
own

contractual funding or staffing levels (indeed, it is
plain that they did not).

Booth explains that although

the precise form of relief requested by a prisoner need
not be available in order for him to be required to
exhaust

a

grievance

procedure

(for

example,

when

a

prisoner demands monetary compensation but this form of
redress cannot be provided), a grievance process is not
available when “the relevant administrative procedure
lacks authority to provide any relief or to take any
action whatsoever in response to a complaint.”

532

U.S.

the

at

736.

Booth

goes

on

to

elaborate

that

administrative officers hearing the grievance must have
some

“authority

complaint,”

and

to
take

act

on

some

the

subject

responsive

of

action

respect to the type of allegations ... raise[d].”
27

the
“with
Id.

at 736 n.4 (emphasis added).

The officers’ ability to

do something is not enough; they must have the ability
to do something responsive.

Here, MHM plainly has no

authority to give any relief at all with respect to the
funding and staffing levels set by defendants; if a
grievance were filed requesting such action, MHM would
surely

“disclaim[]

petitions.”

the

capacity

to

consider

those

Ross, 136 S. Ct. at 1859.13

13. Compare, for example, the process defendants
have put forward to the process at issue in Lopes v.
Beland, 2014 WL 1289455 (D. Mass. Mar. 29, 2014)
(Casper, J.). In that case, the plaintiff was granted
a single-cell restriction based on a medical condition
that rendered it unsafe for him to be housed with a
cellmate, but then filed suit against both correctional
and medical contractor defendants, contending that this
restriction
was
sometimes
violated.
The
state
Department
of
Corrections
maintained
a
general
grievance process, but carved out claims regarding
“medical
...
decisions,”
and
required
grievances
regarding such issues to be filed with the medical
contractor, which maintained its own grievance process.
Id. at *2 (citation and quotation mark omitted).
The
court suggested that the failure to exhaust this
process might not have barred suit (even against the
medical
contractor
itself)
if
the
contractor’s
grievance process had not allowed prisoners a final
appeal to correctional officials, because then the
“prison grievance tribunal would [not] have had any
(continued...)
28

This

is

vividly

illustrated

by

the

fact

that,

although MHM initially submitted a proposal in 2013 for
staffing

of

144.95

full-time

equivalent

positions,

based on its own assessment of the level needed to
provided
system,

appropriate
it

care

eventually

had

to

prisoners

to

reduce

across
that

the

figure

substantially, to 126.5, because MHM was informed by
defendants that “the department ... wouldn’t be able to
fund that many employees.”14

Houser Depo., P Ex. 14

authority to take some responsive action to [the
inmate’s] complaints.” Id. at *7 (citation omitted).
14. The court raised for consideration by the
parties the question whether a grievance process is
available with respect to claims against correctional
defendants
when
it
is
operated
entirely
by
a
contractor. See Lopes, 2014 WL 1289455, at *6 (denying
summary judgment to correctional defendants based on a
finding that they had failed to meet their burden to
show that the plaintiff had not exhausted correctional
administrative
remedies,
while
granting
summary
judgment to medical-contractor defendants based on a
finding that they had met their burden to show that the
plaintiff had failed to exhaust the contractor’s
grievance process). However, the court need not reach
this issue, because it finds that defendants have not
satisfied their burden to show the existence of an
available grievance process.
29

(doc.

no.

675-14)

298.15

at

Houser,

MHM’s

Program

Manager, testified that she has repeatedly requested
additional funding for staffing, but that her requests
have been denied due to budgetary constraints.
With

regard

to

both

above

and

the

discussed
which

MHM

concludes

does
that

have

even

the

policies

policies
control,

the

and

practices

and

practices

the

court

grievance

process

over

further
that

MHM

purports to operate is not available for purposes of
the PLRA because it is “so opaque that it becomes,
practically

speaking,

incapable

of

use,”

because,

although “some mechanism exists to provide relief,” it
is

“so

confusing”

that

“no

discern or navigate it.”

ordinary

prisoner

can

Ross, 136 S. Ct. at 1859

(citation and quotation marks omitted) (explaining that
the “procedures need not,” however, “be sufficiently

15. ‘P Ex.’ hereinafter refers to exhibits attached
to plaintiffs’ opposition to defendants’ motion for
summary judgment or plaintiffs’ motion for class
certification. ‘D Ex.’ refers to exhibits attached to
defendants’ motion for summary judgment.
30

‘plain’ as to preclude any reasonable mistake or debate
with respect to their meaning”).
As an initial matter, plaintiffs point out that the
only evidence defendants offered as to the existence of
a grievance process for mental health-related claims at
the relevant juncture (when the case was filed in 2014)
was the declaration of MHM’s Program Manager, Teresa
Houser, attaching and referencing a grievance policy
approved in July 2016.

This policy said nothing about

what grievance process did or did not exist two years
earlier.

See Smith v. Terry, 491 F. App’x 81, 83 (11th

Cir. 2012) (per curiam) (“The only facts pertinent to
determining whether a prisoner has satisfied the PLRA’s
exhaustion requirement are those that existed when he
filed his original complaint.”).

In reply, defendants

have submitted a similar document they say--notably,
without

offering

a

supplemental

declaration

from

Houser--was in effect since 2009.
Even if this policy were in effect, defendants have
still

failed

to

meet

their
31

burden

to

show

that

an

ordinary prisoner could figure out how to use it.

As a

preliminary matter, Houser testified that prisoners are
informed of the mental-health grievance process when
they

receive

Health

“a

form

Services,”

entitled

which,

she

Orientation
says,

143

(doc.

no.

782-37)

at

Mental

“describ[es]

grievance processes and procedures.”
Ex.

to

3.

the

Houser Decl., D
This

statement

contorts the meaning of the word ‘describe’ well past
its breaking point.
this:

“If

you

All the form tells prisoners is

believe

the

mental

health

services

provided to you are inadequate, you may file an inmate
grievance.”

Inmate

Orientation

to

Mental

Services, P Ex. 170 (doc. no. 850-70) at 2.

Health
It does

not tell prisoners anything about how to file such a
grievance (or how to distinguish it from any other form
of

inmate

grievance):

this

‘description’

does

not

reveal what form the grievance should be composed on,
to whom it should be given and by what means, what
information should be included, who will review it and

32

how

quickly,

and

whether

there

is

any

process

of

appeal.
There is no evidence to suggest that MHM’s written
grievance policy was made available to prisoners; even
if

it

was,

informative.
formal

the

policy

is

not

substantially

more

It states that a prisoner “may file a

grievance

by

completing

the

relevant

form.”16

MHM Grievance Mechanisms for Health Complaints, D Ex.
182 (doc. no. 877-3), at 2, Dunn(MHM) 00071.

Aside

from the fact that this opaque boilerplate does not
reveal which form is the “relevant” one, there is a
further

problem

deposition
actually

that
the

in
the

practice:
form

medical

Houser

prisoners

grievance

stated
are

form

to

in

her

use

is

provided

by

Corizon, which is actually a grievance form produced by
(and

displaying

the

name

of)

Corizon’s

predecessor,

16. The court notes that this was changed, in the
2016 policy, to refer instead--but not much more
informatively--to “the client-authorized form.”
2016
Grievance Mechanism for Health Complaints, D Ex. 143
(doc. no. 782-37) at 9.
33

Correctional Medical Services.

If the requirement that

a prisoner submit a form issued by one contractor, and
used to file grievances with another, to yet a third
contractor, not named on the form, were not enough to
confound

even

the

most

intelligent

prisoners, there is still more.
should

be

used

includes

and

diligent

of

The form Houser says

checkboxes

to

identify

“the

type of grievance you are filing,” but the only two
options are “Medical Grievance” and “Medical Grievance
Appeal.”
(doc.

Grievances of William Sullivan, P Ex. 165

no.

683-5)

at

1,

PLF002101.

Apparently,

defendants believe that prisoners should have surmised
that

they

“Mental

needed

Health,”

to

cross

or

that

out
they

“Medical”
should

and

simply

write
have

created a new, third checkbox to indicate the topic of
their grievances.
Moreover,

MHM’s

current

policy

states

that

“[f]ormal grievances related to mental health services
may not be received directly by mental health staff but
may

be

sent

to

the

designated
34

institutional

department.”

MHM

Grievance

Mechanism

for

Health

Complaints, D. Ex 182 (doc. no. 877-3) at 2, Dunn(MHM)
00071.

Unfortunately, the policy does not reveal what

the designated institutional department is, or how a
prisoner should “send” his grievance to it.
stated

in

written

her

deposition--directly

policy

she

cited--that

a

Houser

contrary

to
who

prisoner

the
has

completed a grievance form should “either put it in the
in-house

mail

or

hand

it

to

us

when

Houser Depo. (doc. no. 996-17) at 22.
not

offered

evidence

to

show

that

they

see

us.”

Defendants have
either

of

these

avenues for submission is disclosed to prisoners in any
way;

indeed,

one

is

forbidden

by

the

very

policy

defendants say reveals how the process works.

While

the PLRA might not require a grievance process that is
completely

clear

and

easy

to

follow,

it

does

not

countenance one that is so full of blind alleys and

35

dead ends that even those who run it cannot manage to
accurately and consistently describe how it works.17
If a prisoner were able to determine how to file a
grievance
guesswork.

properly,

it

would

be

by

sheer

lucky

The fact that the court remains uncertain

as to how a prisoner attempting to file a mental-health
grievance should indicate as much on the form and how
he should submit the form makes clear that this process

17. The court notes that there are even more ways
in which MHM’s policy and the statements of Houser
leave this court (and certainly an ordinary inmate)
largely in the dark as to how its grievance process
operates once a grievance is filed.
For example,
although the policy states that “[u]pon receipt of a
grievance related to mental health services, staff
forward it to the Program [Manager] or designee,” it is
logged, and the Program [Manager] or designee responds
in
writing,
MHM
Grievance
Mechanism
for
Health
Complaints, D. Ex 182 (doc. no. 877-3) at 2, Dunn(MHM)
00071, Houser--who is the Program Manager--testified
that all grievances are actually taken initially to the
site administrator, who “determine[s] what--what needs
to happen next,” and “make[s] a decision on how to go
about handling it at that point.”
Houser Depo. P Ex.
181 (doc. no. 850-81) at 45-46.
This statement
strongly suggests that the procedures outlined in the
policy are not consistently followed.
36

is not “available.”18
do

not

process

understand
exists;

two

Indeed, it appears that prisoners
that

a

named

mental-health
plaintiffs,

Jackson, testified to this effect.19

grievance

Businelle

and

Although Houser

contends that the process must be understood because
“inmates

...

submit

grievances

on

a

regular

basis,”

18. Plaintiffs also argue that the court should
consider the fact that the prisoners at issue have
serious mental illnesses in determining whether the
grievance process was so confusing as to be unavailable
to them.
However, even setting aside the potentially
impaired cognitive abilities of the prisoners at issue,
the court concludes on the current record that this
grievance process is so poorly, confusingly, and
inconsistently described that it is not available to
any prisoner.
Hence, the court need not address this
argument at this time.
19. Defendants are correct that a prisoner’s mere
assertion that he was unaware of the existence of a
grievance procedure does not support a finding of
unavailability in the face of system-wide evidence of
its availability.
Edwards, 81 F. Supp. 2d at 1256.
Here, the statements to this effect by two named
plaintiffs are powerfully corroborated, rather than
rebutted, by system-wide evidence of un-availability.
The court also notes the striking disparity between the
testimony of the numerous named plaintiffs regarding
their awareness of a medical grievance process, and the
testimony that they were not aware of a mental-health
grievance process.
37

Houser

Decl.,

D

Ex.

143

(doc.

no.

782-37)

at

3,

plaintiffs have presented considerable evidence to the
contrary.

Although MHM’s current policy states that

MHM’s quality improvement program reviews grievances,
plaintiffs note that not a single filed grievance was
referenced in the minutes of MHM’s quality improvement
meetings
filed).

until

October

2014

(after

this

case

was

More damning still, MHM’s own annual audit in

2014 documented that three major facilities had logged
no grievances at all that year, and that “MHM Site
Administrators

indicated

grievances.”20

MHM 2014 Audit, P Ex. 177 (doc. no.

850-77)

at

10,

that

ADOC0140892-9.

they

In

rarely

2013,

receive

the

audit

20. One of these facilities, Bullock, houses many
of the most severely mentally ill prisoners in the
system. As the court is well aware from its own pro se
docket, prisoners are not reluctant to complain about
the care they are receiving.
Whether or not
constitutionally adequate mental-health care is being
provided at Bullock, it frankly beggars belief to
imagine that mentally ill prisoners housed there were
aware of a grievance process but not a single one opted
to use it over the course of the year in which this
case was filed.
38

revealed

that

“[g]rievance

logs

were

found

at

most

facilities, many of which included no grievances.”

MHM

2013

14,

Audit,

P

ADOC0141610-13.

Ex.

178

(doc.

no.

850-78)

at

Apart from raising concern as to why

grievance logs were not found at all facilities, these
audit

findings

further

corroborate

plaintiffs’

contention that it is the very rare prisoner who is
aware that he is permitted to file a grievance with MHM
and can manage to figure out how to do so.21
Three

additional

points

warrant

mentioning

with

respect to exhaustion of plaintiffs’ Eighth Amendment
claims.

First, the court notes that even if MHM’s

grievance process were available with respect to some

21. Defendants do cite to an unreported pro se case
in which a magistrate judge of this court recommended
dismissal of a mental-health claim as unexhausted on
the basis of MHM’s grievance process.
See Hayes v.
Giles, 2010 WL 4975619, at *7-8 (M.D. Ala. Oct. 28,
2010) (Capel, M.J.), as adopted, 2011 WL 22634 (M.D.
Ala. Jan. 4, 2011) (Fuller, J.).
But the pro se
plaintiff in this case did not dispute the availability
of a grievance process or his failure to exhaust it.
As explained above, defendants bear an affirmative
burden to show availability, and they have not met it.
39

or

all

of

the

claims

at

issue

(again,

it

is

not),

defendants evidence would be inadequate to establish
that plaintiffs have not exhausted it.
their

evidence

grievances

shows

regarding

only
their

spans of a few years.
to

the

statute

defendants,

that

This is because

they

did

mental-health

not

file

care

over

As discussed below, with respect

of

limitations

plaintiffs

claim

arguments
continuing

raised

by

violations

arising from policies or practices they say (and have
offered evidence to show) have existed for some years.
“In order to exhaust their remedies, prisoners need not
file multiple, successive grievances raising the same
issue (such as prison conditions or policies) if the
objectionable

condition

is

continuing.”

Turley

v.

Rednour, 729 F.3d 645, 650 (7th Cir. 2013) (citing,
among

other

cases,

Parzyck

v.

Prison

Health

Servs.

Inc., 627 F.3d 1215, 1219 (11th Cir. 2010) (a prisoner
is

“not

required

administrative

to

initiate

grievance

another

process

on

round

the

of

exact

the
same

issue each time” a deprivation occurs), and Johnson v.
40

Johnson,

385

(“[P]risoners
about

the

F.3d
need

same

503,

not

521

continue

issue.”)).

(5th

Cir.

file

order

In

to

to

2004)

grievances
bear

their

burden to show that plaintiffs had not exhausted, they
would need to show that they had never filed grievances
about the issues in this lawsuit.

This they have not

done.
Second, the Eleventh Circuit has recognized that “a
class

of

prisoner-plaintiffs

certified

under

Rule

23(b)(2) satisfies the PLRA’s administrative exhaustion
requirement through ‘vicarious exhaustion,’ i.e., when
one

or

more

administrative

class
remedies

raised by the class.”

members
with

ha[s]
respect

exhausted
to

each

his
claim

Chandler v. Crosby, 379 F.3d

1278, 1287 (11th Cir. 2004) (alteration in original,
citation and internal quotation marks omitted).

Here,

because the court has, in conjunction with its denial
of summary judgment, certified a Rule 23(b)(2) class,
and

because

defendants

do

not

raise

the

affirmative

defense of exhaustion with respect to the mental-health
41

claims brought one of the remaining named plaintiffs
(Braggs), vicarious exhaustion might well apply to some
or all of plaintiffs’ claims.
Third and finally, the court notes that, while ADOC
has no general grievance process, there does exist a
formal process for appealing an involuntary-medication
order.
summary

Defendants did not argue in their motion for
judgment

due-process

that

claims

the

regarding

plaintiffs
involuntary

have failed to exhaust this process.
one

plaintiff

who

is

who

actually

raise

medication

In any event, the
subject

to

an

involuntary-medication order, Bui, has filed an appeal
of this order, so he appears to have exhausted this
administrative remedy, assuming it is available.
appeals

process

is

plainly

not

applicable

to

This
the

remaining plaintiffs bringing due-process claims, who
contend that the consent they gave was not voluntary,
because

they

have

not

been

afforded

hearings

received orders and therefore have nothing to appeal.

42

or

C.

Statute of Limitations

Defendants contend that summary judgment is due to
be granted with respect to plaintiffs Hardy and McCoy,
because

their

limitations.22
claim

is

court

are

barred

by

the

statute

of

The statute of limitations for a § 1983

looks

determined
to

injury torts.
(2007).

claims

the

by

reference

limitations

to

state

period

law;

for

the

personal

Wallace v. Kato, 5498 U.S. 384, 387

In Alabama, it is two years.

However, it is

federal law that determines when the cause of action
accrues--that is, when the clock begins to run.

Id. at

388.
“Generally, accrual occurs when the prisoner knows
or should know that he has suffered the injury that
forms the basis of his complaint and can identify the
person who inflicted the injury.
F.3d

1279,

1283

(11th

Cir.

Chappell v. Rich, 340
2003).

However,

an

22. Defendants also raise this argument with
respect to Dillard.
Because his claims are moot, the
court need not address him further here.
43

‘allegation
requested
tort,

of

a

medical

which

does

failure

to

attention
not

needed

constitutes

accrue

attention is provided.’

provide

until

a

the

and

continuing

date

medical

Lavellee v. Listi, 611 F.2d

1129, 1132 (5th Cir. 1980).

The critical distinction

in

analysis

the

prisoner

continuing

violation

complains

one[-]time
limitations

‘of

violation,
period,

the

present

which
or

does

the

is

whether

consequence
not

the
of

extend

continuation

violation into the present, which does.’

of

a

the
that

Lovett v.

Ray, 327 F.3d 1181, 1183 (11th Cir. 2003) (internal
quotation marks omitted).”

Baker v. Sanford, 484 F.

App'x 291, 293 (11th Cir. 2012).
Plaintiffs

have

alleged

just

such

a

continuing

violation; they seek prospective injunctive relief to
remedy a substantial risk of serious harm that they
contend
exist.

has

existed

Given

that

for

some

the

risk

time

and

itself

is

continues
the

to

injury

plaintiffs allege, the two challenged by defendants on
this point need not actually demonstrate that this risk
44

has resulted in harm to them within the past two years.
See Robinson v. United States, 327 F. App’x 816, 818
(11th Cir. 2007) (holding that “continuing to expose
[the plaintiff] to the source of his [infection] ...
was

a

continuing

violation,”

created a risk of reinfection).

presumably

because

it

A prisoner can bring a

claim that correctional administrators have acted in a
way that creates a substantial risk of future harm even
though that harm has never yet occurred; it would be
nonsensical, then, to conclude that once some harm has
occurred,

a

prisoner

must

bring

a

claim

within

a

certain period of time, even though the conduct of the
defendants

that

is

creating

the

risk

continues

unabated.

Plaintiffs in this case must, of course,

show more than that the conduct of defendants creating
the risk of harm occurred at the time of filing or at
some point within the two years before the case was
filed; they must, because they seek prospective relief
against

official-capacity

defendants,

conduct is still ongoing.
45

show

that

this

As another court recently put it, “[d]efendants’
statute

of

limitations

fundamental

nature

and

argument
substance

Eighth Amendment claim.

...

wholly
of

ignores

the

the

Plaintiffs’

Plaintiffs brought suit

to terminate an ongoing systemic pattern and practice
of

failure

to

provide

constitutionally

adequate

[mental-health] care on the part of [the Department of
Corrections] and its contractual providers.

Plaintiffs

allege that the unlawful conduct was continuing as of
the date the lawsuit was filed, and that it continues
as

of

today.

The

particular

episodes

of

deficient

[mental-health] care alleged in the complaint are not
invoked as separate claims for relief, seeking recovery
on the basis of separate instances of compensable harm.
On the contrary, the examples of alleged sub-standard
care set forth in Plaintiffs’ pleadings--which are now
supported by sworn declarations, deposition testimony,
and

other

competent

record

evidence--are

offered

as

corroboration for Plaintiffs’ assertion that [ADOC] has
engaged in an ongoing pattern and practice of wrongful,
46

unconstitutional

acts

and

omissions

reflecting

deliberate indifference to the serious medical needs of
the prisoners residing [in their facilities].”

Scott

v. Clarke, 64 F. Supp. 3d 813, 826 (W.D. Va. 2014)
(Moon, J.).
The court need not address Hardy, as it finds that
he has not demonstrated the existence of a current,
serious

mental-health

discussed below.)

care

need.

(This

issue

is

However, the court concludes that

the statute of limitations does not bar McCoy’s claims.
Defendants

misperceive

(or

ignore)

substance of the claims brought by McCoy.

much

of

the

They address

only his involuntary-medication claim, and assert that
he

is

disputing

the

procedures

used

involuntary-medication order in 2005.

to

issue

an

However, McCoy’s

claim actually revolves around his contention that he
did

not

give

voluntary

and

informed

consent

to

medication injected into him in 2013 and 2014, well
within the statute of limitations period.

Moreover,

with respect to McCoy’s Eighth Amendment claim, he has
47

clearly

alleged,

ongoing

denial

specifically

and
of

cited

offered
adequate

him

as

evidence

to

treatment;

someone

whose

show,
Dr.

an

Burns

acute

and

disabling mental illness was not, at the time of her
inspection,

receiving

an

appropriate

level

of

treatment.23
D.

Preclusion

The one named plaintiff involved in Phase 2A of
this

case

preclusion

with

respect

argument

to

is

whom

defendants

Pruitt.

mental-health

claims

are

not

litigation.

Indeed,

defendants’

raise

However,

barred

by

motion

this
for

a

his
prior

summary

judgment is ambiguous as to whether they even contend
that Pruitt’s mental-health claims, as opposed to his

23. Additionally, McCoy is free to offer evidence
regarding events that occurred more than two years
before
this
case
was
filed,
as
“[s]tatutes
of
limitations do not operate as an evidentiary bar
controlling the evidence admissible at the trial of a
timely-filed cause of action.”
Brinkley-Obu v. Hughes
Training, Inc., 36 F.3d 336, 346 (4th Cir. 1994).
48

medical care claims, are precluded.

Assuming, out of

an abundance of caution, that defendants do make such
an argument, the court explains below why it fails.
As

defendants

correctly

explain,

res

judicata

(claim preclusion) prohibits “successive litigation of
the very same claim,” New Hampshire v. Maine, 532 U.S.
742, 748 (2001), and applies “not only to the precise
legal theory presented in the prior case, but to all
legal

theories

and

claims

nucleus of operative fact.’”
1555,

1561

(11th

Cir.

arising

out

of

the

same

NAACP v. Hunt, 891 F. 2d

1990).24

Collateral

estoppel

(issue preclusion) bars relitigation of an issue when
the same issue was raised and actually litigated in a
prior suit, and the court’s decision as to that issue
was necessary to the final resolution of the suit.

See

24. Res judicata also requires an identity of
parties; defendants argue that this requirement is
satisfied because some the defendants in the suit
previously filed by Pruitt were employees of, and
therefore in privity with, the defendants in this case.
The court need not reach this issue.
49

Mike Smith Pontiac, GMC, Inc. v. Mercedez Benz of N.
Am., Inc., 32 F.3d 528, 532 (11th Cir. 1994).
Here,

Pruitt’s

prior

suit

was,

quite

obviously,

totally unrelated to his claims in the present case.
In 2009, he filed a pro se complaint against the warden
of the facility where he was housed and a number of
correctional officers.

This complaint makes no mention

of mental-health care; instead, he complains about a
particular,
correctional

discrete
officers

incident,
allegedly

during

kicked

him

which

out

of

a

medical ward while he was in pain and awaiting testing
for kidney stones, physically assaulted him, and then
denied him access to care for his resulting injuries.
The

issues

actions

raised

occurred

in

that

and

suit--whether

whether

they

the

alleged

constituted

violations of his constitutional rights--are entirely
irrelevant to Pruitt’s claim that he is currently being
subjected to a substantial risk of serious harm due to
the

deliberate

Associate

indifference

Commissioner

to

of
the

50

the

Commissioner

serious

and

mental-health

needs of prisoners in their custody.

The only thing

connecting these two cases is that they have something
to do with Pruitt’s health during his incarceration.
His current claims are not precluded.

IV.

Substantive Arguments
A.

Eighth Amendment
1.

Defendants
not

pursued

adamantly
a

proper

Standard
insist
theory

that
of

plaintiffs
Eighth

have

Amendment

liability because they seek to prove that defendants,
by providing a deficient system of mental-health care,
have created a substantial risk of serious future harm
to mentally ill prisoners in their custody.

In light

of their erroneous belief that such a showing would not
support liability, defendants have proceeded in their
summary judgment briefing as if plaintiffs have brought
a

case

their

focused

on

individual

addressing

obtaining

specific

mental-health

defendants’

problems.

arguments
51

treatment

regarding

for

Before
the

sufficiency

of

plaintiffs’

evidence,

the

court

will

detour to explain why plaintiffs’ actual theory of the
case is well-supported by the case law.

The court will

discuss this precedent at some length because a clear
understanding
orderly

and

of

its

framework

efficient

will

presentation

facilitate
of

the

the

parties’

evidence at trial.
One

of

officials

the

can

well-recognized

violate

the

ways

Eighth

that

prison

Amendment

is

by

failing to provide prisoners with minimally adequate
health care.

This is because prisoners “must rely on

prison authorities to treat [their] medical needs; if
the authorities fail to do so, those needs will not be
met.”
“Federal

Estelle v. Gamble, 429 U.S. 97, 103 (1976).
and

state

governments

therefore

have

a

constitutional obligation to provide minimally adequate
medical

care

to

incarceration.”

those

whom

they

are

punishing

by

Harris v. Thigpen, 941 F.2d 1495, 1504

(11th Cir. 1991).

However, “an inadvertent failure to

provide

medical

adequate

care
52

cannot

be

said

to

constitute an unnecessary and wanton infliction of pain
or to be repugnant to the conscience of mankind.

...

Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner.
order

to

allege

acts

evidence
needs.

or

a

cognizable
omissions

deliberate

claim,

a

prisoner

sufficiently

indifference

to

harmful

serious

must
to

medical

It is only such indifference that can offend

evolving
Eighth

state

In

standards
Amendment.”

of

decency
Estelle,

in
429

violation
U.S.

of

at

the

105-06

(citations and internal quotation marks omitted).
Moreover, it is clear that “[f]ailure to provide
basic psychiatric and mental health care states a claim
of deliberate indifference to the serious medical needs
of prisoners.”
(11th

Cir.

Rogers v. Evans, 792 F.2d 1052, 1058

1986).25

“The

case

law

establishes

that

25. Eleventh Circuit case law makes clear that the
“basic” mental-health care to which prisoners are
entitled includes not only pharmacological but also
psychotherapeutic treatment.
See Greason, 891 F.2d at
834 (“Even if this case involved failure to provide
(continued...)
53

‘mental health needs are no less serious than physical
needs’ for purposes of the Eighth Amendment.”
v.

Bryant,

614

F.3d

1288,

1312

(11th

Thomas

Cir.

2010)

(quoting Gates v. Cook, 376 F.3d 323, 332 (5th Cir.
2004)).

This

is

because

the

denial

of

adequate

mental-health care can be just as painful as the denial
of adequate physical health care.

See Ind. Prot. &

Advocacy Servs. Comm’n v. Comm’r, Ind. Dep’t of Corr.,
2012

WL

6738517,

at

*21

(S.D.

Ind.

Dec.

(Pratt, J.) (“Psychological pain exists.

31,

2012)

It is real

and it results from many of the symptoms which are
associated with the mentally ill.”).
Deliberate
objective

and

indifference
a

subjective

claims

have

component.

both

an

There

are

multiple modes of demonstrating the objective component
of an Eighth Amendment violation.

Although a prisoner

may seek an injunction requiring prison officials to

psychotherapy or psychological counselling alone, the
court would still conclude that the psychiatric care
(continued...)
54

remedy a condition which is already inflicting harm on
him at the time he files his complaint (for example, a
prisoner

is

not

receiving

any

insulin,

which

is

necessary to treat his diabetes, and seeks an order
requiring prison officials to provide it to him), he
may also seek an injunction to prevent serious harm
which is substantially likely to occur in the future-in the phrasing of Farmer v. Brennan, “a substantial
risk of serious harm.”

511 U.S. 825, 834 (1994).26

was sufficiently similar to medical treatment to bring
it within the embrace of Estelle.”).
26. It is clear that prisoners can make out Eighth
Amendment violations based on the totality of multiple
conditions of confinement, rather than needing to
demonstrate that each individually is unconstitutional.
See Hamm v. DeKalb Cty., 774 F.2d 1567, 1575–76 (11th
Cir. 1985) (citing Ruiz v. Estelle, 679 F.2d 1115,
1139-40 (5th Cir. 1982). Such claims are cognizable so
long as the multiple conditions combine to deprive the
prisoner of a specific human need, such as health care.
See Gates, 376 F.3d at 333 (“Conditions of confinement
may establish an Eighth Amendment violation ‘in
combination’ when each would not do so alone, but only
when they have a mutually enforcing effect that
produces the deprivation of a single, identifiable
human need such as food, warmth, or exercise--for
example, a low cell temperature at night combined with
(continued...)
55

As

the

Supreme

McKinney,

509

U.S.

prisoner

Court
25

challenged

explained

(1993),
his

a

in

case

prolonged

Helling
in

which

exposure

v.
a
to

second-hand smoke, “a remedy for unsafe conditions need
not

await

a

tragic

event,”

because

“the

Eighth

Amendment protects against future harms to inmates,”
even

when

the

harm

“might

not

affect

all

of

those

exposed” to the risk and even when the harm would not
manifest itself immediately.
court

explained,

drinking

water

prisoners

need

not

Id. at 33-34.
complaining

“wait[]

dysentery” before filing suit.

for

an

Id. at 33.

of

As the
unclean

attack

of

The Court

made clear that, although “scientific” or other expert
evidence is relevant is assessing the gravity of the
risk--that is, “the seriousness of the potential harm

a failure to issue blankets.”
(citing Wilson v.
Seiter, 501 U.S. 294, 304 (1991)). By the same token,
when multiple policies or practices combine to create a
substantial risk of serious harm to prisoners’ mental
health, they violate the Constitution.

56

and

the

likelihood

that

such

injury

to

health

will

actually be caused by exposure to” the risk at issue-the inquiry does not end there.

Id. at 36.

“It also

requires a court to assess whether society considers
the risk that the prisoner complains of to be so grave
that it violates contemporary standards of decency to
expose anyone unwillingly to such a risk.

In other

words, the prisoner must show that the risk of which he
complains is not one that today’s society chooses to
tolerate.”

Id.27

27. Defendants
repeatedly
quote
language
from
Helling describing the sort of risk that is actionable
as one that is “sure or very likely to cause serious
illness and needless suffering,” and that gives rise to
“sufficiently imminent dangers.” 509 U.S. at 33-34.
But Helling itself makes clear that it must be “sure or
very likely” that some--not necessarily all--of the
prisoners exposed will suffer harm, and that the
dangers--like those of second-hand smoke--need not
manifest themselves immediately.
The Eleventh Circuit
has read Helling to require a plaintiff to show an
“unreasonable” risk of serious harm, drawing on the
language in Helling’s holding.
Kelley v. Hicks, 400
F.3d 1282, 1284 (11th Cir. 2005) (quoting Helling, 509
U.S. at 35).
(continued...)
57

It is true that the Supreme Court once suggested,
in dicta in a case about access to law libraries, that
“a healthy inmate who ha[s] suffered no deprivation of
needed

medical

treatment

[lacks

standing

to]

claim

violation of his constitutional right to medical care
...

simply

on

the

ground

facilities were inadequate.”
343, 350 (1996).

that

the

prison

medical

Lewis v. Casey, 518 U.S.

But this pronouncement has no bearing

Furthermore,
Helling
requires
that
the
risk
involved
must
be
“so
grave
that
it
violates
contemporary standards of decency to expose anyone
unwillingly to such a risk.”
509 U.S. at 36.
While
the first couple of words --“so grave”--might appear at
first glance to set a very high bar, there are
important modifiers in that sentence: “contemporary”
and “unwillingly.”
Helling was decided in 1993;
contemporary standards of decency had clearly evolved
rapidly since 1964, when the Surgeon General of the
United States issued the first federal report linking
smoking to ill health.
Moreover, the modifier
“unwillingly”
reflects
once
again
the
Court’s
recognition that prisoners “must rely on prison
authorities to treat [their] medical needs,” Estelle,
429 U.S. at 103; the question is not whether society
believes a particular level of health care is one
everyone must receive by right (indeed, at present,
society does not require the provision of anything but
emergency care), but rather whether society believes it
(continued...)
58

on this case.

The plaintiffs here are prisoners with

serious mental illnesses, not healthy prisoners; while
a

healthy

prisoner

might

not

be

able

to

show

a

sufficiently specific and substantial risk of serious
harm in alleging that he might become sick in some way
at some time and need some form of medical care that
might then not be adequately provided, plaintiffs in
this case need mental-health care and argue that the
severe

inadequacies

of

the

care

being

provided

are

subjecting them to a high likelihood of fairly imminent
harm.

Indeed, they have offered evidence to show that

the risk has already been manifested in deficient care
they and others have received.

For prisoners who are

not healthy, it is clear that they “need not wait until
[they]

suffer[]

an

actual

injury

because

the

constitutional injury is the exposure to the risk of
harm.”

Parsons v. Ryan, 289 F.R.D. 513, 521 (D. Ariz.

unacceptable to force someone to receive that level of
health care.
59

2013) (Wake, J.) (citing Brown v. Plata, 563 U.S. 493,
506 n.3 (2011)), aff’d, 754 F.3d 657 (9th Cir. 2014).28
In the end, whether plaintiffs have already been
harmed

by

the

practices

they

challenge

is,

relevant, not dispositive of their claims.

although
This is

because, as in Parsons, evidence related to the named
plaintiffs
Eighth

was

“not

Amendment

submitted

claims;

to

support

rather,

the

individual
plaintiffs

submitted [it] as evidence of the defendants’ unlawful
policies and practices, and as examples of the serious
harm to which all inmates in [defendants’] custody are
allegedly exposed.”
(9th Cir. 2014).

Parsons v. Ryan, 754 F.3d 657, 672
What these plaintiffs must show is

28. In
similar
fashion,
this
case
is
distinguishable from another one on which defendants
rely in their brief, Bumpus v. Watts, 448 F. App'x 3
(11th Cir. 2011).
In that case, the court held that
“[b]ecause [the plaintiff] only asserted that routine
dental care would prevent future dental problems, he
has failed to show an objectively serious medical
need.”
Id. at 5.
Whether or not the denial of
preventative care is actionable under the Eighth
Amendment is irrelevant, because plaintiffs are not
healthy prisoners seeking preventative care.
60

that they have been subjected to the harmful policies
and
have

practices
already

practices.

at

issue,

been

not

harmed

(necessarily)
by

these

that

they

policies

and

Admittedly, to the extent that they allege

a condition has existed for a length of time, they
generally must show that some prisoners--themselves or
others--have been harmed, in order to demonstrate an
objectively substantial risk of serious harm.29

29. Of course, expert testimony is also relevant to
making this showing, especially because the uncertain
course of mental illness, affected as it is by a number
of factors, may make it difficult to show conclusively
that the pain caused by, or the worsening of, any
particular prisoner’s illness is due to a particular
denial of or delay in treatment; instead, it may be
necessary for an expert to rely in significant part on
her expertise in treating patients and experience
observing outcomes to demonstrate how substantial the
risks and how serious the harms are.
As an aside, the court notes that, in theory, a
mechanism of injury could be such that, although no one
in a prison system had yet been harmed, it was likely
that many would be in the future.
For example,
consider the introduction of a toxic substance, the
symptoms of exposure to which only manifest after a
period of time; plaintiffs would not need to wait until
someone got sick to bring a claim.
In this case,
however, there is no reason to believe that if the
(continued...)
61

Although

the

Eighth

Amendment’s

objective

requirement of showing serious harm is not met by a
showing of mere discomfort, see Chandler, 379 F.3d at
1295, “unnecessary pain or suffering” is serious harm.
LaMarca
1993).
both

v.

Turner,

995

F.2d

1526,

1535

(11th

Cir.

The serious-harm requirement “is concerned with
the

‘severity’

and

the

‘duration’

of

the

prisoner's exposure” to the harm, such that an exposure
to harm “which might not ordinarily violate the Eighth
Amendment may nonetheless do so if it persists over an
extended period of time.”

Chandler, 379 F.3d at 1295

(citation

also

duration
scale,

omitted);
do

but

consideration

see

not

necessarily

our

analysis

of

both

id.

form

should

factors.”).

a
be

(“Severity
perfect
informed
As

a

and

sliding
by

a

result,

a

persistent and ongoing harm may be actionable even when

policies and practices of which plaintiffs complain
indeed create a substantial risk of serious harm, that
harm would not yet have occurred to at least some
mentally ill prisoners.
62

that same harm, occurring in a discrete past instance,
might not be.
One additional point bears mention.

Defendants’

repeatedly insist that what plaintiffs are presenting
to the court in this case is a mere disagreement with
their health care providers about the care appropriate
in their cases.

See Hamm v. DeKalb Cty., 774 F.2d

1567, 1575 (11th Cir. 1985) (“Th[e] evidence shows that
[the

plaintiffs]

received

significant

medical

care

while at the jail.

Although [he] may have desired

different

treatment,

modes

of

the

care

the

jail

provided did not amount to deliberate indifference.”).
Defendants

are

quite

right

that

a

prisoner’s

mere

preference for a different treatment over the one that
was

provided

is

insufficient

Amendment violation.30

to

establish

an

Eighth

But the Eleventh Circuit has

30. Many of the cases defendants cite for this
proposition
involve
pro
se
prisoners
who
raise
unsubstantiated disagreements with the care their
providers have deemed appropriate.
This case is
different
both
because
the
disagreements
are
(continued...)
63

made

clear

that

the

mere

fact

that

a

health

care

provider provided some treatment is not sufficient to
establish

that

treatment.

it

Even

in

was

constitutionally

Eighth

Amendment

adequate

cases,

“the

quality of a doctor’s treatment is evaluated according
to professional standards.”

Waldrop v. Evans, 871 F.2d

1030, 1035 (11th Cir. 1989). In Waldrop, the Eleventh
Circuit

agreed

with

the

district

court

that

there

existed a dispute of material fact as to whether a
psychiatrist’s

treatment

of

the

plaintiff’s

serious

psychiatric needs was constitutionally adequate despite
the

fact

that

“all

actions

taken

by

[the

treating

psychiatrist] are undisputed,” because the plaintiff’s
“treatment must be evaluated according to professional
standards.”

Id.

The circuit has clearly held that

“conflicting expert opinion concerning the extent to

substantiated by expert evidence and because they do
not reflect one-off treatment decisions, but rather
policies or practices that repeatedly affect the care
provided to mentally ill prisoners.
64

which

[psychiatric

care]

may

have

departed

from

professional standards” can warrant denial of summary
judgment

on

an

Eighth

Amendment

claim.

Greason

v.

Kemp, 891 F.2d 829, 835 (11th Cir. 1990).31
The court now turns its attention to the subjective
prong of the deliberate indifference standard.32

In

order to prove that a condition of confinement violates
31. Although it is unclear whether in Greason and
Waldrop, which were decided before Farmer, the court
appropriately evaluated evidence regarding subjective
deliberate indifference, see Campbell v. Sikes, 169
F.3d 1353, 1365 n.9 & n.10 (11th Cir. 1999), it is
clear that, as relevant here, these cases properly
endorsed the relevance of expert testimony applying
professional standard to the objective prong of an
Eighth Amendment claim, see, e.g., Campbell, 169 F.3d
at 1369 (“[I]n Greason this Court relied on expert
testimony only in addressing the objective prong of
deliberate indifference.”).
32. This prong actually contains both a subjective
knowledge element and an objective response element-that is, a prison official who is subjectively aware of
a substantial risk of serious harm is liable if he
“disregards the risk by failing to take [objectively]
reasonable measures to abate it.” Farmer, 511 U.S. at
847. Here, although defendants argue that they did not
know of and did not create the risk of harm plaintiffs
challenge, they have not argued that they have taken
objectively
reasonable
(indeed,
any)
measures
to
address it.
65

the Eighth Amendment’s prohibition on cruel and unusual
punishment by creating an objectively “substantial risk
of

serious

harm,”

a

prisoner

must

show

subjective

“deliberate indifference” on the part of the defendant:
that is, “(1) subjective knowledge of a risk of serious
harm; (2) disregard of that risk; (3) by conduct that
is more than gross negligence.”

Thomas, 614 F.3d at

1312; see also Kelley, 400 F.3d at 1284 (explaining the
distinction

between

the

objective

and

subjective

prongs).
In general, “[w]hether a prison official had the
requisite knowledge of a substantial risk is a question
of fact subject to demonstration in the usual ways,
including inference from circumstantial evidence, and a
factfinder may conclude that a prison official knew of
a substantial risk from the very fact that the risk was
obvious.

For example, if an Eighth Amendment plaintiff

presents evidence showing that a substantial risk ...
was

longstanding,

pervasive,

well-documented,

or

expressly noted by prison officials in the past, and
66

the circumstances suggest that the defendant-official
being sued had been exposed to information concerning
the risk and thus must have known about it, then such
evidence could be sufficient to permit a trier of fact
to

find

that

the

defendant-official

knowledge of the risk.”

had

actual

Farmer, 511 U.S. at 842-43

(citations and internal quotation marks omitted).
Subjective

deliberate

indifference

by

prison

officials to prisoners’ medical and mental health can
be

manifested--and

proven--in

different

ways.

As

explained in Rouse v. Plantier, 182 F.3d 192, 197 (3d
Cir. 1999), courts have found deliberate indifference
when a prison official “(1) knows of a prisoner’s need
for

medical

provide
based

on

treatment

but

intentionally

it;

(2) delays

necessary

a

non-medical

reason;33

medical
or

refuses

to

treatment

(3) prevents

a

33. “An inmate who complains that delay in medical
treatment rose to a constitutional violation must place
verifying medical evidence in the record to establish
the detrimental effect of delay in medical treatment to
succeed.”
Hill v. Dekalb Reg’l Youth Det. Ctr., 40
(continued...)
67

prisoner from receiving needed or recommended medical
treatment.”

Courts

indifference

when

a

have
prison

also

found

official

deliberate

“persists

in

a

particular course of treatment in the face of resultant
pain and risk of permanent injury.”

Id. (citation and

internal quotation marks omitted).
Although

the

merely

because

health

care,

recognized

Eighth

a

prisoner

the

that

Amendment

Eleventh

even

when

is

receives
Circuit
some

not

less
has

care

is

violated

than

ideal

repeatedly
provided,

F.3d 1176, 1188 (11th Cir. 1994), overruled in part on
other grounds by Hope v. Pelzer, 536 U.S. 730, 739 n.9
(2002).
Notably, however, the detrimental effect need
not be anything other than the “unnecessary and wanton
infliction of pain,” even for a period of a few hours.
Brown v. Hughes, 894 F.3d 1533, 1537-38 (11th Cir.
1990) (quoting Estelle, 429 U.S. at 104); see also
Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003)
(explaining that Hill’s statement that a delay in
treatment is actionable only when it “involve[s]
life-threatening conditions or situations where it is
apparent that delay would detrimentally exacerbate the
medical problem,” or “the delay results in an inmate’s
suffering a life-long handicap or permanent loss,”
applies only to cases in which plaintiffs assert that
their medical needs “required immediate or emergency
attention”).
68

“deliberate

indifference

may

be

established

by

a

showing of grossly inadequate care as well as by a
decision to take an easier but less efficacious course
of treatment.”

McElligott v. Foley, 182 F.3d 1248,

1255 (11th Cir. 1999) (citing Steele v. Shah, 87 F.3d
1266, 1269-70 (11th Cir. 1996), and Waldrop, 871 F.2d
at 1035); see also Rogers, 792 F.2d at 1058 (citing
Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974),
and Gittlemacker v. Prasse, 428 F.2d 1, 6 (3d Cir.
1970)).
What ties these forms of deliberate indifference
together is, of course, deliberateness.

On the one

hand, the deprivation of care that in retrospect was
necessary to avert harm--either pain, the worsening of
a condition, or death--is not actionable merely because
the

defendant

was

negligent

(even

failing to recognize its necessity.

seriously

so)

in

(This is because

we cannot infer knowledge on the part of the defendant
when

the

care

inadequate,”

not

is

merely

because

subpar
any

69

care

but

not

better

“grossly
than

the

grossly

inadequate

always

passes

constitutional

muster.)

On the other hand, the Eighth Amendment does

forbid the very same denial of or delay of care once
the

defendant--a

becomes

aware

physician,

that

that

officer,

care

or

should

official--

be

provided.

Delaying or denying provision of health care that a
defendant

knows

reason,”

or

to

be

necessary

rendering

health

for
care

a

“non-medical

that

is

less

effective because it is “easier,” is unconstitutional
because

it

reflects

not

a

medical

mistake

but

an

intentional deprivation.34
This

discussion

reveals

a

critical

point,

overlooked by defendants in their protestations that
plaintiffs

cannot

show

Eighth

Amendment

violations

34. The specific reason for denying necessary care
is not particularly important, as long as it does not
reflect an exercise of medical judgment. “[T]he policy
of deferring to the judgment of prison officials in
matters of prison discipline and security does not
usually apply in the context of medical care to the
same degree as in other contexts.” Harris, 941 F.2d at
1505 n.19 (quoting Wellman v. Faulkner, 715 F.2d 269,
272 (7th Cir. 1983).
70

because

they

all

received

some

mental-health

care:

Although health care that is just slightly better than
“grossly inadequate” does not violate the Constitution
when the defendant does not realize it is so subpar,
substantially smaller shortcomings in health care are
actionably unlawful when the decision-maker understands
that a particular standard of care will cause serious
harm

to

prisoners

nonetheless,

but

because

decides

it

go

ahead

easier

is

to

with

or

cheaper.

it
See

Ancata v. Prison Health Servs., Inc., 769 F.2d 700,
703-04

(11th

Cir.

1985)

(holding

that

a

plaintiff’s

“allegation that the defendants failed to provide even
that

level

believed

of

diagnostic

necessary”

care

clearly

that

they

stated

a

themselves
claim

for

deliberate indifference, without making a finding that
the

denial

itself,
that

of

reflect

this

level

of

deliberate

“[i]ntentional

would,

indifference,

failure

71

care

to

in
and

provide

and

of

stating
service

acknowledged

to

be

necessary

is

the

deliberate

indifference proscribed by the Constitution”).35
What is striking in this case is the extent to
which the mental-health practitioners involved appear
to recognize what plaintiffs’ experts have opined: the
care being provided mentally ill prisoners in Alabama
is lacking in certain ways.

Defendants argue at some

length that plaintiffs’ experts have not convincingly
demonstrated that this care is so grossly inadequate
that

its

sheer

indifference,
prison

but

inadequacy
this

mental-health

communicate

that

they

is

demonstrates
beside

the

point.

administrators
need

more

deliberate

staff

When

know
to

and

provide

35. As a purely hypothetical illustrative example:
a court might find that a doctor’s wholesale failure to
diagnose a rare, fatal disease--resulting in death--did
not reflect deliberate indifference, but in another
case, that once the doctor had diagnosed the disease,
the decision to prescribe one medication which she knew
would treat the disease but cause the prisoner to
become deaf, rather than another more expensive
medication that she knew did not have that serious side
effect, did evince deliberate indifference.
72

appropriate care for prisoners, and the Commissioner
refuses to provide funding for this staff, not in any
exercise of medical judgment but because he does not
have the money, this suffices to establish deliberate
indifference and--in conjunction with a showing that
this

creates

a

substantial

risk

of

serious

harm--to

establish an Eighth Amendment violation.
Defendants have honed in on, and cited numerous
times in their briefs, the line in Waldrop, repeated in
other cases, that “when a prison inmate has received
medical

care,

courts

Amendment violation.”

hesitate

to

find

871 F.2d at 1035.36

an

Eighth

First of

36. Defendants cite a number of cases reciting
different versions of this point. See Bauer v. Kramer,
424 F. App’x 917, 919 (11th Cir. 2011) (“A doctor’s
decision about the type of medicine that should be
prescribed is generally ‘a medical judgment’ that is
‘an inappropriate basis for imposing liability under
section 1983.’ Adams v. Poag, 61 F.3d 1537, 1547 (11th
Cir. 1995).”); Freeman v. Lebedovych, 186 F. App’x 943,
944 (11th Cir. 2006) (“When a mentally ill prisoner
receives medical treatment that is arguably aimed at
stabilizing his condition, we will generally refuse to
engage in subsequent review of medical decisions.”).
73

all, some of the policies and practices challenged here
were not decided upon by medical staff (as defendants
remind

the

Commissioner

court,
are

the

not

Commissioner

doctors),

and

and
do

Associate

not

concern

treatment decisions; these include staffing decisions,
and policies regarding placement in segregation.
addition,

even

with

practices

that

do

respect

concern

to

the

policies

mental-health

In
and

treatment,

defendants have ignored the admonition that immediately
follows in Waldrop: “Hesitation does not mean, however,
that the course of a physician’s treatment of a prison
inmate’s

medical

or

psychiatric

problems

can

never

manifest the physician’s deliberate indifference to the
inmate’s medical needs.”
in

“reaffirm[ing]”

Id.
its

As the court explained
previous

case

law,

deliberateness can either be inferred, from the fact
that

the

medical

care

rendered

is

“grossly

incompetent,” or else demonstrated in the form of a
“choice” to provide care known to be less effective-and therefore to subject the prisoner to a substantial
74

risk of serious harm--because it is easier or cheaper.
Id.; see also Freeman v. Lebedovych, 186 F. App’x 943,
944

(11th

Cir.

2006)

(“Inadequate

psychiatric

care

constitutes deliberate indifference if the quality of
psychiatric care received is a substantial deviation
from accepted professional standards.”).
Another
Defendants

point
have

warrants

made

a

some

great

focused

fuss

over

attention.
plaintiffs’

assertions that they are bringing a “systemic,” rather
than individual, Eighth Amendment challenge, as if this
form

of

claim

jurisprudence

was
of

not
this

well-established

in

circuit--indeed,

the
so

well-established that it is generally denoted with the
term defendants so scorn.37

37. This ground is so well-trod that a number of
district courts have set out a six-part framework for
assessing the baseline constitutional adequacy of a
prison mental-health care system.
See Coleman v.
Wilson, 912 F. Supp. 1282, 1298 (E.D. Cal. 1995)
(Karlton, J.) (“[T]he courts have focused on the
presence or absence of six basic, essentially common
sense, components of a minimally adequate prison mental
health care delivery system.”).
This framework, first
(continued...)
75

formulated by Judge Justice, requires that (1) “there
must be a systematic program from screening and
evaluating inmates in order to identify those who
require mental health treatment”; (2) “treatment must
entail more than segregation and close supervision of
the inmate patients”; (3) “treatment requires the
participation of trained mental health professionals,
who must be employed in sufficient numbers to identify
and treat in an individualized manner those treatable
inmates suffering from serious mental disorders”; (4)
“accurate, complete, and confidential records of the
mental health treatment process must be maintained”;
(5)
“prescription
and
administration
of
behavior-altering medications in dangerous amounts, by
dangerous methods, or without appropriate supervision
and periodic evaluation, is an unacceptable method of
treatment”;
and
(6)
“a
basic
program
for
the
identification, treatment and supervision of inmates
with suicidal tendencies is a necessary component of
any mental health treatment program.”
Balla v. Idaho
State Bd. of Corr., 595 F. Supp. 1558, 1577 (D. Idaho
1984) (Ryan, J.) (quoting Ruiz v. Estelle, 503 F. Supp.
1265, 1339 (S.D. Tex. 1980) (Justice, J.); other
citations omitted).
Because this framework was first
articulated
over
35
years
ago,
and
because
mental-health care has evolved dramatically since that
time, the court considers it to be instructive but not
determinative as to the floor below which mental-health
care
would
be
grossly
inadequate
and
therefore
unconstitutional.
See Plata, 563 U.S. at 506 n.3
(discussing plaintiffs’ entitlement to relief based on
the showing that “the delivery of care in the prisons
[had] fall[en] below the evolving standards of decency
that mark the progress of a maturing society” (citing
Farmer, 511 U.S. at 834)).
The proposition that the
constitutional minimum with respect to health care has
increased
over
time
should
be
an
entirely
(continued...)
76

“In institutional level challenges to prison health
care

such

provide

as

the

this
basis

indifference.

one,

systemic

for

a

deficiencies

finding

can

of

deliberate

Rogers, 792 F.2d at 1058.

Deliberate

indifference to inmates’ health needs may be shown, for
example, by proving that there are ‘such systemic and
gross deficiencies in staffing, facilities, equipment,
or procedures that the inmate population is effectively
denied

access

Lamm,

639

to

F.2d

adequate
559,

575

medical
(10th

care.’
Cir.

Ramos
1980).

v.
...

[A]lthough incidents of malpractice standing alone will
not support a claim of eighth amendment violation, ‘[a]
series

of

incidents

closely

related

in

time

may

uncontroversial one; courts find Eighth Amendment
violations based on the denial of sorts of care that
did not exist decades earlier.
See, e.g., Petties v.
Carter, 836 F.3d 722, (7th Cir. 2016) (en banc)
(reversing a grant of summary judgment on and remanding
for trial an Eighth Amendment medical care claim, based
in part on the court’s finding that harm to the
plaintiff, who had torn a tendon, would have been
avoided by “sending [him] to the emergency room so he
could get an MRI,” a diagnostic procedure that did not
(continued...)
77

disclose a pattern of conduct amounting to deliberate
indifference.’
Bishop

v.

Rogers,

Stoneman,

792

508

F.2d

F.2d

at

1224

1058-59
(2d

(citing

Cir.1974)).

‘Repeated examples of delayed or denied medical care
may

indicate

a

deliberate

indifference

by

authorities to the suffering that results.’

prison
Id. at

1059 (citing Todaro v. Ward, 565 F.2d 48, 52 (2d Cir.
1977)); see also Ramos, 639 F.2d at 575 (‘In class
actions challenging the entire system of health care,
deliberate indifference to inmates’ health needs may be
shown by proving repeated examples of negligent acts
which

disclose

a

medical staff.’).”

pattern

of

conduct

by

the

prison

Harris, 941 F.2d at 1505; see also

Inmates of Occoquan v. Barry, 717 F. Supp. 854, 867
(D.D.C.

1989)

(Green,

J.)

(“The

evidence

points

to

systemic failure throughout the entire medical services

exist until the late 1970s and did
regular use until much more recently).
78

not

come

into

that show deliberate indifference to the medical needs
of the inmates of Occoquan.”).38
Notably,

this

means

that,

although

one-off

negligent treatment is not actionable, its repetition
can render it so; put differently, care that causes
serious

harm

but

is

not

grossly

inadequate

can

be

challenged when it recurs, because frequent negligence,
just

like

a

single

instance

of

truly

egregious

recklessness, may allow the court to infer subjective
deliberate indifference.
Moreover, deliberate indifference can, of course,
be

demonstrated

evidence

that

an

straightforwardly,
administrator

was

through
aware

of

direct
serious

38. In Wilson v. Seiter, 501 U.S. 294, 299-302
(1991), the Supreme Court considered and rejected the
petitioner’s
argument
that
the
requirement
of
subjective deliberate indifference should not apply to
systemic, as opposed to one-time, conditions.
In so
doing, it explained that “[t]he long duration of a
cruel prison condition may make it easier to establish
knowledge and hence some form of intent, cf. Canton v.
Harris, 489 U.S. 378, 390, n.10 (1989); but there is no
logical reason why it should cause the requirement of
intent to evaporate.” Wilson, 501 U.S. at 300-01.
79

systemic deficiencies and failed to correct them.
Greason,

891

affirmed

a

filed

by

director

F.2d

denial
the

of

at
of

839-40,
a

Georgia

motion

the

Eleventh

Circuit

for

summary

judgment

Department

mental-health,

In

because

of
he

Corrections’
was

“aware

of

many conditions at the GDCC that could lead to grossly
inadequate mental health care,” such as that prisoners
did

not

receive

enough

recreation

time,

that

mental-health treatment plans were not employed, that
there were no policies or procedures to enable officers
to prevent suicides, and that there was a “severe lack
of staff members and [a] need for a mental health care
unit.”

“In light of all the major problems ... of

which [the director] was aware but which he apparently
did

not

attempt

difficulty”

in

to

holding

remedy,”
that

a

the

court

reasonable

had

“no

factfinder

could find that he acted with deliberate indifference.39
Id. at 839.

39. Unlike
(continued...)

in

the

present
80

case,

the

court

in

This

is

an

official-capacity

suit--“only

another

way of pleading an action against an entity of which an
officer

is

an

agent”

office.”

LaMarca,

internal

quotation

question

is

who

against

F.2d

marks
not

official-capacity
servant[s]

995

or

at

1542

trying

very

and

Therefore,

whether
are

“official’s

(citations

omitted).

defendants

[are]

the

the

the

particular

“dedicated
hard

to

public

make

[the

prisons they run] efficient and effective correctional
institution[s]”--often,

administrators

do

struggle

valiantly to reform the prisons they run--but rather
“the institution’s historical indifference.”

LaMarca,

995

omitted)

F.2d

at

(explaining

1542
that

(internal

quotation

substitution

of

a

marks
newly

appointed

superintendent as the official named in the suit had no

Greason was considering the director’s deliberate
indifference in the context of supervisory liability,
as opposed to the underlying constitutional violation.
See 891 F.2d at 836-37, 839 (finding a disputed issue
as to whether the director, “in failing adequately to
train and supervise subordinates ... was deliberately
indifferent to an inmate’s mental health care needs”).
81

effect on the deliberate indifference analysis); see
also Laube v. Haley, 234 F. Supp. 2d 1227, 1249 (M.D.
Ala. 2002) (Thompson, J.) (explaining that “the real
parties in interest are the responsible entities: the
Department of Corrections and, ultimately, the State of
Alabama.

Hence,

the

court’s

analysis

of

deliberate

indifference is properly focused on the reasonableness
of the State of Alabama’s responses as limited by the
State’s powers”).
One final point, which often arises in systemic
cases and is squarely presented here, bears mention.
It is clear that at least in official-capacity suits
like this one, lack of funds is not a justification for
substandard treatment.

See Laube, 234 F. Supp. 2d at

1248 (“When prison officials are sued solely in their
official

capacities,

them

not

is

constitutional

an

the

adequate

violation

lack

of

defense
on

their

funds
to

a

available
finding

part.”);

see

of

to
a

also

Harris, 941 F.2d at 1509 (“[W]e are troubled by and
reject any suggestion ... that a state’s comparative
82

wealth

might

affect

constitutionally

a[]

...

adequate

prisoner’s

medical

care.

right
We

do

to
not

agree that financial considerations must be considered
in determining the reasonableness of inmates’ medical
care....

We are aware that systemic deficiencies in

medical

care

may

be

related

to

a

lack

of

allocated to prisons by the state legislature.
lack,

however,

correctional
level

of

will

systems

medical

not
to

excuse

maintain

service

the
a

Such a

failure

certain

necessary

funds

to

of

minimum

avoid

the

imposition of cruel and unusual punishment.”) (citation
and internal quotation marks omitted)).
Indeed, inadequate funding can be a basis for a
finding of deliberate indifference, to the extent that
it

is

the

non-medical

reason

administrator’s

interference

providers

deemed

have

for

with

necessary.

a

the

correctional
care

medical

the

Seventh

As

Circuit put it in reversing a finding that no Eighth
Amendment violation had occurred when “a psychiatric
position

was

authorized

for
83

the

prison

and

prison

officials had been trying for two years to fill it[,]
... this circumstance may weigh more heavily against
the state than for it, since the position has remained
vacant for two years and the authorized salary is, in
the

district

court’s

words,

‘woefully

inadequate.’”

Wellman v. Faulkner, 715 F.2d 269, 272-73 (7th Cir.
1983).
point

The
when

complaint

Eleventh
it

Circuit

quoted

alleging

with

that

likewise

approval

“limited

a

funds

endorsed
line
...

this

from
may

a

have

contributed to deliberate indifference shown for the
serious medical needs” of the plaintiff.

Ancata, 769

F.2d at 705.
Having
the

addressed

relevant

case

defendants’

law,

the

court

arguments
will

now

regarding
turn

to

assessing whether plaintiffs have created a dispute of
material fact as to the multiple necessary elements of
their claims.

84

2.
As

a

predicate

Serious Need
to

raising

an

Eighth

Amendment

mental-health claim, a plaintiff must have a serious
mental-health care need.

A serious need is “one that

has

a

been

diagnosed

by

physician

as

mandating

treatment or one that is so obvious that even a lay
person

would

easily

recognize

the

necessity

for

a

doctor’s attention.”

Jacoby v. Baldwin Cty., 596 F.

App’x

Cir.

757,

Defendants

763

(11th

contend

that

2014)
three

(citation
of

the

omitted).
Phase

2A

plaintiffs, Hardy, Johnson, and Pruitt, have no current
serious mental-health care need, as required to state
an Eighth Amendment mental-health claim.40

40. In defendants’ motion for summary judgment,
they
contended
that
“[t]hree
(3)
of
the
Named
Plaintiffs suffer from no ‘serious mental health
need.’”
Defs.’ Summ. J. Br. (doc. no. 769) at 74.
They then went on to make other arguments about “[t]he
remaining
Named
Plaintiffs.”
Plaintiffs
then
proceeded, most reasonably, to discuss in their
opposition brief the evidence in the record that they
contend
demonstrates
that
these
three
particular
plaintiffs have serious mental-health needs, while also
reasserting their (unchallenged) position that the
(continued...)
85

As

to

Hardy,

the

court

agrees

with

defendants.

Although defendants’ expert, Dr. Patterson, recognized
that

Hardy

stress

has

disorder,

personality

dysthymic
and

disorders,

disorder,

antisocial
he

also

post-traumatic
and

concluded

borderline
that

these

conditions “do not appear to affect him in such manner
that

he

requires

mental

health

care

currently.”

Patterson Report (doc. no. 679-9) at 33.

Hardy was

removed

in

from

the

mental-health

caseload

2010,

remainder of the Phase 2A named plaintiffs also have
such needs.
Inexplicably, defendants, in their reply, pretend
as if they disputed whether plaintiffs other than these
three have serious mental-health needs, stating as
follows: “With the exception of three (3) individuals,
Named Plaintiffs do not attempt to prove they suffered
from the serious mental health need required to state
an Eighth Amendment claim.
They merely allege in
conclusory fashion that they do indeed have a serious
mental health need.”
Defs.’ Summ. J. Reply (doc. no.
876) at 96.
This misrepresentation is troubling.
In
any event, the court concludes, based on its review of
the record, that plaintiffs have offered more than
sufficient evidence to create a genuine dispute as to
whether
the
remaining
plaintiffs
have
serious
mental-health needs.
86

apparently reflecting the conclusion of mental-health
staff that he did not need treatment.

There is no

record evidence to the contrary.41
As for Johnson: although defendants contend that he
has never been diagnosed with a serious mental illness,
there is no dispute that he suffered a traumatic brain
injury as a child, that he was identified by staff at
ADOC’s

mental

hospital

(prior

to

his

conviction)

as

suffering from depression with possible psychosis and
potentially

incompetent

to

stand

trial,

and

that

in

2015, MHM’s Medical Director and Chief Psychiatrist,
Dr. Hunter, diagnosed him with adjustment disorder with
anxiety and possible psychosis, after recognizing that
he

had

“been

“paranoia

and

in

crisis

possible

for

over

delusions.”

a

week”
Johnson

and

had

Medical

Records, P Ex. 62 (doc. no. 844-12) at 15, MR047700.
He also testified in his deposition and has told other

41. Although plaintiffs point out that Hardy has in
the past engaged in or threatened self-harm, there is
(continued...)
87

prisoners that he suffers from auditory hallucinations.
Defendants contend that Johnson’s ability to express
his need for care orally and in writing demonstrates
that he is not seriously cognitively impaired.

Whether

or not their evidence shows this (plaintiffs point to
evidence

that

Johnson

relies

on

his

uncle

or

other

prisoners to fill out forms), his ability to articulate
his

requests

mentally

would

ill.

not

This

demonstrate
evidence

is,

that
at

he

was

not

a

minimum,

sufficient to create a dispute of material fact both as
to whether Johnson has been diagnosed (by Dr. Hunter)
as

in

need

of

mental-health

treatment,

and

as

to

whether it is obvious that he has a current, serious
mental-health need.
Pruitt was previously diagnosed with schizophrenia,
depression,

and

antisocial

personality

disorder.

However, mental-health staff have concluded that these
conditions are in remission since 2010, and removed him

no evidence that he has done so at any time in the past
(continued...)
88

from

the

mental-health

caseload.

Defendants

offer

evidence to show that he has been evaluated numerous
times since then--based on his repeated requests for
treatment--and
consistently
treatment.

that
concluded

mental-health

staff

that

not

he

does

have
require

However, there is evidence in the record

sufficient to create a dispute of material fact as to
whether it would be obvious to a lay person that Pruitt
does require treatment, given his recent and serious
attempts to harm himself: he was admitted to a crisis
or suicide cell five times in the first half of 2014.
In one case, he was readmitted within a few days after
cutting himself again; in another case, it took over a
week to stabilize him.
3.
Because

Substantial Risk of Serious Harm
defendants

have

taken

the

tack

of

responding to plaintiffs’ claims as if they were about
past violations, their response to the evidence that
four years.
89

plaintiffs have presented of a risk of harm has been
conclusory (and largely constituted an attack on the
methodology employed, rather than the findings offered,
by plaintiffs’ expert, Dr. Burns).

However, the court

will

here

discuss

plaintiffs’

evidence

in

order

to

explain why it does create a dispute of material fact
as

to

create

whether
an

the

policies

actionable

risk

and

of

practices

harm.42

at

Because

issue
only

42. Almost all of the policies and practices at
issue in this case directly impact the provision of
mental-health care.
One does not, however: Although
the court certainly appreciates plaintiffs’ contention
that an inadequate quality assurance system has
contributed to the inadequate care they describe, the
court is concerned that this issue might be too
attenuated
to
constitute,
in
itself,
an
Eighth
Amendment violation.
While adequate funding and
staffing
are
categorically
necessary
to
provide
adequate health care, the court would like to hear
further argument (and evidence from experts in the
field) as to whether an adequate quality assurance
program falls into the same category. Because evidence
regarding MHM and ADOC’s quality assurance programs
will clearly be relevant to establishing deliberate
indifference
with
respect
to
other
portions
of
plaintiffs’ claim--plaintiffs offer this evidence to
show both awareness of and disregard for deficiencies-the court will hear it and resolve at or after trial
whether an inadequate quality assurance program can
(continued...)
90

defendants have moved for summary judgment, the court
will

focus

its

attention

on

plaintiffs’

evidence.

However, the court has carefully considered defendants’
expert evidence as well; as noted below, defendants’
primary mental-health expert, Dr. Patterson, agrees in
many important respects with plaintiffs’ experts.
Dr. Kathryn Burns, a licensed medical doctor with a
certification in general psychiatry, has for several
years served as the Chief Psychiatrist for the Ohio
Department of Rehabilitation and Correction.

She is

also a Distinguished Fellow of the American Psychiatric
Association,

and

has

conducted

assessments

of

the

mental-health care provided by prison systems in six
different States.
opinions
custodial

as

to

Dr. Burns’s expert report offers her
the

staffing,

adequacy
assessment

of

mental-health

and

classification

and
of

mental illness, mental-health treatment, and oversight
of mental-health care.

itself be an
(continued...)

actionable

violation
91

of

the

Eighth

Dr. Craig Haney, who has a Ph. D. in psychology, is
the

Distinguished

Professor

of

Psychology

at

the

University of California, Santa Cruz, and has published
scholarly

articles

psychological

and

effects

presented
of

lectures

the

He

incarceration.

on

has

inspected and testified about numerous state prisons
and similar institutions.

Dr. Haney’s expert report

addresses the effects of overcrowding and understaffing
on prisoners with mental-health needs, the effects of
segregation on mentally ill prisoners, and the adequacy
of mental-health treatment.
Eldon
years;

he

Vail
has

has

worked

served

in

as

prisons

warden

of

for

nearly

three

35

different

prisons, the Deputy Secretary of the Washington State
Department

of

Corrections

for

seven

years;

and

its

Secretary for four years.

Vail has been an expert

witness

numerous

and

consultant

correctional facilities.

in

cases

involving

Vail’s expert report covers

Amendment.
92

the impact of overcrowding and custodial understaffing
on prisoners’ need for health care and on defendants’
ability

to

provide

it,

as

well

as

the

impact

of

segregation on prisoners’ mental health.
Because

these

reports

are

lengthy

and

because

defendants do not seriously engage with the substance
of them in their motion for summary judgment, the court
will

not

discuss

deficiencies

they

comprehensively

identify;

instead,

offer an illustrative summary.
plaintiffs’
will

primary

focus

although,

as

more

it

of

will

the
simply

Because Dr. Burns is

mental-health

expert,

significantly

discussed

all

below,

on

her

many

of

the

court

opinions,
them

were

corroborated by Dr. Haney’s independent assessment.

a.

Inadequate Staff

Dr. Burns explains in her report that ADOC entered
into a settlement agreement in Bradley v. Harrelson, in
2001, in which it agreed to provide certain specified
levels

of

mental-health

staff
93

for

the

male

prisoner

population. See Order Approving Settlement Agreement,
Bradley v. Harrelson, No. 2:92-cv-70 (M.D. Ala. June
27, 2001) (Albritton, J.), ECF No. 412.43
explains

that

despite

a

significant

She further

increase

in

the

prisoner population, it has subsequently entered into
contracts

to

provide

significantly

fewer

highly

qualified staff (psychiatrists and psychologists), and
more practitioners with lower levels of qualification
(clinical

registered

nurse

practitioners

(CRNPs),

licensed practical nurses (LPNs), and “mental health
professionals,” such as social workers with master’s
degrees and counselors, some of whom are unlicensed and
uncertified

(MHPs)).

This

trend

has

continued

over

time: in 2000, there were eight psychiatrists for about

43. The
provision
of
mental-health
care
to
Alabama’s prisoners has been litigated at least twice
before. See Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala.
1976) (Johnson, J.), aff’d and remanded sub nom. Newman
v. Alabama, 559 F.2d 283 (5th Cir. 1977), cert. granted
in part, judgment rev’d in part, and remanded sub nom.
Alabama v. Pugh, 438 U.S. 781 (1978); Bradley v.
Harrelson, 151 F.R.D. 422 (M.D. Ala. 1993) (Albritton,
J.) (certifying a class).
94

20,600 prisoners (men only), but by earlier this year,
there were about five full-time equivalents; over the
same period, the number of MHPs increased by about 50%,
and the number of CRNPs more than doubled, from three
to

just

over

seven

full-time

equivalents.

MHM’s

Program Manager, Houser, agreed in her deposition that,
even

were

all

vacancies

filled,

many

of

defendants’

facilities would not have “enough” mental-health staff.
Dr. Burns relies on MHM’s internal documents to
demonstrate
clinical

that,

although

registered

supervised

by

Alabama

nurse

law

practitioners

psychiatrists,

they

are

requires
to

be

practicing

partially or in many cases entirely without supervision
at many facilities.
supervising

CRNPs

Dr. Burns draws on her experience
in

her

own

practice

and

her

experience evaluating prison mental-health care around
the country to explain that allowing CRNPs to practice
without
prisoners

supervision
will

increases
be

the

misdiagnosed

likelihood
and

that

receive

inappropriate pharmaceutical and therapeutic treatment.
95

She

offers

inspections
mental
them

examples
of

CRNPs’

illness

in

dismissing

hallucinations
treatment.

she

failure

prisoners,

serious
and

Dr.

recognized
to

diagnose

including

symptoms

self-harm)

Burns

during

treat

instances

(including
and

reaches

or

her

auditory

requests

similar

of

for

conclusions

regarding the reliance on unlicensed MHPs.

b.
Dr.

Burns

Inadequate Assessment

explains

that

prisoners

can

access

mental-health care in one of three ways--identification
at

reception,

self-referral,

and

staff

referral--and

opines that each of these mechanisms is deficient in
ways

that

subject

prisoners

to

harm.

Reception

screening is conducted by licensed practical nurses,
who

take

histories

and

determine

whom

to

psychiatrists for comprehensive evaluations.

refer

to

But Dr.

Burns explains that LPNs are not qualified to make this
preliminary

assessment,

practitioners--who

are

and

that

reliance

unsupervised
96

by

on

these

registered

nurses

(again,

contrary

to

Alabama

law)--to

conduct

reception screening results in the failure to recognize
and diagnose mental illness.

She opines (and it seems

fairly self-evident) that this failure to diagnose in
turn results in denial of treatment to prisoners who
then go on to suffer, including through self-harm.

Dr.

Burns cites examples of prisoners whose mental illness
was not recognized at reception, leading to denial of
treatment except for placement in a crisis cell after
cutting or attempting to hang themselves.
Dr. Burns also opines that under-identification is
reflected in the fact that “MHM consistently reports
lower

prevalence

prisons

than

rates

prevalence
prison

of

mental
rates

systems

illness

reported

throughout

in

ADOC

in
the

other

prisoners

and

United

States.”44

Burns Report (doc. no. 868-2) at 24-26.

Dr.

44. She
also
opines
that
another
problem
contributes to this low figure: MHM’s active efforts,
documented in institutional and state-wide meeting
notes, to remove prisoners from the caseload, to ensure
that it remains at a “working number.”
Burns Report
(continued...)
97

Haney

relies

statistics

in

on

different

his

report

but
to

similar

conclude

comparator
that

ADOC’s

identification of prisoners who belong on the mentalhealth caseload “almost certainly” represents a “gross
underestimate” of the number of mentally ill prisoners
in their custody.
161.

Haney Report (doc. no. 868-4) at

Dr. Burns identifies prisoners who had not been

placed on the mental-health caseload, initially or at
all, despite their histories of mental-health problems,
and received mental-health care only when in crisis.
Dr.

Burns

classification

also
system,

reviewed
and

finds

the
that

mental-health
it

actually

categorizes prisoners by their housing needs, rather
than based on whether or not they suffer from serious
mental illness, and she identified prisoners who had

(doc. no. 868-2) at 31 (citation omitted).
She again
points to a prisoner who typified this problem, who,
“despite being on a heavy load of psychotropic
medication and being transferred to the highest level
of mental health care offered in ADOC on two separate
occasions, ... was removed from the mental health
caseload at one point.” Id.
98

been

denied

suffering

of

from

more

intensive

symptoms

that

would

treatment

despite

necessitate

such

treatment, because they had received the lowest level
of mental-health classification (MH-1).
As for self-referrals, Dr. Burns reports finding
many instances in which MHM was unresponsive to written
requests for care, and documented a number of instances
in which prisoners engaged in self-harm and destructive
behavior in order to get attention from mental-health
providers.
behaviors

(She
often

notes

result

that
in

“[i]ronically,

disciplinary

these

action

and

placement in segregation where mental health treatment
is even more difficult to access.”
no. 868-2) at 29.)

Burns Report (doc.

She also notes that MHM audits of

responses to self-referrals reveal that they are often
untimely

(or

the

timeliness

documented).

99

of

responses

is

not

c.
Dr.
mental

Burns

explains

illness

outpatient

Inadequate Treatment

require

treatment

that
a

prisoners

continuum

to

of

residential

with

serious

services

from

treatment

to

inpatient treatment, and a range of forms of treatment,
including
group

medication

therapy.

provided

by

psychiatric

She

management
notes

transferring
hospital,

but

that
a

and

individual

inpatient

prisoner

notes

that

and

care

to

a

MHM’s

is

state
Medical

Director and Chief Psychiatrist, Dr. Hunter, testified
in his deposition that inpatient care is rarely sought
except as a prisoner approaches release.

Dr. Burns

opines that she “found many inmates on [her] tours that
clearly required a higher level of care than could be
provided in ADOC facilities.”
to

specific

examples

of

Id. at 32.
prisoners

who

She points
required

inpatient treatment, including at least one prisoner
who MHM providers recognized to require it.

100

As for intermediate, residential care for men,45 Dr.
Burns notes that prisoners who are not mentally ill are
placed

in

residential

treatment

beds

rather

than

in

segregation,46 and that the danger these prisoners pose,
in conjunction with inadequate custodial staffing on
these units (as reflected both in MHM documents and the
reports

of

prisoners),

results

in

the

mentally

ill

prisoners on these units receiving little time out of
their

cells,

sessions
being

missing

cancelled,

watched

monitored.
reports,

Dr.
that

for

appointments
and

prisoners,

self-harm,

Burns

also

residential

or

having

group

including

those

being

observes,

inadequately
based

treatment

on

beds

MHM
are

consistently underutilized, and she points to a number
of prisoners who have been classified as outpatients
but

require

residential

treatment.

Dr.

Haney

also

45. r. Burns found residential care at the women’s
facility to be substantially better.
46. MHM documents also reflect providers’ concern
about this issue.
101

discusses this problem at some length in his report,
opining

that

critically
necessary
MHM’s

insufficient

mentally
care.

Medical

ill

He

prisoners

further

Director

treatment
delays

notes

and

space

that

Chief

for

access
Dr.

to

Hunter,

Psychiatrist,

acknowledged that even having additional mental-health
personnel would not necessarily “translate into less
crises, less crisis placement as long as the system
continues

to

lack

appropriate

critically ill patients.

spaces”

to

place

Haney Report (doc. no. 868-4)

at 171-72 (quoting Hunter Depo. (doc. no. 675-16) at
162).
Furthermore, Dr. Burns opines that many seriously
mentally

ill

prisoners

psychopharmacological
minimal

psychotherapy.

are

treatment,
See

receiving
and

Burns

primarily

either

Report

no

or

(doc.

no.

868-2) at 35-36 (“It is well established both inside
and outside of prison, that mental health treatment is
more than psychotropic medication.

Some mental health

conditions do not require treatment with medication at
102

all; other conditions require medication but improve to
a

greater

combined
group

extent
with

and

when

other

individual

treatment

treatment

with

medication

modalities

psychotherapy.”).

is

including
During

her

inspections, she “interviewed and reviewed the charts
of dozens of prisoners who were offered no treatment
other than psychotropic medication.”

Id. at 36 n.45.

Her conclusions on this point are based not only on
chart reviews and interviews with prisoners, but also
on

depositions

infrequency

and

of

MHM

brief

staff,

who

duration

of

acknowledged

the

psychotherapeutic

contacts with prisoners.47

47. With respect to the treatment provided to the
named plaintiffs, defendants repeatedly assert that
their allegations regarding infrequent or nonexistent
psychotherapy or counseling are false, based on medical
records showing repeated “contacts” with mental-health
staff.
The court has reviewed many of the records at
issue and concludes that there is a genuine dispute as
to whether these notations represent psychotherapy or
brief check-in encounters, which Dr. Burns agrees occur
but deems entirely distinct from “actual treatment.”
Id. at 38-39.
(continued...)
103

Dr.

Burns

also

opines

that

group

treatment

is

seriously lacking, both for prisoners in residential
placements and, to a greater degree, for outpatients,
noting

that

review

revealed

hundreds

of

MHM’s

most

that

prisoners

a

recent

contract

number

of

each

on

group

treatment

prisoners

with

interventions
depression,

facilities

their

caseloads offered few or no groups.

compliance

mental

with
health

She explains that

should

be

offered

post-traumatic

for

stress

disorder, anxiety, and schizophrenia, “based upon their
individualized

assessment

of

mental

health

needs.”

Burns Report (doc. no. 868-2) at 39.

Dr. Burns and Dr. Haney also opine that to the
extent that counseling does occur, it is compromised by
the fact that it generally occurs in non-confidential
settings.
Defendants’ response to this contention
(when raised by the named plaintiffs) appears to be
that ADOC policy requires the presence of custody staff
for security purposes.
But this does not address
whether the policy creates a substantial risk of
serious harm.
The court recognizes that bona fide
security needs might justify such a requirement, at
least in some instances; whether or not it is justified
here will be assessed at trial.
104

Dr. Burns opines that prisoners who are prescribed
psychotropic medication are also harmed by inadequate
medication management practices.

As a general matter,

she concludes based on chart reviews and audit findings
that

follow-up

medication

appointments

are

specifically,

she

to

assess

infrequent
opines

and

that

the

impact

brief.

prescribers

of

More
rely

too

heavily on long-acting Haldol and Prolixin injections.
Dr. Burns explains that these and similar medications
"impact

normal

restlessness

movement

(akathisia)

and
and

can

cause
muscle

painful

severe
spasms

(acute dystonic reaction) and also lead to permanent,
irreversible

movement

disorders

that

include

tremor,

involuntary movements of the tongue and mouth (tardive
dyskinesia) and Parkinsonism."

Id. at 42.

She reports

that "[m]any of the inmates interviewed displayed these
types of movement disorders, but their prescriptions
were continued rather than changed to medications less
likely

to

cause

these

problems,"

and

identifies

a

number of prisoners who continue to be prescribed this
105

type of medication, and one who was previously took an
alternative medication that worked well for her, was
switched to these medications, suffered from serious
side effects, was taken off it, and now receives no
medication

despite

hallucinations.

suffering

Id.

from

ongoing

auditory

Dr. Burns also explains that this

sort of injectable medication is so long-acting that it
is

impossible

to

adjust

the

dosage

quickly

(either

upwards, to treat worsening symptoms, or downwards, to
address

side

effects),

and

that

other

mental-health

care systems therefore generally use oral medications
to make dose adjustments.
Although Dr. Burns touches on the issue, Dr. Haney
devotes

much

of

effects

of

serious

mental

ADOC’s

his

expert

policy

illness

of

in

report
housing

to

the

harmful

prisoners

segregation.

Dr.

with
Burns

explains, based on her own observations during tours
and

MHM

reports

she

reviewed,

that

prisoners

with

mental illness are overrepresented in segregation, and
that prisoners in segregation “receive medications and
106

brief cell front contacts by MHPs and LPNs,” but little
or “no mental health therapy or group treatment.”
at 39.

Id.

In conjunction with the fact that residential

beds are underused, this leads Dr. Burns to conclude
that “inmates with mental illness are being diverted to
segregation

for

behaviors

related

to

untreated

or

undertreated mental illness rather than being placed or
maintained in more intensive mental health treatment
settings.”

Id. at 40.

Dr. Haney describes his tours of segregation units
at

length.

In

one

facility,

he

describes

the

segregation units as “difficult to describe and unlike
any I have ever seen in decades of doing this work”;
they “typically remain dark,” and the floors outside
were “filthy” and appeared to be “charr[ed].”
Report (doc. no. 868-4) at 50.

Haney

In another facility, he

describes the segregation unit as filled with the smell
of something burning and the sound of prisoners banging
on

their

cell

doors

and

screaming

“help

me”;

some

cell-door windows were covered, others were shattered,
107

a number of doors were blackened from fires, and there
was urine puddled on the floor outside several cells.
Haney

Report

facility,
above,

(doc.

in

Dr.

prisoners

no.

addition
Haney

in

868-4)
to

34.

conditions

describes

segregation

at

similar

hearing

that

they

At

from
had

a

third

to

the

multiple
been

kept

outside, in exercise pens, for multiple days on end.
He described this finding as “bizarre and alarming.”
Id. at 67.
In each of these facilities, he observed and spoke
with prisoners in segregation whose mental health he
believes
their

has

seriously

confinement

in

deteriorated
these

as

a

result

conditions.

He

of

also

discusses at some length a bevy of scientific research
he

and

others

have

conducted

regarding

the

harmful

psychological effects of segregation, particularly on
prisoners who are mentally ill.48

This literature, he

48. Defendants’ expert, Dr. Morgan, offers some
contrary evidence from a study he conducted. However,
even Dr. Hunter, MHM’s Medical Director and Chief
(continued...)
108

says, finds with remarkable consistency that prolonged
isolation

of

the

sort

facilities

results

profound

emotional

psychological
withdrawal,

in

he

observed

some

prisoners

disturbances

injuries,

including

hypersensitivity,

dysfunction,

in

defendants’
experiencing

and

serious

increased

“anxiety,

ruminations,

hallucinations,

loss

cognitive

of

control,

irritability, aggression, rage, paranoia, hopelessness,
a

sense

of

impending

emotional

breakdown,

self-mutilation, and suicidal ideation and behavior.”
Id.

at

113.

He

cites

additional

studies

for

the

proposition that placement in segregation dramatically
increases the risk of self-harm.
growing
in

“scientific,

fact,

professional,

correctional--consensus”

He also describes a
human

rights--and,

that

the

use

of

Psychiatrist,
testifies
in
his
deposition
that
“segregation is potentially detrimental to one’s health
and well-being.”
Hunter Depo., P Ex. 56 (doc. no.
844-6) at 180.
He observes that lengthy terms in
segregation can “lead to a lot of helplessness,
hopelessness, and despair.”
Id. at 182.
There is
certainly a genuine dispute as to this point.
109

segregation

is

harmful

and

should

be

minimized,

and

that the segregation of mentally ill prisoners should
be prohibited outright or very strictly limited.

Id.

at 103, 153-54.
Dr. Haney also opines that inadequate monitoring
and treatment practices further exacerbate the harms
caused

by

placement

segregation.
upon

the

of

mentally

ill

prisoners

in

For one thing, he agrees with and expands

statement

by

Dr.

Hunter,

MHM’s

Medical

Director and Chief Psychiatrist, that “[t]here’s a need
for

closer

monitoring

or

at

least

a

mental

health

intervention once an inmate is notified officially of a
classification change, especially if he’s already in
segregation.”

Id. at 184 (quoting Hunter Depo. (doc.

no. 996-2) at 221).

Dr. Haney also emphasizes the need

for monitoring of prisoners in segregation, noting that
Houser admitted in her deposition that “she does not
know

how

long

mental

health

staff

spend

in

the

Segregation Units, [and] does not know if they have set
schedules

for

going

into

the

110

units.”

Id.

at

186

(citing Houser Depo. (doc. no. 996-17) at 177-78).

Dr.

Haney notes that Dr. Hunter admits--in words remarkably
similar to those plaintiffs’ experts used to describe
other

interactions

with

mental-health

staff--that

segregation rounds are “somewhat of a drive-by type of
process.

It’s usually done at cell side: How are you

doing, how are you getting along; look around inmate’s
cell, seeing what kind of condition he’s in, look at
the inmate, see what kind of condition he’s in, how
he’s looking, how he’s [] acting, how he’s responding
to

you.

And,

cell-side visit.”

again,

it’s

pretty

cursory,

just

Haney Report (doc. no. 868-4) at 187

(quoting Hunter Depo. (doc. no. 996-2) at 192).
Additionally, Dr. Burns opines that treatment for
prisoners

on

suicide

or

crisis

watch

is

inadequate.

Among other problems, Dr. Burns observes that treatment
of prisoners on watch “is generally limited to brief
cell front contacts by MHP staff asking the prisoner
whether

or

not

he

remains

suicidal,”

and

that

one

prisoner was not seen by mental-health staff for an
111

entire weekend.

Burns Report (doc. no. 868-2) at 46.

She also notes that prisoners released from suicide or
crisis watch are not routinely placed on the mentalhealth caseload, and cites examples of prisoners who
were thereby denied adequate follow-up treatment.

As

for monitoring, Dr. Burns “found no evidence that ADOC
or MHM has a process to ensure constant watch when a
prisoner is actively suicidal.”
that

the

observation

Id. at 47.

forms

feature

She notes
pre-printed

15-minute intervals, and that making observations at
“predictable and regular intervals increase[s] the risk
that

the

prisoner

on

watch

has

adequate

time

and

opportunity to attempt and complete suicide in between
observations.”

Id.

She also notes that MHM officials

acknowledged in depositions that prisoners in crisis
are “sometimes placed in inappropriate locations such
as offices or libraries rather than in safe cells which
increases the risk of self-harm and suicide.”

Id.

Dr.

Haney observed as much during some of this tours, see
Haney

Report

(doc.

no.

868-4)
112

at

62

(discussing

a

prisoner who he found lying on the floor of an unlit
office), and he notes that some of the suicide watch
cells he saw “did not appear suicide proof”--in one,
“there

was

a

rusted

metal

bed

on

the

floor

and

protrusions in the cell that could be used to fasten a
sheet

or

other

ligature.”

Haney

Report

(doc.

no.

868-4) at 40-41.49
Dr.

Haney

adds

his

concern

regarding

statements

made by Dr. Hunter, MHM’s Medical Director and Chief
Psychiatrist, that reflected his and others’ disregard
of

prisoners’

threats

of

self-harm:

Dr.

Hunter

acknowledged hearing reports that custodial staff made
jokes to prisoners about suicide, and that he knew of
between five and ten instances in the preceding year in
which, in the words of Dr. Haney quoting Dr. Hunter,
“custody staff have challenged prisoners to make good

49. He also reports that at one facility, the body
of a prisoner who had committed suicide just a few days
before his tour had not been discovered until the day
after his death, because staff had not conducted
security checks that night.
113

on

their

threats

of

self-harm--either

‘called

their

bluffs’ or explicitly ignored their stated intentions
to engage in self-harm and sent them back to their
housing

unit--and

the

prisoners

in

fact

engaged

in

self-harm including instances where the prisoner ‘was
sent

back

to

their

housing

unit

only

for

them

to

perhaps act out in a more severe manner, such as cut
deeper.’”

Haney

Report

(doc.

no.

868-4)

at

(quoting Hunter Depo. (doc. no. 996-2) at 165).

164
(Dr.

Haney also notes that Houser testified to her awareness
of

custodial

staff

failing

to

inform

mental-health

staff of prisoners engaging in self-harm, and of one
instance

in

which

this

may

have

contributed

to

a

prisoner’s death.)
Dr. Burns, Dr. Haney, and Eldon Vail, plaintiffs’
correctional
effects

of

expert,
inadequate

further

opine

custodial

114

regarding

staff

on

the

various

aspects of the mental-health care provided to prisoners
in defendants’ custody.50

50. Dr. Haney reports on a number of effects of
custodial understaffing, some of which relate directly
to the provision of mental-health care at issue in this
case and some of which do not. To the extent that Dr.
Haney’s report discusses other ramifications of the
“out-of-control” nature of defendants’ facilities, the
court has considered them, for purposes of this case,
only as further confirmation of the extent of the
staffing deficit, and not as potential sources of
liability. That said, the court would be remiss if it
did not state on the record that Dr. Haney’s
descriptions of the overall level of violence in
certain facilities he visited are extraordinarily
troubling.
During a single day at Bibb, for example,
Dr. Haney personally “witnessed evidence of an uprising
by prisoners, an attempted escape, a suicide attempt,
evidence of recent fires in the Segregation Units,
presumably started by prisoners, and the representation
by the Warden that one half of the prison was so unsafe
that [Dr. Haney] could not enter it.”
Haney Report
(doc. no. 868-4) at 51.
(The prisoner attempting to
commit suicide, by pulling a ligature around his neck,
had partially covered the window to his watch cell; a
lawyer participating in the tour was the one to notice
and summon correctional officers. Id. at 49-50.)) Dr.
Haney opined that “[a]ny of these incidents would be
noteworthy and indicative of a lack of institutional
control,” and that “[t]ogether they reflect the kind of
chaos and disorder that appears to pervade the ADOC.”
Id. at 51. He observed that over 40 years of studying
prisons, he has never “been denied entry to a prison or
been unable to complete an inspection because the
prison could not ensure [his] safety”; during his
(continued...)
115

Dr.

Burns

employees’
problem,
undermines

concludes,

recognition
that

a

in

part

of

and

shortage

of

prisoners’

access

based

complaints

on
about

correctional
to

MHM
the

officers

mental-health

care,

because the officers are needed to escort prisoners to,
and

supervise

appointments

and

them

at,

individual

activities.

She

and

group

points,

in

particular, to evidence that prisoners who are housed
in a number of segregation and residential treatment
units are not adequately monitored or treated because
inadequate custodial staffing makes it difficult for
mental-health staff to have out-of-cell contact with
them.

Vail agrees; in his report, he discusses records

demonstrating that “staffing shortages are creating an
impediment for regular access by mental health staff to
inmates in segregation” at five major facilities.
Vail Report (doc. no. 868-6) at 67-70.

See

He describes

inspections of facilities in Alabama, this occurred at
three out of the six facilities he was scheduled to
visit over the course of a week. Id. at 18.
116

notes

from

a

multidisciplinary

team

meeting

at

one

facility which indicate that a mental health provider
“must conduct groups with only a ‘walkie-talkie,’ as
there

is

no

officer

during the group.”

available

to

provide

security

Id. at 68.

Dr. Haney, too, gives a number of examples, all of
which draw on admissions by staff employed by MHM.

For

example, he notes that Houser admitted that groups were
“frequently”

cancelled

at

six

of

ADOC’s

major

facilities, that these shortages also affect “activity
tech

groups,

individual

providers,

psychiatrist

result

segregation

in

or

counseling,
nurse

rounds

seeing

practitioner,”

being

“often

the
and

delayed.”

Haney Report (doc. no. 868-4) at 176-77 (quoting Houser
Depo. (doc. no. 996-32) at 190, 192-93); see also Haney
Report (doc. no. 868-4) at 175-76 (quoting Fields Depo.
(doc. no. 996-83) at 127-28 (stating that “a lot of the
groups and programming were cancelled” due to custodial
understaffing at four major facilities).

He further

notes that Houser stated that the inadequate levels of
117

(and training of) custodial staff at Donaldson--one of
ADOC’s

facilities

designated

to

provide

residential

treatment--result in it being a “difficult facility to
provide mental health services in at this time,” and
create “just a lack of a therapeutic milieu, and that,
in and of itself, will cause problems.”

Haney Report

(doc. no. 868-4) at 177 (quoting Houser Depo (doc. no.
996-32) 206-07).

He opines, based on his observations

and interviews, that another MHM employee’s description
of

these

problems

as

generous a euphemism.”

d.

“compromise[s]”

was

“far

too

Id. at 175.

Conclusion

This evidence is plainly sufficient to create a
genuine

dispute

of

material

fact

as

to

whether

the

policies and practices plaintiffs challenge create a
substantial risk of serious harm to ADOC prisoners who
have serious mental illnesses.
To

conclude,

defendants’

own

it

is

worth

mental-health
118

noting

expert,

Dr.

that

even

Patterson,

agreed with many of the findings by Drs. Burns and
Haney, including: that “staffing of the facilities is
insufficient

and

a

significant

number

of

the

mental

health staff are unlicensed practitioners,” and that
there was “not documented supervision of the unlicensed
practitioners,

all

of

whom

were

providing

direct

services, and some [of whom] were also supervisors,”
Patterson

Report

(doc.

no.

679-9)

at

46;

that

the

“physical structures are outdated with regard to the
provision of mental health services in that many do not
have

adequate

individual
adequate

space

for

counseling
beds

for

the

and
the

provision

treatment,
provision

of
nor

of

group
are

and

there

residential

treatment (RTU) and stabilization (SU) services,” which
“inherently limit[s] the number and capabilities of the
mental

health

staff,”

id.

at

46-47;

that

there

are

“delays in the provision of assessment and treatment
services

including

inmates,

again

the

largely

provision
related

of
to

medications
the

for

insufficient

staffing and inadequate identification of inmates in
119

need

of

services,”

“deficiencies
calls,

id.

including

referrals,

and

at

47;

delays

in

that

there
to

sick

appointments”

scheduled

responses

are

that

“contribute to a failure to provide necessary mental
health services” and cause “potential harm,” including
“continued pain and suffering of mental health symptoms
including

suicide

inadequate

and

treatment,”

disciplinary
id.;

and

actions
that

due

there

to
are

“deficiencies in adequately identifying inmates during
the reception and intake process that are in need of
mental

health

services,”

resulting

in

an

“underestimate[]” of “the numbers of inmates in need of
mental health services,” id.

Dr. Patterson recognized

“the need for increased numbers and properly trained
and credentialed mental health staff” and supervision
by

registered

assessments.

nurses

of

those

conducting

intake

Id.

He also found that the treatment plans he reviewed
“are not appropriate for individual patients,” as they
are “neither individualized nor multidisciplinary,” and
120

“were signed on different dates by different people,
which indicates that they are not being reviewed by a
treatment team simultaneously and with the inclusion of
the

inmate.

This

is

a

deficiency

that

must

corrected and quite simply is not appropriate.”
50.

He

observed

“treatment

plans

that

are

be

Id. at
‘cookie

cutter’ and have the same problems listed over and over
again

as

well

objectives
thereof

as

the

the

interventions

and

same

whatever

despite

same

improvements

or

lack

individual

inmate

has

experienced,”

and

even found that treatment plans for prisoners in crisis
cells

failed

deterioration

to

in

“reflect

the

inmate’s

decompensation
functioning.”

Id.

or
at

50-51.
Based

on

an

audit

he

conducted,

Dr.

Patterson

concluded that there were three areas of “substantial
concern”:

“Suicide

Risk

Evaluation

and

Management,”

“Mental Health Treatment Planning,” and referrals.

He

identified the first two as “seriously deficient.”

Id.

at 52.
121

As

Dr.

Haney

defendants’

own

put

it

in

expert’s

his

rebuttal

“criticisms

report,

map

almost

perfectly onto, and significantly reinforce,” those of
plaintiffs’ experts.

Haney Rebuttal Report (doc. no.

840-15) at 18.

4.

Individual Harm

As plaintiffs point out, evidence that the named
plaintiffs

have

substantiate

suffered

the

assertion

harm
that

is

relevant

defendants’

to

policies

place them and other at a substantial risk of serious
harm.

(By this token, corroborating evidence related

to the care of named plaintiffs whose claims are not
justiciable is just as relevant as that of the named
plaintiffs

whose

claims

are

justiciable.)

However,

they need not, as a technical matter, show that harm
has already occurred to them in order successfully to
demonstrate
serious
despite

the

harm.

existence
What

defendants’

they

of

a

substantial

certainly

vociferous
122

need

insistence

risk

not
to

of

show,
the

contrary, is that they have each been harmed in ways
that, on their own, would suffice to prove a claim for
deliberate

indifference

with

respect

provision of mental-health care.

to

the

past

See Parsons, 754 F.3d

at 677 (“Because plaintiffs do not base their case on
deficiencies in care provided on any one occasion, this
Court

has

no

occasion

to

consider

whether

these

instances of delay--or any other particular deficiency
in medical care complained of by the plaintiffs--would
violate

the

Constitution

...

if

considered

in

isolation.” (quoting Brown, 563 U.S. at 506 n.3)).
Nevertheless,
created
suffered

a

all

material
serious

of

the

dispute
harm;

as

named
to

indeed,

plaintiffs

whether
in

a

they
few

have
have
cases

defendants’ own expert agrees that the care they have
received was inadequate in ways that the court finds
clearly amount to serious harm.51

As a preface, the

51. Plaintiffs, and Drs. Burns and Haney in their
rebuttal reports, raise significant concerns regarding
Dr. Patterson’s assessment of the appropriateness of
(continued...)
123

the named plaintiffs’ treatment when he admittedly
never spoke with any of them, and relied heavily on
records they contend (and, in fact, he agreed) are
poorly kept. In noting his agreement that the care of
these named plaintiffs’ care is inadequate, the court
is not passing on the admissibility or reliability of
his evidence.
Because plaintiffs have not moved for
summary judgment, those are questions for trial.
The court notes that one of the named plaintiffs
whose care Dr. Patterson found to be deficient, Carter,
has been released.
Although his claims are therefore
moot, the court will briefly discuss the evidence
regarding his mental-health care, because it goes to
the substantial risk of serious harm faced by the named
plaintiffs who remain incarcerated.
Carter
has
been
diagnosed
with
psychosis,
schizoaffective disorder, adjustment disorder with mood
and conduct disturbance, major depressive disorder,
borderline personality disorder, and impulse control
disorder.
Defendants contended in their motion for summary
judgment that Carter merely “desire[d] a different type
of mental-health treatment, despite his total lack of
any qualification to direct his own treatment.” Defs.’
Mot. for Summ. J. (doc. no. 769) at 100.
This was a
remarkable position, in light of the fact that someone
who does have such qualifications--defendants’ own
expert, Dr. Patterson--agreed with Carter that he
“ha[d] not received adequate mental health care while
incarcerated in the Alabama Department of Corrections.”
Patterson Report (doc. no. 679-9) at 22. Specifically,
Dr. Patterson opined that Carter’s care had been
inadequate because his psychotropic medications were
discontinued in 2014--despite the fact that, as Dr.
(continued...)
124

court notes that there are many other disputes of fact
which

are,

for

purposes

of

concision,

not

discussed

Patterson
recognized,
Carter
continued
to
suffer
symptoms that including hearing voices that tell him to
cut himself. Id.
In
addition
to
this
denial
of
medication,
plaintiffs also noted that Carter was on “seg rotation”
(being rotated amongst segregation units at different
facilities).
His medical records reflected statements
to mental-health staff, in line with the evidence
offered by Dr. Haney, that “he believe[d] he ha[d] some
paranoia because of being in segregation.”
Haney
Report (doc. no. 868-4) at 102-03; Carter Medical
Records, P Ex. 73 (doc. no. 844-23) at 23, MR029623.
Plaintiffs also offered evidence that Carter was
denied adequate care when he expressed his intent to
harm himself, including testimony indicating that the
last time prior to his deposition on which he cut
himself with a razor blade, he had written to the
mental-health staff, explaining that he “was having
suicidal though[s],” but did not “get nothing in
respond back.”
Carter Depo., P Ex. 30 (doc. no.
840-30) at 340.
They also pointed to medical records
in which mental-health staff documented that Carter
reported hearing voices telling him to kill himself and
injure others, and that he was assessed to have a
“potential for injury,” but described the plan for his
treatment, in its entirety, as “Release to DOC.”
Carter Medical Records, P Ex. 73 (doc. no. 844-23) at
14-15, MR003288-89.
125

below; exclusion of a fact from this discussion is not
an indication that it is not in dispute.52

52. Three
mentioning:

preliminary

unrelated

notes

bear

First, the court notes that its review of the
evidence in the voluminous record (filling over 25
boxes) in this case was thorough, despite it being
hampered by the need for painstaking deciphering of
many of the photocopied, handwritten mental-health
records defendants produced to plaintiffs, some of
which were barely legible.
Second, the court notes that a number of the named
plaintiffs have presented evidence to show that they
cut themselves repeatedly with razor blades they were
given by custodial staff (and which custodial staff
failed to remove from their persons and safe cells).
Frequently, these prisoners eventually swallowed the
razor blades.
The status of this issue is somewhat
unclear.
Initially, plaintiffs sought a preliminary
injunction on this issue; then, the parties reached an
agreement sufficient for plaintiffs to withdraw their
motion.
However, plaintiffs have represented to the
court that razor blades are still available to
prisoners in crisis, and their expert evidence is
sufficient to create a dispute of material fact as to
this point; the court will hear more at trial.
Third, the court agrees with defendants that
plaintiffs’ complaint does, in a small number of
places, use overly broad language to characterize the
allegations of the named plaintiffs.
At points,
plaintiffs’ complaint could be read to allege an
outright denial of treatment, when in fact they present
(continued...)
126

a.
Braggs

has

depressive

been

disorder,

Braggs

diagnosed
and

with

anxiety,

post-traumatic

major
stress

disorder.53
He

takes

conditions.
has

of

medications

for

these

Braggs testified in his deposition that he

repeatedly

complain

psychotropic

contacted
unpleasant

mental-health
side

effects

staff
of

to

these

evidence to show, and now contend in their briefing,
that a given plaintiff suffered only from extremely
inadequate treatment.
To a significant degree,
however, this disparity appears to arise as a result of
a genuine dispute as to what constitutes ‘treatment’:
defendants’ briefing considers every contact between a
prisoner and mental-health staff to be treatment,
whereas
plaintiffs
and
their
experts
have
a
substantially narrower conception that excludes what
they describe as cursory contacts.
53. Defendants
do
not
address
evidence
of
individual harm with respect to the mental-health care
received by Braggs, Hartley, Jackson, Johnson, and
McCoy in their motion for summary judgment, although
they do discuss these plaintiffs’ treatment in their
statement of undisputed facts. Merely mentioning facts
in the statement of facts is not sufficient to meet
defendants’ summary-judgment burden on this issue; the
court addresses the issue to provide the parties
guidance.
127

medications--that they make him feel sick--but has been
told that his only other option was to discontinue the
medication he had been prescribed.

Defendants do not

appear to have offered evidence to rebut this point.
Defendants’
Braggs’
but

expert,

treatment

plaintiffs

documented
Braggs

in

spent

mental-health
involve

Dr.

plans
note

Patterson,

contemplate
that

no

his

records

in

segregation);

contacts

discussions

regular

such

(including

that

therapy,

meetings
during

instead,

documented
about

notes

in

medication

periods

the

his

are

only

records

compliance.

Defendants respond that plaintiffs admitted that Braggs
had received both individual and group counseling while
incarcerated.

Pls.’ Resp. to State’s Reqs. for Admis.

(doc. no. 382-1) at 77.

What they actually admitted

was that, subject to an objection that the request for
admission

was

“ambiguous

as

to

the

time

frame

or

frequency being referenced ... [and] vague as to the
meaning of ‘mental health treatment’ and ‘counseling,’”

128

Braggs did receive some mental-health treatment other
than medication at some point.
Plaintiffs also point out that Braggs’ treatment
plans were signed by unsupervised LPNs and by ADOC’s
unlicensed site administrator, and that Braggs has been
classified as MH-1 (“stabilized with mild impairment in
mental functioning”), despite having multiple diagnoses
and being prescribed multiple psychotropic medications.
Dr. Burns found that allowing unsupervised LPNs to make
treatment

decisions

resulted

in

such

misclassification.54

54. Defendants’ contention that Braggs received
adequate mental-health treatment is based in part on a
letter he sent in 2014 to the former ADOC Commissioner,
Kim Thomas--who he believed to be the director of
mental health at Hamilton A&I--in which he described
mental-health staff as committed and qualified. Braggs
Depo., D Ex. 7 (doc. no. 771-19) at 116-18.
Braggs
also agreed at his deposition that he did not believe
that he should be “receiving any different mental
health treatment at this time.” Id. at 140.
However, in that same deposition, Braggs testified
that he had repeatedly informed the mental-health staff
that he was suffering side effects, but was informed
that the only options were to endure these effects or
(continued...)
129

Plaintiffs have created a dispute of material fact
as to whether Braggs has been harmed by policies and
practices

regarding

psychotherapeutic

medication

care,

and

management,

assessment

and

classification.

b.
Hartley

has

been

Hartley

diagnosed

with

schizoaffective

disorder.55
Defendants’

expert,

Dr.

Patterson,

reviewed

Hartley’s deposition testimony and his medical records,
and agrees with plaintiffs that he “is not receiving
adequate

mental

health

care.

Interventions

to

adequately address his chronic marijuana abuse and the

the symptoms that would return if he stopped taking the
medication.
Given that context, neither Braggs’s
failure to articulate a specific alternative treatment
at his deposition nor his letter to the Commissioner
demonstrates that he has not suffered harm.
55. In addition to Hartley’s Eighth Amendment
claim, he also brings a due-process claim. Evidence as
to this latter claim is not addressed here.
(continued...)
130

resultant mental dysfunction including his aggression
and agitation, and self-injurious behaviors have not
been included in his treatment, and he continues to
abuse marijuana infrequently.

To properly remedy these

deficiencies, the treatment team needs to develop an
individualized,

comprehensive

treatment

plan

and

interventions to address his comorbid marijuana use and
impact on his mental health functioning.”
Report (doc. no. 679-9) at 41.

Patterson

Dr. Patterson relatedly

notes in his report that Hartley’s treatment plans are
“not individualized and are repetitive with the same
problem

statement,

interventions

and

goals

repeated

treatment plan after treatment plan without reflection
of changes in Hartley’s mental status and behaviors.”
Id.56

56. Defendants assert that the treatment Hartley
was provided with respect to his use of marijuana was
adequate, based on records reflecting that mentalhealth staff encouraged him to maintain sobriety after
placing him on suicide watch in 2014, when he was
experiencing hallucinations caused by use of marijuana.
(continued...)
131

Dr.

Burns

seriously

likewise

deficient.

recognized
She

Hartley’s

identified

care

Hartley

in

as
her

report as a prisoner who “require[es] an RTU level of
care

but

[has

outpatient[],”

been]
and

improperly

described

classified

him

as

a

as

[an]

“seriously

mentally ill inmate with side effects from medication
and still experiencing symptoms that negatively impact
[his]

functioning

leading

to

placement

on

watch

in

[the] infirmary but not considered for transfer to [a]
higher level of care.”

Burns Report (doc. no. 868-2)

at 37-38.
Plaintiffs

have

also

presented

evidence

to

demonstrate that, although Hartley does have frequent
contacts with mental-health staff, they largely involve
little

or

no

counseling--which,

Patterson, he requires.

according

to

Dr.

As one example, they point to

his records from the first four months of 2016, noting

Given that defendants’ expert disagrees that this
treatment was adequate, there is at least a genuine
dispute as to this issue.
132

that he was seen by mental-health staff ten times, but
that

six

of

them

involved

solely

medication

administration, one was a medication check, and one was
a check-in while he was in a crisis cell; only two were
counselling sessions, but they were supposed to occur
monthly--that is to say, twice as often.
recent

example,

Dr.

Burns

notes

in

her

As a more
report

that

“[w]hen he was placed in suicide watch at St. Clair
shortly
mental

before
health

our
staff

interview,
was

his

through

only
the

contact

door.”

with
Burns

Report (doc. no. 868-2) at 46.
In addition, Hartley has offered evidence to show
inadequate medication management: his medical records
show that he has complained of shaking caused by the
Prolixin

shots

he

receives,

that

he

could

not

be

prescribed a sufficiently high dose of a medication to
treat these side effects because it adversely affected
his kidneys, and that he has requested--but not been
prescribed--alternative antipsychotic medication (from
a class of medications that, according to MHM records,
133

providers

were

discouraged

from

prescribing

due

to

cost).
Plaintiffs have created a dispute of material fact
as to whether Hartley has been harmed by policies and
practices

regarding

assessment

and

classification,

psychotherapeutic care, and medication management.57

c.

Jackson

Jackson has been diagnosed with a mood disorder,
antisocial personality disorder, and depression.
Plaintiffs have presented evidence to show that his
extended,

continuous

placement

in

segregation,

2007 to 2014, has resulted in psychological harm.

from
Dr.

Haney identified Jackson as an example of a prisoner
who has suffered from placement in segregation, noting
that Jackson stated that segregation “breaks you down
mentally, you have anxiety and all this stuff but you

57. Hartley’s medical records also indicate that at
least one mental-health appointment of his has been
cancelled due to inadequate custodial staffing.
134

don’t realize it’s happening to you.”

Haney Report

Appendix (doc. no. 868-4) at 39-40.
Moreover,

plaintiffs

have

offered

evidence

sufficient to create a material dispute as to whether
he received adequate mental-health treatment while in
segregation.
the

cursory

Dr. Haney cited Jackson as an example of
nature

of

mental-health

contacts

in

segregation, noting that he stated that the counselor
“comes around to your cell, runs by, ‘you want to talk
to mental health?’ but half the time you don’t even see
them, they rush through,” and tell the prisoners that
the “only thing we want to know is, are you suicidal?”
Id.

Jackson also reported that when he was taken out

of his cell for a counseling appointment once a month,
it would last only “10-15 minutes, at most,” and that
the counselors “change so often, you don’t see the same
person twice, so you don’t form any real connection to
them.”

Id.

Plaintiffs
Jackson’s

also

offer

mental-health

evidence

to

classification
135

show
failed

that
to

account for the severity of his symptoms; he was, until
recently, classified at the lowest level, MH-1, despite
his

diagnoses--which

accompanied

by

providers

“severe

have

behavioral

recognized

are

disturbances”--his

receipt of multiple psychotropic medications including
an antipsychotic, and his multiple recent placements on
suicide watch.
Finally,

Dr.

Patterson

noted

his

concern

about

lapses in medication administration for Jackson, and
Jackson’s medical records indicate that a number of his
mental-health
security

appointments

issues

arising

from

were

canceled

insufficient

due
number

to
of

custodial officers.58

58. Defendants contend that Jackson has received
adequate mental-health treatment because he agreed
during his deposition that he does not “have any
concerns” about the mental-health treatment decisions
his providers have made. Although he testified that he
wants “better” treatment, he was unable at his
deposition to identify any specific inadequacies in his
care.
Jackson Depo., D Ex. 45-1 (doc. no. 777-1) at
149-50. As was the case with Braggs, Jackson’s failure
to articulate a specific, alternative course of
treatment at his deposition does not necessarily mean
(continued...)
136

Plaintiffs have created a dispute of material fact
as to whether Jackson has been harmed by policies and
practices
care,

regarding

assessment

segregation,
and

psychotherapeutic

classification,

medication

management, and custodial staffing.

d.

Johnson

Johnson has a significant intellectual disability,
as

reflected

in

his

difficulty

answering

straightforward questions at his deposition.

Prior to

his conviction, he was evaluated at the state mental
hospital
psychotic;

and
the

diagnosed

as

evaluators

depressed

believed

that

and
he

possibly
might

be

incompetent to stand trial.
After his admission to prison, he had no contact
with mental-health staff for about 20 years, until he

that
he
has
not
suffered
harm
from
inadequate
treatment, especially given the testimony by Jackson
and expert opinion regarding his continuous stay in
segregation and consequent deterioration.
137

was placed on suicide watch in late 2015.
time,

his

psychiatrist

observed

that

At that
he

was

experiencing “paranoia [and] possible delusions,” and
noted that despite his assessment at the state mental
hospital,

he

was

not

on

the

mental-health

caseload.

Johnson Medical Records, P Ex. 62 (doc. no. 844-12) at
15, MR047700.

Remarkably, in the section of the chart

for symptoms, Dr. Hunter noted as follows: “He is now
involved with SPLC to perhaps go to court given the
beforementioned.”

Id.

Plaintiffs have also offered evidence to show that
when Johnson was released from suicide watch, he was
placed in segregation, and, though referred for mentalhealth treatment, did not receive it.

See Haney Report

Appendix (doc. no. 868-4) at 37.

Although he has some

contact

every

with

mental-health

staff

week

or

two,

these interactions are very brief.
Plaintiffs have created a dispute of material fact
as to whether Johnson has been harmed by policies and

138

practices

regarding

assessment

and

classification,

crisis case, and psychotherapeutic care.

e.

McCoy

McCoy has been diagnosed with schizophrenia, and is
delusional.59
Plaintiffs

have

presented

evidence

sufficient

to

create a dispute of material fact as to whether McCoy
has received an appropriate level of care.

Over 20

years in prison, he has spent only two years receiving
residential, as opposed to outpatient, care.

Dr. Burns

concluded that he required an RTU level of care and had
been

improperly

868-2)

at

recognized,

classified.

37-38.
that

McCoy
he

is

Burns

Report

testified,
seen

and

(doc.
Dr.

infrequently

no.

Burns
and

inconsistently by mental-health staff, sometimes going
months at a time without seeing a psychiatrist or nurse

59. In addition to his Eighth Amendment claim,
McCoy also claims that he has been involuntarily
(continued...)
139

practitioner.

His medical records and his testimony

reflect that his treatment plans are frequently altered
outside of his presence; he does not believe that he
has

ever

attended

a

meeting

of

his

treatment

team.

McCoy’s medical records reflect that he suffers from
side

effects

from

his

psychotropic

medication,

including pain at the injection site, stiffness, and
nausea,

and

he

testifies

that

he

has

been

refused

treatment for these side effects.
Additionally, McCoy has been repeatedly placed in
prolonged

segregation,

mental-health
isolation

care

will

stability,”

despite
providers

adversely

and

that

deteriorate

psychologically,”

segregation.”

deteriorated
McCoy

[him]

to
and

since

Institutional

by

mental

placement
decompensate

that
he

his

“[p]rolonged
[his]

“prolonged

may

has

cause

that

affect

segregation

health

statements

his
was

File,

in
or

“mental
put

P

in

Ex.

101

medicated. The evidence in support of the latter claim
(continued...)
140

(doc. no. 850-1) at 15, ADOC021879; 3, ADOC021336; 8,
ADOC021491.
Dr. Burns explains in her rebuttal report that when
she interviewed McCoy, “he was psychotic with poorly
organized thought processes and nearly incomprehensible
speech.”

Burns Rebuttal Report (doc. no. 840-14) at 1.

In her review of McCoy’s records, she “found that the
medical record did not accurately portray or document
his condition.”

Id.

She added that “there is evidence

in the record that in spite of his psychotic state, he
has been housed in segregation, seen infrequently and
[] not received adequate medication management.”

Id.

at 2.
Plaintiffs have created a dispute of material fact
as to whether McCoy has been harmed by policies and
practices

regarding

psychotherapeutic

assessment

care,

and

medication

segregation.

is not addressed here.
141

classification,
management,

and

f.

Pruitt

Pruitt has been diagnosed with schizophrenia.
He has repeatedly attempted to harm himself, and
offered

evidence

material

fact

sufficient

as

to

the

to

create

adequacy

of

received during and after these crises.
records

reflect

that

during

a

a

dispute

the

of

care

he

His medical

six-month

period

beginning at the end of 2013, he was admitted to a
crisis

cell

at

least

five

times

(including,

in

one

instance, for as long as eleven days); as defendants’
expert, Dr. Patterson, recognizes in his report with
respect

to

two

of

the

admissions,

there

is

no

indication that he was seen by a psychiatrist or nurse
practitioner (or, in most cases, a psychologist) during
any of these stints.

Patterson Report (doc. no. 679-9)

at 42-43.

His medical records reflect the effects of

inadequate

monitoring.

During

one

admission

to

a

suicide cell, another prisoner threw disinfectant in
Pruitt’s face.

During another, he was housed in a
142

suicide cell located on death row (a practice Dr. Haney
roundly condemns), and other prisoners threw burning
fabric onto him, burning his leg; he was not removed
from his cell until about 45 minutes had elapsed.
Plaintiffs
that

leaving

also

presented

follow-up

the

have

care

Pruitt

the

inadequate.

suicide

and

evidence

has

crisis

to

received

cells

show
after

has

been

Dr. Burns cites him as an example of her

general conclusion that prisoners released from crisis
cells are “not routinely placed on the mental health
caseload”

and

are

thus

denied

“adequate

follow-up.”

Burns Report (doc. no. 868-2) at 46-47 & n.58.
stated

in

his

deposition

that

he

had

He

requested

mental-health treatment on a number of occasions, but
was told that he would be seen by mental-health staff
when

they

had

time,

and

then

not

seen.

Pruitt

testified that the mental-health counselor had refused
to

see

him

the

explained

that

staff

had

he

week
the

preceding

only

during

his

contact

the
143

two

deposition.

with

years

He

mental-health
preceding

his

deposition

had

occurred

during

segregation

rounds;

unlike some other prisoners, he was never taken out of
his cell for counseling.

Dr. Burns corroborates this

statement, noting that his charts reflect that he has
been

offered

“no

treatment

other

than

psychotropic

medications,” and that he has “repeatedly asked to see
a

mental

request

health
slip,

individually.”
n.45.

Dr.

inadequate

counselor,

but

no

one

including
has

submitting

spoken

with

a
him

Burns Report (doc. no. 868-2) at 36

Burns

also

treatment

cites

leading

him
to

as

an

repeated

example

of

self-harm.

Burns Report (doc. no. 868-2) at 18-19 & n.18.
Dr. Burns also recognizes in her report that Pruitt
has

repeatedly

received

disciplinary

sanctions

for

symptoms of his mental illness--he has been cited for
creating a “security, safety or health hazard” when he
has injured himself.

Burns Report (doc. no. 568-2) at

29.
Plaintiffs have created a dispute of material fact
as to whether Pruitt has been harmed by policies and
144

practices

regarding

classification,

crisis

care,

assessment

and

care,

and

psychotherapeutic

disciplinary sanctions.

g.

Wallace

Wallace has been diagnosed with bipolar disorder,
paranoid schizophrenia, attention deficit hyperactivity
disorder, and intermittent explosive disorder.
has an intellectual disability.

He also

He has very recently

engaged in self-harm, attempting to commit suicide by
biting himself.
Defendants’

expert,

Dr.

Patterson,

agrees

with

plaintiffs that “[h]is mental health treatment has been
inadequate in the ADOC.”
679-9)

at

28.

In

Patterson Report (doc. no.

particular,

he

explains

that

Wallace’s “treatment plans are inadequate and do not
effectively
Disorder,”

address
and

“his

the

symptoms

intellectual

of

his

Bipolar

disability

also

contributes to his variable participation in treatment
and is not adequately addressed in the treatment plans.
145

The

medical

records

consistently

offered

do

not

group

indicate

therapies

he

to

has

address

been
his

intellectual deficits and [] the focus of the plans
appears to be on his hygiene and participation, but the
interventions do not realistically provide for services
to address his dual diagnosis of Bipolar Disorder and
Intellectual

Disability.”

Id.

This

alone

is

sufficient to create a dispute of material fact as to
whether Wallace has been harmed defendants’ provision
of inadequate mental-health care.
The record also contains evidence from Wallace’s
deposition and his institutional file showing that he
has received numerous sanctions due to symptoms of his
mental illness, including nine disciplinary citations
for cutting his wrists.
Plaintiffs have also offered evidence to show that
Wallace

has

treatment.

received

inadequate

psychotherapeutic

Although defendants respond that he had 550

interactions with mental-health staff between January
2012 and the end of September 2015, plaintiffs respond
146

that many of these interactions were cursory, citing
examples of extremely brief interactions.

Moreover,

Dr. Haney cited Wallace as an example of a prisoner
receiving
interactions

who
with

had

primarily

mental-health

brief,
staff;

cell-front
Dr.

Haney’s

report also noted that Wallace explained that, although
he is removed from his cell for a counseling session
once every other month, “officers hurry [the counselor]
up if she spends too long with inmates.”

Haney Report

Appendix (doc. no. 868-4) at 40.
Plaintiffs have created a dispute of material fact
as to whether Wallace has been harmed by policies and
practices

regarding

crisis

care,

disciplinary

sanctions, and psychotherapeutic care.
h.

Williams

Williams has been diagnosed with a mood disorder
and attention deficit hyperactivity disorder; she has
previously been prescribed antipsychotic medication and

147

received inpatient psychiatric treatment.60

She has a

history of sexual abuse.
Plaintiffs

have

offered

evidence

sufficient

to

create a dispute of material fact as to whether she has
been
result

denied
of

adequate
the

mental-health
admission.

mental-health

decision

caseload

not

for

to

treatment

place

several

her

years

as

a

on

the

after

her

Despite being referred for an evaluation,

Williams was not placed on the mental-health caseload
upon reentering custody in late 2012.

In March 2014,

she cut herself a number of times after a traumatic
incident,61 but was released from the safe cell without

60. Williams is a transgender woman.
have housed her in male facilities.

Defendants

61. The record reflects that Williams told mentalhealth providers that she was cutting herself because
she wanted to speak with her attorney or her husband
about this incident, but that she was not in fact
suicidal.
In addition, she refused to speak with
mental-health staff on certain occasions.
Although it
is a somewhat close call, the court concludes that the
evidence about these repeated instances of self-harm,
combined with the opinion of plaintiffs’ experts that
the monitoring of and care provided to prisoners who
(continued...)
148

any

plan

requests,
caseload.
Burns’s
cells

for

follow-up

without

Williams’s

opinion
are

being

not

that
being

treatment,
put

on

experience
prisoners
provided

and,
the

despite

mental-health

dovetails

released

her

with

from

adequate

Dr.

crisis

follow-up

treatment.
Moreover, plaintiffs have offered evidence to show
that the care Williams received immediately surrounding
the cutting incidents was deficient, including medical
records showing that the providers who monitored her
while she was in the crisis cell were not mental-health
staff, and her deposition testimony that when she did
speak with a mental-health provider, the interactions
were brief--about five minutes.

On one instance, her

medical records reflect that she was twice returned to
segregation--over the course of less than an hour and a
half--after cutting herself and indicating her intent

are harming themselves is inadequate, suffices to
create a genuine dispute of material fact as to whether
Williams has been harmed.
149

to continue doing so.

Each time, she followed through,

and was brought back to the medical unit.
evidence

appears

regarding

the

to

illustrate

inadequacy

of

Dr.

Again, this

Burns’s

monitoring

of

findings
prisoners

engaging in self-harm.
Finally, plaintiffs note that Williams’s self-harm
began

within

segregation.
Dr.

Haney

segregation

a

few

days

after

no.

created

a

placement

in

In her declaration, Williams echoed what
explained
messes

in

with

his
my

triggers me to harm myself.”
(doc.

her

679-3)

at

dispute

2.

of

report:

mental

“Being

capacity.

in
It

Williams Decl., P Ex. 83
Plaintiffs

material

fact

have
as

therefore

to

whether

Williams’s placement in segregation subjected her to
psychological (as well as physical) harm.
Plaintiffs have created a dispute of material fact
as to whether Williams has been harmed by policies and
practices

regarding

assessment

crisis care, and segregation.

150

and

classification,

5.
Plaintiffs
establish

Deliberate Indifference

have

presented

subjective

deliberate

multiple different ways.
defendants--in

evidence

sufficient

indifference

to
in

First, plaintiffs apprised

writing,

prior

to

commencing

litigation--that the policies and practices at issue in
this case created a substantial risk of serious harm to
prisoners

with

serious

mental

illness.

Second,

MHM

officials recognized the necessity of reforms (and the
ways
these

that

prisoners

concerns

responsive
sufficient

action,
funds

plaintiffs
decision

to

or

offer
to

renew

were

being

harmed),

defendants,

who

whether

because

for

some

evidence
MHM’s

other

failed

related
to

take

they

lacked

reason.

Third,

regarding

contract

and

defendants’

despite

serious,

recognized problems, and failure to monitor the care
being provided by MHM, and argue compellingly that this

151

evidence, too, could support a finding of subjective
deliberate indifference.62
As discussed at length in the opinion as to ADAP,
ADAP and plaintiffs’ counsel from the Southern Poverty
Law Center discussed in detail the allegations in this
case

in

a

beginning
found
cases

letter
this

sent

to

litigation.

subjective
based

they

Courts

deliberate
on

the

defendants
have

indifference
defendants’

prior

to

repeatedly
in

systemic

receipt

of

communications and reports setting forth the ways in
which

the

medical

or

mental-health

care

provided

in

their prisoners was inadequate and failure to respond.
In Scott v. Clarke, 64 F. Supp. 3d 813, 835-37
(W.D.

Va.

2014)

(Moon,

J.),

the

court

found

that

62. Finally, plaintiffs have offered evidence of
egregious and widespread shortcomings which appear to
be manifested in such obvious ways that the court could
infer subjective deliberate indifference based on their
mere existence. The court has discussed this evidence
at some length and will not tarry further, except to
conclude that these facts, if proven at trial, could
well support an inferential finding of subjective
deliberate indifference.
152

plaintiffs
material

had

a

as

fact

demonstrated

defendants’

to

the

genuine

dispute

of

subjective

deliberate indifference to constitutionally inadequate
medical care based in significant part on plaintiffs’
counsel’s
This

pre-litigation

letter

other

residing

to

suffer

to

[them]

“notif[ied]

women

continue

letter

that

at

the

FCCW

adverse

the

defendants.

Plaintiffs

and

suffered

and

‘have

physical

and

mental

effects of FCCW’s failure to provide care or provision
of deficient care in deliberate indifference to their
serious

medical

delegating

the

conditions’”;
provision

explained

of

health

that

despite

care

to

a

contractor, defendants retained “an affirmative duty”
to

ensure

prisoners

that
to

inadequate
unresponsive

the

harm

or

contractor
a

was

not

risk

thereof

that

defendants

care;

noted

to

grievances

regarding

by

subjecting
providing
had

been

deficient

care;

“provided its recipients with an itemized listing of
specific areas of concern in regard to the quality of
medical care provided at FCCW”; “advised the addressees
153

of the potential legal implications of the sub-standard
care

described

“invited
836-37.
response

under

[them]
The
to

to

the

commence

defendants
the

Eighth

negotiations.”

failed

letter

from

plaintiffs then filed suit.

Amendment”;

to

take

plaintiffs’

and

Id.

at

action

in

counsel;

The court found that this

and other evidence of defendants’ “failure to require
or undertake corrective action and [their] ‘hands-off’
attitude towards [their] medical care contractors ...
constitute[d] ample grounds for a finding of deliberate
indifference.”

Id. at 839.

The initiation of this

litigation occurred in very similar fashion.
Other

courts

have

similarly

awareness based on external reports.

found

subjective

See LaMarca, 995

F.2d at 1536-37 (subjective awareness shown based in
part on “an external management review of [the prison]
conducted from August 26 to 29, 1980,” which “concluded
that ‘[t]he assault trend, both inmate on inmate and
inmate on staff, from July 1979, through June 1980, has
increased’”); Austin v. Hopper, 15 F. Supp. 2d 1210,
154

1261

(M.D.

awareness

Ala.
shown

1998)
based

(Thompson,
in

part

J.)

on

(subjective

“correspondence

between the DOC and the Department of Justice” that
“demonstrates

that

the

DOC

had

knowledge

of

the

allegations of serious harm being inflicted by prison
officers upon inmates by means of the hitching post”);
Coleman v. Wilson, 912 F. Supp. 1282, 1300, 1317 (E.D.
Cal. 1995) (Karlton, J.) (subjective awareness shown
based in part on “the Stirling Report produced pursuant
to

a

legislative

mandate

and

the

CDC

commissioned

Scarlett Carp Report,” “regarding the prevalence of,
and the provision of mental health care services to,
inmates who suffer from [serious mental] disorders”);
Harris v. Angelina Cty., Tex., 31 F.3d 331, 335–36 (5th
Cir. 1994) (subjective awareness shown based in part on
“Reports from the Texas Commission on Jail Standards to
the County”).
Moreover,
direct

plaintiffs

evidence

have

demonstrating

presented
that

a

wealth

defendants

of

were

apprised of at least some of the serious inadequacies
155

in

mental-health

counsel

brought

depositions

of

care
them

MHM

acknowledgements
communication

now
to

their

even

before

attention.

their

administrators
of

with

challenged

The

are

replete

awareness

defendants

and

with

of--and

their

staff

about--the problems documented by plaintiffs’ experts.
For example, with respect to the staff’s ability to
handle the mental-health caseload: MHM Medical Director
and

Chief

Psychiatrist

Dr.

Hunter

admits

that

the

combination of the increased size and severity of the
mental-health caseload with the staffing decision by
ADOC discussed above have “start[ed] to tax our ability
to adequately do what we do.”
(doc. no. 675-16) at 44.

Hunter Depo., P Ex. 16

A recent audit by MHM of

Donaldson, one of ADOC’s treatment-oriented facilities,
recognizes

“a

shortage

of

mental

health

staff”

and

attendant problems, including that “admission nursing
assessments to the RTU were not being completed” and
“treatment

plans

individualized.”

were
Fields

not
Depo.
156

being
(doc.

completed,
no.

996-83)

not
at

127.

Houser

testified

that

MHM

had

repeatedly

requested that ADOC provide funds to hire additional
mental-health staff, “in order for us to be able to
provide services in a more timely way,” and because the
“number of crises that go on on a daily basis ... takes
away from doing the daily therapeutic things for the
people on the caseload.”
no. 675-15) at 22.

Houser Depo., P Ex. 15 (doc.

The funds MHM requested were not

provided, due to “state budget issues.”

Id. at 79-82.

As another example, Dr. Hunter also agrees with
plaintiffs’

experts

concern

residential

treatment

segregation

without

units

mental

about
to

the

house

illnesses.

use

prisoners
Houser,

of
in
too,

acknowledges that residential treatment units have been
used as “overflow seg,” that this results in problems
with
that

“security”
it

causes

and

“programming”

delays

receiving treatment.

in

in

mentally

the
ill

units,

and

prisoners

Houser Depo. (doc. no. 996-17) at

191-92; Houser Depo. (doc. no. 996-32) at 59-60.

Dr.

Hunter was blunter: “We’ve always had a problem with
157

our treatment units, our stabilization units, doubling
as a segregation unit.

And we’ve been clear and vocal

that that’s not the best use of our crisis space, and
it does compromise treatment.”
996-2) at 159.
to

respond

Hunter Depo. (doc. no.

A correctional administrator’s failure

when

mental-health

providers

in

his

facilities are “clear and vocal” that their ability to
provide care is being undermined reflects deliberate
indifference.
As

for

the

placement

of

prisoners

with

mental

illness in segregation, Dr. Hunter explains that he met
with correctional administrators in early 2015 to share
concerns about “the deleterious effects of long-term
seg placement” and “what other systems are doing in
that regard to address their problem”; he reports that
the Commissioner’s chief of staff was present at the
meeting

and

stated

that

the

Commissioner

“very

much

would like some reform on how seg is handled here in
Alabama.”

Hunter Depo. (doc. no. 996-2) at 184-86.

Houser describes MHM’s effort to communicate at this
158

meeting “how when inmates are detained in a single cell
for long periods of time, it will cause--often cause
further decompensation in their mental health.”
Depo. (doc. no. 996-32) at 66.63
meeting

with

ADOC

Houser

In particular, this

administrators

about

the

use

of

segregation was apparently prompted by an increasing
rate of suicide over the past few years.
explained

at

the

meeting

that

in

Dr. Hunter

“looking

at

the

suicides on record for that period of time, again a
common

denominator

in

most

of

them

was

segregation

placement or the prospect of segregation placement,”
but testified that no follow-up steps had been taken by
defendants “to address mental health implications of
segregation,”

and

that

no

follow-up

meeting

occurred, despite an agreement to have one.

had

Hunter

Depo., P Ex. 16 (doc. no. 675-16) at 191, 200-01.

At

63. This concern was put in stronger terms still in
the minutes of a meeting of MHM administrators in July
of 2013: “DOC is over using segregation on MH inmates.
They want to punish them.” CQI Meeting Minutes, P Ex.
182 (doc. no. 850-82) at 61.
159

the

risk

of

stating

the

obvious,

a

correctional

administrator’s failure to take any corrective (or even
responsive) action when the chief physician responsible
for providing mental-health care to prisoners in his
custody tells him that his practice of placing mentally
ill

prisoners

in

segregation

is

resulting

in

their

deaths is a textbook case of deliberate indifference,
and truly shocks the conscience.
Plaintiffs

also

point

to

defendants’

failure

to

conduct more than minimal auditing of the mental-health
care being provided, and their failure to respond to
serious

concerns

actually

done,

indifference.
the

Office

raised
as

by

the

further

auditing

evidence

of

that

was

deliberate

Although the Associate Commissioner and

of

Health

Services

(OHS)

she

runs

are

responsible, under the contract, from monitoring the
performance of MHM in delivering mental-health care,
the

evidence

obligation
improvement.”

suggests
to

that

engage

they
in

have

abdicated

“continuous

this

quality

Mental Health Services Contract, P Ex.
160

153 (doc. no. 682-13) at 9, ADOC00330.

In 2013 and

2014, OHS conducted only two formal audits, both of the
same

residential

treatment

unit

at

Donaldson, in April and May 2013.

one

facility,

This audit revealed

problems in a variety of areas including, among others,
access

to

mental-health

medication
prisoners

administration,
who

did

treatment beds.
work

care,

with

MHM

not

treatment

and

require

the

planning,

placement

residential

care

of
in

Depositions revealed that OHS did not
to

develop

a

plan

to

address

these

problems, re-audit the unit, or meet more than once do
discuss the results; no one from MHM or the facility
was

present

at

the

only

meeting.

An

MHM

employee

testified at her deposition that many of the problems
identified in that audit remained three years later.
Although

MHM

does

conduct

improvement

activities

inadequacies

in

plaintiffs’
different

this

experts),
facilities

more

(and

extensive

setting

oversight

as

which

document

with,

among

161

quality

aside

the

described

by

problems

at

other

things,

delinquent appointments, outdated treatment plans, and
medication

errors,

OHS

does

not

request

or

receive

copies of the corrective action plans MHM creates in
response

to

its

audit

findings,

and

the

Associate

Commissioner does not request or receive MHM’s annual
contract compliance report.64
receive

reports

from

the

She does not request or

member

of

her

staff

who

attends MHM’s quality improvement meetings, or review
minutes of those meetings.

The OHS audits that were

conducted provide further support for the conclusion
that the Commissioner and Associate Commissioner were
aware

of

serious

mental-health

care

problems
to

in

prisoners;

the
their

delivery
failure

of
to

conduct further audits or review the audits that are

64. In fact, the Associate Commissioner testified
that she “can’t say for certain” whether the contract
compliance report is even being produced, as required,
on a yearly basis. She explained that “[a] lot of that
was handled directly with Dr. Cavanaugh,” an individual
who she then acknowledged has “been dead maybe a year
and a half.” Naglich Depo., P Ex. 22 (doc. no. 676-2)
at 182.
162

conducted by MHM is further evidence of their failure
to take reasonable responsive action.

Together, they

are yet another basis on which the court could conclude
that defendants have been deliberately indifferent.65

B.

Due Process

Defendants move for summary judgment with respect
to involuntary-medication claims of Bui, Hartley, and
McCoy, on the grounds that Bui has received adequate
due

process

and

that

the

other

two

prisoners

have

65. Plaintiffs
also
suggest
that
defendants’
decision to enter, in 2013, into a “capitated” contract
that provides a certain, fixed amount of funding per
prisoner reflects deliberate indifference because it
creates a profit incentive for MHM to spend as little
as possible in providing mental-health care.
As
another court has recently recognized, entering into
such a contract can reflect a privileging of cost
considerations over medical needs that constitutes
deliberate indifference. See Scott, 64 F. Supp. 3d at
839-41; see also Manis v. Corr. Corp. of Am., 859 F.
Supp. 302, 305 (M.D. Tenn. 1994) (Higgins, J.)
(“Especially when a private corporation is hired to
operate a prison, there is an obvious temptation to
skimp on civil rights whenever it would help to
maximize shareholders’ profits.”).
The court will
consider evidence going to this issue at trial.
163

consented to receiving the medication (such that it was
not involuntary at all).66

The court finds that summary

judgment is due to be denied in part and granted in
part with respect to these claims.
In

Washington

recognized
liberty

that

a

v.

Harper,

prisoner

interest

in

the

Supreme

possesses

“a

avoiding

Court

significant

the

unwanted

administration of anti-psychotic drugs under the Due
Process Clause of the Fourteenth Amendment.”
210,

221–22

(1990).

Given

that

the

494 U.S.

purpose

of

psychotropics is “to alter the will and the mind of the
subject,” forced medication “constitutes a deprivation
of liberty in the most literal and fundamental sense.”
Id.

at

238

(Stevens,

dissenting in part).
treatment

of

J.,

concurring

in

part

and

Nonetheless, the right to refuse

psychotropic

drugs

is

not

absolute.

Although a prisoner’s constitutional right to be free

66. Dillard and Terrell also brought due-process
claims falling within this category. These claims are
moot.
164

from unwanted medication is evaluated in light of the
fact

that

he

is

incarcerated,

involuntary-medication

orders

id.

must

at

meet

222,
minimum

standards of substantive and procedural due process,
id. at 220.
In Harper, the Supreme Court concluded that “given
the

requirements

of

the

prison

environment,

the

Due

Process Clause permits the state to treat a prisoner
who

has

drugs

a

serious

against

mental

his

illness

will,”

if

with

(1)

antipsychotic

“the

inmate

is

dangerous to himself or others” and (2) “the treatment
is in the inmate’s medical interest.”
Because

Washington’s

guarantees

and

policy

provided

met

Id. at 227.

these

adequate

substantive

administrative

procedures--including notice, a right to be present at
an adversary hearing, and to present and cross examine
witnesses--prior

to

a

determination

that

prisoners

would be medicated over his objections, the court found
Washington’s policy to comport with due process.
at 235.
165

Id.

Moreover, since Harper, courts have recognized that
the viability of involuntary-medication claims do not
depend upon the means used to compel the administration
of

unwanted

violence,

medication:
or

consequences.”

the
United

violence,

threat

of

States

v.

the

threat

other
Williams,

of

“adverse
356

F.3d

1045, 1054 n.10 (9th Cir. 2004); see also Roland v.
McMonagle, 2015 WL 5918179, at *4 (S.D.N.Y. Oct. 9,
2015) (Oetken, J.) (“The Fourteenth Amendment prohibits
prison officers from using the threat of violence to
compel an inmate to ingest a drug, particularly where
no

medical

professional

has

authorized

forced

medication.”); Blackburn v. Alabama, 361 U.S. 199, 206
(1960) (“Since Chambers v. State of Florida, this Court
has recognized that coercion can be mental as well as
physical....

A number of cases have demonstrated, if

demonstration were needed, that the efficiency of the
rack and the thumbscrew can be matched ... by more
sophisticated modes of ‘persuasion.’”).

However, mere

encouragement to take a prescribed medication does not
166

give rise to a constitutional claim.

See Abbott v.

Soong, 2016 WL 1170944, at *3 (M.D. La. Mar. 2, 2016)
(Wilder-Doomes,
adopted,

2016

M.J.),
WL

report

1215369

and

(M.D.

La.

recommendation
Mar.

23,

2016)

(Dick, J.).

1.

Substantive Due Process

Bui, the one plaintiff who is currently subject to
an involuntary-medication order, has created disputes
of material fact with respect to whether the initial
order

and

its

repeated

renewals

violated

his

substantive and procedural due-process rights.
Bui

has

disorder,

been

depressed

diagnosed
type.

with

Since

schizoaffective

2007,

he

has

been

subject to a continuously renewed order for involuntary
antipsychotic medication, which he receives by monthly
injection.
medication
repeated

It is clear that Bui does not take his
voluntarily:

verbal

requests

his
to

medical
staff

record
to

reflects

terminate

the

involuntary-medication order, and indicates that on at
167

least one occasion he agreed to the injection only when
“confronted

with

possible

assistance).”

Bui Medical Records, P Ex. 68 (doc. no.

844-18) at 11, MR002531.
formally

appealed

committee
illness

the

concluded
was

continued.

(DOC

It also indicates that he

order

that

evidence

interventions

in

his

2009,

denial

that

the

but
of

order

that

any

the

mental

should

be

Id. at 40, MR002726.

Notes

from

the

involuntary-medication

review

order

include

of

this

suggestions

in

February 2008 and January 2010 that, as put in the
latter

instance,

he

would

be

a

“good

candidate

for

discontinuing the involuntary medication order at next
review.”

Id. at 47, MR002833; 32, MR002674.

However,

in July 2010, the order was renewed based on his “lack
of

insight

regarding

his

mental

illness,”

the

likelihood that he would stop taking his medication if
it was not involuntarily administered, and his recent
gains from treatment.

Id. at 30-31, MR002660-61.

168

The

order has subsequently been renewed, about every six
months.
Plaintiffs have offered evidence to show that the
decision

to

continue

involuntary

medication

has

not

been based on current symptoms demonstrating a grave
disability or danger to himself or others, but rather
on the fact that he denies the existence of his mental
illness.
receives

Plaintiffs
a

long-acting

note

that

injection

the
on

fact
a

that

monthly

Bui

basis

means that he has never been able to appear (and be
observed) un-medicated at any of his hearings, as he is
entitled by ADOC regulations to do.

The evidence in

the record shows that prior to the initiation of his
involuntary

medication,

Bui’s

symptoms

involved

inappropriate behavior such as touching of female staff
and

proselytizing--but

violence

either

to

no

himself

“outward
or

aggression

others,”

Hunter

or

Depo.

(doc. no. 996-2) at 256-59--and that his symptoms have
improved over time, allowing him to move into general
population.

But defendants have not shown the absence
169

of a dispute of material fact as to whether his current
symptoms

warrant

ongoing

involuntary

medication.67

Summary judgment will therefore be denied as to whether
Bui’s involuntary medication violates his substantive
due-process rights.

67. Defendants contend that there is no dispute as
to whether it “[w]ould ... be appropriate to continue
[a
prisoner;
specifically,
Bui]
on
involuntary
medications solely because he’s doing well,” noting
that their expert, Dr. Patterson, stated in his
deposition that this would “absolutely” be appropriate,
and contending that this evidence is unrebutted.
Patterson Depo., P Ex. 12 (doc. no. 840-12) at 240.
Even if this is so, this testimony goes only whether
continuation
would
be
in
the
patient’s
medical
interest, not to whether it would be necessary because
he is a danger to himself or others.
(To the extent
that Dr. Patterson opined that a patient “doing well”
is a sufficient basis, on its own, to continue
involuntary medication indefinitely, his opinion is
contrary to Supreme Court law.
Harper, 494 U.S. at
227.
Plaintiffs point to the deposition testimony of
Dr. Charles Woodley that a determination as to a
patient’s dangerousness should be based on observations
within the past year.
Woodley Depo., P Ex. 58 (doc.
no. 844-8) at 110-11.
In light of the undisputed
evidence that Bui is not currently a danger, and the
evidence in the record suggesting that involuntary
medication may no longer be in his medical interest,
there is a dispute of material fact as to whether
continuation
of
his
involuntary-medication
order
violates his substantive due-process rights.
170

2.
Plaintiffs

Procedural Due Process

also

contend

that

defendants

have

violated Bui’s right to procedural due process.

They

identify evidence of a number of inadequacies in the
hearing process that has been afforded Bui: most of the
hearing

notices

recommended

Bui

received

medication

did

and/or

the

not

indicate

reasons

for

the
the

hearing, and some of the hearing notices include dates
that appear to have been changed or were dated for the
same day as the hearing or, in one case, the day after
the hearing.
that

do

Plaintiffs also presented some records

not

indicate--as

they

should--that

Bui

was

provided with a staff advisor.
Defendants
due-process
ADOC’s

first

claim

contend

fails

regulation

as

setting

that

a

Bui’s

matter
forth

of

procedural
law

because

procedures

for

involuntary medication is modeled after the Washington
regulation
Harper.

that

was

upheld

by

the

Supreme

Court

in

However, simply showing that the regulation
171

itself is constitutional is not sufficient to defeat
plaintiffs’ claim that the procedure actually afforded
to

Bui--which

they

regulation--is

say

fails

to

comply

unconstitutional.

As

with
the

that
court

understands it, plaintiffs’ claim is not that Harper
establishes

the

constitutional

procedural

floor,

or

that a prisoner has a constitutional due-process right
to the procedures outlined in state regulations, but
rather that the procedures in fact being provided do
not suffice; deviations from the regulations approved
in

Harper

and

from

state

regulations

are

certainly

pertinent to this inquiry, though not dispositive.

His

claim is therefore a potentially viable one.
Defendants
affirmative

also
during

note

that

his

Bui

answered

deposition

when

in

the

asked

(generally, rather than with respect to any one of his
numerous hearings) whether he had received notice of
and an opportunity to attend his involuntary-medication
hearings, that he had refused to attend some hearings,
and

that

he

had

received
172

the

various

procedural

protections to which he was entitled at each one, such
as the presence of a staff advisor, a right to appeal,
and the ability to be unmedicated.

However, Bui is not

a native or fluent speaker of English, and he appears
to have misunderstood the one question in this series
to which he gave more than a monosyllabic response.
Bui Depo., D Ex. 14-1 (doc. no. 772-2) at 72-73 (“Q:
You had the ability to be unmedicated on that day,
correct?

A: Yeah.

I told him [the doctor] I was--

every time I see him, I told him I don’t want to get a
shot

no

more.”).

Moreover,

this

admission

appears

clearly to be untrue; as plaintiffs point out, Bui is
required

to

receive

a

monthly

injection

of

a

long-lasting medication that makes his appearance at a
hearing in an unmedicated state impossible.

In light

of this, and the apparent deficiencies revealed by his
records,

the

court

concludes

that

Bui’s

affirmative

answers are insufficient to support summary judgment,
and that a genuine dispute of material fact exists as
to his procedural due-process claim.
173

3.

Voluntary and Knowing Consent

As for Hartley and McCoy, plaintiffs agree that
they have signed forms consenting to administration of
psychiatric medication,68 but offer evidence to create a
dispute
practice

of
of

material
coercing

fact

as

to

prisoners

whether
to

take

there

is

a

psychotropic

medication and failing to inform them adequately about
their medication, and as to whether this practice has
resulted in the consent ostensibly given by Hartley and
McCoy not being knowing or voluntary.

See Hightower ex

rel. Dahler v. Olmstead, 959 F. Supp. 1549, 1569 (N.D.
Ga. 1996) (citing Dunkins v. Thigpen, 854 F.2d 394, 398
(11th

Cir.

1988))

(“In

order

to

consent,

Plaintiffs

68. With respect to McCoy, plaintiffs agree only
that his signed name appears on the forms; McCoy
testified that the signatures were not his own.
Although the court might ordinarily hesitate to credit
testimony to this effect and place a heavy burden on an
individual claiming a signature to be inauthentic to
demonstrate as much, the evidence corroborating his
other allegations cautions in favor of hearing him out.
174

must

waive

their

antipsychotic

liberty

interest

medication.

Any

in

refusing

waiver

of

a

constitutional right must be knowing and voluntary.”).
Other than during a one-month period in 2005, McCoy
has

not

However,

been
he

under

an

testified

involuntary-medication
at

his

deposition

order.

that

he

verbally refused to take his shot on multiple occasions
(constituting a withdrawal of prior consent), and that
he has at times been subjected to force at the hands of
correctional

officers,

threatened

with

placement

in

segregation, and actually placed in an isolation cell
as a result of his refusal.

(Defendants suggest that

his testimony relates only to an incident in 2009.

But

he testified in his deposition that he continued to
refuse medication and that officers threaten to “lock
him

up”

if

“right now.”
at 34.

he

doesn’t

accept

the

shot

he

receives

McCoy Depo., D Ex. 61-1 (doc. no. 778-17)

Another plaintiff corroborated portions of this

175

account

in

deposition.69

his

Moreover,

plaintiffs’

expert, Dr. Burns, observed during her interviews with
prisoners

that

they

“consistently

reported

being

subjected to being threatened with forcible medication
injections if they refused either oral medications or a
scheduled injection; and some said they had actually
been

subjected

to

the

use

of

force

injection of a refused medication.”

to

be

given

an

Burns Report (doc.

no. 868-2) at 43.
Defendants
account
signed

of
a

do

not

coercion,

number

of

substantively
merely

consent

dispute

responding
forms,

that

that
his

this
McCoy

medical

records at points document McCoy’s statements agreeing
to be medicated, and that his assertion of a forged
signature and his testimony describing coercion do not

69. The court recognizes that certain evidentiary
objections have been raised regarding this testimony;
these will be resolved at trial, as a genuine dispute
of material fact exists even without it.
176

suffice to create a genuine dispute of fact.70

But

whether or not he signed the forms, he has offered
evidence sufficient to create a material dispute as to
whether his consent on many past occasions has been
voluntary,

and

as

to

whether

defendants’

have

an

70. Defendants rely on Whitehead v. Burnside, 403
F. App’x 401, 403-04 (11th Cir. 2010), for the
proposition
that
McCoy’s
own
“[s]elf-serving
statements”
alleging
coercion
“[can]not
create
a
question of fact in the face of contradictory,
contemporaneously created medical records.”
This
argument fails because McCoy offers not only his own
statement but also the report of Dr. Burns that other
prisoners described similar treatment (as well as the
testimony of another prisoner who observed one of the
incidents).
Were this evidence inadequate to proceed
to trial on a claim like McCoy’s, medical providers who
failed to document their own malfeasance would be
entirely protected from liability.
Illegal behavior
like threatening a patient in order to coerce him to
consent to medication is obviously not the sort of
thing likely to be documented, even when it does occur.
(Whitehead, by contrast, tried to create a dispute
about something very likely to be documented if it had
occurred: a recommendation that a fractured kneecap
required immediate surgery.
Not only did his medical
records not reflect that recommendation, prison records
revealed that the administrator who Whitehead claimed
had overruled the physician’s recommendation was not
present at the prison at the time.)
177

unconstitutional practice of allowing staff to coerce
prisoners into taking psychotropic medication.
The due-process claim brought by Hartley, however,
does

not

Hartley

raise
is

genuine

level,

assistance

documents he signs.
know

what

they

are

and

for.

the

staff

of

disabled

testified

in

reading

material

and

fact.

reads

at

a

that

he

sometimes

and

understanding

He also testified that he does not

psychotropic

mental-health
explain

dispute

developmentally

third-grade
requires

a

medications

However,
would

documents

Hartley

answer
he

he

was

his

takes

or

what

agreed

that

questions

asked

to

and

sign.

Furthermore, plaintiffs do not present evidence of a
policy or practice of mental-health staff failing to
educate prisoners about their medications.

While Dr.

Burns spoke to some prisoners who do not know what
medications they are taking, this alone--absent some
evidence

that

this

information

was

not

discussed

by

providers, or that these prisoners were not competent
to consent--would not be sufficient evidence from which
178

to

conclude

that

providers

consistently

informed consent from prisoners.71
judgment

will

be

granted

with

fail

to

get

Accordingly, summary
respect

to

Hartley’s

due-process claim.

C.

Liability

Defendants contend that plaintiffs have not offered
evidence
procedures

to

demonstrate
of

the

that

any

Commissioner

policies
and

and

Associate

Commissioner are causally related to any constitutional
violations; in other words, they contend that they are
simply not responsible.
undisputed

facts

that

They note the unremarkable and
neither

of

these

officials

is

actually involved in the direct provision of care to
prisoners,

and

also

that

ADOC

contracts

with

a

71. Even those who are not mentally ill or
cognitively impaired do not necessarily remember the
medications they are taking and cannot necessarily
explain their effects.
179

corporation, MHM, to provide mental-health care.72

They

also cite the principle that “supervisory officials are
not liable under § 1983 for the unconstitutional acts
of

their

subordinates

on

the

basis

of

respondeat

superior or vicarious liability,” Cottone v. Jenne, 326
F.3d 1352, 1360 (11th Cir. 2003) (citation and internal
quotation marks omitted), but rather only for a “custom
or policy,” Goebert v. Lee Cty., 510 F.3d 1312, 1331
(11th Cir. 2007) (citation omitted), which “must be the
moving
merely

force

of

the

“tangentially

constitutional
related

to

violation,”
a

not

constitutional

violation,” Cuesta v. Sch. Bd. of Miami-Dade Cty., 285
F.3d 962, 967 (11th Cir. 2002) (citation and internal
quotation marks omitted).73

72. Actually, the record reflects that there are
some low-level employees of ADOC--called psychological
associates--who are involved to some extent in the
direct provision of mental-health care to those with
low-level problems, and that a couple of psychologists
employed by ADOC play a role in the intake process.
73. In fact, it does not appear that this causation
case
law
even
applies
to
official-capacity,
(continued...)
180

But

this

standard

applies

in

cases

where

the

inferior, not the superior, is the one who has been
deliberately

indifferent.

seeking

hold

to

Here,

defendants

deliberately

indifferent

underlings;

they

are

acts
seeking

plaintiffs

responsible
or

omissions
to

hold

are
for
of

not
the

their

defendants

responsible for their own deliberately indifferent acts

injunctive-relief claims brought under Ex parte Young.
The cases defendants cite all involve retrospective
claims
for
money
damages
against
either
personal-capacity defendants or municipal defendants.
(Defendants do cite one case, Miller v. King, 384 F.3d
1248 (11th Cir. 2004), which applied this standard to
an official-capacity, injunctive-relief claim without
discussion. This decision was vacated, however, and is
therefore no longer binding precedent.
See Miller v.
King, 449 F.3d 1149 (11th Cir. 2006).).
A
number
of
other
courts
have
held
that
official-capacity, injunctive-relief claims can proceed
despite
an
absence
of
any
retrospective
causal
connection to the defendants. See Parkell v. Danberg,
833 F.3d 313, 332 (3d Cir. 2016); Colwell v. Bannister,
763 F.3d 1060, 1070-71 (9th Cir. 2014); Hartmann v.
California Dep't of Corr. & Rehab., 707 F.3d 1114, 1127
(9th Cir. 2013); Gonzalez v. Feinerman, 663 F.3d 311,
315 (7th Cir. 2011); Koehl v. Dalsheim, 85 F.3d 86, 89
(2d Cir. 1996); see also Planned Parenthood Ariz., Inc.
v. Brnovich, 172 F. Supp. 3d 1075, 1084 (D. Ariz. 2016)
(continued...)
181

and omissions, and those of the contractor to which
they

have

delegated

constitutional

authority

obligation.

over

The

a

acts

non-delegable
and

omissions

plaintiffs have challenged are specific policies and
practices of defendants.
show

that

these

They have offered evidence to

policies

and

practices

have

caused

constitutional injury by creating a substantial risk of
serious harm.

Again, these policies and practices are

not being identified to show defendants’ liability for
the deliberate indifference of officers or providers
acting pursuant to them; they are being identified to
show
fall

defendants’
into

two

practices

with

exercised

final

which

can

be

own

deliberate

general
respect

categories:

to

which

decision-making
ascribed

indifference.

to

policies

defendants
authority,

defendants

They
and

actually
and

because

those
they

delegated final decision-making authority with respect

(Logan, J.); Malik v. Tanner, 697 F. Supp. 1294, 1304
(S.D.N.Y. 1988) (Kram, J.).
182

to the non-delegable duty to provide adequate mentalhealth care to prisoners in their custody.74

74. Although plaintiffs have offered substantial
evidence of policies and practices, the court notes
that even acts or omissions that do not constitute a
policy or practice would be sufficient to establish
liability for a violation. (Of course, plaintiffs have
endeavored to show the existence of policies and
practices because they must do so for purposes of
commonality in class certification.)
See Williams v.
Bennett,
689
F.2d
1370,
1383
(11th
Cir.
1982)
(explaining
that
in
a
case
seeking
prospective
injunctive relief from an Eighth Amendment violation,
the question is “whether the combined acts or omissions
of all state officials with some responsibility for
operation of the Alabama penal system created living
conditions in the prisons which violated the eighth
amendment”); LaMarca, 995 F.2d at 1538-42 (remanding a
personal-capacity damages claim against a former prison
warden in light of the plaintiffs’ failure to show a
causal connection to the former warden, but upholding a
grant of injunctive relief against his successor based
on a finding that the successor had not “taken
sufficient steps to ensure that [the] past wrongs would
not be repeated”); cf. Luckey v. Harris, 860 F.2d 1012,
1015-16
(11th
Cir.
1988)
(“Personal
action
by
defendants individually is not a necessary condition of
injunctive relief against state officers in their
official capacity.
...
All that is required is that
the official be responsible for the challenged action.
As the Young court held, it is sufficient that the
state officer sued must, ‘by virtue of his office,
ha[ve] some connection’ with the unconstitutional act
or conduct complained of.”).
183

In the first category fall policies and practices
expressly

set

forth

by

defendants

in

the

contract

between ADOC and MHM: underfunding and understaffing,
both

in

staff

terms

and

of

the

qualifications.

the

total

number
As

of

has

number

of

staff

been

mental-health

with

different

discussed

elsewhere,

plaintiffs have presented evidence that the decisions
of

ADOC

to

provide

less

money

and

fewer

and

less

qualified staff than their request for bids initially
called for, and than MHM administrators requested, have
resulted in a range of serious problems in the delivery
of

mental-health

care

across

the

system.

Moreover,

there is evidence in the record (in addition to the
letter

plaintiffs’

counsel

sent

to

defendants

in

advance of filing this case) that defendants were aware
that the contractor they had selected was struggling to
provide what it considered to be adequate care with the
resources

allotted,

but

failed

resources.

184

to

provide

more

Also in this first category are the policies or
practices

of

operating

prisons

which

are

severely

understaffed by correctional officers and overcrowded
with prisoners.75

Obviously, the Commissioner, not MHM,

is responsible for providing adequate custodial staff
and space in the facilities he runs.

Moreover, there

is evidence that he and the Associate Commissioner are
aware of the gravity of the harms that can result from
understaffing, including to the health and safety of
prisoners.

This category also includes correctional

policies and practices like the placement of mentally

75. This category also includes policies and
practices which are clearly determined by defendants
and also appear to stem from custodial understaffing
and overcrowding, such as the practice of housing
segregation prisoners in residential treatment beds,
and the practice of housing prisoners with serious
mental illness in segregation cells. The record makes
clear that housing assignments are not within the
control of MHM.
185

ill prisoners in segregation, and coercion of prisoners
to take psychotropic medications.76
The second category of policies and practices are
those that defendants have not themselves enacted, but
which are attributable to them because they have fully
delegated decision-making authority to MHM with respect
to their constitutional obligation to provide mentalhealth

care

to

prisoners.

As

the

Eleventh

Circuit

explained in Ancata v. Prison Health Services, Inc.,
769 F.2d 700 (11th Cir. 1985), in rejecting an argument
very similar to defendants’ contention that the health
care claims being brought against them based liability
only on respondeat superior: “The federal courts have
consistently ruled that governments, state and local,

76. It is clear that correctional administrators
can be liable for deficient health care based on their
adoption of custodial policies and practices that
hinder prisoners’ access to care.
See H.C. by Hewett
v. Jarrard, 786 F.2d 1080, 1087 (11th Cir. 1986)
(finding
liability
when
the
defendant
authorized
lengthy isolation of a prisoner and thereby “placed
medical attention beyond [his] reach”).
186

have

an

obligation

to

incarcerated individuals.

provide

medical

care

to

This duty is not absolved by

contracting with an entity [to provide these services.]
Although [a contractor] has contracted to perform an
obligation
remains

owed

liable

by

the

for

any

[State],

the

[State]

constitutional

itself

deprivations

caused by the policies or customs of the [contractor].
In

that

sense,

non-delegable.”77

the

[government’s]

duty

is

Id. at 705; see also id. at 706 n.11

(explaining that “if, either expressly or by default,
[a

government

entity]

permit[s]

others

to

decide

or

determine policy, it is liable for their actions if
these

policies

prove

unconstitutional”).

The

court

went on to elaborate that “where a governmental entity
delegates the final authority to make decisions then

77. This proposition is well enshrined in Supreme
Court precedent.
See West v. Atkins, 487 U.S. 42, 56
(1988) (“Contracting out prison medical care does not
relieve the State of its constitutional duty to provide
adequate medical treatment to those in its custody, and
it does not deprive the State’s prisoners of the means
to vindicate their Eighth Amendment rights.”).
187

those decisions necessarily represent official policy,”
and

concluded

that

when

a

defendant

has

a

constitutional obligation to provide health care but
gives a contractor the “responsibility to make final
decisions regarding a [policy or practice as to when or
what care is provided], then their acts, policies and
customs

become

official

policy.”78

Id.

at

705

n.9

(citing Hearn v. City of Gainesville, 688 F.2d 1328,
1334 (11th Cir. 1982)); see also King v. Kramer, 680
F.3d 1013, 1020 (7th Cir. 2012) (holding that a county
could

not

“shield

itself

from

§ 1983

liability

by

78. Defendants’ response to plaintiffs’ reliance on
Ancata
is
puzzling;
they
argue
that
it
is
distinguishable because Ancata was decided at the
motion to dismiss stage, whereas this case is at the
summary judgment stage, and, they contend, plaintiffs
have not offered evidence to show that defendants had
“actual knowledge of a constitutional violation” by the
mental-health providers.
Defs.’ Reply Br. (doc. no.
876) at 120.
But this goes to whether or not
plaintiffs
can
establish
subjective
deliberate
indifference, not to whether defendants can be held
liable for a policy or practice of MHM.
And, as
discussed previously, plaintiffs have indeed offered
evidence sufficient to create a dispute of material
fact as to subject deliberate indifference.
188

contracting out its duty to provide medical services
... [because] the private company’s policy becomes that
of

the

County

if

the

County

delegates

final

decision-making authority to it”).79
Therefore, to the extent that defendants ceded to
MHM

administrators

decision-making

authority

over

various policies or practices regarding treatment--for
example, regarding aspects of medication management--

79. Although Ancata itself involved a county jail,
rather than a state prison, its plain language makes
clear that it is applicable to the latter as well. See
Reaves v. Dep’t of Corr., -- F. Supp. 3d --, 2016 WL
4124301, at *17 (D. Mass. July 15, 2016) (Hillman, J.)
(applying Ancata’s reasoning regarding delegation of
policymaking authority to find that official-capacity
defendants,
including
the
Commissioner
of
the
Department of Corrections, could be held liable for the
policies
or
practices
of
a
correctional
health
contractor); Scott, 64 F. Supp. 3d at 819-21 (applying
Ancata to conclude that “where a State effectively
cedes final decision-making authority with respect to
the provision of or failure to provide medical care to
a third-party contractor, the contractor’s policies and
decisions
effectively
become
and
constitute
the
policies and decisions of the State”).
189

MHM’s policies or practices are attributable to them.80
Defendants have not offered evidence that they retain

80. As reviewed and discussed by the parties’
experts, ADOC does have a number of written policies
governing some aspects of the provision of mentalhealth care. To the extent that these policies result
in inadequate care, defendants are clearly, directly
liable. To the extent that a certain aspect of mentalhealth care is not governed by a departmental policy,
such that MHM sets the policy--or, to the extent that
MHM has a practice of failing to comply with the ADOC
policy (that is to say, MHM has final decision-making
authority “by default,” Ancata, 769 F.2d at 706 n.11,
because its decisions are not actually subject to
oversight)--defendants are also liable.
See Mandel v.
Doe, 888 F.2d 783, 793-94 (11th Cir. 1989) (finding
that, after consideration of the “relevant operational
practices,” a physician’s assistant was the final
policymaker with respect to medical affairs at a prison
facility,
because,
“[a]lthough
it
was
initially
contemplated that the physician’s assistant would be
supervised by a medical doctor, the evidence revealed
that a custom and practice developed so that the policy
was that [the physician’s assistant] was authorized to
function without any supervision or review at all”).
Additionally, the court notes that, although MHM
appears to have decision-making authority with respect
to the types of medications prescribed, there is
evidence that these decisions are also causally
connected to defendants’ denial of adequate funding.
Plaintiffs note that MHM’s meeting notes reveal that
Dr.
Hunter,
its
Medical
Director
and
Chief
Psychiatrist, has repeatedly expressed concern about
the cost of certain classes of antipsychotics, and
(continued...)
190

as a formal matter or actually exercise as a practical
matter decision-making authority with respect to these
policies

or

practices.

Moreover,

plaintiffs

have

offered considerable evidence to show that the audits
ADOC’s

Office

mental-health

of

care

Health
or

of

Services

MHM’s

conducts

compliance

with

of
its

contractual obligations are either extremely sparse or
non-existent; it appears that only two audits of any
mental-health unit or program have been conducted in
the past few years, and it appears that correctional

encouraged providers to “soften the impact” of these
medications’ increasing cost by “transitioning inmates
off these medications.” CQI Meeting Minutes, P Ex. 238
(doc. no. 686-18) at 3, MHM031155.
Plaintiffs also
point to the deposition testimony of named plaintiffs
who were told by providers that they were being taken
off
medication
that
effectively
treated
their
conditions
(hallucinations
and
bipolar
disorder)
because ADOC “couldn’t afford it.”
Wallace Depo., P
Ex. 32 (doc. no. 840-32) at 29, 95; see also Businelle
Depo., P Ex. 40 (doc. no. 840-40) at 83-84.
As
discussed above, although a prisoner does not have a
constitutional right to a treatment of choice, it is
clearly established that the knowing decision to
provide less effective treatment in order to save money
violates the Eighth Amendment.
191

officials do not request, receive, or review copies of
MHM’s internal quality assurance reports.

In light of

this absence of oversight, the court has no difficulty
in concluding that plaintiffs have at least created a
dispute of material fact as to whether defendants can
be held liable for the various policies and practices
at issue in this case implemented by MHM.81

D.

Ex Parte Young

Defendants also argue that the relief sought by
plaintiffs in this case is not available under the Ex
parte Young exception to Eleventh Amendment immunity.
209 U.S. 123 (1908).

To articulate the law correctly:

Ex parte Young allows plaintiffs to sue officials of a
State

in

their

official

capacities

only

to

obtain

prospective relief, and only to remedy a “continuing
violation of federal law.”

Seminole Tribe of Fla. v.

81. Bui’s substantive and procedural due-process
claims fall within this category; although there is an
(continued...)
192

Fla., 517 U.S. 44, 73 (1996) (citation and internal
quotation marks omitted).

“Ex parte Young does not

permit a plaintiff ‘to adjudicate the legality of past
conduct.’”
Supp.

2d

Poindexter v. Dep’t of Human Res., 946 F.
1278,

1290

(M.D.

Ala.

2013)

(Watkins,

J.)

(quoting Summit Med. Assocs., P.C. v. Pryor, 180 F.3d
1326, 1337 (11th Cir. 1999)).

Defendants also point to

language in Ex parte Young itself indicating that the
exception cannot be employed to require an official to
perform a task he has the discretion not to perform.
209 U.S. at 158.
Defendants contend that plaintiffs cannot obtain a
declaration that past acts or omissions of defendants
violated

the

Constitution,

that

plaintiffs

have

not

presented evidence of an ongoing violation, and that
plaintiffs

improperly

seek

an

order

requiring

defendants to perform discretionary tasks, which would

ADOC regulation governing the involuntary-medication
process, it is implemented by MHM, per its contract.
193

constitute

improper

judicial

interference

with

the

management of state prisons.
This
requested,

case,
falls

exception.

and

the

squarely

Plaintiffs

relief
within
seek

plaintiffs

the
a

Ex

have

parte

Young

declaration

that

defendants are committing an ongoing violation of the
Eighth and Fourteenth Amendments.82

And they seek a

prospective injunction prohibiting them from subjecting
prisoners to a substantial risk of serious harm and
requiring

them

to

implement

a

plan

to

change

the

policies and practices plaintiffs contend have created
this risk.

82. This is clearly the primary thrust of the
declaratory relief plaintiffs request.
The court
recognizes, however, that plaintiffs’ complaint could
reasonably be read to also request a declaration that
past discrete acts of defendants and various other
officials and correctional and mental-health staff--as
distinct from the past pendency of the current policies
and practices of defendants--violated the Constitution.
The court sees no conceivable need to consider whether
it is empowered to enter such a declaration.
194

As

discussed

presented

above,

enough

evidence

plaintiffs
to

create

have
a

indeed

dispute

of

material fact as to whether such a continuing violation
exists.

To

the

extent

that

defendants

object

to

plaintiffs’ reliance on evidence about past events to
demonstrate

this

risk,

they

confuse

an

evidentiary

approach to proving claims and the claims themselves.
Plaintiffs in official-capacity cases regularly rely on
evidence

of

a

pattern

of

past

violations

in

order

demonstrate that a policy or practice that caused those
violations

is

presently

and

continues

to

be

unconstitutional.83

83. Consider
a
hypothetical
claim
that
double-celling
in
a
particular
unit
creates
a
substantial risk that prisoners housed on that unit
will be sexually assaulted. One way to prove a current
risk of harm is to offer expert evidence that the
current practice of double-celling the prisoners on
this unit makes it likely that sexual assault will
occur. Another way (instead or in conjunction with the
first) to prove plaintiffs’ case is to show that
double-celling has in past resulted in frequent
assaults in this unit, thereby supporting the inference
that double-celling will continue to have this effect
in the future.
195

Finally, defendants also make an argument regarding
the

appropriate

deference

administrators.

exception

the

defendants

they

correctional

shown

correctional

Although defendants argue that

precludes

official-capacity
functions,

be

This point really has little to do

with Ex parte Young.
this

to

miss

to

the

administrators

court

from

perform

mark
do

ordering

discretionary

entirely:

have

While

discretion

with

respect to how they provide constitutionally adequate
mental-health care, Supreme Court case law makes clear
and defendants surely agree that they very much lack
discretion
Procunier

as
v.

to

whether

Martinez,

they

provide

U.S.

396,

416

it.

See

405-06

(1974)

(“[A] policy of judicial restraint cannot encompass any
failure

to

take

claims

whether

institution.

cognizance
arising

When

a

in

prison

of
a

valid

constitutional

federal

regulation

or
or

state

practice

offends a fundamental constitutional guarantee, federal
courts

will

discharge

constitutional rights.”).

their

duty

to

protect

It is well-established that
196

courts do not violate the Eleventh Amendment when they
order

official-capacity

defendants

unconstitutional conditions.

to

redress

To the extent that the

mental-health care being provided does not violate the
Eighth Amendment, and to the extent that defendants’
medication of prisoners without their consent does not
violate due process, no injunction will be forthcoming.
The court notes that the relief plaintiffs have
requested
requirement

is

precisely

that

that

courts

contemplated

afford

“States

by

the

the
first

opportunity to correct the errors made in the internal
administration

of

their

prisons.”

Rodriguez, 411 U.S. 475, 492 (1973).
seek--and
“dictat[e]
that

this
in

court

or

engage

care
in

minute

should
a

U.S.

343,

Plaintiffs

364
ask

(1996)
only

197

be

the

agree--to
the

way

provided

to

takeover[]

of

Lewis v. Casey, 518

(Thomas,

that

not

detail”

“wholesale

state correctional facilities.”

v.

Plaintiffs do not

certainly

excruciatingly

mental-health

prisoners,

will

Preiser

J.,

court

concurring).
identify

any

policies and practices of defendants that violate the
Constitution, and then order them to formulate a plan
to address those policies and practices so that they no
longer deprive prisoners of constitutionally adequate
mental-health care.
Considerable

deference

to

prison

administrators’

decisions regarding the management of their facilities
is appropriate.

But abdication of the court’s role as

warden of the Constitution is not.
* * *
In

conclusion,

defendants’

motion

for

summary

judgment on the individual plaintiffs’ claims will be
granted in part and denied in part.

Businelle, Carter,

Dillard, Dunn, Moncrief, and Terrell, along with their
claims,

will

be

dismissed

without

prejudice;

and

summary judgment will be entered on the merits against
Hardy.

The mental-health Eighth Amendment claims of

Hartley,

Braggs,

Wallace,

and

Jackson,

Williams

Johnson,

will

198

go

McCoy,
to

Pruitt,

trial.

The

involuntary-medication

due-process

claims

of

Bui

and

McCoy will also proceed to trial.
An appropriate judgment will be entered.
DONE, this the 25th day of November, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

199