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,).

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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

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