Dunn et al v. Thomas et al

Filing 1285

LIABILITY OPINION AND ORDER AS TO PHASE 2A EIGHTH AMENDMENT CLAIM: Accordingly, it is ORDERED that the court and the parties will meet to discuss a remedy. The court emphasizes that given the severity and urgency of the need for mental- health car e explained in this opinion, the proposed relief must be both immediate and long term. No partial final judgment shall issue at this time as to the claim resolved in this entry. Signed by Honorable Judge Myron H. Thompson on 6/27/2017. (kh, )

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

LIABILITY OPINION AND ORDER
AS TO PHASE 2A EIGHTH AMENDMENT CLAIM
I.

INTRODUCTION

3

II. PROCEDURAL BACKGROUND

5

III. FACTUAL BACKGROUND

6

A. ADOC Facilities and Organizational Structure
B. MHM Organizational Structure
C. Summary of Factual Findings
1. Fact Witnesses
2. Expert Witnesses

8
12
15
15
24

IV. EIGHTH AMENDMENT LEGAL STANDARD

30

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

33

1

A. Serious Mental-Health Needs

34

B. Actual Harm and Substantial Risks of Serious Harm
Posed by Inadequate Care
39
1. Contributing Conditions
46
a. Overcrowding
47
b. Mental-Health Understaffing
49
c. Correctional Understaffing

59

2. Identification and Classification of Prisoners’
Mental-Health Needs
71
a. Inadequate Intake Process
b. Inadequate Referral Process

72
79

c. Inadequate Classification of Mental-Health Needs
83
d. Inadequate Utilization of Mental-Health Units 86
3. Inadequate Treatment Planning
89
4. Inadequate Psychotherapy
96
5. Inadequate Inpatient Care
a. Improper Use of Mental-Health Units
b. Inadequate Out-of-Cell Time and Programming

109
110
115

c. Lack of Hospital-Level Care
128
6. Inadequate Suicide Prevention and Crisis Care 133
a. Failure to Provide Crisis Care to Those Who Need
It
141
b. Placement of Prisoners in Crisis in Dangerous
Harmful Settings
c. Inadequate Treatment in Crisis Care
d. Unsafe Crisis Cells
e. Inadequate Monitoring of Suicidal Prisoners
f. Inappropriate Release from Suicide Watch
Inadequate Follow-up
7. Inappropriate Use of Disciplinary Actions

2

and
153
157
160
167
and
173
178

8. Inappropriate Placement and Inadequate Treatment
in Segregation
190
a. Background on Segregation
193
i.

Consensus among Correctional and
Mental-Health Professionals on Segregation
193
ii. ADOC’s Segregation Units
199
b. ADOC’s Segregation of Mentally Ill Prisoners 205
i. ADOC’s Segregation-Placement Practices 206
ii. Treatment and Monitoring in Segregation
Units
214
c. Segregation of Prisoners with Serious Mental
Illness
225
9. Tutwiler
230
10. Other Issues
236
C. Deliberate Indifference
242
1. ADOC’s Knowledge of Harm and Risk of Harm
2. ADOC’s Disregard of Harm and Risk of Harm
a. ADOC’s Failure to Exercise Oversight
Provision of Mental-Health Care
b. ADOC’s Unreasonable
Deficiencies

Responses

to

250
261
of

the
264

Identified
276

D. Ongoing Violation
E. Ex parte Young Defenses

283
291

VI. CONCLUSION

299
I.

INTRODUCTION

The plaintiffs in this phase of this class-action
lawsuit are a group of seriously mentally ill state
prisoners and the Alabama Disabilities Advocacy Program
(ADAP),

which

represents

mentally
3

ill

prisoners

in

Alabama.

The defendants are the Commissioner of the

Alabama Department of Corrections (ADOC), Jefferson Dunn,
and the Associate Commissioner of Health Services, Ruth
Naglich, who are sued only in their official capacities.
The plaintiffs assert that the State of Alabama provides
constitutionally inadequate mental-health care in prison
facilities and seek injunctive and declaratory relief.
They rely on the Eighth Amendment, made applicable to the
States

by

the

Fourteenth

through 42 U.S.C. § 1983.

Amendment

and

as

enforced

Jurisdiction is proper under

28 U.S.C. § 1331 (federal question) and § 1343(a)(3)
(civil rights).
After a lengthy trial, this claim is now before the
court for resolution on the merits.

Upon consideration

of the evidence and arguments, the court finds for the
plaintiffs
evidence

in

from

substantial
both

sides

part.

Surprisingly,

(including

testimony

the
from

Commissioner Dunn and Associate Commissioner Naglich as
well as that of all experts) extensively and materially
supported the plaintiffs’ claim.

4

II. PROCEDURAL BACKGROUND
This extremely complex case has been split into three
phases: Phase 1 involved claims under Title II of the
Americans with Disabilities Act (ADA), codified at 42
U.S.C. § 12131 et seq., and § 504 of the Rehabilitation
Act, codified at 29 U.S.C. § 794, claiming discrimination
on the basis of physical disabilities and failure to
accommodate those disabilities. The parties settled Phase
1. See Dunn v. Dunn, 318 F.R.D. 652 (M.D. Ala. 2016)
(Thompson, J.).
Rehabilitation

Phase 2A involves Eighth Amendment, ADA,
Act,

mental-health care.

and

due-process

claims

regarding

The parties settled the Phase 2A ADA

and Rehabilitation Act claim.

The due-process claims are

pending before the court for settlement approval.1

Phase

2B will focus on medical-care and dental-care claims
under the Eighth Amendment.

1. Earlier in the litigation, the parties also
reached a settlement regarding the distribution of razor
blades to mentally ill prisoners.
5

This

opinion

resolves

only

the

Phase

2A

Eighth

Amendment claim of inadequate mental-health care.2

The

court has certified a Phase 2A plaintiff class consisting
of all persons with a serious mental illness who are, or
will be, confined within ADOC’s facilities, excluding
Tutwiler Prison for Women and the work-release centers.
See Braggs v. Dunn, 317 F.R.D. 634 (M.D. Ala. 2016)
(Thompson, J.).

While mentally ill prisoners at Tutwiler

are not part of the class, ADAP, as Alabama’s designated
protection and advocacy organization for the mentally ill,
brought

claims

on

their

behalf.

A

seven-week

trial

followed.

III. FACTUAL BACKGROUND
Mental-health

care

in

this

opinion

refers

to

screening, treatment, and monitoring of mental illnesses,

2. The defendants did not raise or re-argue
exhaustion of administrative remedies during or after the
trial, and did not argue exhaustion in their post-trial
filings as a reason they should prevail. See Defendants’
Post-Trial Brief (doc. no. 1282); see also Dunn v. Dunn,
219 F. Supp. 3d 1100 (M.D. Ala. 2016).
6

as

well

mentally

as

ADOC’s

ill

policies

prisoners,

and

practices

including

regarding

decisions

disciplinary sanctions and housing placements.3

on

Before

diving in to the details of weeks’ worth of testimony and
thousands of pages of documentary evidence regarding
mental-health

care

provide

background

some

within

ADOC,

the

information

court
on

pauses

ADOC

and

to
its

mental-health contractor, as well as a summary of the
factual findings.

3. The provision of mental-health care to Alabama's
prisoners has been litigated at least three times before.
See Laube v. Campbell, 333 F. Supp. 2d 1234 (M.D. Ala.
2004) (Thompson, J.) (approving settlement agreement that
provides for inpatient care, suicide prevention and
treatment, crisis intervention, and counseling services
in a class-action lawsuit brought on behalf of women
incarcerated in Alabama); Bradley v. Harrelson, 151 F.R.D.
422 (M.D. Ala. 1993) (Albritton, J.) (certifying a class
of severely mentally ill male prisoners); Pugh v. Locke,
406 F. Supp. 318 (M.D. Ala. 1976) (Johnson, J.) (ordering
the State to provide minimally adequate mental-health
care, including identification of mentally ill prisoners
and provision of care by qualified mental-health
professionals), 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 on other grounds, and
remanded sub nom. Alabama v. Pugh, 438 U.S. 781 (1978).
7

A. ADOC Facilities and Organizational Structure
ADOC runs 15 major facilities (14 for men and the
Tutwiler

Prison

for

Women)

and

houses

prisoners in its major facilities.4

around

19,500

Approximately 3,400

prisoners are on the mental-health caseload, meaning that
they receive some type of mental-health treatment, such
as counseling or psychotropic medications.
MAJOR ADOC FACILITIES5
Facility

Location

Population

Bibb

Brent

1847

Bullock

Union Springs

1522

Donaldson

Bessemer

1474

Draper

Elmore

1144

Easterling

Clio

1457

Elmore

Elmore

1186

Fountain

Atmore

1242

4. ADOC also houses an additional 4,500 prisoners
in work centers and work-release centers, bringing the
total population in custody to around 24,000.
5. See Pl. Ex. 1260, September
Statistical Report (doc. no. 1097-19).
8

2016

Monthly

Hamilton

Hamilton

275

Holman

Atmore

941

Kilby

Mt. Meigs

1126

Limestone

Harvest

2214

St. Clair

Springville

975

Staton

Elmore

1382

Ventress

Clayton

1254

Tutwiler

Wetumpka

880

Three of the major facilities, Bullock, Donaldson,
and Tutwiler, serve as ‘treatment hubs’ for mental-health
services, containing a residential treatment unit (RTU)
and/or a stabilization unit (SU).

These two types of

units, together referred to as ‘mental-health units’ or
‘inpatient-care units,’ house and treat the most severely
mentally

ill

prisoners.

mental-health

The

caseload

receive

rest

of

their

those

on

the

care

through

outpatient services: they live in a unit that is not
focused

on

treatment

and

ordinarily

9

must

go

to

a

different part of the prison to see a mental-health
provider.
Under

the

administrative

regulations

governing

ADOC’s mental-health care, RTUs are for mental-health
patients who suffer from “moderate impairment in mental
health

functioning”

that

puts

general-population setting.

them

at

risk

in

a

Joint Ex. 107, Admin. Reg.

§ 613-2 (doc. no. 1038-130). RTUs are intended to provide
a therapeutic environment to mentally ill patients and
to

help

them

develop

coping

placement in general population.

skills

necessary

for

RTUs can be ‘closed,’

meaning that each patient lives in an individual cell
with little time spent outside the cell; ‘semi-closed,’
meaning that the patient still stays in an individual
cell but is let out of the cell more often; or ‘open,’
meaning that the patient lives in an open dormitory with
other RTU patients.
SUs are for patients who are suffering from acute
mental-health problems--such as acute psychosis or other
conditions causing an acute risk of self-harm--and have

10

not been stabilized through other interventions.

SUs are

intended to stabilize the patient as quickly as possible
so that the patient can return to a less restrictive
environment.

All SU patients are housed in individual

cells.
Altogether, the two male treatment hubs have 346 RTU
beds and 30 SU beds: Bullock has 250 RTU beds and a 30-bed
SU for male prisoners, and Donaldson has an additional
96-bed RTU.
for women.

Tutwiler has 30 RTU beds and eight SU beds
These units provide services to about 2 % of

ADOC’s overall population.
ADOC is headed by Commissioner Dunn.

Associate

Commissioner for Health Services Naglich heads the Office
of

Health

Services

(OHS),

which

is

responsible

for

overseeing the provision of medical and mental-health
care to prisoners.
deliver

medical

prisoners.

ADOC uses private contractors to

and

Under

mental-health

the

mental-health

care

services

contract

with

to
a

third-party vendor, OHS has access to the contractor’s
internal documents and records, and the contractor is

11

required

to

send

certain

reports,

such

as

monthly

operating reports and annual contract-compliance reports,
to OHS.

The only OHS staff member with mental-health

expertise

is

psychologist.
between

the

Dr.

David

Tytell,

the

chief

clinical

Dr. Tytell serves as the main liaison
mental-health

contractor

and

ADOC,

and

communicates with the contractor’s program director at
least weekly.

ADOC also directly employs ‘psychological

associates,’

who

are

counselors

responsible

for

conducting certain psychological tests at intake and for
providing group sessions and classes for non-mentally ill
prisoners.

They report to their respective facilities’

wardens, rather than OHS or the mental-health contractor.

B. MHM Organizational Structure
MHM Correctional Services, Inc. is ADOC’s contractor
for mental-health care.
that

provides

medical

MHM is a for-profit corporation
and

mental-health

correctional facilities across the country.

12

services

to

MHM’s regional office in Alabama is headed by its
program director Teresa Houser.

She serves as the main

liaison between ADOC and MHM.

Dr. Robert Hunter, a

psychiatrist who serves as the medical director for the
Alabama regional office, is charged with supervising
psychiatrists

and

certified

registered

nurse

practitioners (CRNP) stationed at various ADOC facilities.
Both Houser and Hunter communicate frequently with ADOC
officials, including Associate Commissioner Naglich and
Dr. Tytell.
MHM employs a variety of administrative and clinical
personnel to fulfill its contract with ADOC.
regional

office,

administrators

and

Houser
managers,

supervises
such

as

the

In its
various

continuous

quality improvement (CQI) manager, who conducts informal
audits of MHM’s performance, and the chief psychologist,
who supervises psychologists and conducts training for
MHM employees.

At the facility level, MHM employs site

administrators

to

provide

administrative

oversight;

these administrators are counselors by training.

13

MHM

also employs approximately 45 full-time ‘mental-health
professionals’

(MHPs),

who

are

masters-level

mental-health counselors, at prisons across the State.
As of December 2016, MHM employed four psychiatrists and
eight CRNPs in Alabama; these providers are qualified to
diagnose

mental

illnesses,

prescribe

psychotropic

medication, and provide psychotherapy across multiple
facilities.

MHM also employs three psychologists and

three registered nurses (RNs) for the entire State.

The

RNs are stationed at the three treatment hubs, Bullock,
Donaldson,

and

Tutwiler;

they

administer

medication,

provide crisis intervention, and supervise the licensed
practical nurses (LPNs) at their facilities.

MHM employs

approximately 40 LPNs, individuals with 12 to 15 months
of health-care training.

The LPNs are responsible for

conducting mental-health intake at Kilby and Tutwiler,
monitoring medication compliance, maintaining medication
records, and conducting side-effects monitoring tests for
psychotropic medications.

While the LPNs stationed in

the mental-health treatment units are supervised by the

14

on-site RN, at all other places, including at intake
screening, LPNs have no on-site supervision.

Lastly, MHM

employs six to eight activity technicians, who organize
or

assist

in

therapeutic,

social,

and

recreational

activities for patients in mental-health units.

C. Summary of Factual Findings
1. Fact Witnesses
Over the course of seven weeks, the court heard
testimony

as

to

whether

ADOC’s

mental-health

care

violates mentally ill prisoners’ constitutional rights.
The trial opened with the testimony of prisoner Jamie
Wallace,

who

suffered

from

severe
and

mental

substantial

illnesses,

intellectual

disability,

physical

disabilities.

Wallace stated that he had tried to kill

himself many times, showed the court the scars on arms
where he made repeated attempts, and complained that he
had not received sufficient treatment for his illness.
Because of his mental illness, he became so agitated
during his testimony that the court had to recess and
15

reconvene to hear his testimony in the quiet of the
chambers library and then coax him into completing his
testimony as if he were a fearful child.

The court was

extremely concerned, by what it had seen and heard from
this plaintiff, about the fragility of his mental health.
At the end of Wallace’s testimony and out of his presence,
the court informed the attorneys for both sides that it
wanted a full report on his mental condition and the
steps that were being taken to address that condition.
Unfortunately,

and

most

tragically,

ten

days

Wallace testified, he killed himself by hanging.

after

Because

it appeared that adequate measures may not have been put
in place to prevent Wallace’s suicide, the court put the
parties

into

mediation

to

attempt

to

come

up

with

immediate, interim procedures to prevent future prisoner
suicides.
procedures.

The parties eventually came up with such
Without question, Wallace’s testimony and

the tragic event that followed darkly draped all the
subsequent testimony like a pall.

16

The plaintiffs’ case then proceeded with testimony
from Commissioner Dunn, who aptly described the prison
system

as

wrestling

with

a

overcrowding and understaffing.

“two-headed

monster”:

Dunn Testimony at 26.

The court also heard from Associate Commissioner Naglich
and MHM’s program director Houser, for whom overcrowding
and understaffing (both as to correctional staff, as
noted by Dunn, and mental-health staff) were a mantra.
They, with admirable candor, as with many other fact
witnesses and the experts from both sides, essentially
agreed

that

the

staffing

shortages,

combined

with

persistent and significant overcrowding, contribute to
serious

systemic

deficiencies

in

the

delivery

of

mental-health care.
The inadequacies in the mental-health care system
start at the door, with intake screening for prisoners
who need mental-health care.
lowest

mental-illness

ADOC boasts one of the

prevalence

correctional systems in the country.

rates

among

But this is not

because Alabama has fewer mentally ill prisoners than the

17

rest of the country or the best mental-health care system
for its prisoners; rather, according to experts from both
sides,

this

is

because

a

substantial

number--likely

thousands--of prisoners with mental illness are missed
at intake and referrals for evaluation and treatment are
neglected.

As a result, many ADOC prisoners who need

mental-health care go untreated.
Even when identified, mentally ill prisoners receive
significantly

inadequate

correctional

staffing

treatment.

care.
shortages

Mental-health
drive

and

inadequate

Individual and group counseling sessions are

delayed or canceled due to shortages of counselors and
correctional officers to escort prisoners to the sessions
and to provide security.

As a result, mental-health

staff often have to resort to cell-side contacts, which
cannot

be

confidential,

considered

substitutes

meaningful,

appointments.

out-of-cell

for

Treatment

planning is often pro forma and not individualized and
fails to provide a meaningful and consistent course of
treatment. Mental-health units intended as a therapeutic

18

environment for the most severely ill prisoners operate
like

segregation

units,

with

little

counseling,

therapeutic programming, or out-of-cell time.

ADOC does

not provide hospital-level care for those who need it.
ADOC also fails to provide adequate care to prisoners
expressing

suicidality

and

undergoing

mental-health

crises.

Mental-health staff fail to use appropriate

risk-assessment tools to determine suicide risk.

ADOC

has an insufficient number of crisis, or ‘suicide-watch,’
cells--special
prisoners.

cells

for

the

protection

of

suicidal

Because they have a limited number of cells

to work with, they gamble on which prisoners to put in
them

and

frequently

self-harm and suicide.

discount

prisoners’

threats

of

The insufficient number of crisis

cells also results in the use of unsafe rooms such as
shift

offices

suicide-watch

to
cells

house

suicidal

that

do

prisoners.

exist

are

The

dangerous:

visibility into many of the cells is poor, making it
difficult to monitor; many cells have tie-off points for
ligatures

that

can

be

used

19

for

suicide

attempts;

dangerous items used for inflicting self-injury are often
found.

Prisoners in these cells receive less contact

with and less monitoring by providers than the acuity of
their condition demands.
general

population

or

When they are released to

segregation,

prisoners

receive

inadequate follow-up.
ADOC’s segregation practices inflict further harm on
prisoners suffering from inadequate mental-health care.
Due to the effects of isolation, placement in segregation
endangers mentally ill prisoners, and the risk of harm
increases with the length of isolation and the severity
of their mental illness.

This danger is compounded by

the limited access to mental-health care and monitoring
available within ADOC’s segregation units and dangerous
conditions inside the cells.
does

not

have

a

Despite these dangers, ADOC

meaningful

mechanism

that

prevents

mentally ill prisoners from being placed in segregation
for lengthy periods of time.

Moreover, many mentally

ill prisoners land in segregation due to symptoms of

20

mental illness.

This combination of conditions is often

deadly: most suicides in ADOC occur in segregation.
For years, ADOC has failed to respond reasonably to
these

problems.

Despite

knowledge

of

serious

and

widespread deficiencies, it has failed to remedy known
problems

and

exercised

very

little

mental-health care contractor.
Naglich,

who

is

in

charge

oversight

of

its

Associate Commissioner
of

contract

monitoring,

admitted that she has been aware of the contractor’s
deficient

performance

and

inadequate

quality-control

process; however, she does not monitor the contractor to
ensure

that

it

provides

minimally

adequate

care.

Moreover, ADOC officials admitted on the stand that they
have done little to nothing to fix problems on the ground,
despite

their

knowledge

that

those

problems

may

be

putting lives at risk.
The

psychological

and

sometimes

physical

harm

arising from these systemic deficiencies is palpable.
Unidentified

and

under-treated

mental

illness

causes

needless pain and suffering in the form of persistent or

21

worsening

symptoms,

decompensation,

6

self-injurious

behavior, and suicide. The skyrocketing suicide rate
within ADOC in the last two years is a testament to the
concrete harm that inadequate mental-health care has
already inflicted on mentally ill prisoners.
In fact, as explained earlier, the court had a close
encounter

with

one

of

the

tragic

consequences

inadequate mental-health care during the trial.

of

Over the

course of the trial, two prisoners committed suicide, one
of whom was named plaintiff Jamie Wallace.
suicide,

defendants’

expert,

Prior to his

Dr. Patterson,

concluded

based on a review of Wallace's medical records that the
care he had received was inadequate.
correctional
months

before

mental-health
his

death,

care
while

expert,
he

was

Dr. Haney, a
met

Wallace

housed

in

a

residential treatment unit, and in his report expressed

6. Decompensation
refers
to
exacerbation
of
symptoms
of
mental
illness
and
impaired
mental
functioning; it calls for a “more structured or sheltered
setting for more intensive treatment interventions.”
Burns Testimony at vol. 1, 173.
22

serious

concerns

Wallace’s

case

about
was

deficiencies.

the

care

emblematic

Wallace

he

of

receiving. 7

was

multiple

testified,

and

his

systemic
records

reflected, that mental-health staff did not provide much
in the way of consistent psychotherapeutic treatment,
which is distinct from medications administered by nurses
and

cursory

‘check-ins’

with

staff.

MHM

clinicians

recommended that he be transferred to a mental-health
hospital, but ADOC failed to do so.

His psychiatrist at

the

that

time

of

his

death

testified

the

medically

appropriate combination of supervised out-of-cell time
and

close

monitoring

when

he

was

in

his

cell

was

unavailable due to a shortage of correctional officers.
As a result, Wallace was left alone for days in an
isolated cell in a treatment unit, where he had enough
time to tie a sheet unnoticed; because his cell was not
suicide-proof, he was able to find a tie-off point from
which to hang himself.
7. During their meeting, Wallace began to cry,
leaned over the interview table, and told Dr. Haney, with
tragic prescience, “[T]his place is killing me.” Joint
Ex. 459, Haney Expert Report (doc. no. 1038-1043) at 40.
23

The case of Jamie Wallace is powerful evidence of
the real, concrete, and terribly permanent harms that
woefully

inadequate

mental-health

care

mentally ill prisoners in Alabama.
changes

that

deficiencies,

address
mentally

these
ill

inflicts

on

Without systemic

pervasive

prisoners

in

and

grave

ADOC,

whose

symptoms are no less real than Wallace’s, will continue
to suffer.

2. Expert Witnesses
Plaintiffs and defendants presented five experts in
the

correctional

mental

administration fields.8

health

and

correctional

By and large, experts from both

sides agreed that ADOC facilities are suffering from
severe

systemic

deficiencies

that

delivery of mental-health care.

are

affecting

the

For example, experts

from both sides agreed that ADOC suffers from severe

8. In a separate order with an opinion to follow,
the court finds that four of the experts’ methodologies
survive Daubert challenges.
No objection was raised
against plaintiffs’ expert Dr. Craig Haney.
24

overcrowding; correctional understaffing; mental-health
staff

shortages;

inadequate

deficient

psychotherapy;

mental-health

units;

treatment
inadequate

inappropriate

planning;
use

placement

of
of

segregation inmates; and inappropriate use of segregation
for mentally ill prisoners.
Defendants’ correctional mental-health care expert,
Dr. Raymond Patterson, is a forensic psychiatrist who has
worked

for

various

state

and

federal

correctional

institutions as a provider and as a consultant.

In

preparation for his testimony, he reviewed the individual
plaintiffs’ medical records and deposition transcripts,
visited

and

conducted

audits

of

six

facilities,

and

reviewed ADOC regulations, MHM policies and procedures,
MHM monthly reports, and other expert reports.

His

conclusions regarding systemic deficiencies in ADOC’s
mental-health care system largely tracked those of Dr.
Kathryn

Burns,

one

of

the

plaintiffs’

experts:

he

credibly concluded that ADOC needs more mental-health
staff; ADOC’s identification and classification of mental

25

illness are inadequate; MHM’s unlicensed practitioners
should be supervised; treatment planning is deficient;
too few patients are getting inpatient care; ADOC should
provide

hospitalization

as

an

option

for

the

most

severely ill patients; and suicide prevention measures
are inadequate.9
Defense

expert

administration
California
preparation

Robert

expert

prison
for

Ayers

is

a

correctional

who

has

been

involved

system

for

over

40

giving

his

opinion,

in

years.

Ayers

the
In

reviewed

plaintiffs’ expert reports, visited six facilities, and
talked with ADOC and MHM staff during those visits.

He

agreed with plaintiffs’ experts that ADOC facilities are

9. Based on his review of medical records and
deposition testimony, Dr. Patterson also offered his
opinions about whether individual plaintiffs’ care was
adequate.
However, because this is a case alleging
systemic inadequacies in the delivery of mental-health
care, the court need not determine the adequacy of care
for any particular individual. Furthermore, because Dr.
Patterson did not meet with any of the plaintiffs, and
deposition transcripts, by Dr. Patterson’s own admission,
are not a reliable source for determining credibility or
making clinical diagnoses of an individual, the court
gives little weight to his opinions as to whether the
care provided to the individual plaintiffs was adequate.
26

understaffed and overcrowded.

He opined that ADOC’s

written policies related to mental-health care seemed to
be adequate.
due

to

the

However, he credibly explained that, mainly
severe

understaffing

and

the

lack

of

documentation, he had reasons to doubt that correctional
officers and mental-health staff were actually complying
with ADOC policies and procedures.

He also concluded

that ADOC was not providing an adequate level of care to
all prisoners with mental-health needs.
Dr. Kathryn Burns, the chief psychiatrist for the
Ohio Department of Rehabilitation and Correction, is a
correctional mental-health expert for the plaintiffs. To
prepare for her testimony, Dr. Burns visited nine major
ADOC facilities, touring housing units, mental-health
treatment

areas,

and

crisis

cells;

she

held

formal

interviews with 77 prisoners and spoke to an additional
25 prisoners at cell-front; she also reviewed documents
such

as

medical

records,

ADOC

regulations,

MHM’s

quality-improvement (or ‘continuous quality improvement’
or ‘CQI’) and multidisciplinary-team meeting minutes,

27

suicide tracking sheets, and audit results.

Based on her

review of this evidence, she identified a wide range of
problems in the delivery of mental-health care, including:
insufficient

mental-health

staffing

and

correctional

staffing; inadequate identification and classification
of

mental

cursory

illness;

counseling

inadequate
appointments,

treatment,

including

inadequate

treatment

plans, dearth of group counseling, and inadequate use of
mental-health

units;

and

inadequate

response

self-injurious behavior and mental-health crises.

to
Dr.

Burns credibly opined that these inadequacies, separately
and taken together, subject mentally ill prisoners to a
substantial

risk

continued

pain

of
and

harm

from

untreated

suffering,

symptoms,

decompensation,

self-injurious behavior, and suicide.
Dr. Craig Haney, a professor of psychology at the
University of California Santa Cruz, is an expert for the
plaintiffs in the psychological effects on prisoners of
incarceration

and

particularly

of

segregation.

His

testimony focused on the state of segregation units and

28

their impact on prisoners’ mental health, based on his
visits to seven facilities, interviews with numerous
prisoners, and review of documents such as deposition
transcripts of ADOC and MHM personnel, medical records,
monthly

statistical

reports,

documents, among others.

and

quality-assurance

He testified that segregation

units he saw were “degraded, dilapidated, deplorable,”
and that these units and conditions have a significant
negative

psychological

impact

Testimony at vol. 1, 79.

on

prisoners.

Haney

Furthermore, he explained how

ADOC’s segregation practices harm mental health of all
prisoners,

and

especially

that

of

prisoners

who

are

already mentally ill.
Lastly,

plaintiffs’

expert

Eldon

Vail

is

a

correctional administration expert who has worked in
corrections for over 30 years.
spending

a

day

at

each,

and

interviews with 42 prisoners.

Vail toured seven prisons,
conducted

confidential

He also reviewed ADOC

policies and procedures, meeting minutes, reports and
logs generated by ADOC, deposition testimony of ADOC and

29

MHM

personnel,

and

other

documentary

evidence.

His

testimony focused on matters of prison administration,
including security, staffing, and behavior management,
and the impact of these factors on the provision of
mental-health care and on prisoners’ mental health.
credibly

testified

that

the

level

of

He

correctional

understaffing at ADOC was so low as to be “shocking,” and
that it has cascading effects on mental-health care:
inadequate staff to transport prisoners to appointments
and supervise treatment activities; inadequate staff to
monitor segregation inmates, who have higher suicide
risks; and overcrowded crisis cells filled with prisoners
who feel unsafe due to violence in general-population
dorms.

Vail Testimony at vol. 1, 34.

IV. EIGHTH AMENDMENT LEGAL STANDARD
The Eighth Amendment’s prohibition on “cruel and
unusual punishments” extends to a State’s failure to
provide minimally adequate medical care that “may result
in pain and suffering which no one suggests would serve

30

any penological purpose.”

Estelle v. Gamble, 429 U.S.

97, 103 (1976); Harris v. Thigpen, 941 F.2d 1495, 1504
(11th Cir. 1991) (“Federal and state governments ... have
a constitutional obligation to provide minimally adequate
medical

care

to

incarceration.”).
medical

care

to

mental-health care.

those

whom

they

are

punishing

by

The State’s obligation to provide
prisoners

includes

psychiatric

and

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

(11th Cir. 1986) (“Failure to provide basic psychiatric
and

mental-health

care

states

a

claim

of

deliberate

indifference to the serious medical needs of prisoners.”).
The ‘basic’ mental-health care that States must provide
if needed by a prisoner includes not only medication but
also psychotherapeutic treatment.

See Greason v. Kemp,

891 F.2d 829, 834 (11th Cir. 1990) (“Even if this case
involved

failure

to

provide

psychotherapy

or

psychological counselling alone, the court would still
conclude

that

the

psychiatric

care

was

sufficiently

similar to medical treatment to bring it within the
embrace of Estelle.”).

The State’s obligation remains

31

even if it has contracted with private parties to provide
medical care.

West v. Atkins, 487 U.S. 42, 56 (1988).

That

State

is,

the

is

liable

for

the

contractor’s

unconstitutional policies and practices if the contractor
is allowed to determine policy either “expressly or by
default.” Ancata v. Prison Health Servs., Inc., 769 F.2d
700, 706 n.11 (11th Cir. 1985).
To

prevail

on

an

Eighth

Amendment

challenge,

plaintiffs must prove that prison officials acted with
deliberate

indifference

to

serious

Estelle, 429 U.S. at 105-06.

medical

needs.

This inquiry consists of

both objective and subjective tests.

The objective test

requires showing that the prisoner has “serious medical
needs,” Estelle, 429 U.S. at 104, and either has already
been harmed or been “incarcerated under conditions posing
a substantial risk of serious harm.”
511 U.S. 825, 834 (1994).
show

that

a

prison

Farmer v. Brennan,

Subjectively, a prisoner must

official

acted

with

deliberate

indifference to that harm or risk of harm: that is, the
official

must

have

“known[]

32

of

and

disregarded[]

an

excessive risk to inmate health or safety.”

Id. at 837;

see also Farrow v. West, 320 F.3d 1235, 1245 (11th Cir.
2003).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
In this section, the court first discusses the basis
for

its

finding

that

the

plaintiffs

have

serious

mental-health needs that require mental-health treatment.
The court then lays out the common factors contributing
to the substantial risks of harm in ADOC: shortages of
mental-health

staff,

officers,

overcrowding.

and

understaffing
After

of

correctional

that,

the

court

proceeds through seven different ways in which ADOC’s
mental-health care system has caused actual harm and a
substantial

risk

of

serious

harm;

the

treatment

of

mentally ill prisoners at Tutwiler; issues on which the
court does not, at this time, find for the plaintiffs;
and the defendants’ knowledge of such harm and risks, and
their failure to act in a reasonable manner to mitigate
those risks.

The section concludes with a discussion of
33

the defendants’ legal defenses based on Ex parte Young,
209 U.S. 123 (1908).

A. Serious Mental-Health Needs
To

prove

an

Eighth

Amendment

claim

based

on

inadequate mental-health care, plaintiffs must show that
they have serious mental-health care needs.

A serious

need is “one that has been diagnosed by a 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.”
(11th Cir. 2003).

Farrow v. West, 320 F.3d 1235, 1243

Thus, courts may find the existence

of serious needs even when prison staff have failed to
recognize an inmate’s need for treatment.

Danley v.

Allen, 540 F.3d 1298, 1310-11 (11th Cir. 2008) (finding
that plaintiff, whose requests to see a nurse had been
rebuffed, demonstrated a serious medical need in that he
had difficulty breathing and swollen, burning eyes, and
a fellow inmate brought his condition to the attention
of correctional officers), overruled on other grounds,
34

Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010).

A

serious mental-health care need was found where a doctor,
nurse,

and

correctional

officials

recognized

that

a

prisoner “engaged in self harm” and “showed outward signs
of mania and depression.”

Jacoby v. Baldwin Cty., 596 F.

App’x 757, 763 (11th Cir. 2014).
One of the factors that courts consider in finding a
serious medical need is “whether a delay in treating the
need worsens it.”

Danley, 540 F.3d at 1310.

“The

tolerable length of delay in providing medical attention
depends on the nature of the medical need and the reason
for the delay.”

Hill v. Dekalb Reg'l Youth Det. Ctr.,

40 F.3d 1176, 1188 (11th Cir. 1994) (citation omitted).
Factors relevant to determining the tolerable length of
delay include the “seriousness of the medical need,”
“whether the delay worsened the medical condition,” and
“the reason for delay.”

Id. at 1189.

Because this is a Rule 23(b)(2) class action lawsuit
challenging defendants’ actions “on [a] ground[] that
appl[ies] generally to the class”--that is, defendants’

35

provision

of

inadequate

mental-health

care--the

plaintiffs must show that serious mental-health needs
exist

on

a

system-wide

individual

basis. 10

explained

in

the

Fed.

basis,
R.

rather

Civ.

P.

than

on

an

23(b)(2).

class-certification

As

opinion,

the

plaintiffs’ claim and the remedies they seek are systemic.
Braggs v. Dunn, 318 F.R.D. 652, 667 (M.D. Ala. 2016).

In

other words, “plaintiffs are not seeking adjudication of
demands for particular individualized treatment,” and any
relief

the

court

grants

“would

be

appropriate

for

everyone subjected to the substantial risk of serious
harm plaintiffs claim [ADOC’s inadequate mental-health
care system] creates--that is, prisoners with serious
mental illness.”

Id. at 668.

It is clear that a number of prisoners in ADOC’s
custody have serious mental-health needs, and the issue
10. Earlier in the litigation, this court certified
a
class
consisting
of
“persons
with
a
serious
mental-health disorder or illness who are now, or will
in the future be, subject to defendants’ mental-health
care policies and practices in ADOC facilities, excluding
work-release centers and Tutwiler Prison for Women.”
Braggs v. Dunn, 317 F.R.D. 634, 640 (M.D. Ala. 2016)
(Thompson, J.).
36

is undisputed.
prisoners

on

diagnosed

As a preliminary matter, MHM places
the

caseload

only

if

with

they

a

condition

that

requires

have

been

treatment.

Therefore, all prisoners on the caseload meet the legal
requirement for having a serious mental-health need.
Prisoners on the mental-health caseload have wide-ranging
illnesses,

such

schizoaffective

as

bipolar

disorder,

disorder,

major

schizophrenia,

depressive

disorder,

mood disorders, borderline personality disorder, anxiety,
and PTSD.11
11. The concept of ‘serious mental-health need’ in
the Eighth Amendment context should not be confused with
‘serious mental illness,’ a term of art in the
mental-health care field.
As plaintiffs’ psychiatric
expert Dr. Burns testified, ‘serious mental illness’ can
be defined by three components: the diagnosis, the degree
of disability, and the duration of the diagnosis or
disability. Certain diagnoses are by definition serious
mental illnesses, because they last a lifetime and are
accompanied by debilitating symptoms; these diagnoses
include bipolar disorder, schizophrenia, schizoaffective
disorder, major depressive disorder with psychotic
features, and any other diagnoses with psychosis. Dr.
Hunter, MHM’s medical director, agreed with this
assessment, testifying that a person with well-controlled
schizophrenia still has a serious mental illness, because
it requires continued treatment, even if he or she is
only mildly impaired at the moment.
Other diagnoses,
like anxiety and PTSD, may reflect a serious mental
37

Furthermore, the court heard testimony from multiple
prisoners, both named plaintiffs and class members, who
clearly

exhibited

serious

mental-health

needs.

For

example, plaintiff R.M. has been diagnosed with paranoid
schizophrenia and admitted that he is out of touch with
reality;

he

testified

to

what

were

obviously

his

delusions regarding his blood relationships to three
different well-known terrorist figures and his owing
billions

of

dollars

to

the

United

States

treasury.

Similarly, medical records made clear that plaintiff Q.B.

illness depending on the degree and duration of the
impairment.
Dr.
Burns
testified
that
ADOC’s
administrative definition of serious mental illness
tracks this understanding of serious mental illness. See
Joint Ex. 88, Admin. Reg. § 602 (doc. no. 1038-1039) at
11 (defining “serious mental illness” as “[a] substantial
disorder of thought, mood, perception, orientation, or
memory such as those that meet the DSM IV criteria for
Axis I disorders ... [and] persistent and disabling Axis
II personality disorders.”).
According to experts on
both sides, treatment of serious mental illnesses
requires, at a minimum, multidisciplinary efforts to
coordinate
and
implement
interventions,
including
psychotherapy or counseling, psychotropic medications,
and monitoring for signs of decompensation or progress.
It also requires careful treatment planning and
maintaining medical records in order to ensure continuity
of care.
38

has suffered from years of delusion and hallucination;
he was on involuntary psychiatric medication orders for
years

while

in

ADOC

custody.

Lastly,

as

explained

earlier, plaintiff Jamie Wallace 12 had been diagnosed
with bipolar disorder and schizophrenia, among other
mental-health conditions, and he testified that he heard
voices of his deceased mother telling him to cut himself.
In

sum,

plaintiffs

presented

more

than

sufficient

evidence establishing their serious mental-health needs.
Because only prisoners with serious mental-health
needs have a cognizable Eighth Amendment claim, when the
court refers to ‘mentally ill prisoners’ in this opinion,
it is referring to only those with serious mental-health
needs.

B. Serious Harm and Substantial Risks of Serious Harm
Posed by Inadequate Care
In

addition

to

showing

a

serious

medical

need,

plaintiffs must establish that they have been subjected
12. When the trial began, the court used full names
of prisoner-witnesses, but the parties agreed to use
initials after Jamie Wallace’s testimony.
39

to

serious

harm,

or

a

substantial

risk

of

serious

harm--the second part of the ‘objective’ test under the
Eighth Amendment jurisprudence--as a result of inadequate
mental-health care.

Put another way, plaintiffs must

show that their serious medical need, “if left unattended,
‘poses a substantial risk of serious harm.’”

Farrow v.

West, 320 F.3d 1235, 1243 n.13 (11th Cir. 2003)(quoting
Farmer v. Brennan, 511 U.S. 825, 834 (1994)).

Defendants

may be held liable for “incarcerating prisoners under
conditions posing a substantial risk of serious harm.”
Farmer, 511 U.S. at 834.13

13. While courts have sometimes used the “serious
need” and “substantial risk of serious harm” tests
interchangeably, they appear to be somewhat distinct: the
“serious need” requirement examines whether a prisoner
has
a
medical
problem
requiring
attention;
the
“substantial risk of serious harm” test examines whether
the defendant’s inattention to or mistreatment of the
medical need threatens serious harm to the prisoner. Of
course, a plaintiff may face a serious medical need
because defendants’ inattention has caused or exacerbated
a medical condition, see, e.g., Helling v. McKinney, 509
U.S. 25 (1993) (concluding that prisoner’s claim based
on potential future effects of exposure to tobacco smoke
could be a viable Eighth Amendment claim), but this does
not change the fact that the focus of the “serious need”
inquiry
is
the
prisoner’s
condition,
while
the
40

The “serious harm” requirement “is concerned with
both 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.”
(11th

Cir.

Chandler v. Crosby, 379 F.3d 1278, 1295

2004)

(citation

omitted).

While

mere

discomfort is insufficient to support liability, id.,
“unnecessary pain or suffering” qualifies as serious harm.
LaMarca v. Turner, 995 F.2d 1526, 1535 (11th Cir. 1993).
Plaintiffs may bring an Eighth Amendment challenge
to a condition that is already inflicting serious harm
on them at the time of the complaint or to prevent serious
harm

which

is

substantially

likely

to

occur

future--a substantial risk of serious harm.

in

the

As the

Supreme Court explained in Helling v. McKinney, 509 U.S.
25 (1993), a case in which a prisoner challenged his
prolonged exposure to second-hand smoke, “a remedy for

“substantial risk of serious harm” inquiry focuses on the
effects of inadequate health care.
41

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.

Id. at 33-34.

In

other words, plaintiffs must show “that they have been
subjected to the harmful policies and practices at issue,
not (necessarily) that they have already been harmed by
these policies and practices.” Dunn v. Dunn, 219 F. Supp.
3d 1100, 1123 (M.D. Ala. 2016)(Thompson, J.).

In the

class-action context, the plaintiff class must show that
it, as a whole, has been subjected to policies and
practices that create a substantial risk of serious harm.
Braggs

v.

Dunn,

317

F.R.D.

634,

654

(M.D.

Ala.

practices

that

2016)(Thompson, J.).
Moreover,

multiple

policies

or

combine to deprive a prisoner of a “single, identifiable
human need,” such as mental-health care, can support a
finding of Eighth Amendment liability.
376

F.3d

323,

333

(5th

Cir.

42

2004)

Gates v. Cook,
(“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 a failure to
issue blankets.”)(citing Wilson v. Seiter, 501 U.S. 294,
304 (1991)).

The Eleventh Circuit Court of Appeals has

recognized this ‘totality of conditions’ approach in
prison-conditions cases.

See, e.g., Hamm v. DeKalb Cty.,

774 F.2d 1567, 1575–76 (11th Cir. 1985).
Mentally

ill

ADOC

prisoners,

defined

here

as

prisoners with serious mental-health needs, have suffered
harm and are subject to a substantial risk of serious
harm due to ADOC’s inadequate mental-health care.

Based

on

seven

the

trial

testimony,

the

court

finds

interrelated areas of inadequacy: (1) identification and
classification of prisoners with mental illness; (2)
treatment

planning;

(3)

psychotherapy;

(4)

inpatient

mental-health care units; (5) crisis care and suicide

43

prevention; (6) use of disciplinary actions for symptoms
of

mental

illness;

and

mentally ill prisoners.

(7)

use

of

segregation

for

In all seven areas, experts from

both sides by and large agreed about significant flaws
affecting mentally ill prisoners.14

MHM and ADOC staff

also

the

recognized

and

corroborated

severity of these issues.
Naglich

essentially

existence

and

Even Associate Commissioner

agreed

that

some

of

these

were

14. The ‘stacked Swiss cheese’ analogy, well known
in the healthcare and risk-management contexts, may be
useful here. In this analogy, a layer of Swiss cheese
represents a mechanism to prevent harm, and an error is
a hole in that layer. Ideally, each layer is sufficiently
redundant to catch or ameliorate errors and to prevent
holes from lining up. However, if each hole is too big,
errors from each layer compound and result in an
inadequate system. See James Reason, Human Error: Models
and Management, 320 Brit. Med. J. 768 (2000). Applied
to this context, each layer of mental-health care within
ADOC--identification of symptoms at intake and referral;
treatment
planning;
provision
of
psychotherapy;
inpatient care; crisis care; and consideration of mental
health in prisoner placement decisions--is riddled with
too many holes to prevent mentally ill prisoners from
falling through the cracks. Moreover, each layer’s error
is compounded by latent errors in inter-related layers
of care: for example, delinquent counseling appointments
fail to address a sudden deterioration in a prisoner’s
condition, which is worsened by the lack of a properly
functioning referral system and a suicide-watch protocol.

44

problems so significant that they must be fixed as soon
as

possible,

because

lives

are

at

risk.

15

These

inadequacies, alone and in combination, subject mentally
15. As discussed later, some of the policies and
practices affecting mentally ill prisoners are determined
by ADOC, others by MHM: for example, ADOC is responsible
for staffing decisions and placement of prisoners in
mental-health units and segregation; MHM is responsible
for policies and practices in intake screening, the
referral system, treatment planning, and psychotherapy.
However, ADOC is still liable for policies and practices
determined by MHM, for three reasons.
First, ADOC’s
decisions regarding mental-health staffing, correctional
staffing, and overcrowding have directly impacted MHM’s
policies and practices, such as frequently delayed and
cancelled counseling sessions and the use of LPNs to
conduct intake screening.
Second, for some of the
practices, ADOC has expressly authorized MHM to determine
them on its behalf by contracting out its constitutional
obligation to provide mental-health care.
Third, even
when ADOC has not expressly authorized MHM to make these
policies--that is, when MHM’s policies and practices
contravene
ADOC’s
administrative
regulations
or
contractual requirements--ADOC through its lack of
oversight has de facto delegated its decision-making
authority to MHM. See Ancata v. Prison Health Servs.,
Inc., 769 F.2d 700, 706 n.11 (11th Cir. 1985) (holding
that “whe[n] a governmental entity delegates the final
authority to make decisions,” either expressly or by
default, then “those decisions necessarily represent
official policy” in the context of contracting out
medical care for prisoners). Therefore, the court finds
that ADOC is liable for the policies and practices
described here, despite the fact that MHM is the entity
providing mental-health care and determining some of the
policies and practices related to mental-health care.
45

ill prisoners to actual harm and a substantial risk of
serious harm--including worsening of symptoms, increased
isolation, continued pain and suffering, self-harm and
suicide.

1. Contributing Conditions
Three

conditions

deficiencies

in

contribute

ADOC’s

treatment

to

all

of

of

the

mentally

ill

prisoners: understaffing of mental-health care providers,
understaffing
overcrowding.

of
16

correctional

Associate

officers,

Commissioner

Naglich

and
and

16. Defendants advanced a few versions of the
argument that variability across different facilities
negates ADOC’s liability: defendants argued that experts
visiting seven, eight, or nine facilities instead of
visiting all 15 facilities renders their opinions
irrelevant or not reliable; that certain facilities are
not as overcrowded as others; and that plaintiffs did not
prove that every single facility suffers from a shortage
of crisis cells.
As explained in the commonality and
typicality analyses in the class certification opinion,
Braggs v. Dunn, 317 F.R.D. 634, 655-66 (M.D. Ala. 2016),
evidence of systemic practices that may have differing
levels of impact at different facilities may establish
liability against ADOC: mentally ill prisoners are
subject to a substantial risk of serious harm from
practices that are common in ADOC facilities no matter
46

defendants’

expert

plaintiffs

that

challenges

to

mental-health

witnesses

these
the

largely

conditions

system

present

today.

understaffing,

agreed

both

with

significant

Correctional
alone

and

and
in

combination, impose substantial risks of serious harm to
mentally ill prisoners, and overcrowding compounds these
risks.

a.

Overcrowding

ADOC facilities are significantly and chronically
overcrowded.
inmate

Publically available information on ADOC’s

population

and

capacity

plainly

lays

out

the

magnitude of overcrowding: ADOC’s September 2016 monthly
statistical report states that ADOC held 23,328 prisoners
in facilities that are designed to hold only 13,318; this
brings the occupancy rate to over 175 %.
September

2016

Monthly

Statistical

Pl. Ex. 1260,

Report

(doc.

no.

where they are housed currently, because they may be
housed in any of these facilities in the future due to
ADOC’s frequent and unpredictable transfers of prisoners
across facilities.
47

1097-19) at 2, 4.17

Plaintiffs’ expert Vail testified

that the magnitude of overcrowding in ADOC is the worst
he has seen in his career in corrections and consulting
for

other

According

correctional
to

Vail,

systems

across

California,

the

whose

country.

overcrowded

correctional system was found to be unconstitutional,
approached an occupancy rate of 170 %; a three-judge
court

subsequently

occupancy

rate

to

ordered

the

137.5 %,

a

affirmed by the Supreme Court.
493, 539-42 (2011).
within

ADOC

has

State
target

to

lower

rate

the

that

was

Brown v. Plata, 563 U.S.

The sheer magnitude of overcrowding
meant

that

some

ADOC

facilities,

including Kilby, Bibb, Staton, and Easterling, house more
than double the number of prisoners they are designed to
hold.

Pl. Ex. 1260, September 2016 Monthly Statistical

17. Parties have put forth evidence regarding the
Alabama Prison Transformation Initiative, a proposal by
the now-former Governor to build new prisons. At this
point, the court does not see any need to determine the
effects of the proposal, because the case at hand asks
the court to evaluate whether the current state of
mental-health care in existing ADOC facilities is
constitutionally inadequate, rather than whether a
hypothetical system of mental-health care in new prisons
would be adequate.
48

Report (doc. no. 1097-19) at 4.
facilities

use

open-bay

Even maximum-security

dormitories

filled

with

wall-to-wall rows of double bunk beds, holding up to 240
prisoners in a single room, where officers do not have a
line of sight on most of the prisoners they are assigned
to supervise.

b.

Mental-Health Understaffing

ADOC has maintained mental-health staffing levels
that are chronically insufficient across disciplines and
facilities. Witness after witness identified significant
mental-health staffing shortages as one of the major
reasons

for

mental-health

ADOC’s
care

significantly,

inability
needs

Associate

of

to

meet

the

prisoners.

Commissioner

for

rising
Most
Health

Services Naglich admitted that MHM has been understaffed
since 2013 and remains understaffed today.

MHM’s program

director

MHM

Houser

stated

bluntly

that

staffing

shortages make it difficult to “do the work required
under the contract,” and that the current caseload for
49

MHM staff does not meet an “acceptable standard.”

Houser

Testimony at vol. 2, 24-25.
Over the course of the trial, evidence showed that
the mental-health caseload per MHM provider has been
increasing since 2008, largely due to three reasons: (1)
an increasing number of prisoners with mental-health
needs across ADOC; (2) multiple budget cuts over the
years; and (3) ADOC’s long-time refusal to increase the
authorized
despite

number

repeated

of

mental-health

requests

from

MHM,

staff
even

positions
when

an

initiative to transfer some of the caseload to ADOC
staff--so-called

‘blending

of

services’--was

not

implemented as planned.18
ADOC’s prisoner population has had increasing needs
for mental-health services over the last decade.

As

multiple MHM providers and expert witnesses from both

18. After years of refusing to increase staffing,
ADOC approved a small staffing increase in September 2016,
shortly before the trial in this case, when it extended
the contract with MHM for another year. However, both
Associate Commissioner Naglich and MHM’s program director
Houser testified that understaffing has persisted despite
the recent increase.
50

sides testified, ADOC’s prisoner population has become
more mentally ill over the last decade, both in terms of
the number of individuals who need mental-health care and
in terms of the acuity of mental-health care needs. MHM’s
medical director, Dr. Hunter, testified that the number
of prisoners receiving regular mental-health services
within ADOC (also known as being ‘on the caseload’) has
been increasing since 2003, which has been “concerning”
and “tax[ing his] ability to adequately do” what he is
required to do under the contract.
__.

Hunter Testimony at

(For transcripts that are not yet finalized, the

court leaves the page numbers blank.)

He also explained

that, since 2003, the number of prisoners coming into the
system with severe mental illness has been increasing.
MHM’s own documents showed that between 2008 and 2016,
the mental-health caseload increased by 25 % across all
facilities.

Pl. Dem. Ex. 25, Pricing, Caseload and

Staffing Comparison Over Time (doc. no. 1071-5).
As the need for mental-health services has been
increasing substantially, MHM and ADOC have been hiring

51

fewer and fewer providers over the years, exacerbating
the staffing shortage.

In 2009, ADOC reduced MHM’s

compensation

contract

under

the

and

the

authorized positions to be hired by MHM.

number

of

In 2013, the

state legislature further reduced ADOC’s mental-health
care budget by 10 %.

ADOC and MHM then re-negotiated

their 2013 contract to reduce the previously agreed-upon
“minimum

required

staffing,”

cutting

close

to

20

full-time equivalent positions. Naglich Testimony 2-211;
Pl. Dem. Ex. 140, MHM Staffing Increase Chart (doc. no.
1148-59); see also Pl. Dem. Ex. 25, Pricing, Caseload,
and Staffing Comparison Over Time (doc. no. 1071-5).
During that same contract renewal period, ADOC and MHM
also reduced the number of positions that are covered by
the contractual ‘staffing rebate’ provision, under which
MHM must pay back ADOC if it does not fill all authorized
positions.

In other words, the revision allowed MHM to

leave clinical staff positions unfilled without being
penalized, even though the overall number of authorized
positions had already been reduced.

52

Houser described

this latter modification as a way to make the reduction
in

payment

and

staffing

palatable for MHM.”
Another

is

the

contract

“more

Houser Testimony at vol. 1, 49.

driving

understaffing

under

force

behind
failure

ADOC’s

MHM’s
to

mental-health
implement

‘blending of services’ initiative successfully.

the

Houser

explained that this initiative was established in 2009
in response to ADOC’s reduction in both the amount it
would pay to MHM under the contract and in the staffing
provided for in the contract:
reduced

by

transferring

lower-acuity

MHM’s caseload would be

treatment

mental-health

of

prisoners

issues

to

with

ADOC’s

psychological associates; the initiative was an “attempt
to make sure that the inmates received mental health
services” despite the staffing reduction and increasing
caseloads.
ADOC

failed

facilities:

Houser Testimony at vol. 1, 14.
to

implement

MHM’s

the

staffing

was

initiative
reduced,

However,

across
but

at

its
many

facilities, psychological associates did not take over
any caseload from MHM.

Naglich explained that, because

53

some wardens were resistant to letting psychological
associates
remained

carry

significant

responsible

for

caseloads,

most

of

the

MHM

staff

patients,

even

though there were now fewer MHM providers than before.
Houser

testified

that

blending

of

services

is

not

currently happening anywhere in ADOC in the way it was
designed to happen, despite MHM’s reduced staffing levels.
ADOC’s

chief

clinical

psychologist

Dr.

David

admitted that the initiative has failed to work.

Tytell
However,

ADOC has not restored MHM’s staffing to the pre-2009
level.19
The
staffing

result

of

ADOC’s

level

or

even

pre-2009

level

has

refusal

to
been

mental-health care providers.

to

restore
chronic

increase

staffing

MHM’s

to

the

shortages

of

Dr. Hunter testified that

the staffing shortage has had a significant impact on
scheduling
management.

of

psychiatric

visits

and

medication

Several mental-health counselors testified

19. Chronic mental-health understaffing is also
compounded by vacancies that are left unfilled for many
months.
54

that their caseloads have soared; Houser testified that
MHP caseloads at some facilities have been twice what
they should be, which is “never an acceptable standard.”
Houser Testimony at vol. 2, 25.

Increasing caseloads due

to understaffing have also led to a high turnover rate
among staff: according to Houser, staff resign because
of their frustration with increasing caseloads, leaving
the

rest

recruiting

of

the

also

staff
suffers

with

even

because

of

higher
the

caseloads;

overwhelming

caseloads that mental-health staff are expected to manage.
MHM’s monthly operating report submitted to ADOC for May
2016 described the problem in stark terms: “Mental health
caseloads are running high at many of the facilities.
Staff has attempted to accommodate the increased numbers,
however quality cannot be maintained at current staffing
levels.”

Joint Ex. 343 (doc. no. 1038-702) at 19.

As

explained in more detail in the following sections, this
understaffing also has prevented MHM from providing care
that complies with ADOC’s administrative regulations, the

55

contract,

and

professional

standards

for

minimally

adequate care in a prison system.20
Not surprisingly, experts from both sides opined that
ADOC does not have a sufficient number of mental-health
staff for a system of its size.

Dr. Patterson, the

defense expert, concluded based on his review of medical
records and site visits that ADOC’s mental-health care
system is significantly understaffed. Plaintiffs’ expert
Dr. Burns agreed with this assessment based on her review
of

medical

records

and

MHM

internal

records,

which

revealed that caseloads for psychiatric providers and
counselors

for

sufficient

counselling or therapeutic group activities.

Dr. Burns

concluded

were

that

too

ADOC

large

needs

to

allow

more

psychiatric

staff,

20. Examples
of
inadequate
care
caused
by
mental-health shortages include: lack of timely provision
of counseling services; inadequate treatment planning;
and inadequate monitoring of suicidal patients as well
as those housed in mental-health units and segregation
units.
56

psychologists,

registered

nurses,

and

activity

technicians.21
MHM’s

corporate

contract-compliance
provide

care

mental-health

in

oversight

understaffing

‘contract-compliance

but

Alabama--has

contract-compliance

Commissioner

office--which

in

review
reports’)

Naglich’s

Office

does

exercises
not

directly

repeatedly
the

annual

reports
sent
of

raised
clinical

(hereafter
to

Health

Associate
Services.

21. Dr. Burns also testified that the mental-health
staffing requirements in a 2001 settlement agreement
between ADOC and a class of male prisoners provide a
helpful benchmark for adequate staffing levels.
See
Order
Approving
Settlement
Agreement,
Bradley
v.
Harrelson, No. 2:92–cv–70 (M.D. Ala. June 27, 2001)
(Albritton, J.), ECF No. 412. Dr. Burns explained that
while the number of ADOC prisoners in need of
mental-health services has increased since the Bradley
settlement, ADOC has entered into mental-health contracts
that
provide
significantly
fewer
high-level
practitioners, as well as more practitioners with lower
levels of qualification, compared to the Bradley
requirements.
For example, under Bradley, ADOC was
required to provide eight psychiatrists for approximately
20,600 prisoners; today, it employs five psychiatrists
for close to 24,000 prisoners.
While the staffing
requirements derived from an out-of-court settlement do
not set a constitutional floor for adequate mental-health
care, the comparison with the Bradley settlement is
relevant, though not dispositive, for determining whether
the current staffing levels are adequate.
57

Starting in 2011, each annual contract-compliance report
included information on multiple facilities that were
suffering from staffing shortages, “compromising [MHM’s]
ability to provide monthly follow-up for all caseload
inmates.”

Pl. Ex. 1190, 2011 Contract-Compliance Report

(doc. no. 1070-8) at 15.

The 2013 report also noted the

impact of the staffing reduction that year, stating that
“[d]espite the increase in the size of the caseload
across

ADOC,

MHM’s

contract

has

been

compressed

include significant staffing cuts at all sites.”

to

Pl. Ex.

114, 2013 Contract-Compliance Report (doc. no. 1070-4)
at 1.
one

of

The report also warned that, at Donaldson, where
the

two

male

residential

treatment

units

is

located, “[c]urrent staffing pattern does not support the
delivery of adequate services to inmates and that they
have been reduced to providing minimal and ‘triage-based’
services rather than effective and thoughtfully planned
treatment.”

Id. at 5.

In 2016, MHM reported significant

backlogs in treatment and staffing shortages at Donaldson
and Bullock, the two male facilities that house ADOC’s

58

most seriously ill mental-health patients.

Pl. Ex. 115,

2016 Contract-Compliance Report (doc. no. 1070-5).

Even

after the partial staffing increase in September 2016,
Houser stated that MHM remains understaffed and pointed
to mental-health understaffing as a cause for a plethora
of

issues,

including

insufficient

identification

of

mental illness at intake and referrals; missed counseling
appointments

and

group

sessions;

and

inadequate

monitoring of prisoners in mental-health crises.
Based on Associate Commissioner Naglich’s testimony
and other evidence, the court finds that MHM has been
consistently

and

significantly

understaffed

at

least

since 2013, and that it is still understaffed even after
ADOC approved a small staffing increase in September 2016
as part of its one-year contract extension.

c.
In

addition

overcrowding,

a

Correctional Understaffing
to

mental-health

significant

understaffing

shortage

of

and

correctional

officers also hinders the delivery of mental-health care
59

and poses a substantial risk of harm to prisoners who
need mental-health care.
shortages,

witness

As with mental-health staffing

after

witness,

including

both

defendants, testified that a significant shortage of
correctional

officers

has

been

one

of

the

biggest

obstacles to providing mental-health care in ADOC.

In

Associate Commissioner Naglich’s words, the problem of
insufficient mental-health staffing is “compounded by”
the lack of sufficient correctional staffing at ADOC.
Naglich Testimony at vol. 2, 208.
ADOC has reported an ever-increasing shortage of
correctional officers in its annual reports and monthly
operating reports since 2006.

In 2010, ADOC summarized

that “[c]orrectional staffing continues to fall short of
required levels--impacting the inmate to officer ratio
and overtime necessary to cover essential posts,” and
reported

that

the

shortage

rate

was

12.2

%

at

close-custody (highest security) facilities and 21.2 %
at

medium-security

facilities.

Joint

Ex.

463,

Vail

Expert Report (doc. no. 1038-1048) at 39 (quoting ADOC

60

Annual Report FY 2010).

Essentially the same statement

regarding the officer shortage appeared in every annual
report

until

2013,

when

the

facilities shot up to 43.3 %.

shortage

rate

across

The report in 2015 showed

officer shortage rates of over 25 % at 13 of the 15 major
prisons and over 50 % at six of those; the highest was
68 % at Bibb.

Donaldson was barely under 25 %; only one

prison, Hamilton, the facility for the elderly and the
infirmed, was below 25 %.

Id. at 39-40 (citing ADOC

Annual Report FY 2013, 2015).

As of September 2016, ADOC

reported having filled only about half of the authorized
positions

for

September

2016

correctional
Monthly

officers.

Statistical

Pl.
Report

Ex.

1260,

(doc.

no.

1097-19) at 16 (showing 51.1 % overall staffing level).22
22. Throughout the trial, there was confusion as to
how ADOC defined ‘authorized positions’ for the purpose
of deriving shortage rates published in their annual
reports. During the defendants’ case, ADOC’s chief of
staff Steve Brown finally clarified that the number of
authorized positions was determined based on a staffing
ratio of 1:6 or 1:7, which were ratios that ADOC
considered close enough to the “ideal” ratio of one
correctional officer for every five inmates.
However,
as plaintiffs’ expert Eldon Vail and ADOC officials
explained, adequate staffing numbers cannot be calculated
61

by simply dividing the inmate population by the staffing
ratio that is deemed to be ideal; rather, it requires a
facility-by-facility
determination
that
considers
numerous variables, such as the layout and design of the
facilities, level of security, level of programs and
activities, and state and local standards and statutes.
Vail also explained that 1:5 is not an “ideal” ratio but
likely the average of staffing ratios from state
correctional systems that responded to a survey conducted
by the Association of State Correctional Administrators.
The ratios also do not take multiple shifts and leave
time into account. Therefore, while ADOC relied on the
authorized
position
numbers
derived
from
such
calculations in its annual reports, the shortage rates
in those reports are not reliable indicators of
understaffing, except as a metric to measure change in
staffing over time. However, as shown later, there is
ample evidence, both from expert testimony and ADOC
staff’s testimony, that ADOC suffers from a serious
correctional staffing shortage.
It is alarming that ADOC has not conducted any
staffing analysis in the last decade to determine exactly
how many officers are needed to keep officers and
prisoners safe within its facilities. It is also alarming
that
ADOC’s
own
reports
have
been
relying
on
authorized-position numbers based on rudimentary ratios
that do not take into consideration the actual layouts
of facilities.
This failure to conduct any staffing
analysis is all the more troubling because at least one
ADOC official, Associate Commissioner Grantt Culliver,
has the expertise to conduct staffing analyses and has
been training other state correctional officials on how
to conduct staffing analyses. Vail also testified that
it is not resource-intensive to obtain a staffing
analysis from the National Institute of Corrections,
since the Institute provides grants and other resources
to state prison systems that host training for
correctional officials in their own facilities, as ADOC
has done.
62

The staffing level continued to drop throughout 2016,
according to Associate Commissioner of Operations Grantt
Culliver.
Understaffing
problem

that

has

leaves

been

many

a

ADOC

persistent,
facilities

systemic
incredibly

dangerous and out of control.

Defendants’ correctional

administration

Ayers

expert

Robert

observed

multiple

high-security units not being monitored at all and an
entire unit at Bibb overseen by a single control booth
officer and a single officer on the floor; he opined that
such understaffing was “not acceptable.” Ayers Testimony
at __.

Plaintiffs’ correctional administration expert

Vail agreed with this conclusion and elaborated that many
facilities are struggling to have sufficient numbers of
correctional officers to station at least one officer per
dorm--including the highest-security facilities, such as
Holman and Kilby.

Not surprisingly, a severe shortage

of officers leads to dangerous and violent conditions,
especially in high-security facilities with overcrowded

63

dormitories.

23

In

these

conditions,

prisoners

and

correctional officers alike are justifiably afraid for
their

safety--a

jarring

image

that

many

prisoner-witnesses and experts painted in their testimony.
For example, class member M.P., who is now housed in
Ventress, stated repeatedly how dangerous it was to be
in

a

general-population

dorm

at

St.

Clair;

he

was

enormously relieved to be transferred to another prison.24
Multiple experts also testified that during their site
visits, prison officials did not allow them to enter
certain parts of the prison, such as the second and third
tiers of the Holman segregation unit and a whole half of

23. Vail
explained
that
ADOC’s
use
of
open
dormitories in maximum-security facilities is almost
unheard of in corrections.
24. The witness’s fear is well-warranted: St. Clair
is the most violent facility in ADOC, accounting for a
quarter of assaults with serious injuries within the
system, while housing only 4 % of ADOC prisoners. Pl.
Ex. 1260, September 2016 Monthly Statistical Report (doc.
no.1108-37) at 4, 12.
64

Bibb, because the officials could not guarantee their
safety.25
As a result of the officer shortage, ADOC has an
exceedingly high overtime rate.
the

proportion

of

the

number

Overtime rate refers to
of

hours

worked

by

correctional officers as overtime compared to the total
number of hours worked.

A high overtime rate undermines

security and officer morale, which in turn has negative
implications for mental-health care.

ADOC’s chief of

staff Steve Brown admitted that the current overtime rate
of over 20 % is not sustainable in the long run, because
it decreases retention of officers and increases the
number
Multiple
critical

of

disciplinary
vulnerability
assessments

of

actions

against

officers.

analyses--ADOC’s

internal

each

security

facility’s

risks--also found that mandatory overtime and overuse of
overtime have affected staff morale and contributed to

25. In fact, although the court has visited a number
of prisons over the years, the United States Marshals
Service, in consultation with defense counsel, advised
against the court’s visit to Holman Correctional Facility
in this case due to safety concerns.
65

high turnover rates.

Pl. Ex. 146, Bullock Vulnerability

Analysis

1087-3);

(doc.

no.

Pl.

Ex.

185,

Donaldson

Vulnerability Analysis (doc. no. 1087-6); Pl. Ex. 204
Elmore Vulnerability Analysis (doc. no. 1087-8).26
26. A related issue is the new set of staffing ratios
that ADOC Chief of Staff Brown presented during the trial,
which counted overtime hours performed by existing
correctional officers as additional officers.
These
ratios are also misleading.
First, according to
plaintiffs’ expert Vail, counting overtime hours as
additional full-time correctional officers is not the
standard practice to determine whether correctional
staffing is adequate.
Second, these ratios do not take
into consideration that officers working overtime are
less effective than officers working standalone shifts,
or that the overtime rate in ADOC is extremely high
compared to other correctional systems, especially in
facilities such as Donaldson, Kilby, St. Clair, Tutwiler,
Draper, Holman, Bullock, and Easterling. Def. Dem. Ex.
19 (doc. no. 1148-60) (showing the eight facilities with
15 % or higher overtime rate). Furthermore, as with the
authorized-position calculations discussed above, these
ratios do not account for the fact that many ADOC
facilities are designed with little direct line of sight
from officer stations into prisoner living areas, and
have dorms with rows and rows of bunk beds obstructing
officers’
views;
both
factors
require
higher
officer-to-inmate ratios than facilities with better line
of sight or fewer bunked dorms.
Lastly, even if the court were to accept the current
staffing ratios calculated by Brown’s staff as accurate,
only two of the 14 facilities meet the 7:1 (for medium
custody) or 6:1 (for close custody) thresholds. In other
words, even using this overly inclusive metric to measure
staffing sufficiency, ADOC is significantly understaffed.
66

This chronic and severe correctional understaffing
has compromised mental-health care in many ways.

Most

significantly, as discussed in more detail in Part V.B.4,
correctional officers are needed to provide security for
mental-health programming and escort prisoners from their
cells

to

appointments

population.

if

they

are

not

in

general

Due to insufficient correctional staffing,

appointments and group activities are frequently canceled
and delayed, significantly impairing MHM staff’s ability
to provide treatment.

See, e.g., Pl. Ex. 115, 2016

Contract-Compliance Report (doc. no. 1070-5) at 3 (MHM
staff not being able to access patients at Bullock,
Donaldson,

Holman,

St.

Clair,

and

Staton

due

to

correctional staffing shortages, and expressing concern
about their own safety at five facilities); Pl. Ex. 105,
2014 MHM Implementation Review Report (doc. no. 1070-3)
at 3 (20 to 70 % of mental-health appointments were
canceled due to correctional officer shortages at the
Donaldson residential treatment unit in 2014).

Based on

the testimony of Ayers, one of the defense experts, and

67

almost all MHM providers and managers who testified, the
court is convinced that the correctional staffing level
falls intolerably short of providing adequate care to
prisoners who need to be escorted to their mental-health
appointments.
Second, understaffing impacts correctional officers’
ability to supervise mentally ill prisoners effectively.
According

to

plaintiffs’

expert

Vail,

understaffing

compromises overworked correctional officers’ alertness
and

ability

to

respond

to

incidents,

crises,

and

emergencies, and to exercise the patience and restraint
necessary to supervise mentally ill prisoners.

This

effect is even more pronounced in segregation and crisis
cells.

Without sufficient correctional staff, officers

are unable to check on prisoners isolated from the rest
of the population as frequently as they must in order to
guarantee their safety.

As a result, decompensating

prisoners go unnoticed, leading to extended suffering
without access to treatment, and more frequent crisis
situations.

68

Correctional

understaffing,

combined

with

overcrowding, also has a more direct impact on prisoners’
mental

health.

The

combination

of

overcrowding

and

understaffing leads to an increased level of violence,
both because of the difficulty of diffusing tension and
violence in an overcrowded open-dormitory setting, and
because

of

officers.

the

lack

of

supervision

by

correctional

See Pl. Ex. 1260, ADOC September 2016 Monthly

Statistical Report (doc. no. 1108-37) at 12 (reporting
nearly

200

assaults

with

serious

injuries

and

seven

homicides in the fiscal year ending in September 2016).
According

to

correctional

Dr.

mental

Haney,
health

plaintiffs’
and

solitary

expert

on

confinement,

prisoners’ legitimate fear of violence is a common source
of anxiety and mental instability: for prisoners who
already suffer from mental illnesses, this environment
increases their likelihood of decompensation.

The level

of danger and lack of control arising from overcrowding
and insufficient staffing also contributes to a punitive
culture, in which officers prioritize security concerns

69

over

mental-health

treatment

and

are

quick

to

treat

mental-health symptoms as behavioral problems; dealing
with violence and emergencies also diverts correctional
resources away from regular mental-health programming and
treatment.

Untreated or undertreated mental illness in

turn creates a greater need for mental-health services,
provision of which is limited by the very shortage of
officers that created the increased need in the first
instance.
more

Furthermore, mental-health problems are much

likely

to

go

unnoticed

in

overcrowded

and

understaffed prisons, because correctional officers who
are spread too thin are less likely to notice any unusual
behavior by a particular prisoner.

These observations

made by Dr. Haney all rang true in the evidence before
the court.

Lastly, as Dr. John Wilson, a psychologist

who serves as one of the directors of MHM’s national
Clinical
program

Operations
director

Department,

Houser,

explained

“experience

and

to

MHM’s

research”

confirm that suicides tend to increase with overcrowding,
and “basic unrest at a systems level” can cause a spike

70

in suicides.

Pl. Ex. 1224, October 1, 2015 Email from

Wilson to Houser (doc. no. 1117-24) at 2.

In fact, the

suicide rate within ADOC has more than doubled in the
last two years, as ‘unrest at a systems level’ continues
to plague ADOC facilities.
correctional-staffing

Taken together, ADOC’s low

level,

in

the

context

of

its

severely overcrowded prisons, creates a substantial risk
of serious harm to mentally ill prisoners, including
continued

pain

and

suffering,

decompensation,

self-injury, and suicide.

2. Identification and Classification of Prisoners’
Mental-Health Needs
As one expert put it, ADOC’s mental-health care
system “falls apart at the door”: the system fails to
identify and classify appropriately those with mental
illnesses, and the effect of this under-identification
cascades through the system.
30.

Because

classification,

of

Haney Testimony at vol. 1,

inadequate

seriously

identification

mentally

ill

and

prisoners

languish and decompensate in ADOC without treatment,
71

ending

up

in

crisis

care

and

engaging

in

destructive--sometimes fatal--self-harm.
Timely identification and appropriate classification
of prisoners with mental illness are essential to a
functioning

mental-health

explained,

and

as

care

common

system.
sense

As

would

experts
dictate,

mental-health treatment cannot begin unless providers are
aware of who needs treatment and for what.

Failure to

identify those who need mental-health services denies
them

access

to

necessary

treatment,

creating

a

substantial risk of harm to those who remain unidentified.
See LaMarca v. Turner, 995 F.2d 1526, 1544 (11th Cir.
1993) (affirming conclusion that systematic denial of
access to treatment constitutes deliberate indifference
to a serious medical need).

a.

Inadequate Intake Process

ADOC’s system for identifying prisoners with mental
illness is significantly inadequate.
experts--defense

expert

Patterson
72

According to three
and

plaintiffs’

experts Burns and Haney--the percentage of prisoners
within ADOC with mental illness (referred to as the
‘prevalence

rate’)

is

substantially

lower

than

the

national average: the average rate of mental illness for
men in correctional systems ranges between 20 % and 30 %;
ADOC’s prevalence rate is between 14 % and 15 %.

See

Joint Ex. 346, June 2016 MHM Monthly Statistical Report
(doc. no. 1038-708) at 1.
As

experts

from

both

sides

testified,

ADOC’s

prevalence rate is abnormally low and reflects that the
system is under-identifying prisoners with mental illness.
Defense expert Dr. Patterson explained that experts do
not expect to see much variation in actual prevalence
rates across correctional systems, and that he has not
seen anything that suggests that ADOC would have a lower
prevalence rate than other correctional systems for any
reason other than under-identification. Dr. Burns agreed
and

explained

abnormally

that

low

it

is

prevalence

under-identification,

rather

73

highly
rate
than

likely
is
because

that
due

the
to

Alabama

prisoners have fewer mental-health issues compared to
those in other States.

She added that she does not know

of any States that have lower prevalence rates than
Alabama.

Assuming that ADOC’s actual prevalence rate for

mental illness actually tracks the national figure of
between 20 % and 30 %, somewhere between 1,200 and 3,600
prisoners should be receiving mental-health care but are
not, because between 5 % and 15 % of ADOC’s 24,000
prisoners have not been identified as having a mental
illness.
A closer examination of the two main processes of
identifying

prisoners

with

mental-health

care

needs--intake and referral--sheds light on why ADOC’s
prevalence rate is so low.
screening

process

at

First, ADOC’s mental-health

intake

fails

to

identify

a

substantial number of prisoners with mental-health issues.
Licensed practical nurses, who have very limited training,
are responsible for conducting mental-health screening
for prisoners at intake at Kilby (for all male prisoners)
and Tutwiler (for all female prisoners).

74

No higher-level

provider supervises the LPNs during the intake process.
The intake LPN fills out forms and questionnaires and
decides

whether

to

refer

a

prisoner

for

further

examination by a psychiatrist or a nurse practitioner.
If the LPN determines that a prisoner does not need to
be referred to a psychiatrist or nurse practitioner, a
mental-health

code

mental-health

of

care,

is

MH-0,

denoting

entered

into

no

need

the

for

system.

Prisoners who are designated as MH-0 by an LPN do not
receive

any

further

evaluation

or

any

mental-health

treatment unless referred to mental-health services later
by a staff member or the prisoners themselves.

On the

other hand, if the LPN refers the prisoner for evaluation,
a psychiatric provider completes an evaluation, gives a
diagnosis if appropriate, and assigns a mental-health
code, which determines the level of care the prisoner
subsequently

receives

and

75

ranges

from

MH-0

(no

mental-health

need)

to

MH-6

(in

need

of

hospitalization).27
Experts from both sides agreed, and the court finds,
that the intake screening process conducted by an LPN
without

any

provider

on-site

supervision

contributes

to

prisoners with mental illness.
only

have

12

to

15

by

a

higher-level

under-identification

of

This is because LPNs, who

months

of

general

medical

27. Associate Commissioner Naglich testified that
psychological associates, who have master’s degrees in
counseling and are employed by ADOC, also have the
ability to refer prisoners to psychiatric providers at
intake.
However, other evidence suggested that this
rarely, if ever, happens.
Dr. Hunter explained that
ADOC’s intake process, which involves psychological tests,
is a parallel track to MHM’s screening process, and that
they do not overlap; the court interpreted this to mean
that ADOC’s psychological associates do not interact with
psychiatric providers on the MHM side for further
evaluation of prisoners.
In addition to Dr. Hunter’s
testimony, no documentary evidence could be found to
support
Naglich’s
assertion
that
psychological
associates do refer prisoners for further examinations
during the intake process. See also Joint Ex. 100, Admin.
Reg.
§ 610
(doc.
no.
1038-122)
(detailing
the
mental-health screening process to be conducted by the
contractor staff). Given Dr. Hunter’s familiarity with
the intake process and the lack of any documentation of
psychological associates’ referrals, the court finds that
the initial intake process is primarily or entirely done
by an LPN.
76

training--very little of which may be related to mental
health--are

not

qualified

to

assess

the

presence

or

acuity of mental illness symptoms based on information
obtained during the intake process.

Intake forms that

LPNs fill out include questions that require clinical
assessments, rather than simple yes-or-no questions based
on physical observations.
§ 601

Mental

Health

See Joint Ex. 85, Admin. Reg.

Forms

and

Disposition

1038-106); Burns Testimony at vol. 1, 44-45.

(doc.

no.

According

to the experts, LPNs are not qualified to make such
clinical assessments.
referrals

based

on

Moreover, although LPNs may make
self-reported

symptoms

of

mental

illness, a proper intake system cannot solely rely on
self-reporting to identify mental-health needs.

As Dr.

Burns testified, the use of unsupervised LPNs for intake
mental-health screening presents an “obvious” risk of
under-identification.

Burns Testimony at vol.1, 61-62.28

28. Experts from both sides also observed that the
intake process does not include an assessment for suicide
risk, a serious systemic issue that may have contributed
to the recent dramatic increase in the suicide rate. See
Joint Ex. 461, Patterson Expert Report (doc. no.
77

The use of inadequately supervised LPNs for intake
is compounded by insufficient mental-health staffing.
Houser

testified

that

MHM

does

not

have

sufficient

staffing or space to conduct mental-health screenings at
Kilby (where all male prisoners are screened), and her
staff have had to send prisoners to other facilities
without conducting the initial intake screening.

This

in turn has increased the workload for mental-health
staff at the receiving facilities and has created delays
in the provision of mental-health care to those who need
treatment.

Dr. Patterson, the defense expert, agreed

that insufficient staff at intake has led to insufficient
identification of prisoners with mental illness, and that
this failure to identify increases the risk of continued
1038-1046) at 69 (concluding that ADOC’s lack of suicide
risk evaluation and management is an area of substantial
concern); Burns Testimony at vol. 1, 63; Pl. Ex. 1267,
2015-2016 Chart of ADOC Suicides (doc. no. 1108-38)
(showing 12 suicides between September 2015 and December
2016). ADOC has now implemented suicide risk assessments
as part of their regular intake procedure based upon Dr.
Patterson’s recommendation.
However, as discussed in
more detail later, ADOC has not incorporated suicide
risk-assessment
tools
into
other
parts
of
the
mental-health care system, despite Dr. Patterson’s
recommendation to do so.
78

pain and suffering and potential suicides among those who
are not receiving the mental-health care they need.

b.

Inadequate Referral Process

The other mechanism for identifying and classifying
prisoners with mental illness, the referral process, is
riddled with delays and inadequacies.

The purpose of the

referral process is to identify prisoners whose mental
illnesses

develop

during

their

incarceration

and

prisoners whose mental-health needs were not identified
during the intake process.

Furthermore, the referral

process enables the system to respond to the changing
mental-health

needs

regardless

of

their

results.

In

a

of

prisoners

initial

functioning

as

they

mental-health
system,

arise,

assessment

referrals

from

prisoners or staff would be triaged based on the urgency
of the articulated needs: some may warrant immediate
action, such as placement in a suicide-watch cell or an
immediate evaluation by a psychiatrist, while others may
be addressed over a longer period of time.
79

According to

Dr. Patterson, the defense expert, triaging is important
because the assessment process enables clinicians to
determine appropriate next steps, and delays in doing so
pose a risk of untreated symptoms, including a risk of
death from critical yet unmet treatment needs.
As with the intake screening procedure, experts from
both sides concluded that ADOC’s referral process suffers
from serious deficiencies.

First, ADOC does not have a

system to triage and identify the urgency of each request,
and to make referrals according to the level of urgency.
MHM’s contract-compliance reports have identified this
issue year after year, starting in 2011: the reports
stated that processed referral slips did not reflect
acuity levels, and the logs of referrals did not record
the

relevant

date

and

time

information,

making

it

impossible to ensure timely processing and referrals.
Despite perennial indications that referral requests were
being processed in a haphazard manner, ADOC still does
not have any system of tracking and processing referrals
to ensure that urgent requests are actually referred to

80

providers, or that providers are able to handle requests
in

a

timely

fashion:

an

audit

performed

by

defense

experts in May 2016 revealed that referral forms still
do not note urgency levels that would enable triaging.29
Second, the referral process is inadequate because
correctional

officers

are

ill-positioned

to

notice

behavioral changes. As plaintiffs’ expert Vail testified,
severe overcrowding and understaffing make it difficult
for correctional officers to notice behavioral changes.
It is simply unrealistic to rely on ADOC’s overburdened
correctional officers to identify and refer prisoners who
may need mental-health treatment, except perhaps for
those prisoners with the most obvious symptoms of mental
illness.

29. Plaintiffs have objected to the use of the audit
results on Daubert grounds, contending that the
methodology used to conduct the audit was not reliable
and has not been accepted in the field of correctional
mental-health care as a way of evaluating adequacy of
care.
Based on Dr. Patterson’s testimony on the
methodology, the audit results are admitted.
However,
as will be explained more extensively in a separate
Daubert opinion, limitations in the methodology and
implementation of the audit have been taken into
consideration in evaluating their weight.
81

In

addition

to

delaying

treatment

or

leaving

mental-health symptoms untreated, ADOC’s broken referral
process has contributed to the phenomenon of prisoners
engaging in self-harm or other destructive behavior in
order to get attention of mental-health staff.

Experts

described examples of “increasingly desperate acts” to
get the attention of MHM and necessary services, such as
self-injury, fire setting, and suicide attempts.

Joint

Ex. 460, Burns Expert Report (doc. no. 1038-1044) at 29;
Haney Testimony at vol. 1, 72 (describing frequent fires
in

segregation

units

as

desperate

attempts

to

get

attention for their needs, including mental-health needs).
The court also heard from class member J.A., who has
repeatedly engaged in self-harm and expressed suicidal
ideation.
obtain

After summarizing his various attempts to

mental-health

services

while

in

segregation,

including starting fires, J.A. observed, “[G]etting help
in prison is harder than getting out of prison.”
Testimony at __.

J.A.

These are snapshots of unnecessary pain

and suffering that could be avoided or at least minimized

82

if prisoner requests for mental-health services were
being addressed on a timely basis.

c.

Inadequate Classification of Mental-Health Needs

ADOC also fails to classify the severity of mental
illnesses accurately.
is

intended

to

The mental-health coding system

reflect

the

level

of

functioning

a

mental-health patient has and correspond to his or her
treatment

needs

and

housing

requirements.

Through

multiple revisions, the coding system now includes 13
different

codes,

ranging

from

MH-0

to

sub-codes for some levels, such as MH-2d.
strokes,

a

higher

numbered

MH

code

MH-9,

with

In broad

reflects

more

intensive care needs: MH-0 refers to no mental-health
care need; MH-1 and MH-2 refer to mild impairment or
stable

enough

to

receive

only

outpatient

care;

MH-3

through MH-5 refer to those who need inpatient care, in
either the residential treatment unit (RTU) or intensive
stabilization unit (SU); MH-6 refers to those who need

83

to be hospitalized.

See Joint Ex. 105, Admin. Reg. § 613

(doc. no. 1038-127).30
Testimony from multiple witnesses and experts made
clear that ADOC’s mental-health coding system often fails
to accurately reflect prisoners’ mental-health needs.31
For example, plaintiff R.M. has been coded MH-2 and
housed

in

general

population

for

most

of

his

incarceration since 1994, despite his severe paranoid
schizophrenia and resulting delusions. He was eventually

30. ADOC’s mental health coding system was amended
twice in 2016. According to the latest version, a new
level (MH-9) refers to those who cannot be transferred
to any facility and must be held at the current housing
facility. However, the description of the code does not
give any specifics about the patient’s symptoms and only
specifies who may revise such a code.
Joint Ex. 107,
Admin. Reg. § 613-2 (doc. no. 1038-130).
There is no
MH-7 or MH-8 in the system.
31. Dr.
Burns
explained
that
inappropriate
classification of mentally ill patients partially stems
from a lack of proper documentation in treatment plans
and progress notes. Combined with a high turnover rate
of staff and frequent transfers between facilities,
inadequate documentation means that information about a
patient’s symptoms and treatment is not well preserved.
As a result, symptoms are evaluated without the context
and history of each patient, leading to a higher risk of
under-classifying and underestimating the acuity of
mental illnesses.
84

given a higher code and transferred to the Bullock RTU,
but Dr. Burns testified that he may need an even higher
level of care, and that he suffered from inadequate care
while

housed

for

years

in

an

outpatient

facility.

Likewise, a prisoner identified as #12 in Dr. Burns’s
report

was

clearly

delusional

and

believed

that

televisions and radios were speaking to him; he was in
an outpatient facility at the time of his interview with
Dr. Burns, but needed to be in a long-term, inpatient
facility

due

symptoms.

to

the

severity

of

his

schizophrenic

An email from Associate Commissioner Naglich

to Dr. Hunter in December 2015 discussed a schizophrenic
prisoner who was clearly delusional and eventually killed
another prisoner and threatened to kill a correctional
officer; he had been coded as MH-1, which is intended to
denote someone who is stabilized with a ‘mild’ impairment.
Lastly, Dr. Haney gave examples of patients who have been
repeatedly

placed

on

suicide

watch

for

engaging

in

self-harm and suicide attempts but were designated as
MH-0--that is, not having any mental-health treatment

85

needs--including plaintiffs L.P and R.M.W., and former
plaintiff J.D.

Haney Testimony at vol. 2, 113-20; see

Pl. Dem. Ex. 131, Movement History of Exemplar Plaintiffs
(doc. no. 1126-10).

d.

Inadequate Utilization of Mental-Health Units

As experts from both sides concluded, ADOC does not
adequately utilize residential treatment unit beds and
fails to provide residential-level care to those who need
it,

leading

to

persistent

or

worsening

symptoms.

Defendants’ expert Dr. Patterson opined that roughly 15 %
of prisoners on the mental-health caseload should be
housed in RTU or intensive stabilization unit settings;
in other words, approximately 515 ADOC prisoners should
be housed in the RTU or the SU.32

However, only 310 of

32. These numbers are based on the number of patients
currently on the mental-health caseload. Because ADOC
misses a significant portion--at least 5 % of the inmate
population, or a third of those who are already on the
caseload--of those who need mental-health care during its
intake screening and referral processes, it is likely
that even more prisoners need residential mental-health
care than calculated here.
86

the 376 RTU and SU beds were being used to house prisoners
with mental-health needs as of September 2016.

Joint

Ex. 344, September 2016 Monthly Operating Report (doc.
no.

1038-703).

This

practice

of

not

filling

even

existing mental-health unit beds has persisted for years,
as reflected in MHM’s monthly operating reports.

See,

e.g., Joint Ex. 321, December 2015 Monthly Operating
Report (doc. no. 1038-666) at ADOC0319118-19; Joint Ex.
320, December 2014 Monthly Operating Report (doc. no.
1038-665) at ADOC0319016-17 (showing 299 beds occupied
in

December

2014). 33
significant

2015
Dr.

and

177

Patterson

shortfall

under-identifying

beds

occupied

credibly
suggests

those

who

in

opined
ADOC
need

December

that
has

this
been

residential

treatment--a problem that starts with the inadequate
intake screening process.

He also observed another flaw

in RTU admission management: he explained that those who
are repeatedly sent to the SU should be admitted to the

33. As explained in more detail later, many of the
cells in the mental-health unit are being used to house
segregation prisoners without any mental-health needs.
87

RTU

to

receive

more

long-term,

intensive

treatment,

rather than being released back to general population
after a stay in the SU.

He also noted that prisoners who

are admitted to RTUs often stay only for a short period,
despite their pronounced needs for long-term treatment.
Because there is little programming available in the RTU,
the utility of an RTU placement is quickly exhausted,
according to Patterson.
Dr. Burns agreed with Dr. Patterson’s assessment that
ADOC needs to house more patients in the RTU, especially
when RTUs have available beds.
her

facility

visits

multiple

She also observed during
prisoners

who

needed

residential treatment but were in general population.
In

sum,

identification

ADOC’s
and

significantly

classification

practices

inadequate
create

a

substantial risk of serious harm to prisoners with mental
illness.

These practices result in a failure to treat

or under-treatment of prisoners’ serious mental-health
needs.

As will be discussed later, these practices also

have a downward-spiral effect on the rest of the system:

88

those who do not get needed treatment often end up in
crisis cells, frequently receive disciplinary sanctions,
and may be placed in segregation, where they have even
less access to treatment and monitoring.

3. Inadequate Treatment Planning
Correctional systems have a duty to provide minimally
adequate mental-health care to prisoners with serious
mental-health needs.

Estelle v. Gamble, 429 U.S. 97, 104

(1976) (deliberate indifference to serious medical needs
of

prisoners

constitutes

“unnecessary

and

wanton

infliction of pain proscribed by the Eighth Amendment”)
(internal quotation and citation omitted); Greason v.
Kemp, 891 F.2d 829, 834 (11th Cir. 1990) (holding that
prisoners have a constitutional right to psychiatric care
under Estelle v. Gamble).
sides

established

that

Expert testimony from both

such

requires treatment planning.

minimally

adequate

care

Treatment planning is the

foundation of all forms of health care; through the
process, providers involved in the treatment identify the
89

patient’s target symptoms, treatment goals, and next
steps, and coordinate long-term care as necessary.
staff

from

psychiatric,

multiple

disciplines--for

psychological,

correctional--are

involved

in

nursing,
a

example,
and

patient’s

When

even

treatment,

treatment planning should involve key people from each
discipline in order to ensure consistent and informed
treatment.

Treatment planning is particularly important

in the prison context, where prisoners have almost no
ability to ensure the consistency of their own treatment;
it is even more crucial in the context of ADOC, where
prisoners are frequently transferred across correctional
facilities and the staff turnover rate is high.
experts

described,

planning,

treatment

without
is

often

coordinated
ineffective

As

long-term
and

runs

a

substantial risk of prolonging pain and suffering of
those who have treatable mental illnesses.
provide

meaningful

treatment

planning

Failure to

constitutes

a

substantial deviation from acceptable standards of prison
health care; such deviations can pose a substantial risk

90

of serious harm to those who have serious psychiatric
needs.

Steele v. Shah, 87 F.3d 1266, 1269 (11th Cir.

1996) (noting that providing care where the quality is
“so substantial a deviation from accepted standards” can
constitute an Eighth Amendment violation).34
ADOC fails to provide adequate treatment planning.
First, experts for both sides found that ADOC’s treatment
plans are not individualized to each prisoner’s symptoms
and needs, resulting in ‘cookie-cutter’ plans that remain
the same even though there may have been changes in that
prisoner’s mental-health state.

As defense expert Dr.

34. As an aside, the court notes that treatment
planning can be viewed as serving similar purposes as
medical recordkeeping, which also ensures continuity of
care and coordination between different providers.
Courts have held that maintaining accurate and complete
records of mental-health treatment is an essential
component of a minimally adequate mental-health care
system. See, e.g., Ruiz v. Estelle, 503 F. Supp. 1265,
1339 (S.D. Tex. 1980) (Justice, J.), aff’d in part, rev’d
in part on other grounds, 679 F.2d 1115 (5th Cir. 1982),
opinion amended in part and vacated in part, 688 F.2d 266
(5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983);
Balla v. Idaho State Bd. of Corrections, 595 F. Supp.
1558, 1577 (D. Idaho 1984) (Ryan, J.) (adopting the Ruiz
standard of six essential components of a minimally
adequate mental health treatment program, including
complete and accurate records); Coleman v. Wilson, 912 F.
Supp. 1282, 1298 (E.D. Cal. 1995) (Karlton, J.) (same).
91

Patterson explained, a patient’s lack of progress in
treatment does not justify the use of a cookie-cutter
treatment

plan:

interventions

providers

that

could

be

should

try

effective,

different

rather

than

sticking to the same intervention when the patient is not
responding

to

it.

Likewise,

treatment

plans

should

reflect the changes in the treatment environment, such
as an admission to the SU or placement on suicide watch.
However, ADOC treatment plans often have general patient
goal statements such as “identify triggers” or “identify
coping mechanism” repeated in subsequent plans, without
showing any progress or change in the mental state of the
patient; they also often fail to reflect the fact that
the patient has been placed in a different environment
that would impact his or her mental health and treatment
mode.

Whether the rote repetition results from a lack

of follow-through on the plans or mere sloppiness in
filling out the plans, both present hazards to prisoners
with mental illness.

92

ADOC’s treatment-team meetings are also inadequate.
Treatment-team meetings are an essential part of the
treatment planning process, where providers from various
disciplines involved in the patient’s treatment discuss
developments and next steps to ensure coordinated care.
However, the meetings at ADOC happen haphazardly, with
members of the treatment team missing from the meetings
and signing new treatment plans on different days.
haphazard

attendance

creates

a

risk

of

This

different

providers having an inconsistent approach or course of
treatment

for

the

same

patient

because

some

of

the

treatment team are unaware that a new treatment plan has
been

put

frequently

into

effect.

occur

Furthermore,

without

any

the

meetings

participant

with

prescription privileges, especially at some outpatient
facilities where the only provider with prescription
privileges

is

a

nurse

practitioner

who

facility as infrequently as once per month.

visits

the

As a result,

treatment plans are often developed without the input of
a provider with expertise in psychotropic medication.

93

Experts from both sides agreed that ADOC’s treatment
planning

without

all

necessary

participants

is

problematic and falls below the standard of care because
it deprives patients of a coherent treatment plan and
continuity of care.
Inadequate treatment planning subjects mentally ill
prisoners to the risk of exacerbating symptoms, prolonged
pain and suffering, serious injury from self-harm, and
even death.

As Dr. Burns explained, treatment plans

serve an essential function of making sure that all
providers’ treatment is consistent.
opined

that

not

having

a

Dr. Burns credibly

consistent

approach

to

a

prisoner’s treatment poses a risk of exacerbating or
neglecting problems that may arise from mental illness,
such as self-injury.
Burns,

failing

to

Specifically, according to Dr.
address

the

issue

of

repeated

self-injury due to a lack of coordinated treatment and
inconsistent approaches by different providers creates a
substantial risk that patients will continue to engage
in

self-harm;

these

patients

94

can

eventually

end

up

disabled or dead as a result of continued self-harm.
Defense expert Patterson agreed with Burns’s emphasis on
the critical importance of coordinated treatment and
identified inadequate treatment planning as one of the
most significant deficiencies in ADOC’s mental-health
care system.
In the context of ADOC, where transfers of prisoners
and changes in providers are frequent, the impact of
inadequate treatment planning is exacerbated.
written

treatment

plans

are

generic,

Because

counselors

and

patients often have to start from scratch when patients
are

moved

from

counselor

to

counselor.

A

former

mental-health professional testified that prisoners who
are transferred to a new counselor are often adversely
affected, not only because the counselor has to start
anew the process of building rapport with the prisoner,
but also because treatment plans and progress notes often
contain insufficient information to enable a different
provider

to

learn

about

the

patient

consistent course of treatment.

95

or

continue

a

Plaintiff C.J. also

testified to the difficulties in having to start over
with a new counselor after each transfer. In sum, without
the

continuity

of

care

and

consistent

treatment

approaches provided through proper treatment planning,
providers

are

symptoms

of

substantially
mental

hindered

illness,

from

exposing

addressing

patients

to

continued pain and suffering, worsening self-injurious
behavior, serious bodily injury, or even death.

4. Inadequate Psychotherapy
Constitutionally

adequate

mental-health

care

in

prisons requires more than simply providing psychotropic
medications to mentally ill prisoners.

Prison systems

must provide not only psychotropic medication but also
psychotherapy or counseling to prisoners who need it to
treat their serious mental-health needs.
Kemp,

891

F.2d

829,

834

(11th

Cir.

See Greason v.
1990)

(adopting

district court’s conclusion that “[e]ven if this case
involved

failure

to

provide

psychotherapy

or

psychological counselling alone, the court would still
96

conclude

that

the

psychiatric

care

was

sufficiently

similar to medical treatment to bring it within the
embrace of Estelle.”).
clinical

perspective,

treatment--medication
because

As Dr. Burns explained, from a

one

everyone.

having
and

particular

both

modalities

counseling--is

modality

does

of

important

not

work

for

According to Dr. Burns, research indicates

that seriously mentally ill patients need counseling and
medication, along with non-structured or recreational
activities, and that psychotherapy is an effective and
essential mode of treatment for mental illness.

She

credibly opined, and the court finds, that not providing
individual or group therapy poses a substantial risk of
serious harm, including continued symptoms, pain, and
suffering, as well as self-harm and suicide attempts.
Insufficient mental-health and correctional staffing
at

ADOC

undermines

the

availability

and

quality

individual and group counseling sessions.
explained

earlier,

inadequate

mental-health

of

First, as
staffing

combined with the increasing number of prisoners on the

97

mental-health

caseload

has

driven

up

the

prisoners on each counselor’s caseload.

number

of

As a result,

both the frequency and quality of counseling sessions
have suffered over time, according to both experts and
MHM

providers.

MHM’s

medical

director

Dr.

Hunter

testified that the caseload has increased in recent years
to the point of taxing his staff’s ability to carry out
MHM’s contractual obligation: MHM counselors’ caseloads
have increased from 60 patients to between 80 and 90;
some facilities have only one counselor, who treats more
than 100 patients; nurse practitioners’ caseloads have
increased from 10-15 patients per day to 20-25 patients
per day.
MHM’s program director Houser also testified that
caseloads for counselors were sometimes twice as much as
they should be; as a result, she said, counselors are
“continually getting behind.”
2, 25.

Houser Testimony at vol.

In addition to seeing patients, counselors also

have to attend meetings, document their treatment actions,
design treatment plans, go on rounds in segregation units,

98

and respond to crises as they arise.35

Due to counselors’

increasing caseloads and mounting job responsibilities,
individual

counseling

canceled or delayed.

appointments

are

frequently

For example, during a spot audit

of the caseload at Bibb, 212 out of 213 cases had overdue
counseling appointments.

Pl. Ex. 576, December 2, 2015

Email from Davis-Walker to Houser (doc. no. 1112-26).
Defense expert Patterson also observed that counseling
appointments

are

frequently

delayed

due

to

staffing

35. Much testimony centered around how long a
typical counseling session lasts.
The court heard
conflicting testimony: some counselors testified that
most sessions do not last longer than 30 minutes; some
refused to give a more concrete estimate altogether,
other than saying their sessions might range from ten
minutes to two hours. Moreover, there is no documentary
or otherwise reliable evidence establishing such numbers.
Given the lack of documentation, the number of patients
on each clinician’s caseload at any given moment is a
more reliable proxy for the quality and frequency of
therapy: even if some patients receive sufficiently long
counseling
sessions,
the
context
of
overwhelming
caseloads means that the clinicians are not able to give
such counseling sessions to most patients, by virtue of
not having enough time in the day and having other duties.
Therefore, the court finds that the overwhelming
caseloads of psychiatric providers and counselors as
relayed by Dr. Hunter and Houser are more indicative of
the quality and frequency of counseling sessions for the
vast majority of prisoners on the mental-health caseload.
99

shortages and opined that “these delays contribute to a
failure to provide necessary mental health services”; the
potential harm in such delayed appointments includes
“continued pain and suffering of mental health symptoms
including

suicide

and

inadequate treatment.”

disciplinary

actions

due

to

See Joint Ex. 461, Patterson

Expert Report (doc. no. 1038-1046) at 64.
Caseloads that are--as MHM’s Houser put it--much
higher than an “acceptable standard” may explain why so
many prisoners testified that ‘counseling sessions’ do
not amount to much. Dr. Patterson’s review of the medical
records within ADOC revealed that most progress notes
from

counseling

sessions

only

contained

short

descriptions of symptoms, instead of reflecting clinical
judgments
progress.

and

overall

assessments

Similarly,

Dr.

Burns

of

the

noted

patient’s
that

the

overwhelming majority of progress notes she reviewed
indicated

that

the

patient

was

‘fine,’

complaints,’ or had nothing to talk about.

had

‘no

She explained

that a short, vague statement like “I’m alright” is not

100

a sufficient indicator of a stable mental-health state:
instead of moving on to the next patient simply because
the patient’s initial self-reporting does not expressly
indicate distress, the clinician should probe deeper;
notes on asking follow-up questions about medications,
mood, job assignments, or disciplinary sanctions would
reflect

a

proper

counseling

session.

Based

on

the

prisoners’ descriptions and the experts’ observations,
the

court

finds

that

counseling

sessions

are

often

inadequate.
The chronic lack of sufficient correctional staffing
has

also

contributed

to

frequent

provision of psychotherapy.

disruptions

in

the

Dr. Burns credibly opined

that insufficient correctional staff has interfered with
access to treatment, as evinced by frequently canceled
or

delayed

individual

counseling

sessions

and

group

sessions. In particular, as she noted, the frequency of
counseling

sessions

especially

low

due

for
to

those
officer

in

segregation
shortages:

is

since

segregation inmates must be escorted from their cells by

101

correctional

officers,

mental-health

appointments

are

frequently canceled or delayed when there are not enough
officers to cover both the essential security posts and
mental-health

appointments.

Ayers,

defendants’

correctional expert, also credibly opined that ADOC was
failing to respond to the needs of mentally ill prisoners
due to the correctional staffing shortage.

Likewise, a

nurse practitioner at Donaldson credibly testified that
she has experienced a persistent problem of not being
able to see patients due to a lack of correctional
staffing, and that the problem has been getting worse
over the years.

She and other providers testified that

when insufficient correctional staffing does not allow
prisoners to be escorted to the mental-health offices,
the

mental-health

providers

may

go

to

the

cells

themselves and attempt to talk to their patients at the
cell-front.

However, as agreed by MHM’s medical director

Hunter and experts Burns and Haney, these cell-front
check-ins
constitute

are

insufficient

actual

as

counseling

mental-health

102

and

treatment;

do

not

Haney

explained that these contacts serve solely a monitoring
purpose--that

is,

to

ensure

that

the

patient

is

responsive and not decompensating, rather than to treat
the underlying mental illness.

Indeed, while visiting

five different facilities and their segregation units,
the court observed the difficulty of standing outside a
closed

cell

door

to

mental-health needs:

speak

to

a

prisoner

about

most cell doors are solid with

small, perhaps 12-by-6-inch windows, some of which were
completely fogged over and others shielded by wire mesh
or obfuscated by paper pasted on the window, either by
the

prisoner

segregation

or
or

from

outside;

high-security

and
cells

most
are

of
in

these
large,

auditorium-like spaces, where sounds echo throughout the
units, resulting in a panoply of unintelligible yet very
loud noises.

Conducting a counseling session across the

door in these loud spaces seemed nearly impossible: the
court had a hard time imagining having a meaningful
conversation

in

such

an

environment,

let

alone

a

conversation for the purposes of mental-health treatment.

103

As with these cell-front sessions, ADOC’s provision
of psychotherapy often lacks confidentiality.
and

other

clinician

confidentiality

between

witnesses
providers

Experts

explained
and

patients

that
is

a

hallmark of and a necessary condition for mental-health
treatment, yet some ADOC facilities lack a confidential
setting for counseling sessions.

Obviously, cell-front

interactions between mental-health staff and prisoners
are not confidential, as many staff witnesses testified,
and as the court observed firsthand.

Moreover, many

facilities lack mental-health offices with windows and
doors that would ensure the visibility of the counseling
session to the correctional officer who is providing
security without sacrificing sound confidentiality.

For

example, as the court saw on its tour of St. Clair
Correctional Facility, the walls in the mental-health
offices do not extend from floor to ceiling, and they
lack doors; in other words, the offices resemble tall
cubicles.

Anyone nearby, including other prisoners and

the correctional officer who escorted the prisoner there,

104

could hear the content of a counseling session.

Moreover,

correctional

door

officers

often

stand

by

the

of

counseling offices with the door ajar for safety purposes,
and

counseling

sessions

are

sometimes

held

in

lieutenant’s offices where other correctional officers
are present and holding disciplinary hearings.

As Dr.

Haney explained, prisoners often do not feel safe sharing
their

mental-health

issues

in

the

presence

of

correctional officers or other prisoners because what
they share with the mental-health staff may make it
easier for others to exploit them; as a result, the lack
of

confidentiality

undermines

the

effectiveness

and

quality of counseling sessions.36
The quality of psychotherapy also suffers due to use
of unsupervised, unlicensed counselors, referred to as
‘mental health professionals’ in ADOC.

The court finds,

based on expert testimony from both sides, that the lack
36. By the same token, Dr. Haney found it problematic
that at some facilities ‘inmate newsletters’ identify
exactly who is on the mental-health caseload, thereby
increasing the stigma of mental-health care and
discouraging
prisoners
from
seeking
mental-health
treatment due to fear of exploitation by others.
105

of supervision for unlicensed MHPs is a significant,
system-wide

problem

affecting

mental-health care within ADOC.
mental-health
licensed.

care

specifies

the

delivery

of

ADOC’s own contract for
that

all

MHPs

must

be

However, only four out of 47 MHPs employed at

ADOC were licensed as of February 2016, and this problem
has persisted for years.37
regulations

mandate

that

The standard of care and state
an

unlicensed

counselor

be

supervised by a licensed psychologist, who is required
to co-sign the counselor’s notes and review the treatment
provided.

Because MHM employs only three psychologists,

most MHPs work at prisons without a psychologist, and the
chief

psychologist

of

MHM,

Dr.

Woodley,

actual supervision to unlicensed MHPs.

provides

no

In fact, most

MHPs’ clinical work is supervised by their respective
37. Associate Commissioner Naglich testified that
unlicensed counselors can work in ADOC facilities only
if they obtain a license within six months of starting
employment. However, this testimony was contradicted by
the employment data, as well as Houser’s testimony that
MHM cannot hire licensed counselors within the contract
budget.
Indeed, of the four current and former MHM
counselors who testified at trial, none had become
licensed despite having worked in ADOC for multiple years.
106

site

administrators,

who

are

also

mostly

unlicensed

counselors with their own caseloads--in other words, the
supervisors

generally

credentialing
supervising.

and
If

have

the

level

of

MHPs

they

are

administrators

have

any

education
the

as

site

same

the

problems, they consult with Dr. Woodley.

Dr. Patterson,

a defense expert, credibly opined that it is unacceptable
for

an

unlicensed

counselor,

rather

than

a

licensed

psychologist, to supervise another unlicensed counselor.
He

identified

the

lack

of

supervision

of

unlicensed

providers as a systemic deficiency.
ADOC’s provision of group therapy is also inadequate.
Dr.

Burns

testified

that

infrequent

and

inadequate

individual counseling can pose a substantial risk of
serious harm to prisoners with mental illness, if the
same patients do not have access to group therapy. Burns
further

explained

that

group

therapy

is

especially

important in a correctional system, which often does not
have enough resources to provide individual counseling
to all of the prisoners who need psychotherapy.

107

Group

sessions, like individual therapy, help prisoners with
mental illness manage their symptoms, so that they do not
deteriorate to the point of needing residential treatment;
outpatient group therapy also enables mental-health staff
to identify those who need more intensive treatment.
Burns

opined

that

post-traumatic

therapy

stress

groups

disorder,

on

depression,

and

medication

management issues should always be offered to those on
the mental-health caseload, and that not offering such
group treatment in the context of an under-resourced
correctional mental-health system creates a substantial
risk of harm to prisoners suffering from those illnesses.
Despite the importance of group therapy for those who
receive inadequate individual therapy, many seriously
mentally

ill

individual
therapy.
groups

ADOC

therapy

prisoners
also

have

with
little

little

access

access

to

to

group

MHM’s program director Houser admitted that

have

been

not

happening

at

many

facilities,

including RTUs and SUs, due to the correctional staffing
shortage.

108

In sum, mental-health understaffing, correctional
understaffing,

the

use

of

unsupervised,

unlicensed

counselors, and lack of confidentiality all undermine the
efficacy and frequency of psychotherapy for mentally ill
prisoners within ADOC.

These conditions have created a

substantial risk of serious harm for those who need
counseling services, leaving them at a greater risk for
continued pain and suffering, self-injurious behavior,
suicidal ideation, and, as discussed later, disciplinary
actions in response to symptoms of mental illness.

5. Inadequate Inpatient Care
Problems of inadequate psychotherapy and treatment
planning become even more pronounced for prisoners in
mental-health units, where ADOC houses the most severely
mentally ill prisoners in its custody.
units

(also

referred

to

as

inpatient

Mental-health
units)

include

residential treatment units and intensive stabilization
units.

These

Bullock,

and

units,

which

Tutwiler,

are

house
109

located
about

2 %

at
of

Donaldson,
prisoners

within ADOC’s custody.38
mental-health

units

Given that prisoners housed in

have

already

been

identified

as

having the most severe mental-health needs within ADOC,
these patients are at higher risk of decompensation than
other mentally ill prisoners if treatment is insufficient
or if their housing environment is not therapeutic.

And

yet, despite ADOC and MHM’s awareness of these prisoners’
acute needs, the most severely mentally ill have been
receiving grossly inadequate care; in fact, one of the
experts described ADOC’s mental-health units as operating
“almost

exactly

illustrated

by

the
the

same

way”

placement

as

of

segregation,

segregation

as

inmates

without mental-health needs in the same unit and the
inadequate

out-of-cell

time

and

treatment.

Haney

Testimony at vol. 2, 104.

a.

Improper Use of Mental-Health Units

ADOC has had a persistent and long-standing practice
of

placing

segregation

inmates

without

mental-health

38. Practices within Tutwiler’s mental-health units
are discussed separately in Section V.B.9.
110

needs

in

mental-health

units.

This

practice

allows

prisoners without mental-health needs to occupy beds that
should be reserved for prisoners who have heightened
mental-health care needs and seriously undermines the
therapeutic purpose of the mental-health units. Starting
in

2012

and

continuing

contract-compliance

through

reports,

2016,

in

its

quarterly

yearly

continuous

quality improvement (CQI) meetings, and monthly operating
reports,

MHM

repeatedly

discussed

ADOC’s

problematic

placement of segregation inmates in the RTU and SU.
ADOC’s own audit of the Donaldson RTU in 2013 also
identified the presence of segregation inmates without
mental-health

needs

as

a

problem.

While

Associate

Commissioner Naglich testified that segregation inmates
were moved out of the Bullock SU by the end of 2013,
evidence showed that the problem continued through 2016.
For

example,

Brenda

Fields,

a

clinical

operations

associate from MHM’s corporate office, testified that the
presence of segregation inmates in the RTUs and SUs was
noted as a problem in early 2016.

111

Most recently, in

December 2016, the list of prisoners in the Donaldson RTU
included 13 segregation prisoners who did not have a
mental-health code appropriate for mental-health units.
Pl. Ex. 1264, December 2016 Donaldson Segregation List
(doc. no. 1099-8) at 14; Culliver Testimony at __.
Dr.

Tytell,

ADOC’s

chief

clinical

psychologist,

explained that wardens place segregation inmates in the
RTU or the SU when they do not have space for them
elsewhere.

He explained that MHM currently is expected

to contact him or Naglich whenever this happens, but did
not

confirm

whether

this

was

always

the

case.

Nevertheless, according to Tytell, the problem has been
recurring.

He conceded that it is ultimately the wardens,

rather than the mental-health staff, who decide how cells
in the mental-health units are used.
As all experts, MHM providers, and Dr. Tytell agreed,
placing segregation inmates in a mental-health treatment
unit is highly problematic.

The reasons are multifold.

First, having segregation inmates in the same unit as
mental-health

patients

creates

112

a

security

risk

for

mental-health
presence
diverts

patients:

prevents

the

programming

correctional

segregation
from

officers’

taking

attention

inmates’
place
away

and
from

mental-health patients and their needs. MHM’s medical
director Dr. Hunter testified that housing segregation
prisoners

in

mental-health

units

compromises

mental-health treatment, and that he has made this clear
to ADOC.

Dr. Woodley, MHM’s chief psychologist, informed

ADOC that the presence of segregation inmates in the
Bullock SU “undermine[s] the utility of this unit making
it nearly impossible to operate it for its intended
purposes.”

Joint Ex. 323, February 2016 MHM Monthly

Operating Report (doc. no. 1038-668) at 23.
Second, as Dr. Tytell and other experts explained,
because

mental-health

inmates

are

particularly

vulnerable, and those placed in segregation generally
have behavioral problems, the presence of segregation
inmates increases mental-health patients’ risk of being
victimized through manipulation or violence.

MHM and Dr.

Tytell were aware of this risk, as one of the MHM staff

113

members explained during a CQI meeting that using the
Bullock RTU as a “disciplinary dorm” is “putting our
vulnerable [inmates] at risk.”

Pl. Ex. 717, July 2015

Quarterly

(doc.

CQI

MHM029600.

Meeting

Minutes

no.

1044-11)

at

Associate Commissioner Naglich also agreed

that segregation inmates in mental-health units can cause
tension within the unit and anxiety to mental-health
patients.
The housing of segregation inmates in mental-health
units also contributes to the shortage of SU cells for
those who actually need urgent mental-health treatment.
Associate

Commissioner

Naglich

acknowledged

that

patients awaiting SU admission could be in an “emergency”
situation, as these patients require the highest level
of care available within ADOC.
1, 208.

Naglich Testimony at vol.

However, since 2011, the Bullock SU has had a

backlog of patients awaiting admission.

While Naglich

maintained that after the 2013 audit, ADOC actually moved
all segregation inmates out of the Bullock SU in order
to alleviate the backlog, she was unable to produce any

114

documentation

supporting

her

testimony.

(During

her

testimony Naglich reassured the court that she could
produce documents showing that she did move segregation
inmates out of the Bullock SU in 2013.

However, when she

did bring in documents purportedly showing such transfers,
none of them actually showed that any segregation inmates
were moved out of the SU.)

Moreover, in 2016, MHM

continued to report that segregation inmates were still
present in the SU, and that SU cell shortages were causing
delays for patients who need SU-level care.

Clearly, the

placement of segregation inmates in SU beds continues to
affect the most severely ill.

b.

Inadequate Out-of-Cell Time and Programming

ADOC’s mental-health units often fail to serve their
therapeutic purpose due to insufficient out-of-cell time
and scarce programming for their patients.

One of the

plaintiffs’ experts, Dr. Haney, who for multiple decades
has studied isolation and segregation in correctional
facilities,

noted

that

ADOC’s
115

‘celled’

mental-health

units 39 resemble and operate like segregation units. 40
Experts on both sides pointed to specific traits of
ADOC’s

mental-health

units

that

contribute

to

this

segregation-like atmosphere and the lack of a therapeutic
milieu: the presence of segregation inmates within the
mental-health units, as explained above; a severe lack
of out-of-cell time; and a lack of meaningful treatment
activities.
Out-of-cell time is crucial for patients housed in
mental-health units.

Without bringing patients out of

their cells for counselling sessions, treatment team
meetings, group sessions, and activities, placement in a
39. A part of each RTU is an ‘open RTU,’ consisting
of dormitories with rows of beds, rather than individual
cells.
40. Dr. Haney was not the only one who thought ADOC’s
celled mental-health units were indistinguishable from
segregation units.
In the corrective-action plan
provided
to
ADOC
in
2013,
MHM
stated
that
“conceptualiz[ing] the [Bullock] SU as a treatment unit,
not as segregation” was necessary to further the goal of
stabilizing patients.
Ironically, or perhaps not
surprisingly, Associate Commissioner Naglich also had a
hard time distinguishing between segregation units and
stabilization units during her testimony, frequently
referring to stabilization units as segregation units.
116

‘mental-health unit’ does no good for patients who need
the

highest

level

of

care;

careful

observation

and

treatment cannot happen when confined in a small cell all
day.

In fact, without out-of-cell time and effective

treatment, housing severely mentally ill prisoners in a
mental-health unit is tantamount to “warehousing” the
mentally ill.
n.4

(5th

See Wyatt v. Aderholt, 503 F.2d 1305, 1309

Cir.

1974)

(affirming

the

district

court’s

finding that a state mental hospital was functioning as
a

“‘warehousing

furnishing

institution

treatment

to

the

...

wholly

mentally

incapable

[ill]

and

of
...

conducive only to the deterioration and debilitation of
the residents’”)(quoting Wyatt v. Stickney, 344 F. Supp.
387, 391 (M.D. Ala. 1972) (Johnson, C.J.)).

Furthermore,

as Dr. Haney explained, out-of-cell time is especially
important for mentally ill prisoners for two reasons.
First, mentally ill prisoners experience more pressure
and stress from a confined environment, and they have a
more acute need to relieve that type of stress due to
their vulnerable mental state; in other words, isolation

117

makes

it

more

deteriorate.

likely

that

their

conditions

will

In that sense, out-of-cell time is in and

of itself therapeutic.

Second, out-of-cell time ensures

that mental-health patients’ socialization skills do not
atrophy to the point that they become uncomfortable with
human interaction altogether.
Patients

housed

in

ADOC’s

mental-health

receive very little out-of-cell time.
a

substantial

risk

of

continued

decompensation, and self-harm.
at

the

Donaldson

RTU,

units

This puts them at

pain

and

suffering,

As Dr. Haney observed,

patients

with

serious

mental

illnesses are left inside their cells virtually all day,
with no daily activities; this is similar to ADOC’s
treatment of segregation inmates, whose out-of-cell time
at ADOC does not exceed five hours per week.

Dr. Burns

concluded, and the court agrees, that the RTUs and SUs
offer

“little

medication

due

treatment
to

except

staffing

treatment and custody staff.”
26.

level

for

psychotropic

shortages

of

both

Burns Testimony at vol. 1,

Dr. Haney also noted that an unduly harsh and

118

punitive practice limiting property makes mental-health
units far from therapeutic and exacerbates prisoners’
idleness.

He observed that mental-health unit inmates

are allowed very little property, which means that they
do not have books to read or other things to keep them
engaged while spending the vast majority of their time
in their cells.

The court also observed firsthand the

idleness of seriously mentally ill prisoners during its
visits to Bullock and Donaldson’s mental-health units:
the majority of prisoners in those units were lying in
their cells, often in a fetal position and facing the
wall; there appeared to be no way to engage in any
remotely meaningful activity in the cell.
Dr.

Patterson,

testified

that,

in

the

defense

prisons

mental-health

around

the

expert,

country,

the

standard out-of-cell time for those in mental-health
units is ten hours of structured therapeutic activity and
ten hours of unstructured activity per week.
standard

practice

within

the

industry

While a
does

not

necessarily set the constitutional floor, a substantial

119

deviation from the acceptable professional standard could
support

a

finding

of

an

Eighth

Amendment

violation.

Steele, 87 F.3d at 1269.
Patients in ADOC’s RTUs and SUs get a vanishingly
small amount of time outside their cells compared to the
standard practice.

In 2013, MHM acknowledged that the

lack of programming was problematic for the Bullock SU,
telling ADOC that “[i]ncreased programming will assist
in

staff’s

address

the

bottleneck.”

ability

to

waiting
Pl.

stabilize

list
Ex.

inmates

problem
689,

thus
MHM

sooner

and

easing

the

Corrective

Action - Donaldson May 2013 (doc. no. 1069-5) at 13-14.
As of June 2016, three years after the 2013 audit,
patients in the SU at Bullock were still getting about
30 minutes of individual therapeutic contact per week and
about 2.5 hours of non-therapeutic group contacts per
week.

Joint Ex. 346, June 2016 Monthly Operating Report

(doc. no. 1038-708) at 4.41
41. The presence of segregation inmates in the
mental-health units contributes to the dearth of
out-of-cell time afforded to mentally ill prisoners in
120

Prisoners in RTUs do not fare much better than in
the SUs: Dr. Patterson found that RTU programming--which
provides
cells--is

prisoners’

main

inadequate.

42

opportunity
MHM

and

to

leave

ADOC’s

their

internal

documents also recognized this lack of out-of-cell time
for RTU inmates in the 2013 Donaldson audit: the audit
results revealed that no groups were being held for
Donaldson RTU patients, and that providers were having
difficulties keeping appointments due to correctional
staffing

shortages.

MHM’s

corrective-action

plan

following the audit stated that “ADOC not enforcing the

those units.
Dr. Haney testified that it is very
difficult to operate a unit that has mixed populations,
and that it is not surprising that a unit that contains
both segregation inmates and mental-health patients would
be treated like a segregation unit. This is partially
because correctional officers get confused as to how to
operate a unit with two conflicting purposes--discipline
and treatment. Relatedly, having segregation inmates in
the unit means that mental-health patients cannot be let
out
of
their
cells
as
easily,
especially
when
correctional staffing is minimal or inadequate.
42. Tellingly, Dr. Patterson stated that while
Tutwiler’s RTU programming is much better than RTUs at
male facilities--Bullock and Donaldson--it is still only
“close to adequate,” but not adequate.
Patterson
Testimony at vol. 1, 92.
121

out of cell time and not supporting MHM with the process”
is a challenge in ensuring that RTU patients are let out
of their cells daily.

Pl. Ex. 689, MHM Corrective

Action - Donaldson May 2013 (doc. no. 1069-5) at 12.

The

problem of inadequate out-of-cell time at the Donaldson
RTU has continued in spite of the corrective-action plan:
in

early

2016,

MHM’s

corporate

office

recommended

“continued advocacy for RTU patients to receive outdoor
recreation.”

Pl.

Ex.

115,

2016

Report (doc. no. 1070-5) at 15.

Contract-Compliance

As of September 2016,

Donaldson RTU patients were getting fewer than two group
contacts per week on average.

Joint Ex. 344, September

2016 Monthly Operating Report (doc. no. 1038-703) at 3.
In addition to the lack of general out-of-cell time,
mental-health units also fail to provide an adequate
amount

of

treatment

to

these

severely

mentally

ill

prisoners because of shortages of mental-health staff.
MHM’s program director Houser testified that groups have
not been taking place at many facilities, including RTUs
and

SUs;

indeed, an

alarmed

122

site

administrator

at

Donaldson informed Houser in August 2015 that staffing
losses at the facility have made it all but impossible
to meet the needs of patients at the RTU.
2015,

Houser

psychiatric

asked

Dr.

providers

at

Hunter

to

Bullock,

have
Dr.

In December
one

of

Edward

the

Kern,

provide more services in the RTU in addition to his work
in the SU.

Dr. Hunter responded that, because the SU was

so short-staffed and needed to be prioritized, shifting
resources to the RTU would be difficult; he also noted
that Dr. Kern had returned after a week of vacation to
“what was essentially a zoo on [the SU].”

Pl. Ex. 382,

Email from Houser to Hunter (doc. no. 1112-6).

The 2013

Donaldson audit also found that the psychiatric coverage
was insufficient and the logs for RTU rounds by providers
were not being kept, making it impossible to tell whether
RTU patients were getting any check-ins or treatment or
whether their progress was being monitored.

Pl. Ex. 689,

MHM Corrective Action - Donaldson May 2013 (doc. no.
1069-5) at 1-2.

123

The correctional staffing shortage also affects the
amount of therapeutic care that patients at Donaldson and
Bullock receive.

Houser admitted that a lack of officers

for the RTUs and SUs often cause the cancellation of
group activities.

The impact of the officer shortage was

also consistently documented by ADOC and in reports that
were sent to Associate Commissioner Naglich and OHS for
their review.
Donaldson,

For example, during OHS’s 2013 audit of

the

auditors

noted

numerous

deficiencies

caused by the correctional staffing shortage.

First,

mental-health staff were manning laundry and showers
instead of providing mental-health care, because there
were not enough correctional officers to perform those
basic duties.

Scheduled activities and out-of-cell time

were not being provided due to the correctional officer
shortage, and MHM’s corrective-action plan stated that
the “[RTU] has to be conceptualized as an RTU and not as
segregation.”

Pl.

Ex.

689,

MHM

Corrective

Action - Donaldson May 2013 (doc. no. 1069-5) at 9.

The

same was true at the Bullock SU: the problem of ‘access

124

to

patients’--meaning

unable

to

provide

that

mental-health

treatment

to

staff

patients

due

were
to

correctional officer shortage--was first identified in
2013, and then again in 2014 and 2016 contract-compliance
reports.
Report

See
(doc.

Pl.

Ex.

no.

114,

2013

1070-4);

Contract-Compliance

Pl.

Ex.

105,

2014

Contract-Compliance Report (doc. no. 1070-3); Pl. Ex. 115,
2016 Contract-Compliance Report (doc. no. 1070-5).

As

Naglich testified, because there are simply not enough
correctional officers, the problem of accessing patients
in RTUs and SUs recurs on a regular basis, even when it
has

been

through

reassigning

officers to particularly problematic areas.

As a result,

patients

temporarily

in

psychiatric

the

SU

contact

alleviated

often
via

receive

cell-front

their

individual

check-ins.

As

explained earlier, this utter lack of confidentiality
negates the therapeutic utility of these contacts.

Such

cursory contacts with the most severely ill patients are
gravely inadequate.

125

The

severe

treating,

effects

seriously

of

warehousing,

mentally

than

prisoners

ill

rather

was

crystalized in two incidents at the Donaldson RTU, where
two different patients set their cells on fire out of
frustration about not getting let out of their cells.
The

internal

email

reporting

one

of

the

incidents

explained that the problem of not letting patients out
of their cells was due to correctional staffing shortages.
Pl. Ex. 518, January 22, 2016 Email from Wynn-Scott to
Houser (doc. no. 1112-18).
Jamie

Wallace’s

stabilization

unit

last

10

further

days

exemplify

in

the

the

Bullock

inadequate

treatment provided to the most severely ill patients:
his medical records for his final 10 days reflected no
group activities, one cell-side treatment plan note, and
two psychiatric progress notes.
The lack of out-of-cell treatment in mental-health
units adds the risk of harm posed by the harsh effects
of isolation to that posed by inadequate treatment in
general.

As Associate Commissioner Naglich admitted,

126

inadequate treatment of patients in inpatient units can
lead to “additional exacerbation of their mental health
symptoms,”

including

further

delusions, and suicide.

hallucinations

and

Naglich Testimony at vol. 3,

144-45. In addition, as experts testified, mentally ill
prisoners are at a substantial risk of decompensating and
being subject to prolonged pain and suffering when placed
in an isolated environment.

In other words, ADOC’s

failure to provide adequate treatment and out-of-cell
time in mental-health units forces the most severely
mentally ill patients to face yet another risk factor for
decompensation, even though their placement was for the
specific purpose of alleviating the symptoms of their
mental

illness.

Inadequate

out-of-cell

time

and

treatment in this context therefore compounds the risk
of harm that is already inherent in a nonfunctioning
mental-health care system.

127

c.

Lack of Hospital-Level Care

ADOC also creates a substantial risk of serious harm
to prisoners at the most severe end of the mental-health
spectrum, because it does not provide hospital-level care
or a hospitalization option for prisoners housed there.
According to experts from both sides, hospital-level care
or hospitalization should be available when patients pose
a danger to self or others and interventions in the SU
do not improve their condition: due to the harmful effect
of isolation in an SU cell, staying in the SUs cannot be
a long-term solution for patients who experience repeated
episodes of deterioration.
Although many ADOC prisoners require hospital-level
care,

very

few

actually

receive

it.

Virtually

all

psychiatric providers who testified agreed that they knew
or noticed ADOC prisoners who needed to be transferred
to a hospital. ADOC’s administrative regulations dictate
that those who are kept in the SU for over 30 days without
stabilizing should be considered for hospitalization; the
same

provision

also

mandates

that

the

treating

psychiatrist recommend a transfer to a state psychiatric
128

hospital

if

the

treatment

team

determines

that

all

mental-health interventions possible within ADOC have
been exhausted, and that the inmate has not responded to
those interventions.

Joint Ex. 138, Admin. Reg. § 634,

Transfer to State Psychiatric Hospital (doc no. 1038-168).
However,

ADOC

virtually

never

transfers

patients

to

hospitals, except in the case of prisoners nearing the
end

of

their

sentence.

Dr.

Hunter

and

Associate

Commissioner Naglich corroborated this point, and Dr.
Kern could recall only four prisoners in the last six
years who were transferred to a hospital before the end
of their sentences.

Dr. Kern explained that MHM tries

to deal with acutely ill patients’ symptoms within ADOC
even though ADOC cannot provide hospital-level care,
instead of pursuing hospitalization as required by the
administrative regulation, because the waiting list for
a bed in a hospital can be six months long or longer.
Several factors differentiate hospital-level care
from what is provided in ADOC, as defense expert Dr.
Patterson explained.

Hospitals are able to offer a high

129

level

of

monitoring

for

suicidal

and

decompensating

patients while not isolating them in a cell:

hospitals

or hospital-like environments are better at treating
severely mentally ill patients because patients can leave
their rooms to request help from staff, instead of having
to wait until correctional officers or mental-health
staff check on them; most of the patients’ interactions
in

a

hospital

are

based

on

doctor-patient

or

nurse-patient relationships, rather than guard-prisoner
relationships; and the goal of the staff is to treat the
patients, rather than to incarcerate them.
admitted

that

dealing

with

Dr. Kern also

patients

who

need

hospital-level care within an SU or RTU is challenging
because in those units, providers have a very limited
ability to give patients out-of-cell time.

He also added

that, if he could, he would like to have SU patients
“four to six, possibly eight hours out of their cell
every day,” but that this is impossible because “there
are not enough security staff.”
In

other

words,

without

a

130

Kern Testimony at 21.

hospitalization

option

or

another method of providing hospital-level care, the
providers are forced to choose between the benefits of
close monitoring and restriction of activity and the
harmful effects of isolation and losing socialization
opportunities.
Both Dr. Patterson and Dr. Burns expressed strong
disapproval of ADOC’s failure to provide hospital-level
care.

As Dr. Burns put it, waiting for an unstable

patient’s end of sentence to transfer him or her to a
hospital is akin to “someone with chest pain who has to
wait until they’re released from prison to get taken to
a hospital to have the chest pain treated.

We wouldn’t

do that in the case of chest pain. I’m not sure why we
do it in the case of inmates with serious mental illness.”
Burns Testimony at vol. 1, 168-69.

Dr. Patterson opined

that there should be a hospital-like setting or actual
hospitalization of patients with the most severe cases
of mental illness; he did not see any hospital-like
environment within the ten facilities he toured.

He also

explained that placement in the stabilization unit, the

131

highest level of care available within ADOC, should be a
time-limited treatment intervention, because the SU is a
highly

isolated

setting

and

likely

to

exacerbate

conditions of those prisoners experiencing acute symptoms;
and that if a patient is not stabilized in the SU, the
patient

should

emphatically

be

moved

stated,

to

without

a
any

hospital.

Patterson

qualification,

that

refusing to transfer patients to mental health hospitals
until the end of their sentences is simply “wrong,” and
that

it

puts

the

most

substantial risk of harm.
174.

severely

ill

patients

at

a

Patterson Testimony at vol. 1,

In other words, for the most severe cases of acute

mental illness, there is no alternative to a hospital
setting, due to these stark differences in treatment
options and milieu.
The grave risk of serious harm in failing to provide
hospital-level care to severely ill prisoners was quite
obvious in the case of Jamie Wallace.
months

before

he

testified

in

Less than two

court,

clinicians

recommended that Wallace be transferred to a hospital.

132

Despite the clinical recommendation, ADOC chose not to
pursue hospital admission.

In court, Wallace testified

that voices in his head told him to kill himself; and
indeed, he had attempted suicide multiple times.

After

testifying in court, highly agitated and destabilized,
Wallace languished in a crisis cell and an SU cell before
ending his life.

Less than two weeks had passed since

his testimony regarding inadequate mental-health care in
ADOC.

6. Inadequate Suicide Prevention and Crisis Care
Like its inpatient care, ADOC’s suicide-prevention
procedures

and

deficiencies.

crisis

care

suffer

from

serious

Identification, treatment, and monitoring

of those who have heightened suicide risks are important
because they provide the last safety net before the worst
possible
Reflecting

outcome
its

in

mental-health

importance,

courts

care:

have

held

suicide.
that

a

minimally adequate mental-health care system must have a
functioning suicide-prevention program.
133

See, e.g., Ruiz

v. Estelle, 503 F. Supp. 1265, 1339 (S.D. Tex. 1980)
(Justice,

J.)

(“[I]dentification,

treatment,

and

supervision of inmates with suicidal tendencies is a
necessary

component

of

any

mental

health

treatment

program.”), aff’d in part, rev’d in part on other grounds,
679 F.2d 1115 (5th Cir. 1982), opinion amended in part
and vacated in part, 688 F.2d 266 (5th Cir. 1982), cert.
denied, 460 U.S. 1042 (1983); Madrid v. Gomez, 889 F.
Supp.

1146,

1258

(N.D.

Cal.

1995)

(Henderson,

C.J.)

(adopting the suicide-prevention program standard from
Ruiz

as

part

of

“constitutional

minima”);

see

also

Greason v. Kemp, 891 F.2d 829, 835-36 (11th Cir. 1990)
(“Where prison personnel directly responsible for inmate
care have knowledge that an inmate has attempted, or even
threatened,

suicide,

their

failure

to

take

steps

to

prevent that inmate from committing suicide can amount
to deliberate indifference.”); Waldrop v. Evans, 871 F.2d
1030, 1036 (11th Cir. 1989) (finding that failure of a
prison

staff

member

to

notify

134

competent

authorities

regarding the inmate’s dangerous psychiatric state and
self-harm may constitute deliberate indifference).
Prisoners are at an elevated risk of suicide due to
the conditions prevalent in ADOC facilities.

As Dr. John

Wilson, the psychologist from MHM’s national Clinical
Operations

Department,

explained

to

MHM’s

program

director Houser, “[e]xperience and research confirm” the
following:
assaults,

“Suicides
low

programming,

increase

staffing
and

with

rates,

significant

crowding,

lack
changes

of

drugs,

meaningful

in

facility

mission/population such that inmates are moving between
facilities more frequently or are uncertain about whether
they will be housed or ... when there is basic unrest at
a systems level, it can cause a spike.”

Pl. Ex. 1224,

October 1, 2015 Email from Wilson to Houser (doc. no.
1117-24) at 2.
factors

in

Given the widespread presence of these

ADOC,

the

need

for

effective

suicide

prevention and crisis care cannot be overstated.
Suicide

prevention

consists

of

assessing

and

managing suicide risk: assessing the risk entails using

135

a suicide risk-assessment tool to identify those who are
at heightened risk and the level of that risk; managing
the risk involves both short- and long-term care that
provides

meaningful

suicide

risk.

therapeutic

Suicide

contact

prevention

to

alleviate

also

involves

physically restricting suicidal prisoners’ ability to
harm

themselves.

The

short-term

care

provided

to

prisoners who are undergoing acute mental-health crises
is called ‘crisis care.’
The standard of care in correctional mental-health
care

and

ADOC

regulations

require

that

a

suicidal

prisoner be placed in a special cell that minimizes risks
of

self-harm

and

suicide.

These

‘crisis

cells’

or

‘suicide-watch cells’ must be free of structural designs
that would facilitate self-harm or suicide attempts, such
as tie-off points where prisoners can tie a ligature to
hang themselves; they also must be free of items that
prisoners can use to harm themselves, such as sharp items
and ropes.

Patients on suicide watch are stripped of

136

personal

belongings

and

regular

clothes

and

given

a

suicide-proof blanket and a suicide smock.
Both correctional officers and mental-health staff
have the ability to place any prisoner on suicide watch,
after which a mid- or high-level provider is required to
conduct a thorough mental-health assessment that includes
the use of a suicide risk-assessment tool.43

While on

suicide watch, patients are to receive a high level of
care in order to resolve the crisis and return to a less
isolated and restrictive setting as soon as possible;
such care includes close monitoring, daily re-evaluation
of treatment plans, and frequent contacts with mid- or
high-level

providers

psychologists.
stabilized

such

as

psychiatrists

and

If a patient on suicide watch is not

within

72

hours,

mental-health

staff

is

required to evaluate the patient for admission to the
43. Suicide
risk-assessment
tools
include
a
checklist of risk factors and protective factors, such
as age, gender, length of sentence, contact with family,
and engagement in treatment, just to name a few. These
tools also require the clinician to make a holistic
assessment based on the answers and the appropriate
weight of each factor to estimate the overall risk of
suicide.
137

stabilization
procedures

unit.

requires

Discontinuing
an

order

from

suicide-watch
a

psychiatrist,

psychologist, or a nurse practitioner after an in-person
evaluation.
ADOC prisoners in crisis may alternatively be placed
in a crisis cell on mental health observation (MHO).

MHO

refers to a similar, short-term monitoring status for
patients whose conditions are not as acute as those on
suicide watch but still merit an observational status,
or who have been recently released from suicide watch.
Patients on MHO may be released only by a psychiatrist,
psychologist,

or

nurse

practitioner,

but--unlike

in

suicide watch--the patients are allowed regular clothes
and limited property.
ADOC’s suicide-prevention efforts and crisis care
suffer from multiple inadequacies.

First, ADOC and MHM’s

use of a suicide risk-assessment tool is too limited to
adequately identify those at high risk.

Moreover, many

prisoners at heightened risk of suicide or self-harm do
not receive crisis care because of a severe shortage of

138

crisis cells and staffing, and due to a culture of
skepticism towards threats of suicide.

Second, suicidal

prisoners are often placed in unsafe environments both
because of the shortage of crisis cells and because many
crisis cells contain unsafe physical structures, such as
tie-off points, and dangerous items that can be used for
self-harm.

Third,

prisoners

who

are

identified

as

suicidal receive inadequate monitoring and treatment.
Lastly, inappropriate releases from suicide watch and a
lack of follow-up care often push suicidal prisoners back
into crises again and again, driving up the demand for
crisis cells and diverting resources away from day-to-day,
long-term treatment.
ADOC’s

inadequate

crisis

care

and

long-term

suicide-prevention measures have created a substantial
risk of serious harm, including self-harm, suicide, and
continued pain and suffering. ADOC has experienced a
dramatic increase in suicide rates in the last two years.
Alabama’s reported suicide rate was five per 100,000
between 2000 and 2013; by fiscal year 2015-2016, the rate

139

had shot up to over 37 per 100,000. This is more than
double the national average of 16 suicides per 100,000
prisoners in state and federal correctional systems.
Patterson

Testimony

at

vol.

2,

27;

see

also

U.S.

Department of Justice, Bureau of Justice Statistics,
Mortality

in

Local

Jails

and

State

Prisons,

2000-2013 - Statistical Tables (2015) at Table 28.

In

the fiscal year starting in October 2016, the rate is
projected to be over 60 per 100,000, based on the first
three months of the year.

See Pl. Ex. 1267, 2015-2016

Chart of ADOC Suicides (doc. no. 1108-38).

Defense

expert Dr. Patterson testified that he does not know of
any prison system that has a suicide rate over 25 or 30
per 100,000.

It is in the context of the magnitude of

the suicide rate at ADOC that the court now considers
ADOC’s

failure

to

provide

suicide-prevention system.

140

a

functioning

a.

Failure to Provide Crisis Care to Those Who Need
It

ADOC fails to provide suicide-prevention services
and crisis care to many prisoners who need it.

This

failure stems from inadequate identification of those who
are

at

heightened

risk

of

suicide,

combined

with

a

culture of cynicism toward prisoners’ threats of suicide
and self-harm and a severe shortage of crisis cells.

The

majority of suicides in ADOC are committed by prisoners
who are not on the mental-health caseload, which means
that many of the prisoners’ needs were never identified
through

the

intake

or

referral

process,

intervention happened before their deaths.

and

no

See Pl. Ex.

1267, 2015-2016 chart of ADOC suicides (doc. no. 1108-38)
(showing eight out of 11 suicides between September 2015
and December 2016 committed by those who were not on the
mental-health caseload).
According to correctional mental-health experts on
both

sides,

risk-assessment

the
and

administration

of

management

by

tool

a
a

suicide
qualified

provider is widely recognized to be an essential part of
141

mental-health care: it should be used as a part of the
intake

screening

process

and

whenever

a

prisoner

threatens or attempts to harm himself or actually does
so.

The purpose of a suicide risk-assessment tool is to

assess whether a prisoner presents an increased risk of
suicidal behavior in order to manage that risk through
early intervention.
explained,

the

As defense expert Dr. Patterson

suicide

risk-assessment

tool

must

be

completed in a face-to-face encounter by a high-level
provider

or

supervision,

a

mid-level

because

the

provider
tool

with

comes

with

high-level
clinical

guidelines and requires clinical judgment.
ADOC and MHM did not use a suicide risk-assessment
tool for many years and only recently began using one
only at intake.
care

in

While examining ADOC’s mental-health

connection

with

this

case,

defense

expert

Patterson noticed that no suicide risk-assessment tool
was being used, even though MHM had such a tool.

Dr.

Patterson recommended that a risk-assessment tool be used
throughout

the

system,

including

142

at

intake,

upon

placement in a crisis cell, and any other time a prisoner
is deemed to have a heightened suicide risk.

He also

specifically indicated that a casual assessment without
using a form is not acceptable--a form with appropriate
clinical guidelines should be used in each instance.
As a result of this exchange, which took place in
the

summer

lawsuit

of

was

2016--more

than

filed--MHM

two

began

years

after

using

a

this

suicide

risk-assessment tool at intake for new prisoners entering
ADOC.44

However, contrary to Patterson’s recommendations,

MHM is not using the assessment tool when prisoners
threaten or engage in self-harm or are placed in crisis
cells.

For example, Dr. Patterson found no suicide risk

assessment had been completed for plaintiff Jamie Wallace
in

December

2016

despite

his

repeated

threats

of

self-harm and suicide and his stay in a crisis cell
shortly before he killed himself.
suicide

frequently

do

not

Prisoners who threaten

receive

any

kind

of

44. No efforts have been made to administer the
risk-assessment tool to the vast majority of prisoners
in the system, who went through intake before that date.
143

face-to-face

assessment

by

high-level

providers,

alone one involving a risk-assessment tool.

let

The failure

to perform proper suicide risk assessments to identify
prisoners with a heightened risk of suicidal behavior
places seriously mentally ill prisoners at an “obvious,”
substantial risk of serious harm.

Burns Testimony at

vol. 1, 63.
A chronic shortage of crisis cells also contributes
to ADOC’s failure to provide crisis care to those who
need

it.

While

the

exact

number

of

crisis

cells

sufficient for any given prison system depends on the
needs

of

the

population

and

the

treatment

options

available, it is clear that the number of crisis cells
in

ADOC

is

grossly

witness--including

inadequate.

Associate

Witness

Commissioner

after

Naglich

and

MHM managers--agreed that having two crisis cells for
3,800 prisoners at the Staton-Draper-Elmore complex, two
crisis cells for 1,900 prisoners at Bibb, and two crisis

144

cells for 2,700 prisoners at Fountain, is insufficient.45
MHM’s medical director Hunter testified that the number
of crisis cells in each of the 15 major facilities within
ADOC is insufficient.

In addition to the low number of

crisis cells across the system, the backlog of placements
at the Bullock stabilization unit has contributed to the
shortage: when the SU does not have a bed for the most
acutely ill prisoners, often due to the presence of
segregation

inmates,

mentally

ill

prisoners

end

up

staying in crisis cells for much longer than 72 hours,
though the explicit purpose of crisis cells is to serve
as a short-term placement while the prisoner stabilizes.46
45. Plaintiffs’
expert
Vail
testified
that
inadequate outpatient and routine care would increase the
need for crisis care, and inadequate crisis care would
also increase the number of those who are placed on
suicide watch over and over again, reinforcing the need
for more crisis cells. Documentary evidence of prisoners
being repeatedly placed on suicide watch supports this
conclusion.
46. The O dorm at Kilby, a small cell block with 13
cells, has been used as overflow crisis cells for the
rest of the system. Transferring suicidal prisoners from
their home institution to crisis cells at a different
institution, while preferable to housing them in a place
that is not suicide-proof, poses a host of problems.
145

Because ADOC has a limited number of cells to work
with, ADOC and MHM staff gamble on which prisoners to put
in them and frequently discount prisoners’ threats of
self-harm and suicide, instead of properly evaluating
suicide threats by having a qualified provider administer

First, it takes multiple correctional officers to
transport a prisoner, which exacerbates the problem of
correctional-officer shortages and may not even be
possible depending on the staffing level at the time the
crisis is happening.
Second, it jeopardizes the
prisoner’s mental state even further, since changing the
environment of someone who is already in crisis can add
to the distress the prisoner is experiencing. Dr. Tytell
referred to the transfer experience as potentially
“traumatic.”
Tytell Testimony at __.
Third, it
interferes with continuity of care, where the team that
was familiar with the patient’s symptoms and treatment
is no longer in charge of treatment, and a new team of
providers must get up to speed to treat a new patient,
all in the context of time-sensitive care.
A related issue that arose during the trial is how
to characterize the O dorm at Kilby.
Trial testimony
showed that the O dorm is sometimes also used as a
segregation overflow for Kilby. Pl. Ex. 1257, Duty Post
Log for O Dorm (doc. no. 1097-20) (showing “seg walk” and
“seg shower” as part of tasks completed by correctional
officers in O dorm). This practice makes it more likely
that Kilby will run out of crisis cells. It also raises
the same concerns that experts and MHM providers
expressed regarding housing suicidal prisoners in a
segregation unit or housing mental-health patients with
heightened treatment needs and increased vulnerability
near segregation inmates in general, as explained in more
detail in the section on segregation practices.
146

a suicide risk-assessment tool.

For example, in CQI

meetings and multidisciplinary staff meetings, MHM staff
discussed

“call[ing]

their

bluff”

and

“tak[ing]

the

gamble” on prisoners who threatened to commit suicide or
severely injure themselves.
Quarterly

CQI

Meeting

Pl. Ex. 720, February 2014

Minutes

(doc.

no.

1044-14)

at

MHM029579; see also Pl. Ex. 718, April 2015 Quarterly CQI
meeting

minutes

(doc.

no.

1044-12)

at

MHM029570

(discussing concerns about feigning suicidality to avoid
being

sent

to

responsibility

segregation
to

find

a

and
safe

that

it

place

for

suicidal inmates” (emphasis in original)).

is

ADOC’s

“genuinely
Discussions

during these meetings included statements such as “99 %
often do not act on their threats.”

Pl. Ex. 721, January

2015 Quarterly CQI meeting minutes (doc. no. 1044-15) at
MHM029614.

Staff meeting minutes and medical records of

patients also included conclusory statements suggesting
that prisoners who are claiming suicidality and self-harm
tendencies are in fact malingering or seeking ‘secondary
gains’--such as getting out of a segregation cell, or

147

getting away from an enemy, or debt problems. In response
to MHM staff’s use of this type of language in medical
records,

MHM’s

Chief

Psychologist,

Dr.

Woodley,

instructed staff to not use “malingering” and “secondary
gain” in written documentation because one “cannot know
[a prisoner’s] motivations for certain.”

Pl. Ex. 721,

January 2015 Quarterly CQI meeting minutes (doc. no.
1044-15) at MHM029614.
staff

continued

self-harm

as

secondary

gains,

assessment.

to

Contrary to this instruction, MHM

write

motivated
rather

off

by

prisoners’

threats

inmate-to-inmate
than

conducting

debt
a

of
or

proper

In the March 2015 monthly operations report,

MHM reported to ADOC that there have been “occasions
where the inmate would not be placed on watch despite
claiming to be suicidal, especially if the inmate is well
known to the treatment staff as having a history of
bluffing and/or no actual attempts.”

Joint Ex. 328,

March 2015 Monthly Operations Report (doc. no. 1038-673)
at 14.

A progress note from Jamie Wallace’s medical

records dated five days before he committed suicide was

148

representative of this culture: it noted that Wallace was
“using crisis cell/threats to get what he wants.”
Ex.

496,

Jamie

Wallace

Medical

Records

(doc.

Joint
no.

1037-1062) at ADOC0399861. In sum, MHM staff frequently
treat threats of self-harm as behavioral rather than
mental-health issues, writing off threats instead of
delving deeper to address underlying mental-health needs
through

a

mental-health

evaluation

and

suicide

risk

assessment.47
This skeptical approach towards threats of self-harm
poses substantial and obvious risks.

First, those who

should be on suicide watch may not receive the crisis
care that they need and may kill or harm themselves.
Gambling

with

threats

of

self-harm

is

dangerous:

obviously, as experts and MHM staff agreed, not all
47. Some correctional officers also fail to take
threats of self-harm seriously, and even worse, respond
in dangerous ways.
As Dr. Hunter testified, ADOC
officers have responded to prisoners’ threats of
self-harm with sarcasm or cracked jokes about suicidality,
and even challenged inmates to follow through with
suicide threats; on several occasions, ADOC officers
essentially called a prisoner’s bluff and then that
person attempted suicide.
149

prisoners who express suicidality are feigning it, and a
number of prisoners do in fact become suicidal and engage
in self-harm.

Furthermore, the risk of misinterpreting

a prisoner’s motivation is heightened by MHM’s failure
to use a suicide risk-assessment tool after an instance
or

threat

of

self-harm.

Second,

hostile

attitudes

towards prisoners in mental health crises can “cause
inmates to become more aggravated and agitated,” making
it more difficult to treat the inmate.
at vol. 2, 160.

Houser Testimony

Third, prisoners who make threats or

engage in self-harm but are not actively suicidal may
nevertheless suffer from underlying mental-health issues
that need to be addressed.
As experts from both sides agreed, no bright line
distinguishes ‘behavioral problems’ from ‘mental-health
problems’: even if someone is engaging in self-harm for
‘secondary gains,’ a high-level clinician should evaluate
the underlying mental-health issues, for four reasons.
First, the presence of suicidality is not a yes-or-no
question;

according

to

the

150

experts,

it

is

well

established that suicide risk is on a continuum, and a
meaningful

suicide-prevention

program

requires

monitoring for an increased risk of suicide.
even

in

the

absence

of

genuine

suicidal

Second,
ideation,

engaging in self-harm is a mental-health issue because
it indicates suffering from psychological distress and a
lack of proper coping mechanisms to resolve problems.
Therefore,
self-harm

instead
to

assistance.48

seek

of

ignoring

attention,

those
staff

who

resort

should

to

provide

Third, as Dr. Burns cautioned, chalking up

48. Interestingly, on the topic of ‘secondary gains,’
plaintiffs’ expert Vail posited that with a functioning
protective-custody system, in which prisoners who feel
unsafe can be moved away from their enemies, the problem
of trying to determine who is genuinely suicidal would
be alleviated. While all prison systems have conflicts
among prisoners and a risk of inmate-on-inmate violence,
he explained, prisoners in other correctional systems who
feel unsafe generally pursue other avenues to protect
themselves, such as requesting protective custody or
transfer, rather than requesting to be placed on suicide
watch.
According to Vail, prisoners generally do not
request suicide watch solely for protection because
suicide cells are not, generally speaking, a desirable
environment.
This testimony suggests that to the extent
non-suicidal ADOC prisoners actually are electing such
an undesirable cell environment for protection, either
the protective custody system is inadequate, or general
population dorms are ridden with so much violence that
151

instances

of

self-harm

to

deserving

of

treatment

may

behavioral
actually

problems
encourage

not
such

behavior: research in behavioral management shows that
negative reinforcement of self-harm is more likely to
prompt the prisoner to engage in more dramatic and even
lethal

self-harm.

Finally,

people

who

engage

in

self-harm can also accidentally kill or severely injure
themselves without having a specific intent to do so;
therefore, monitoring and assessment are necessary even
if a prisoner’s suicidality is deemed not genuine.
To emphasize, the court does not mean to suggest that
a prisoner must always be kept on suicide watch upon a
threat of suicide; as experts noted, some threats of
suicide or self-harm are not genuine.

However, as the

experts explained, these threats should not be written
it is rational for prisoners to choose suicide-watch
cells over the dangerous environment of general
population.
Vail’s observations also indicate that
improving the protective-custody system and addressing
the underlying problem of prisoner safety could be a safe
and effective way of ensuring that only those who need
crisis cells are placed there; it would also be a solution
that does not involve placing suicidal prisoners at a
substantial risk of serious harm by taking a gamble on
whether prisoners are actually suicidal.
152

off

without

risk-assessment

the

use

tool

by

of
a

an

appropriate

qualified

suicide

provider

in

a

face-to-face evaluation. Based on the overall assessment
of the evidence, the court finds that ADOC’s current
practice was devoid of any system to ensure that suicidal
prisoners are appropriately evaluated.

b.

Placement of Prisoners in Crisis in Dangerous and
Harmful Settings
Due to the chronic shortage of crisis cells, ADOC

frequently places those on suicide watch in inappropriate
environments, such as offices for correctional staff
(also called ‘shift offices’), libraries, and segregation
cells.

These

inappropriate

placements

put

suicidal

prisoners at a grave risk of self-harm and suicide.
ADOC

and

MHM

have

repeatedly

placed

suicidal

prisoners in dangerous environments due to a lack of
available crisis cells. MHM’s Dr. Hunter complained to
ADOC in his March 2015 monthly operating report that ADOC
officers at some facilities were placing prisoners on
suicide watch in cells that are not crisis cells to avoid
153

having to travel.
times

when

He was also aware of at least a dozen

prisoners

in

crisis

at

Bibb

Correctional

Facility were placed in shift offices over the weekend
while waiting for transportation to another facility.
ADOC’s Dr. Tytell recalled multiple instances in 2015 in
which prisoners in crisis were being housed in shift
offices for multiple days; he admitted that this practice
was inappropriate but commented, “[Y]ou have to work with
what you got.”

Tytell Testimony at __.

During a 2016

ADOC tour, Dr. Haney found a prisoner who was housed in
a mental-health office;49 the prisoner had been there for
over a day without receiving any treatment, even though
he was deemed to be suicidal.
documented

case

of

suicide

in

Lastly, at least one
the

last

three

years

occurred while a prisoner awaiting crisis-cell placement
was housed in a room behind a shift office.50

Houser

Testimony at vol. 3, 55.
49. Dr. Haney also noted that this prisoner was
locked in the office with no access to a bathroom.
50. A
related
problem
is
the
inadequate
mental-health staffing at prisons that provide only
154

This practice of placing suicidal prisoners in unsafe
environments

increases

the

risk

that

prisoners

will

engage in self-harm, including suicide attempts.

The

consensus among the experts from both sides, as well as
MHM and ADOC staff, was that housing a suicidal inmate
in a space like a shift office is quite dangerous: not
only are these places full of items that can be used for
self-harm, but, depending on where the prisoner is placed,
such placements can also cut off suicidal prisoners from
the treatment that they desperately need.
Placing suicidal prisoners in cells that are either
in or adjacent to death row or segregation also poses a
number

of

problems.

suicide-watch

cells

plaintiffs’

expert

Holman
are

Correctional

located

Dr.

on

Haney

death

Facility’s
row.

explained,

As
the

outpatient mental-health care: those who are confined in
crisis cells, or even more inappropriate settings, such
as shift offices or libraries, do not have access to
mental-health care over the weekend, because most
outpatient-only prisons do not have mental-health staff
on weekends.
In other words, despite their ‘crisis’
condition, suicidal prisoners in these facilities are
often left in a crisis cell or a non-suicide-proof
environment for multiple days waiting to see a
mental-health staff member.
155

“juxtaposition of prisoners who are potentially suicidal
with prisoners who are under a sentence of death” is
“extremely problematic” for those in the throes of a
mental health crisis.

Haney Testimony at vol. 1, 101-02;

Joint Ex. 459, Haney Expert Report (doc. no. 1038-1043)
at 35.

Defense expert Dr. Patterson agreed: bringing

prisoners
death-row

in

crisis

unit

from

would

general

make

them

population
more

into

likely

a
to

decompensate, because death-row units are not designed
to be therapeutic; moreover, death-row units are largely
self-contained and are subject to their own regulations
that

are

likely

harsher

and

more

regulations in an ordinary unit.

punitive

than

the

Dr. Patterson also

expressed concern that death-row inmates would retaliate
against

inmates

in

crisis

cells,

creating

even

more

stress for these vulnerable prisoners.51

51. ADOC also sometimes places crisis-care inmates
in stabilization units. This is problematic not so much
for the suicidal inmates but for the others: according
to Dr. Hunter of MHM, housing suicidal prisoners in
crisis cells within an SU negatively impacts MHM’s
ability to care for the severely mentally ill already in
the unit.
156

c.

Inadequate Treatment in Crisis Care

The care provided to prisoners on suicide watch is
also grossly inadequate.

ADOC and MHM fail to provide

adequate treatment to patients in crisis cells and, to
make matters worse, frequently keep them in crisis cells
for much longer than appropriate or necessary.
As Dr. Burns credibly opined, out-of-cell counseling
sessions for prisoners on suicide watch are important
both because they can help eliminate suicidal thoughts
and

because

they

assist

providers

in

meaningfully

modifying treatment plans to address the causes of a
crisis.

However,

prisoners

on

suicide

watch

and

mental-health observation are not consistently receiving
out-of-cell appointments with counselors.
Prisoners are frequently kept for extended periods
of time in crisis cells, instead of being transferred to
an

RTU

or

SU

for

intensive,

longer-term

treatment.

According to ADOC’s administrative regulations, anyone
who is on suicide watch for more than 72 hours should be
considered for placement in a mental-health unit.

157

As

experts on both sides agreed, crisis-cell placement is
meant to be temporary and should not last longer than 72
hours, because the harsh effects of prolonged isolation
in

a

crisis

cell

can

harm

patients’

mental

health.

However, since as far back as 2011, MHM has, by its own
report, considered transferring prisoners in crisis to
treatment units only in a small fraction of the crisis
placements that last longer than 72 hours.

See Pl. Ex.

1190, 2011 Contract-Compliance Report (doc. no. 1070-8)
at 22 (in 2011, only 20 % of those housed in crisis cells
for over 72 hours were considered for transfer); Pl. Ex.
105, 2014 Contract-Compliance Report (doc. no. 1070-105)
at

11

(in

2014,

29

%);

Pl.

Ex.

115,

2016

Contract-Compliance Report (doc. no. 1070-3) at 11 (in
2016, 13 %).

MHM’s CQI manager testified that extended

stays in crisis cells are “sometimes” necessary because
there is a “full house” in the appropriate treatment unit.
Davis-Walker Testimony at vol. 2, 102.

See also Pl. Ex.

1219, September 2014 Emails between MHM and ADOC (doc.
no. 1047-10)(discussing a prisoner who was on suicide

158

watch for 25 days at Bibb, waiting for a transfer to
Bullock SU).
Contrary

to

the

CQI

manager’s

characterization,

documentary evidence showed that prisoners are in fact
frequently kept in crisis cells for much longer than 72
hours.

See Pl. Ex. 721, January 2015 Quarterly CQI

Meeting Minutes (doc. no. 1044-15) at 4 (showing examples
of long crisis-cell stays, such as 240 hours at Limestone,
429 hours at Staton, and 620 hours at Ventress, and
suggesting that weekend hours were not being counted);
Pl. Dem. Ex. 141, 2016 Crisis Cell Placements (doc. no.
1156-2)

(showing

multiple

that

prisoners

a

being

majority
housed

of
in

facilities
crisis

have

cells

for

longer than 144 hours, some of them exceeding 200 hours,
in 2016).

At St. Clair, Dr. Haney confirmed that one

of the prisoners he interviewed had been housed in a
barren

suicide-watch

cell

in

the

infirmary

for

five

months--well beyond the intended duration of crisis-cell
stays.

These extremely lengthy stays in crisis cells

contribute,

in

turn,

to

a

159

shortage

of

crisis

cells

throughout

the

system.

They

also

illustrate

that

prisoners are not getting the treatment they need to
stabilize and be moved out of crisis cells, or that ADOC
and MHM are leaving these mentally ill prisoners in
extremely

isolated

environments

for

longer

than

appropriate.

d.

Unsafe Crisis Cells

Despite their purpose of preventing self-harm and
suicide, crisis cells in ADOC facilities are unsafe.
First, crisis cells are ridden with physical structures
that

provide

easy

opportunities

to

commit

suicide.

Experts from both sides agreed that having crisis cells
free of tie-off points is a critically important feature
of

suicide

Commission

prevention
on

in

Correctional

prisons.
Health

The
Care

National

(NCCHC),

a

professional organization that promulgates standards for
correctional health care and provides accreditation to
facilities that follow those standards, requires that
crisis cells be free from tie-off points that can be used
160

for

self-injurious

behavior. 52

ADOC’s

history

makes

clear the critical importance of this issue: all but one
suicide within ADOC in the last two years happened by
hanging.

However, many of ADOC’s crisis cells have

easily accessible tie-off points, such as sprinkler heads,
hinges,

fixtures,

dangerous

for

and

suicidal

vents,

making

prisoners.

them
In

incredibly

fact,

defense

expert Dr. Patterson stated that making crisis cells
suicide-proof is the “number-one issue” to be addressed.
Patterson Testimony at vol. 1, 296.
Examples of unsafe crisis cells abound. As Dr. Haney
noted and the court saw firsthand during prison visits
in February 2017, in the Bullock SU, where some prisoners
on suicide watch are kept, sprinkler heads are located

52. While
professional
standards
like
those
promulgated by NCCHC do not necessarily set the
constitutional
floor
for
minimally
adequate
mental-health care
under the Eighth Amendment,
substantial deviations from accepted standards can
indicate an Eighth Amendment violation. See Steele v.
Shah, 87 F.3d 1266, 1269 (11th Cir. 1996) (holding that
providing care where the quality is “so substantial a
deviation from accepted standards” can constitute
deliberate indifference). Moreover, ADOC’s contract with
MHM requires MHM to comply with those standards.
161

directly above the sink and the toilet, making it easy
for suicidal prisoners to climb up to tie a ligature on
the sprinkler head.

In fact, that is how Jamie Wallace

committed suicide while housed in an SU cell at Bullock.
As plaintiffs’ experts observed, crisis cells in St.
Clair, Kilby, and Holman all have tie-off points; MHM’s
Houser also admitted that many crisis cells across ADOC
facilities are out of compliance with NCCHC standards for
suicide cells because they have tie-off points.
Unsurprisingly, MHM staff have repeatedly expressed
concerns about the safety of crisis cells in multiple
facilities, as reflected in contract-compliance reports
and CQI meeting minutes: in 2011, staff expressed concern
about the unsafe features of crisis cells at Fountain;
in 2012, staff reported concerns about the safety of
Ventress crisis cells; in 2016, MHM’s contract-compliance
report stated that crisis cells in Holman are unsafe
because of the open bars on the doors.
Another dangerous aspect of many ADOC crisis cells
is the difficulty of monitoring the prisoner inside.

162

The

design of the cell doors and windows and the layout of
the facilities often prevent a direct line of sight into
the

cell.

suicide-watch

For

example,

cells

at

Dr.

Haney

Donaldson,

testified
located

in

that
the

infirmary and known as Z-Cells, had grates over the
windows that made it very difficult to see into a cell
even when standing directly in front of a door and peering
in.

At St. Clair, Dr. Haney noted that suicide-watch

cells were located in a hallway in the infirmary; they,
too, were hard to see into and easy to ignore.

Pl. Dem.

Ex. 107, St. Clair Suicide Watch Cell (doc. no. 1125-62).
Associate Commissioner of Operations Culliver noted that
even though Holman crisis cells have barred fronts, it
is nonetheless impossible to see into these cells from
the officers’ cube located closest to them.

Culliver

also acknowledged that the solid crisis-cells doors at
many facilities, including Bullock, Donaldson, Fountain,
Kilby, and St. Clair, make it impossible for an officer
or mental-health provider on the unit to see into the
cells and check on the prisoners housed within them

163

without walking up to the door and looking through the
small glass window.
ADOC’s practice of allowing prisoners in cells to
cover

the

windows

with

paper

or

exacerbates the visibility problem.

other

material

Dr. Haney noticed

this practice in Donaldson, Holman, St. Clair, and Bibb,
describing it as incredibly problematic because it blocks
any type of monitoring entirely.

Dr. Haney witnessed a

particularly disturbing incident while touring Bibb.
entered

the

infirmary

and

went

to

prisoners housed in the crisis cells.

speak

with

He
the

As he was speaking

to one, a lawyer touring the facility with him discovered
that a prisoner in another crisis cell was, at that very
moment, attempting to hang himself--the prisoner had
somehow procured a cord to wrap around his neck and had
attempted to cover the window with a blanket.
prisoners

to

cover

dangerous

in

any

the

windows

context,

but

of

their

it

is

Allowing
cells

is

particularly

unacceptable for prisoners known to be suicidal.

Due to

the visibility problems with many ADOC suicide-watch

164

cells, defense expert Patterson opined that suicidal
prisoners should be under direct, constant observation
while in those cells.

He also explained that camera

observation by an officer at the control station may not
be sufficient, because by the time that officer notices
a suicide attempt, it might be too late; moreover, the
officer likely has other responsibilities that would
preclude careful monitoring of any single cell.
The dangerousness of crisis cells and the significant
risk of harm caused by such conditions are compounded by
ADOC’s

rampant

dangerous

items

failure
into

to

crisis

prevent

introduction

cells.

Admittedly,

of
the

parties in 2014 reached a settlement that prohibits ADOC
officers
prisoners

from
on

providing
suicide

disposable

watch

and

in

razor

blades

segregation.

to
See

January 16, 2015 Order Denying Motion for Preliminary
Injunction (doc. no. 84). 53

However, the problem of

53. Defendants argued that inappropriate items found
in crisis cells can no longer be part of the case because
of this settlement. However, the problem is broader in
scope: the settlement agreement to discontinue providing
razor blades by no means discharges ADOC’s responsibility
165

dangerous items in crisis cells has continued, according
to a number of ADOC officials and MHM staff.

Suicidal

prisoners have access to inappropriate items--such as
sharp implements--either because they bring the items
with them when placed on suicide watch and correctional
officers do not search them, or because correctional
officers

or

inmate

‘runners’

who

perform

various

housekeeping tasks around the unit bring the items to the
crisis cells.

MHM’s Houser stated that prisoners have

access to improper items in safe cells at a number of
facilities, including specifically Donaldson, St. Clair,
Staton, and Holman; she was not sure whether this problem
had been addressed at any of these facilities. Dr. Hunter
of MHM and Associate Commissioner Culliver both testified
that finding sharp objects in a suicide-watch cell has
been a problem at Bibb, despite the installation of flaps
on cell doors that were intended to stem the flow of
contraband.
particularly

Lastly,

Holman’s

problematic,

as

crisis

Associate

cells

are

Commissioners

to ensure that objects with which suicidal prisoners can
engage in self-harm are not found in crisis cells.
166

Naglich and Culliver admitted: although passing prisoners
are able to slip items to those housed in crisis cells
at a number of facilities, this sort of exchange is
particularly easy at Holman, where the crisis cell doors
have open bars.

Yet, when asked what MHM had done to

address this issue, Houser responded that after each
incident, MHM staff would “ask [ADOC] to please do a
better job.”

Houser Testimony at vol. 3, 16.

She could

not identify any other efforts either by MHM or ADOC to
address this issue.54

e.

Inadequate Monitoring of Suicidal Prisoners

The unsafe features of crisis cells heighten the
importance

of

monitoring

prisoners

decompensation or suicide attempts.

for

signs

of

However, ADOC’s

monitoring practices are woefully inadequate.

54. The risk of allowing suicidal prisoners access
to sharp implements is obvious. However, as Dr. Burns
explained, sharp items pose a serious risk even to
prisoners who do not have any intention of killing
themselves but engage in cutting; it is easy to cut too
deep by accident and cause potentially fatal bleeding.
167

According to ADOC’s administrative regulations and
the standard of care for mental-health care in prisons,
suicide-watch checks should take place at staggered, or
random, intervals of approximately every 15 minutes,
rather than exactly every 15 minutes.

For prisoners on

mental-health observation, these staggered checks should
occur

approximately

every

30

minutes.

Staggered

intervals prevent prisoners from timing their suicide
attempts, because otherwise they can predict exactly when
checks will occur.

Such monitoring procedures are all

the more crucial when suicidal inmates are housed in
cells that have little visibility: as plaintiffs’ expert
Vail bluntly stated, without regular checks, “[Y]ou have
no idea if they’re alive or dead.”

Vail Testimony at

vol. 1, 96.
Dr. Burns and Dr. Haney both testified that many of
the monitoring logs they had seen during their site
visits and document review had pre-printed times or had
handwritten pre-filled times at exact intervals.

This

practice reflects prison staff’s lack of understanding

168

that checks should be performed at staggered intervals,
and makes it impossible to ensure that staggered checks
are actually happening.

Associate Commissioner Naglich

admitted that staff are not permitted to use monitoring
logs with pre-printed times, but that some continue to
use them.

She also testified that officers and staff

are not permitted to handwrite times and signatures in
advance of, or in lieu of, their actual checks.

However,

during the post-trial prison tours, the court came across
multiple logs where times at 15- or 30-minute intervals
had been pre-filled, even though the parties had agreed
during the trial to correct this practice, and the court
had ordered compliance with the agreement several weeks
before

the

tours.

This

evidence

of

non-compliance

greatly troubled the court, as it showed that policy
changes are not being implemented on the ground even when
a court order is involved.
For the most acutely suicidal, constant--rather than
staggered-interval--watch is necessary.

As Dr. Burns

opined, correctional systems must have a constant-watch

169

procedure for individuals whose risk of suicide is the
highest,

due

to

their

engagement

in

self-injurious

behavior or threat of suicide with specific plans: if a
prisoner is waiting for an opportunity to kill himself,
it

is

too

constantly
standards

dangerous

to

observed.
classify

walk
For

away,

this

constant-watch

and

reason,

he

must

the

procedures

be

NCCHC
as

an

“essential” standard, and MHM is contractually obligated
to follow all NCCHC standards.55
ADOC and MHM had not provided constant watch for
acutely suicidal inmates prior to Jamie Wallace’s death.
During the trial, in the wake of Jamie Wallace’s suicide,
the court urged the parties to propose interim measures
to prevent more suicides.

Plaintiffs then filed a motion

for temporary restraining order seeking to institute
constant watch and other suicide-prevention measures.
Plaintiffs’ Emergency Motion for Temporary Restraining
55. NCCHC promulgates two types of standards:
essential and important. As the terms would indicate,
the distinction between the two denotes the relative
importance of each standard. The essential standards are
mandatory conditions for accreditation by NCCHC; only 85 %
compliance with important standards is required.
170

Order (doc. no. 1075).

The parties reached an interim

agreement in early January.

Phase 2A Interim Relief

Order Regarding Suicide Prevention Measures (doc. no.
1102). The agreement mandated a constant-watch procedure
for

those

pre-printed

deemed
or

suicide watch.

acutely

suicidal

pre-filled

forms

and

for

forbade

other

using

types

of

While defense counsel represented to the

court that it was Commissioner Dunn’s intent to keep the
constant-watch procedure until told otherwise by the
court or experts, the court also heard testimony that the
current

implementation

of

suicide-prevention

and constant watch is not sustainable.56

measures

The parties

defined ‘constant watch’ as a “procedure that ensures
one-on-one visual contact at all times, except to the

56. In
addition,
there
were
allegations
of
non-compliance with the constant watch procedures at
Kilby.
See Plaintiffs' Motion to Renew the Temporary
Restraining
Order
Regarding
Suicide
Prevention
Procedures (doc. no. 1171).
This allegation of
non-compliance will be discussed in infra Part V.D.
A separate issue is whether Commissioner Dunn’s
representation that he will enforce the interim agreement
indefinitely is binding on ADOC or his successors. This
issue is taken up in Part V.D.
171

extent that the physical design allows an observer to
maintain an unobstructed line of sight with no more than
two people on suicide watch at once.”

Interim Agreement

Regarding Suicide Prevention Measures (doc. no. 1102-1).
MHM’s Houser testified that the implementation has been
difficult because some facilities do not have a layout
conducive to constant watch, due to the location of the
windows on cell doors and structures that obstruct a
direct line of sight into crisis cells.

As a result, MHM

has had to transfer some prisoners to other facilities.
Another obstacle in the implementation stems from a lack
of sufficient correctional staffing: for example, the
Holman crisis cells, located on death row, are unsafe for
mental-health

staff,

because

without

sufficient

correctional staffing on duty, prisoners often throw
objects from second and third tiers at the mental-health
staff

conducting

constant

watch

on

the

first

tier.

Finally, according to Houser, the annual budget for a
permanent constant-watch procedure is projected to be
over $4 million, but MHM was initially provided only

172

$200,000 to meet the immediate needs of the interim
agreement mandating constant watch.57

f.

Inappropriate Release from Suicide Watch and
Inadequate Follow-up

Prisoners are routinely released from suicide watch
improperly and receive inadequate follow-up care after
their release from suicide watch.

These practices create

a substantial risk of recurring self-injurious behavior
and suicide.
As

experts

from

both

sides

explained,

suicidal

prisoners should be released only with the approval of a
psychiatric provider (psychiatrist or nurse practitioner)
who

has

made

a

face-to-face

assessment

that

their

condition was sufficiently stabilized to warrant it.
2016,

MHM

patients

reported
from

to

suicide

ADOC
watch

that

it

without

was
a

In

discharging
face-to-face

assessment; the decisions were based instead on whatever

57. Houser explained that prior to the interim
agreement, MHM could not staff constant watch under the
current contract amount and was not expected to do so,
even though NCCHC standards mandate constant watch.
173

information lower-level mental-health staff communicated
over the phone to on-call doctors and nurse practitioners.
A nurse practitioner at Donaldson and St. Clair testified
that generally she will not authorize the release of a
prisoner from suicide watch at St. Clair without seeing
him in person; however, when she is not at St. Clair (a
significant majority of the hours in the week), staff
call

Dr.

Associate

Hunter

to

authorize

Commissioner

the

Naglich

release

admitted

remotely.
that

this

practice of authorizing suicide-watch release without a
face-to-face

evaluation

was

not

specific

to

any

particular facilities, but that it reflected a general
shortage of psychiatrists; she further agreed that it put
the prisoners at risk of premature release.
also

showed

that

prisoners

have,

on

Evidence

occasion,

been

released from suicide watch by correctional staff without
any mental health assessment at all; this is even more
unacceptable.
Email

between

(notifying

See, e.g., Pl. Ex. 436, September 19, 2014
Houser

Naglich

and

about

a

174

ADOC

(doc.

death-row

no.

inmate

1074-26)
who

was

released from a crisis cell by ADOC officer, without
notice or approval by mental-health staff).
According to experts on both sides, follow-up care
is necessary upon release from suicide watch both for
prisoners on the mental-health caseload and for those who
are not.

For those who are already on the mental-health

caseload,

follow-up

care

entails

incorporating

what

providers learned from the most recent crisis into the
prisoner’s treatment plans and modifying interventions
in order to address the factors that contributed to the
self-injurious behavior or suicidal ideation.

For those

who were not on the caseload, follow-up care allows
providers

to

assess

whether

the

prisoner’s

risk

of

self-injury remains low, and to determine whether the
prisoner should be added to the mental-health caseload
to address underlying mental-health issues.

As Dr. Burns

credibly opined, the failure to provide follow-up care
that

addresses

creates

a

the

root

substantial

of

risk

175

self-injurious
that

the

behavior

self-injurious

behavior will continue and result in serious injury or
death.
The follow-up care provided to many prisoners upon
their release from suicide watch at ADOC is woefully
inadequate.
multiple

Both

instances

Dr.
of

Haney

and

Dr.

Burns

observed

prisoners

who

were

released

directly from crisis cells back into segregation, with
little or no follow-up treatment in subsequent weeks.
For

example,

experts

observed

that

plaintiffs

L.P.,

R.M.W., and C.J. and prisoner J.D. all had a pattern of
cycling between crisis cells and segregation with little
follow-up

treatment

after

crisis-cell

release.

As

explained further later, prisoners in segregation--even
those on the mental-health caseload--have little access
to meaningful treatment, due to severe staffing shortages
that prevent prisoners from being brought out of their
cells and a lack of group activities.
Once again, Jamie Wallace provides a concrete example
of the lack of follow-up care and the resulting harm.
During his testimony, he repeatedly insisted that he

176

rarely received therapeutic care when not on suicide
watch.

Dr. Burns corroborated his testimony, noting that

despite his very acute mental illness, Wallace had only
one individual counseling session in the two-month period
following a suicide watch placement in 2015, and that his
treatment plan did not change or reflect the fact that
he came off of suicide watch in late August 2016.

The

same lack of follow-up care was repeated in 2016: he was
discharged

from

suicide

watch

two

days

before

he

committed suicide; in those two days, he received no
follow-up care.
In sum, the combination of inadequate identification
of

needs

for

monitoring,

crisis

and

care,

inadequate

unsafe

cells,

treatment

has

inadequate
created

a

substantial and grave risk of serious harm for ADOC’s
prisoners

who

have

a

high

risk

of

engaging

self-injurious behavior and suicide attempts.

177

in

7. Inappropriate Use of Disciplinary Actions
ADOC has an unacceptable practice of disciplining
mentally ill prisoners for behavior that stems from their
mental illnesses and doing so without adequate regard for
the disciplinary sanctions’ impact on mental health.
Mentally ill prisoners are routinely disciplined for
harming

themselves

or

attempting

to

do

so.

These

punitive practices in turn subject mentally ill prisoners
to a substantial risk of decompensation and increased
suffering.

Cf. Coleman v. Wilson, 912 F. Supp. 1282,

1320 (E.D. Cal. 1995) (Karlton, J.) (“[B]eing treated
with punitive measures by the custody staff to control
the inmates' behavior without regard to the cause of the
behavior, the efficacy of such measures, or the impact
of

those

violated

measures
seriously

on

the

inmates'

mentally

ill

mental

illnesses”

prisoners’

Eighth

Amendment rights); Casey v. Lewis, 834 F. Supp. 1477,
1548-49 (D. Ariz. 1993) (Muecke, J.) (finding that using
lockdowns to punish seriously mentally ill prisoners’

178

behavior

stemming

from

their

illness

constitutes

an

Eighth Amendment violation).
Imposing

disciplinary

sanctions

on

prisoners

for

engaging in self-injury creates an additional risk of
harm beyond that stemming from inadequate treatment.
plaintiffs’
practice

expert

treats

Burns

explained,

self-injury

solely

because
as

a

As

ADOC’s

behavioral

problem rather than a mental-health problem, it fails to
address

the

underlying

mental-health

issues

through

treatment; responding to self-harm in this manner is
likely

to

escalate

the

self-injurious

behavior,

potentially resulting in serious physical injury or even
death.

Furthermore, if a disciplinary action results in

segregation, mentally ill prisoners are at an even higher
risk

of

harm--as

will

be

discussed

in

detail

later--because of the detrimental effects of isolation
and of the limited access to treatment, both of which can
in turn worsen underlying mental illness.
The practice of punishing prisoners for engaging in
self-harm is common and system-wide at ADOC, despite a

179

written

policy

purporting

to

prohibit

it.

ADOC’s

administrative regulation states that, although they are
not exempt from compliance with rules and regulations,
inmates “will not be punished for symptoms of a mental
illness.”58

Joint Ex. 128, Admin. Reg. § 626 (doc. no.

1038-151).

ADOC

has

engaged

automatically

disciplining

self-injurious behaviors.

in

a

prisoners

practice

who

engage

of
in

In fact, Naglich’s Office of

Health Services deemed this practice problematic as early
as 2013, when it conducted an audit of services provided
in

Donaldson.

As

a

result,

MHM’s

post-audit

58. Defendants elicited testimony from various
practitioners and prisoners that it is sometimes
appropriate to discipline a prisoner for a violation of
administrative rules despite the fact that he suffers
from a mental illness. But plaintiffs have not disputed
this point. Instead, they have offered evidence to show
that many mentally ill prisoners are punished as a direct
result of their mental illness, which the experts
credibly testified is harmful.
For example, defense
counsel asked multiple prisoners, including plaintiff
Jamie Wallace and class member M.P., whether it was
‘appropriate’
to
be
disciplined
for
having
a
contraband--a razor blade, for example--in the cell;
however,
these
prisoners
actually
had
received
disciplinary sanctions for engaging in self-injurious
behavior, not for having contraband.
180

corrective-action

plan

stated

that

ADOC

is

to

stop

“automatically apply[ing] disciplinary sanctions to male
inmates who engage in self-injurious behavior.”

Pl. Ex.

689, MHM Corrective Action - Donaldson May 2013 (doc. no.
1069-5)

at

ADOC045459. 59

The

person

responsible

for

implementing this change was Dr. Ron Cavanaugh of OHS,
who was to review files of prisoners who may have been
sanctioned

for

symptoms

of

mental

illness

and

send

instructions on how to deal with self-injurious behavior
to

ADOC

officials

in

charge

of

supervising

the

disciplinary process.
Although the 2013 corrective-action plan required
follow-up action to address this issue, ADOC did not take
meaningful action to change this practice, and prisoners
continue to face sanctions for self-injurious behavior.
Associate Commissioner Naglich’s staff could find no
documentation

of

any

file

reviews

conducted

by

Dr.

59. While the corrective-action plan for Donaldson
specifies “male inmates,” Associate Commissioner Naglich
testified that she understood the policy change--to cease
automatic
disciplinary
sanctions
for
engaging
in
self-harm--applied to both male and female prisoners.
Naglich Testimony at vol. 2, 135.
181

Cavanaugh or instructions sent to Associate Commissioner
Culliver or the regional coordinators, who according to
Naglich were the officials responsible for enforcing this
policy

change.

likewise

not

aware

instructions
sanctions.

Associate
of

regarding

Commissioner

any

policy

self-harm

Culliver

change

and

or

was
new

disciplinary

Dr. Tytell, who replaced Dr. Cavanaugh after

his death and was aware of this issue at Donaldson,
testified that he and Associate Commissioner Naglich have
discussed

that

imposing

disciplinary

sanctions

for

self-injury continued to be a problem, including in the
RTU and SU.

However, Dr. Tytell has done nothing to

monitor, let alone address, this issue.

When asked what,

if anything, she personally has done to implement this
policy change, Associate Commissioner Naglich admitted
that

she

had

reviewed

only

one

single

prisoner’s

disciplinary record; in that case, she intervened to
recommend

that

indications

in

convictions
his

be

medical

removed
records

based
that

decompensating at the time of the infraction.

182

on
he

the
was

Not surprisingly, in 2016, plaintiffs’ expert Dr.
Burns credibly concluded that “desperate acts to get the
attention of MHM staff and necessary services,” including
self-injury

and

suicide

attempts,

“often

result

in

disciplinary action and placement in segregation where
mental health treatment is even more difficult to access.”
Joint Ex. 460, Burns Expert Report (doc. no. 1038-1044)
at 29.

She also saw evidence of prisoners with untreated

serious mental illness being “essentially punished for
symptoms of their psychiatric illness,” such as prisoners
with

bipolar

segregation

disorder
for

being

untreated

placed

manic

in

disciplinary

behaviors.

Burns

Testimony at vol. 1, 27-28.
A related problem is ADOC’s inadequate mental-health
evaluation
charges.
when

process

prisoners

facing

disciplinary

Not taking mental health into consideration

determining

because

for

certain

segregation,

appropriate

sanctions

sanctions,

such

expose

mentally

183

ill

as

is

dangerous

placement

prisoners

to

in
a

substantial risk of worsening symptoms and significantly
reduced access to monitoring and treatment.
Under

ADOC’s

disciplinary

administrative

actions

against

regulations,

prisoners

whose

mental-health code is MH-1 or above require consultation
with mental-health staff: once a prisoner on the caseload
is

charged

with

a

disciplinary

mental-health

counselors

are

mental-health

evaluation

and

module.
have

infraction,

required
complete

to
a

MHM’s

conduct

a

computerized

Ostensibly, this system allows the counselor to

input

communicate

into
in

the

writing

disciplinary
to

the

process

disciplinary

and

to

hearing

officer: (1) whether “mental health issues affected the
inmate’s behavior at the time of the charge”; (2) whether
there are “mental health issues to be considered in
disposition

if

found

guilty”;

and

(3)

whether

mental-health staff would be present at the hearing.
Joint

Ex.

467,

Mental

Health

Consultation

to

the

Disciplinary Process, Inmate File of Jamie Wallace (doc.
no. 1038-1052) at ADOC031346.

184

However, the system falls far short in practice:
these

mental-health

perfunctory,

and

evaluations
the

are

counselors

often

brief

conducting

and
them

understand their role to be limited to an assessment of
capacity or knowledge of their infraction, rather than
providing input on the mental-health implications of any
punishment.

For

example,

Sharon

Trimble,

an

MHM

counselor at Kilby, testified that her evaluation process
entails informing the prisoner of the charge against him,
describing the incident at issue, letting him explain
what happened, and making sure that he understands the
reasons for a disciplinary hearing.

This, in her view,

amounts to an assessment of the prisoner’s competency;
her evaluation concludes when the prisoner “say[s] that
[he] did it.”
otherwise

Trimble Testimony at __.

assess

whether

the

prisoner’s

She does not
behavior

is

related to his mental illness, and she has never made
recommendations as to the appropriateness of possible
sanctions, including whether placement in segregation was
contraindicated by the prisoner’s mental illness.

185

Strikingly, Associate Commissioner Naglich herself
did not have a clear understanding of the purpose of the
consultation

process.

While

she

understood

that

the

consultation process should address whether “the mental
health issues contribute[d] to the conduct,” she was
unsure about whether it involved anything else.
Testimony at vol. 2, 15.

Naglich

She understood the second

question in the module--whether mental illness should be
considered in determining the punishment--to relate not
to the appropriateness of various sanctions in light of
the prisoner’s mental illness but rather to be largely
duplicative of the first question, regarding culpability.
She

believed

it

to

be

asking

“how

cognizant

or

responsible was the inmate at the time of the charge and
should that be considered in the disposition if he’s
found guilty.”

Id.

As explained in the next section, and as agreed by
experts on both sides, it is critical that mental illness
be considered in determining punishment for infractions
because placing mentally ill prisoners in segregation

186

significantly

increases

the

risk

of

decompensation.

ADOC’s failure to ensure that mental-health staff can and
in fact do express their views as to whether particular
prisoners will be harmed by placement in segregation (or
some other disciplinary sanction) creates a substantial
risk of serious harm.
Moreover,

the

disciplinary

consultation

process

consistently fails to perform even the limited functions
Trimble and Naglich ascribed to it.

ADOC’s 2013 audit

of Donaldson and a quality-improvement study conducted
by MHM around the same time recognized that mental-health
consultations were often acting as little more than a
rubber stamp.

The Donaldson audit found that “answers

provided by [mental health] appeared to conflict with
patients’

clinically

documented

mental

health

status”--in other words, the consultation documentation
from mental-health staff did not reflect the diagnoses
in the medical record of the prisoner who was being
disciplined.
Action

-

Pl.

Donaldson

May

Ex.
2013

187

689,
(doc.

MHM
no.

Corrective
1069-5)

at

ADOC045459.

MHM found that “95 % were declared competent

to stand hearing with no qualifiers for MH factors,” and,
relatedly, “that [MHM’s] staff did not understand how to
fill out form.”

Pl. Ex. 715, July 2013 Quarterly CQI

Meeting Minutes (doc. no. 1044-9) at 4.

Not surprisingly,

MHM counselor Trimble was aware of only one instance in
the course of five years in which a prisoner was not
sanctioned because his behavior was considered a result
of his mental illness.
The consequences of ADOC’s policy of disciplining
prisoners for engaging in self-harm combined with the
dysfunctional

consultation

process

are

frequently

egregious: when they attempt to hurt or kill themselves,
mentally ill prisoners are routinely found guilty of and
punished for “intentionally creating a security, safety,
or health hazard,” and often are placed in segregation.
For

example,

Jamie

Wallace

was

given

disciplinary

sanctions and sent to segregation for self-injury and
suicide attempts multiple times between 2013 and his
suicide in 2016.

See Joint Ex. 467, Inmate File of Jamie

188

Wallace (doc. no. 1038-1052) at ADOC031352 (Jan. 8, 2013,
for cutting his neck with a metal top of a smokeless
tobacco can); ADOC031661 (Feb. 3, 2013, attempting to
hang himself); ADOC031341 (Nov. 12, 2013, penetrating his
ears and bottom lip with a metal object); ADOC031528 (May
25, 2014, intentionally cutting his left wrist); see also
Pl. Dem. Ex. 2, Summary of J.W. Suicide Attempts (doc.
no. 1058-16) (showing six occasions of being sent to
segregation for inflicting self-harm, and 12 disciplinary
actions for self-harm in total).
L.P.

also

reflect

that

he

has

Records of plaintiff
received

disciplinary

segregation for self-harm incidents; plaintiff R.M.W. and
class

member

M.P.

testified

that

they

have

received

multiple disciplinary actions for intentionally creating
a security, safety, or health hazard when they had cut
themselves.

These instances of punitive response can

also lead to even graver harm: Dr. Hunter, the medical
director of MHM, acknowledged that the combination of a
recent

disciplinary

action

and

the

prospect

of

a

segregation placement was a common factor among prisoners

189

who committed suicide.

The trend in suicides since

October 2015 corroborated this testimony.
disciplinary

process

has

inflicted

In sum, ADOC’s

actual

harm

and

created a substantial risk of serious harm for mentally
ill prisoners.

8. Inappropriate Placement and Inadequate Treatment in
Segregation
Segregation--also known as restrictive housing or
solitary

confinement--generally

refers

to

the

correctional practice of keeping a prisoner in a cell for
22.5 hours or more a day, usually in a single-person cell,
only letting the prisoner out for brief ‘yard’ time and
showers.60

In ADOC, segregation takes two different forms:

60. As Dr. Haney explained in his testimony before
Congress, exercise time for segregation prisoners hardly
involves a ‘yard.’
Pl. Ex. 1272, 2012 Congressional
Testimony of Dr. Craig Haney (doc. no. 1126-3) at 5-6.
Rather than an open space with greenery, the exercise
yards that the court observed at ADOC facilities for
segregation prisoners were often small and fenced in with
concrete surfaces. Some of the facilities allow only one
inmate at a time in a ‘cage,’ a subdivided section of the
yard that is fenced in and hardly bigger than the
segregation cell itself. Some of the yards, such as the
one in Kilby, also had fences totally enclosing the yard,
190

disciplinary

and

administrative.

Disciplinary

segregation is a type of punishment whereby prisoners are
allowed to have extremely limited personal property in
their cells and lose privileges such as telephone use and
family visits.

Administrative segregation is used to

separate prisoners from the general population, generally
for

safety

reasons;

prisoners

in

administrative

segregation do not formally lose privileges, but are
still subject to some property restrictions and receive
little out-of-cell time.
Trial

testimony

revealed

that

segregation

has

a

profound impact on prisoners’ mental health due to the
harmful effects of isolation; this impact is worse for
those who are already mentally ill.

According to the

experts, the risk of decompensation increases with the
duration of isolation and the severity of the prisoner’s
mental illness.
Plaintiffs ask the court to declare that, due to the
risk of harm, mentally ill prisoners as a general matter
including a fenced ceiling, truly evoking the feeling of
a cage.
191

should never be placed in segregation.

However, the

court sees no need to reach that broad conclusion, for
here,

the

evidence

is

overwhelming

that

the

ADOC’s

current segregation practices pose an unacceptably high
risk

of

serious

harm

mental-health needs.

to

prisoners

with

serious

As the testimony of experts and

defense witnesses made abundantly clear, ADOC lacks a
functioning

process

for

screening

out

prisoners

who

should not be placed in segregation due to mental illness
or ensuring that they are not sent there for dangerously
long periods, and mentally ill prisoners in segregation
receive
simply
danger

inadequate
undeniable
to

many

treatment
that

these

mentally

and

monitoring.

practices

ill

pose

prisoners

It
a

is

grave

placed

in

segregation.
This section discusses the ways in which ADOC’s
segregation

practices

place

these

substantial risk of serious harm.

prisoners

at

a

After explaining the

consensus developed in recent years regarding the harmful
psychological effects of segregation in general and on

192

mentally ill prisoners in particular, the discussion
turns to the specific risks of harm posed by ADOC’s
segregation practices.

Finally, the court discusses the

heightened level of danger segregation poses to those
prisoners with the most serious mental-health needs--that
is,

those

who

have

conditions

classified

as

serious

mental illnesses.

a.
i.

Background on Segregation

Consensus among Correctional and Mental-Health
Professionals on Segregation

Mental-health and correctional professionals have
recognized
segregation,

that
or

long-term
solitary

isolation
confinement,

consequences for mental health.

resulting
has

from

crippling

Dr. Craig Haney, who has

studied the psychological effects of solitary confinement
for more than 30 years, explained that isolation of the
type experienced by prisoners in segregation has harmful
psychological effects even on those who are not mentally
ill, and even mentally healthy prisoners can develop
mental illness such as depression, psychosis, and anxiety
193

disorder

during

a

prolonged

period

of

isolation.

Summarizing years of research in his field, Dr. Haney
explained: “[T]he nature and magnitude of the negative
psychological reactions ... underscore the stressfulness
and painfulness of this kind of confinement, the lengths
to which prisoners must go to adapt and adjust to it, and
the

risk

of

harm

that

it

creates.

The

potentially

devastating effects of these conditions are reflected in
the characteristically high numbers of suicide deaths,
and incidents of self-harm and self-mutilation that occur
in many of these units. ... These effects are not only
painful but can do real harm and inflict real damage that
is sometimes severe and can be irreversible. ... They can
persist beyond the time that prisoners are housed in
isolation

and

dysfunction.”

lead

to

long-term

disability

and

Joint Ex. 459, Haney Expert Report (doc.

no. 1038-1043) at 130-31; see also Davis v. Ayala, 135 S.
Ct.

2187,

(summarizing

2210
case

(2015)
law

(Kennedy,
and

J.,

historical

concurring)
texts

that

“understood[] and questioned” the “human toll wrought by

194

extended terms of isolation” and observing that “research
still confirms what this Court suggested over a century
ago:

Years

terrible

on

end

price.”)

of

near-total
The

isolation

psychological

exact

harm

a

from

segregation can also lead to symptoms like hallucinations,
chest pain, palpitations, anxiety attacks, and self-harm,
even among previously healthy people.

Burns Testimony

at vol. 1, 209; see also Palakovic v. Wetzel, 854 F.3d
209, 225-26 (3d. Cir. 2017) (summarizing the “robust body
of

legal

and

devastating

scientific

mental

authority

health

recognizing

consequences

caused

the
by

long-term isolation in solitary confinement,” including
“anxiety,

panic,

paranoia,

depression,

post-traumatic

stress disorder, psychosis, and even a disintegration of
the basic sense of self-identity,” as well as physical
harm).

The depth of the psychological impact of such

isolated confinement conditions on human beings was also
reflected in Senator John McCain’s observation about his
prisoner-of-war
confinement]

experience

crushes

your

195

in

Vietnam:

spirit

and

“[Solitary

weakens

your

resistance

more

effectively

than

any

other

form

of

mistreatment. Having no one else to rely on, to share
confidences with, to seek counsel from, you begin to
doubt your judgment and your courage.”

Pl. Ex. 1272,

2012 Congressional Testimony of Dr. Craig Haney (doc. no.
1126-3) at 9 (quoting from Richard Kozar, John McCain:
Overcoming Adversity (2001) at 53).
The

serious

segregation

is

psychological

even

mental illness.

more

harm

devastating

stemming
for

those

from
with

As Dr. Haney explained, mentally ill

prisoners are highly likely to decompensate in such an
isolated environment, and it is more difficult to deliver
treatment to those in segregation units.

In other words,

mentally ill prisoners in segregation are hit with a
double-whammy: they are exposed to a heightened risk of
worsening symptoms, while having less access to treatment
they need.

As a result of the growing body of evidence

on the destructive effects of segregation, a general
consensus

among

professionals,

while

correctional
not

and

necessarily

196

psychiatric

establishing

a

constitutional floor, has developed in the last ten years:
placement and duration of segregation should be strictly
limited for mentally ill prisoners.
experts

explained,

the

For example, as the

National

Commission

on

Correctional Health Care has issued a position statement
declaring

that

mentally

ill

prisoners

should

not

be

placed in segregation absent extenuating circumstances,
and even in those circumstances, the stay should be
shorter than 30 days.61
61. See National Commission on Correctional Health
Care, Solitary Confinement Position Statement on Solitary
Confinement, 2016; Burns Testimony at vol. 1, 204.
As Dr. Haney explained, prison systems around the
country are also moving away from using solitary
confinement in general--even for healthy people--unless
it is absolutely necessary. See, e.g., Joint Ex. 459,
Haney Expert Report (doc. no. 1038-1043) at 133
(referencing Rick Raemisch, My Night in Solitary, N.Y.
Times
(Feb.
20,
2014),
available
at
http://www.nytimes.com/2014/02/21/opinion/my-night-in-s
olitary.html (describing the experience of the head of
the Colorado Department of Corrections spending 20 hours
in a segregation cell and the efforts to bring down the
number of mentally ill prisoners in administrative
segregation to single digits among 500 prisoners in
segregation); Terry Kupers, et al., Beyond Supermax
Administrative Segregation: Mississippi’s Experience
Rethinking
Prison
Classification
and
Creating
Alternative Mental Health Programs, 36 Crim. Just. &
197

Defense witnesses agreed that mentally ill prisoners
should rarely be placed in segregation for prolonged
periods of time.
testified

that

profession,

Dr. Hunter, MHM’s medical director,

it

is

including

“generally
within

recognized”

ADOC,

that

in

the

prolonged

segregation is deleterious to mental health, because of
the

combination

overload:

a

of

severe

sensory

deprivation

and

lack

stimulation

arises

of

sensory
when

confined to one space for over 23 hours a day without any
meaningful social interactions; sensory overload comes
from the chaotic environment of segregation units, filled
with loud noises and malodors.

Hunter Testimony at __.

ADOC’s chief psychologist Dr. Tytell and MHM psychiatrist
Dr. Kern also agreed that overwhelming research shows
that prolonged isolation has gravely detrimental effects
on mental health, especially for those with pre-existing
mental illness. Lastly, Ayers, a defense expert, opined
that

based

on

his

experience

as

a

correctional

Behav. 1037 (2009) (describing the reforms in the
Mississippi Department of Corrections significantly
reducing the population in administrative segregation and
its effect on misconduct, violence, and use of force)).
198

administrator, mentally ill prisoners should generally
not be placed in segregation; if they are, it should only
occur with the explicit approval and hands-on involvement
of mental-health staff, and such prisoners should be
placed on a fast-track to be moved into more therapeutic
settings.

ii. ADOC’s Segregation Units
The

court

heard

overwhelming

evidence,

including

from experts on both sides, that the conditions in ADOC’s
segregation units pose serious risks for mentally ill
prisoners--beyond the inherent psychological risks of
segregation.

ADOC

prisoners

receive

very

little

out-of-cell time; they are left idle for almost all hours
of the day with very little property allowed in the cell;
the physical conditions of the segregation cells are
often deplorable; and the design of the cells often makes
it difficult to monitor the well-being of the prisoners.
Associate Commissioner Culliver testified that they “try
to give them five hours a week” of out-of-cell time,
199

which means that even when ADOC officers are able to meet
their goal, prisoners spend on average over 23 hours per
day inside of a cell.

Culliver Testimony at __.

As for

idleness, not only do segregation prisoners lack access
to programming, but they are allowed very few items in
their cells to occupy themselves: only a Bible and their
current legal paperwork.

As Dr. Haney credibly testified

based on his extensive experience, it is quite unusual
for segregation inmates to be denied access to any other
books or a radio.
ADOC

are

in

Furthermore, segregation units within

significant

disrepair,

exacerbating

the

inherent stress of being confined to a small cell and
worsening its impact on mental health.

As reflected by

photographs admitted into the record and as the court
witnessed firsthand during facility visits, segregation
cells are often poorly lit, with little natural light and
only small grated windows, if any.

The court observed

that they are often filled with the smell of burning
paper and urine; some are extremely dirty with what
appears to be dried excrement smeared on the walls and

200

floors; and loud noises travel through the segregation
units, some of which house from anywhere between 20 to
50 people on multiple levels.62

The court witnessed an

overpowering sense of abandonment and despair, with a
prolonged stay crushing all hope.63
The

combination

of

the

lack

of

any

meaningful

activity or social contact and the stressors of living
in a dilapidated, filthy, and loud housing unit for
almost 24 hours per day results in a heightened risk of
decompensation

for

mentally

ill

prisoners

and

a

62. Dr.
Haney
also
observed
that
Bullock’s
segregation unit has a practice of removing mattresses
from cells so that prisoners cannot rest on them during
the day, which he described as “extraordinarily
draconian.” Haney Testimony at vol. 1, 117. Pl. Dem.
Ex. 60, Bullock Main Camp, B Dorm (doc. no. 1125-20).
The court also observed that Kilby’s large segregation
unit (also known as ‘big seg’) has extremely small cells
that are only a foot or two longer than the length of a
single-sized mattress and only a narrow strip of space
that barely fits a toilet, in a stifling unit of fifty
cells stacked on top of each other without any
ventilation or transparent windows facing outside. Pl.
Dem. Ex. 80 & 81, Kilby C Dorm (docs. no. 1125-38,
1125-39).
63. The court notes that the worst thing that could
happen in this context is for the correctional officers
and ADOC officials to get accustomed to such conditions.
201

heightened risk of developing serious mental-health needs
for those who were initially healthy.

In addition, as

Dr. Haney credibly testified, it is much more difficult
for staff to detect decompensation of prisoners while
they are housed in segregation: when prisoners remain in
their cells around the clock, mental-health staff have a
harder

time

illnesses

observing

effectively,

the
and

patient

and

correctional

diagnosing

officers

and

fellow prisoners also lack sufficient regular contact
with the prisoner to notice the onset of symptoms of
mental illness.

This difficulty adds to the danger.64

64. Admittedly, ADOC uses double-celling in some
segregation units, which means putting two prisoners into
a single segregation cell. At first blush, this practice
might seem to mitigate the harmful effects of solitary
confinement. However, double-celled segregation has an
even more severe impact on the mental health of prisoners.
Dr. Haney credibly explained that double-celled prisoners
“in some ways ... have the worst of both worlds: they are
‘crowded’ in and confined with another person inside a
small cell but—and this is the crux of their ‘isolation’—
simultaneously isolated from the rest of the mainstream
prisoner population, deprived of even minimal freedom of
movement, prohibited from access to meaningful prison
programs, and denied opportunities for any semblance of
‘normal’ social interaction.”
Joint Ex. 459, Haney
Expert Report (doc. no. 1038-1043) at 109.
202

The design of ADOC’s cells and units in which they
exist poses additional obstacles for effective monitoring
in segregation units.

ADOC segregation units often lack

visibility into cells, both because of small windows on
the doors, which are often grated or difficult to see
through, and because of the layout of the cells and the
units.

Unfortunately,

testified,

because

of

as

experts

understaffing,

from

both

officers

sides
cannot

constantly walk near the cells and are generally unable
to monitor what is going on inside.

This means that

mentally ill prisoners in segregation--including those
identified as mentally ill, those with undiagnosed mental
illnesses, and those who develop mental illness while in
segregation--are at a heightened risk for decompensation
without anyone noticing.
These problems exist throughout ADOC facilities. For
example, Easterling’s unit has tiny windows on doors that
do not allow correctional officers to observe inside
without being directly in front of the door; as Dr. Haney
credibly testified, correctional officers often do not

203

feel safe standing very close to the door because they
risk having bodily fluids or food thrown at them through
the food-tray slot or the cracks between the door and the
wall.

(Indeed, the court was repeatedly warned not to

walk too close to the doors for that reason during
facility tours.)

As the court saw firsthand, Donaldson

and St. Clair facilities have the same problem of very
little

visibility

into

the

cells

from

the

officers’

station, due to small windows and dim lighting.

Lastly,

Bibb’s segregation units might be the most egregious in
terms

of

visibility:

each

housing

unit

has

its

own

segregation unit of a few cells shut off from the rest
of the unit, down a long hallway and through a door, with
no line of sight from the central officer station and
officers entering the space to check on the prisoners
only periodically.

Dr. Haney was surprised that such

units were maintained, because prisoners in these cells
have no way of alerting officers if anything was going
wrong; they are completely dependent for their safety
upon periodic trips that officers make from the central

204

officer station.
Bibb’s

In fact, Dr. Haney recommended that

segregation

units

be

closed

immediately:

he

explained that he has never recommended any unit to be
closed immediately in his four decades of doing this work,
but he thought the risk of harm was too great at Bibb
because

so

little

correctional

monitoring

expert

Ayers’s

is

available.

testimony

Defense

also

raised

concerns: he credibly testified to his suspicion that,
because

of

understaffing

and

safety

concerns,

correctional officers were not walking down the hallway
away from the central cube at Bibb as frequently as they
claimed.

b.

ADOC’s Segregation of Mentally Ill Prisoners

The evidence clearly establishes that placements of
mentally ill prisoners in segregation endangers those
prisoners, and that the risk of serious harm to those
prisoners

increases

based

on

the

seriousness

of

the

prisoner’s illness, the length of the stay in segregation,
and the dangerous conditions discussed above.
205

Against

this backdrop, the court explains the ways in which
ADOC’s placement practices and treatment of mentally ill
prisoners in segregation create a substantial risk of
serious harm.

i. ADOC’s Segregation-Placement Practices
Due

to

the

risks

of

decompensation

created

by

segregation in general and by ADOC’s segregation units
in

particular,

consider

a

it

is

prisoner’s

critically
mental

important

health

that

ADOC

condition

when

deciding whether to place the prisoner in segregation,
and if so, for how long.

But here, overwhelming evidence

makes clear that ADOC does not ensure that those with a
heightened risk of serious harm from mental illness are
not placed in segregation or that they are not sent there
for

dangerously

long

periods. 65

In

particular,

as

65. Experts
from
both
sides
explained
that
alternatives to placing mentally ill prisoners in
segregation exist.
Prison systems across the country,
ranging from Maine to Mississippi, have reduced the
number of prisoners in segregation generally, and
significantly reduced the mentally ill population in
206

discussed

earlier,

ADOC

does

not

have

a

functioning

system for evaluating mental-health risks when deciding
whether to place prisoners in segregation; it also fails
to evaluate these risks when determining the length of
any segregation placement.

The result is that prisoners

whose mental illness makes them likely to be harmed by
segregation are placed there anyway.
ADOC’s

current

process

for

placing

prisoners

in

segregation does not adequately consider the impact of
segregation

on

mental

health.

As

explained

in

the

section on disciplinary sanctions, ADOC’s administrative
regulations mandate that during disciplinary proceedings,
mental-health staff provide input to ADOC regarding the
impact of mental illness on the prisoner’s competency at
the time of the offense and at the time of the hearing
segregation. Joint Ex. 459, Haney Expert Report (doc.
no. 1038-1043) at 133. For example, California operates
a separate housing unit that is devoted to mentally ill
prisoners who have committed disciplinary infractions.
These units provide 20 hours of out-of-cell time per week,
as well as structured and unstructured therapeutic
activities. Arizona has begun similar reforms, providing
more programming and out-of-cell time to mentally ill
prisoners who committed disciplinary infractions. Haney
Testimony at vol. 2, 154-55; Ayers Testimony at __.
207

and

give

recommendations

for

the

disposition

of

the

offense and the type of sanctions that should be imposed.
However,

as

discussed

earlier,

MHM

staff

and

ADOC

officials expressed confusion as to what role, if any,
mental-health
process,

staff

and

should

play

mental-health

in

the

staff

disciplinary

largely

have

rubber-stamped ADOC’s decisions to send mentally ill
prisoners to segregation.
Even when MHM has recommended against placing a
particular prisoner or a group of mentally ill prisoners
in segregation, there is evidence that ADOC has ignored
such input.

As MHM’s program director Houser testified,

ADOC has overridden MHM’s recommendations that prisoners
whose mental-health code is above MH-3 (which requires
residential treatment in a mental-health unit) should not
be placed in segregation; she also gave an example of a
prisoner

who

was

recommendation.
is

not

put

in

segregation

despite

MHM’s

She further explained that because MHM

authorized

to

move

any

prisoners,

ADOC

can

override MHM’s clinical judgment and house RTU patients

208

in segregation.
required

to

Indeed, ADOC correctional staff are not
follow

mental-health

staff

the

recommendations

in

disciplinary

of

the

proceedings.

Likewise, while regulations require that prisoners in
segregation undergo periodic mental-health evaluations,
ADOC

is

not

required

mental-health

to

move

evaluation

the

reveals

prisoner
that

if

the

continued

placement in segregation would be detrimental to the
prisoner’s mental health.

Joint Ex. 127, Admin. Reg.

§ 625 (doc. no. 1038-150) (“The ADOC psychologist or
psychological associate will consult with the Warden or
designee

when

assessment

indicates

[segregation]
inmate’s

their

is

mental

strategies

to

[segregation]
that

continued

contraindicated
status

and

facilitate

mental

by

placement
changes

functioning.
the

health

in

in
the

Alternative

inmate’s

mental

stabilization will be offered.”).66

66. There
is
sufficient
evidence
that
these
mental-health evaluations in segregation are inadequate,
which will be discussed later in section V.B.10.
209

For their part, MHM staff have been hesitant to
oppose ADOC on the placement of mentally ill prisoners
in

segregation.

MHM

staff

discussed

ADOC’s

use

of

segregation on mentally ill prisoners during a staff
meeting in 2013, expressing frustration that ADOC was
over-using segregation on mentally ill prisoners: the
meeting summary read, “DOC is over using segregation on
MH inmates. They want to punish them. We must be diligent
in

calling

disciplinary

it

from

consult.

a

treatment

Put

MH

as

perspective

factor

in

the

in
bad

behavior. Long term segregation can be detrimental mental
well-being. ... Do not recommend a disciplinary action.
Say MH is a major factor. We are reluctant to do it
because of influence of DOC.”

Pl. Ex. 715, July 2013

Quarterly CQI Meeting Minutes (doc. no. 1044-9) at 4.
ADOC also fails to ensure that prisoners with serious
mental-health

needs

are

not

subjected

lengthy periods of segregation.
examples

of

several

plaintiffs

to

extremely

Dr. Haney described
and

one

former

class

member who have bounced between segregation units and

210

suicide-watch cells over lengthy periods of time; three
were never put on the mental-health caseload despite
repeated instances of self-harm.
Movement

History

1126-10).

In

of

Exemplar
particular,

See Pl. Dem. Ex. 131,
Plaintiffs

(doc.

plaintiff

no.

C.J.’s

eight-year-long movement history shows that he has been
in segregation or suicide-watch cells for all of those
eight

years;

his

mental-health

code

was

eventually

elevated to MH-2, but his treatment plan did not change
despite his clear deterioration over the years.67

See

67. Plaintiff C.J. is also an example of prisoners
who experience what was referred to during the trial as
‘segregation rotation,’ whereby a prisoner is sent from
one segregation unit at a facility to another segregation
unit at another facility every few months. C.J.’s
movement history indicated that he has been rotating
among three different segregation units in the last eight
years, averaging eight months at each facility at a time.
Pl. Dem. Ex. 131, Movement History of Exemplar Plaintiffs
(doc. no. 1126-10).
This practice, according to
Associate Commissioner Culliver, is used to “give staff
a break” and “give the inmate an opportunity to restart.”
Culliver testimony at __. Culliver did not know how many
people were on segregation rotation currently, or how
many mentally ill prisoners are on segregation rotation.
This practice adds an additional set of risk factors
to the already debilitating and harmful practice of
housing mentally ill patients in segregation for
211

Joint Ex. 459, Haney Expert Report (doc. no. 1038-1043)
at A39.68
Not

surprisingly

segregation’s

impact

given
on

ADOC’s

mental

disregard

health,

mentally

for
ill

prisoners are overrepresented in ADOC segregation. While
only 14 % of the ADOC population is on the mental-health
caseload, mentally ill prisoners make up 21 % of those
in segregation.

Looking at individual facilities year

by year, most facilities’ segregation units have a far
prolonged periods of time.
Dr. Haney testified that
moving mentally ill prisoners from one environment to
another disrupts treatment, because of lack of continuity
of care and providers: a new set of staff must get to
know the patient, and the usefulness of the information
that staff have already gathered on the person gets lost
when the prisoner is transferred. C.J. testified that he
often has to start anew with new counselors at each
facility, and when he goes back to the old facility after
a year or two of absence, the former counselor is often
no longer working there because of the high turnover rate.
Furthermore, as Dr. Haney testified, frequent transfers
of mentally ill prisoners have an adverse impact on their
mental health because they have a more difficult time
adjusting to new environments than those who are not
mentally ill.
68. Dr. Haney also stated that cycling between
segregation and general population may also indicate that
those
prisoners
are
likely
suffering
from
the
after-effects of prolonged stays in segregation, which
are leading to more disciplinary infractions.
212

higher rate of mentally ill prisoners compared to the
general population: throughout 2014, 2015, and 2016, Bibb,
Easterling, Kilby, St. Clair, Staton, and Ventress each
had a disproportionately high number of mental-health
patients

in

segregation;

Holman

and

Limestone’s

segregation population also had a disproportionately high
number of mental-health patients more than half of the
time

period.

Only

four

facilities--Bullock,
Hamilton--did

not

of

the

Donaldson,
have

12

major

male

Fountain,

disproportionate

and

numbers

of

mental-health patients in segregation for most of the
three years.69

See Pl. Dem. Ex. 127, Overrepresentation

of the Mentally Ill in Segregation, 2014-2016 (doc. no.
1126-8).
Experts

on

both

systematic

overuse

prisoners,

who

are

sides

of

were

alarmed

segregation

most

vulnerable

for
to

by

ADOC’s

mentally
the

deterioration in such an isolated environment.

risk

ill
of

Ayers, a

69. The plaintiffs’ summary chart and MHM’s monthly
operations reports count Draper and Elmore as part of
Staton, because the three facilities are in the same
complex.
213

defense

expert

for

correctional

administration

who

reviewed ADOC records, was troubled by forms he saw for
administrative

segregation

in

which

the

segregation placement was ‘psychiatric.’

reason

for

Dr. Haney and

Dr. Burns were also troubled by the number of prisoners
with unaddressed mental illnesses they encountered in
segregation units.

In sum, ADOC lacks a functioning

process for screening out prisoners who should not be
placed in segregation due to mental illness or ensuring
that they are not sent there for dangerously long periods.

ii. Treatment and Monitoring in Segregation Units
ADOC prisoners with serious mental-health needs must
contend not only with dangerous and unhealthy conditions
in segregation units but also with significantly less
access

to

mental-health

treatment.

Mental-health

patients’ needs are considerably greater in segregation
due to the harsh effects of isolation, yet instead of
receiving

more

treatment

to

mitigate

these

effects,

prisoners in segregation have less access to care than
214

in general population and are not adequately monitored
for signs of decompensation. The court heard extensive
evidence that, due to staffing shortages, mental-health
treatment and monitoring in segregation are gravely more
limited than in general population, and nonexistent at
some facilities.

This denial of minimal medical care

contributes to the substantial risk that prisoners in
segregation

with

serious

mental-health

needs

will

decompensate, experience increased pain and suffering,
or worse, harm or kill themselves.
As

Houser,

MHM’s

program

director,

credibly

testified, even though mental-health patients’ needs are
considerably greater in segregation due to the harsh
effects of isolation, prisoners in segregation are not
allowed to leave their cells for mental-health groups or
therapeutic

activities.

As

a

result,

mental-health

patients in segregation receive less treatment than they

215

otherwise

would

outside

segregation,

despite

their

heightened need.70
On top of the lack of access to group therapy or
other programming, ADOC’s segregation prisoners have very
little access to individual treatment.
the

month

of

June

interventions’--that

2016,
is,

the

For example, in

number

out-of-cell

of

‘seg

treatment

encounters with mental-health staff--at seven facilities
with mentally ill prisoners in segregation was zero,
despite having many, sometimes dozens of, mental-health
patients in those units; three facilities had more than
zero but fewer than five seg interventions.

See Joint

Ex. 346, June 2016 MHM Monthly Operations Report (doc.
no. 1038-708) at 2.
The dearth of individual treatment in segregation is
mainly

due

to

correctional

understaffing.

Houser

observed that mental-health patients in segregation were
not getting the services they required, “not by [MHM’s]
70. According to Houser, MHM and ADOC discussed a
pilot project for long-term treatment programming in the
segregation unit at St. Clair, but the project never got
off the ground because of the lack of support from ADOC.
216

choice,” but because of ADOC’s failure to bring inmates
out of their segregation cells for treatment.
Testimony at vol. 2, 100.

Houser

MHM staff have consistently

complained of the difficulties of reaching patients in
segregation due to the chronic correctional staffing
shortage.

See, e.g., Pl. Ex. 950, July 2014 Holman

Multidisciplinary
(reporting

Meeting

issues

with

Minutes

(doc.

psychiatric

no.

1097-4)

providers

seeing

patients in segregation due to “walks, feeding, and DOC
shortage, etc.”); Pl. Ex. 1191, 2012 Contract-Compliance
Report

(doc.

no.

1070-9)

(noting

the

lack

of

documentation or notes for treatment of mentally ill
prisoners in segregation).
In the absence of correctional officers to provide
security and escort for segregation prisoners who need
mental-health

treatment,

mental-health

staff

have

to

conduct cell-front check-ins, instead of actual treatment
sessions.

But

because

segregation

units

are

not

hospitable environments for a personal conversation--let
alone confidential conversations--these interactions are

217

brief

and

cannot

replace

individual

counseling

sessions.71
‘Segregation

rounds,’

whereby

mental-health

counselors go around the segregation unit to check on the
well-being of prisoners, also are of limited utility due
to understaffing and visibility issues. ADOC regulations
require that these rounds happen at least twice per week.
As with other cell-front encounters, segregation rounds
are

not

meant

to

replace

individual

psychotherapy. 72

71. As discussed in the section regarding sound
confidentiality and psychotherapy, most ADOC segregation
units are not conducive to having a cell-front
conversation, due to heavy solid doors and very loud
units with dozens of cells in a single unit.
As the
court saw during its tours of five prisons, none of the
units--even the ones at Bibb, where only three cells are
in a unit--were conducive to confidential conversations,
because of the proximity to other cells and prisoners.
72. Furthermore, as Dr. Haney testified, while
segregation rounds by mental-health staff are crucial for
checking for signs of decompensation or crisis, they
cannot replace periodic out-of-cell clinical assessments
of prisoners’ mental-health status, because it is
difficult to observe someone’s behavior and accurately
assess the prisoner’s mental health through cell-front
encounters.
One vivid example of ADOC’s failure to monitor
segregation prisoners’ mental-health status concerned
218

However,

within

adequately
intended

serve

to

ADOC,
even

serve.

segregation
the

Dr.

limited
Hunter

rounds
purpose

do

not

they

are

described

them

as

‘drive-bys,’ sometimes even without verbal exchanges.
The

cursory

nature

of

the

monitoring

was

further

crystalized by the testimony of staff who conduct these
rounds.
at

Dr. Tytell, who served as an ADOC psychologist

Donaldson

before

taking

his

current

position,

testified that segregation rounds for over 120 prisoners
at

Donaldson

took

between

1.5

hours

and

2

hours,

including the time to walk between cell blocks--meaning
no more than one minute per prisoner on average. A former
counselor at Bibb testified that it would take her 35
minutes to an hour to complete the rounds at all six
plaintiff R.M.W. After a month of segregation placement
during which she was twice sent to a crisis cell and had
multiple episodes of self-injury, the segregation
mental-health evaluation form indicated that the inmate
was “appropriate for placement” and the recommendation
was “segregation placement not impacting inmate’s mental
health.”
Joint Ex. 404, March 28, 2014 Review of
Segregation Inmates - R.M.W. (doc. no. 1038-859) at
MR017081. Nothing in her medical records suggests that
a suicide-risk assessment was done after any of the
episodes or before this review to ascertain the impact
of segregation and likelihood of recurring self-harm.
219

housing units with 18 double-celled cells, meaning one
to two minutes per prisoner, including the time to walk
between six housing units.

A lack of visibility into

many of these cells--due to small, sometimes covered
windows, blocked views, and safety concerns associated
with standing too close to the door--makes it even more
difficult to provide effective monitoring.
Even

these

cursory

rounds

by

MHM

staff

do

not

actually happen as often as they should, or at all at
some

facilities.

segregation

rounds

The

lack

combined

of

with

documentation
the

acute

of

staffing

shortages led defense expert Ayers to doubt that ADOC was
able to conduct segregation rounds as often as required.
The

site

belief,

administrator
by

credibly

for

Holman

testifying

confirmed
that

Ayers’s

insufficient

segregation rounds have been a problem at Holman since
2008 due to staffing shortages, and that the problem has
only worsened since then.

According to her, at Holman,

instead of a separate mental-health segregation round, a
counselor

accompanies

the

warden

220

and

other

security

officers during a weekly segregation review board, where
the warden and other officials walk from cell to cell to
review each segregation prisoner’s status and potentially
change the prisoner’s segregation sentence based on their
conduct.

Sometimes, she is able to visit only one

prisoner in segregation per week due to the correctional
staffing shortage.
Monitoring by ADOC staff in segregation is also
ineffective. Correctional expert Vail credibly opined
that ADOC lacked enough correctional staff to conduct
monitoring rounds in segregation every 30 minutes--the
level of monitoring in segregation units necessary to
keep prisoners safe from self-harm and suicide.

Indeed,

he saw logs at ADOC that suggested that no segregation
checks were done for multiple hours.

Even defense expert

Ayers, while not explicitly concluding that monitoring
was

inadequate,

implied

so

by

saying

that

better

monitoring of segregation inmates would address the high
suicide rates within ADOC.

221

This lack of monitoring is even more troubling given
that ADOC segregation cells are not suicide-proof.

Many

segregation cells have grates, sprinkler heads, and other
structures

that

could

be

used

as

tie-off

points.

Furthermore, during the facility tour, the court saw many
segregation prisoners with ropes hanging across their
cells as clothes lines, which can be easily used to commit
suicide.

Allowing prisoners to cover their cell door

windows with papers further heightens the risk of suicide.
The dearth of individual encounters outside the cell,
haphazard

cell-front

encounters,

and

inadequate

monitoring in ADOC all show that ADOC fails to provide
adequate treatment and monitoring.
In sum, the evidence is clear that ADOC’s segregation
practices--inadequate

screening

for

the

impact

of

segregation on mental health, and inadequate treatment
and monitoring--pose a substantial risk of serious harm
to prisoners with serious mental-health needs.

This

serious inadequacy also has effects on other areas of
mental-health care.

According to Dr. Haney, this is

222

because

“[i]t’s

very

difficult

to

deliver

adequate

mental-health care in isolation units, and mentally ill
prisoners

deteriorate

in

isolated

units.

So

the

inadequacies of the mental health system actually are
exacerbated by the use of isolation for mentally ill
prisoners.”

Haney Testimony at vol. 1, 29.

In other

words, ADOC’s segregation practices perpetuate a vicious
cycle

of

isolation,

inadequate

treatment,

and

decompensation.
The skyrocketing number of suicides within ADOC, the
majority of which occurred in segregation, reflects the
combined effect of the lack of screening, monitoring, and
treatment

in

segregation

units

and

the

dangerous

conditions in segregation cells. Because prisoners often
remain in segregation for weeks, months, or even years
at a time, their decompensation may not become evident
until

it

suicide.73

is

too

late--after

an

actual

or

attempted

Since September 2015, seven of eleven suicides

73. While no aggregate data on the average or typical
lengths of segregation stays were presented, the court,
during its visits to six facilities, was able to view
223

within ADOC facilities happened in segregation units; of
the four that have occurred since October 2016 (the
current fiscal year), all but one involved a prisoner in
segregation.74

As explained above, these suicide numbers

are astounding compared to the national average across
state

prison

systems.

By

subjecting

mentally

ill

prisoners to its segregation practices, ADOC has placed
prisoners
substantial

with
risk

serious
of

mental-health

continued

pain

needs
and

at

a

suffering,

decompensation, self-injurious behavior, and even death,
and the court cannot close its eyes to this overwhelming
evidence.

forms on the front of segregation cells showing how long
the prisoner had been there: most were there for at least
several weeks, some for months or even over a year. As
discussed earlier, some inmates, like plaintiff C.J., are
placed on ‘segregation rotation,’ which can keep
prisoners in segregation units for years on end. Experts
on both sides unequivocally denounced ADOC’s practice of
prolonged segregation stays.
74. The only one that did not take place in
segregation was plaintiff Wallace, who was in the Bullock
stabilization unit. See Pl. Ex. 1267, 2015-2016 Chart
of ADOC Suicides (doc. no. 1108-38).
224

c.

Segregation of Prisoners with Serious Mental
Illness

The court heard significant evidence that extended
segregation--even absent consideration of the conditions
at ADOC--poses a substantial risk of harm to all mentally
ill prisoners, and plaintiffs asked the court to so
conclude.

However, as mentioned before, because ADOC’s

segregation practices fall so far short of protecting
prisoners with serious mental-health needs from a grave
risk of decompensation and other harms, the court need
not, at this time, decide whether segregation poses an
unacceptably

high

risk

of

harm

prisoners as a general matter.

to

all

mentally

ill

That said, the testimony

of the experts, clinicians who work for ADOC, and even
Associate

Commissioner

Naglich

herself

overwhelmingly

established that one particular subset of prisoners with
serious mental-health needs should never be placed in
segregation in the absence of extenuating circumstances:
those who suffer from a ‘serious mental illness.’
As discussed earlier, ‘serious mental illness’ is a
term of art in the field of psychiatry that refers to a
225

certain

subset

of

Serious

mental

illness

duration,

and

particularly
is

severity

diagnoses,

such

accompanied

by

as

disabling

defined

of

the

diagnosis,

symptoms.

the

by

Certain

schizophrenia

psychosis,

are

conditions.

by

and

disorders

definition

serious

mental illnesses, because they last a lifetime and are
accompanied by debilitating symptoms; others, such as
major depression and anxiety disorder, may be considered
serious mental illnesses depending on the severity of the
individual’s symptoms.
As Dr. Burns credibly opined based on the literature
in

the

field,

those

who

suffer

from

serious

mental

illness should not be put in segregation as a general
matter because prisoners with serious mental illness
experience

worsening

symptoms

in

such

an

isolated

environment, and because they are likely to have reduced
access to treatment in segregation units.
that,

even

when

extenuating

Burns added

circumstances

exist,

segregation placements for such prisoners should still
be short term, and access to necessary treatment must be

226

provided.

Indeed, as Dr. Burns pointed out, the American

Correctional Association and the American Psychiatric
Association take the position that seriously mentally ill
people

should

not

be

placed

in

segregation

unless

absolutely necessary, and if so, they should only remain
for the shortest duration possible--no longer than three
to

four

weeks.

American

Correctional

Association,

Restrictive Housing Performance Based Standards, August
2016;

American

Psychiatric

Association,

Position

Statement on Segregation of Prisoners with Mental Illness
(2012).
Associate Commissioner Naglich candidly agreed with
Dr. Burns that placing seriously mentally ill prisoners
in segregation is “categorically inappropriate,” and that
such

placement

medical care.”
described

a

is

tantamount

to

“denial

of

minimal

Naglich Testimony at vol. 5, 73.
new

mental-health

coding

system

She
in

development at ADOC that would prevent all prisoners with
serious mental illness from being placed in segregation.
While she could not tell the court when the “rollout” of

227

the new system would be complete, she assured the court
that once completed, “no seriously mentally ill inmate
would be housed in a segregation setting.”
Testimony at vol. 5, 67.
agreed

with

the

Naglich

MHM’s program director Houser

bright-line

rule

against

placing

prisoners with serious mental illness in segregation: she
explained that prisoners classified as MH-3 or above,
which

are

designated

for

RTU

or

SU

placements

and

considered to have a serious mental illness, should never
be in segregation because “their mental health capacity
would not allow them to be able to be maintained in such
an environment.”

Houser Testimony at vol. 2, 109.

While there was no dispute between the parties that
placing seriously mentally ill prisoners in segregation
amounts to denial of minimal care, a question was raised
as to whether the new system that Associate Commissioner
Naglich

described

has

been

implemented.

Associate

Commissioner Culliver, who has the primary responsibility
for

inmate

placements,

transfers,

and

correctional

staffing levels, testified after Naglich that there had

228

not

been

any

recent

official

policy

change

on

the

placement of mentally ill prisoners in segregation, and
that he did not know about any changes that would prohibit
officers from placing certain prisoners in segregation
or would limit the duration of segregation placements.
Naglich’s subordinate, Dr. Tytell, later testified that
an effort to change the coding system began only after
Naglich testified that the policy change was already
being rolled out, and that no new official coding system
existed.

He further explained that she instructed him

to email the wardens at Donaldson to move ten individuals
whose

mental-health

code

was

MH-2

or

higher

out

of

segregation and into the RTU, only after her testimony
in court.

She did not instruct him to do so with any

other facility, and Tytell was not aware of any other
facilities

moving

mentally

ill

prisoners

out

of

segregation units at the time of his testimony in January
2017.

Based on the evidence presented--especially given

Associate Commissioner Culliver’s lack of knowledge or
involvement in a major change to segregation policy--the

229

court cannot conclude that ADOC has implemented this
policy

change

of

not

placing

prisoners

mental illness in segregation.75

with

serious

Given the consensus on

the substantial risk of harm of decompensation for these
mostly

severely

mentally

ill

prisoners,

the

court

concludes that it is categorically inappropriate to place
prisoners with serious mental illness in segregation
absent extenuating circumstances; even in extenuating
circumstances, decisions regarding the placement should
be

with

the

involvement

and

approval

of

appropriate

mental-health staff, and the prisoners should be moved
out of segregation as soon as possible and have access
to treatment and monitoring in the meantime.

9.

Tutwiler

As ADOC’s only major facility for women, Tutwiler
Prison for Women serves as the treatment hub for all

75. The court further notes that the system that
Associate Commissioner Naglich described would prevent
the placement of seriously mentally ill prisoners in
segregation only if the mental-health coding system were
accurately classifying prisoners’ mental-health needs.
230

female prisoners in Alabama.
contributing

to

care--mental-health

While the same factors

inadequate
understaffing,

mental-health
correctional

understaffing, and overcrowding--apply to Tutwiler, the
provision of mental-health care at Tutwiler differs in
some ways.

This is because Tutwiler administrators, as

a result of other litigation, have revised policies to
make

them

more

‘trauma-informed’--that

‘gender-responsive’
is,

responsive

to

prisoners’ experience of past traumatic events.76

and
female
Some

76. Defense counsel suggested that the approval of
certain policies at Tutwiler by monitors hired by the
U.S. Department of Justice signifies that those policies
are constitutionally adequate.
However, there are two
flaws with this argument. First, the DOJ monitor was not
necessarily
evaluating
policies
to
ensure
that
mental-health care was adequate under the Eighth
Amendment: the lawsuit that resulted in the monitoring
was not about mental-health care, nor was the monitor’s
job to set the constitutional floor of mental-health care.
Second, the monitors’ approval of certain policies, such
as segregation placement, does not mean that ADOC’s
actual practices are constitutionally adequate.

231

of

these

revisions

involve

regulations

governing

mental-health care.77
Yet, despite these policy changes, the care provided
to mentally ill prisoners at Tutwiler suffers from some
of the same inadequacies that affect mental-health care
for

men.

Tutwiler

lacks

correctional staffing.

adequate

mental-health

and

As in the facilities for men, a

significant portion of mentally ill patients are not
being identified or appropriately classified; no suicide
risk-assessment tool is used outside of intake; and the
provision of counseling sessions is seriously inadequate.
The court has sufficient evidence before it to conclude
that these problems pose a substantial risk of serious
harm to Tutwiler prisoners with serious mental-health
needs.
Tutwiler suffers from the same serious deficiencies
in

identification

and

classification

of

prisoners’

77. For example, newly implemented practices include
limiting pre-disciplinary hearing segregation to 72 hours,
submitting monitoring logs for segregation cells to an
independent reviewer, and having a compliance visit to
the stabilization unit every six months to ensure
15-minute interval checks.
232

serious

mental-health

needs.

The

mental-health

identification and classification processes at Tutwiler
function the same way as at male correctional facilities:
an LPN conducts the initial intake screening, without any
on-site supervision by an RN or any other higher-level
provider.
referral

Tutwiler
requests,

also
and

lacks

a

therefore

triage

system

requests

to

for

see

a

mental-health provider do not get classified or tracked
to

ensure

that

they

under-identification

are
is

processed.

apparent

in

The
the

prisoners on the mental-health caseload.
both

sides

testified

that

women

in

resulting
number

of

Experts from

prison

have

a

significantly higher incidence rate of mental illness
compared to their male counterparts: the estimated rate
ranges between 75 to 80 %, according to Dr. Burns.

At

Tutwiler, only 54 % of prisoners are on the mental-health
caseload.

Joint Ex. 346, June 2016 Monthly Operating

Report (doc. no. 1038-708).

As with the rest of the

system, experts from both sides testified that the low
rate stems from ADOC’s inadequate intake and referral

233

processes.

Experts from both sides also testified that

an insufficient number of prisoners are getting care in
mental-health units at Tutwiler despite the severity of
their illnesses.
identification

As explained above, such inadequate
and

classification

of

serious

mental-health needs create a substantial risk of serious
harm by failing to treat mental illness.
Expert

testimony

also

showed

that

no

suicide

risk-assessment tool is being used at Tutwiler, except
at

intake,

as

is

the

case

in

male

facilities.

As

explained earlier, failing to assess suicide risks of
prisoners who threaten or attempt self-harm or suicide
places those prisoners at a substantial risk of harm.
As

at

the

male

prisons,

individual

counseling

sessions at Tutwiler are frequently delayed and canceled
due to shortages of mental-health staff and correctional
officers.

An ADOC psychologist at Tutwiler testified

that the correctional staffing shortage that causes such
delays and cancellations of counseling sessions is a
topic of discussion at almost every multidisciplinary

234

meeting.

Furthermore, MHM contract-compliance reports

and the minutes from CQI meetings consistently reported
that Tutwiler’s caseload is “bursting at [the] seams,”
and that MHM had difficulty meeting outpatient needs for
counseling.

Ex. 670, April 2015 Quarterly CQI Meeting

Minutes (doc. no. 1056-7) at MHM031224; see also Pl. Ex.
532, 2015 Contract-Compliance Report (doc. no. 1070-7)
at 4, 13 (“At Tutwiler, staff are attempting to manage
extremely large caseloads, which at times can be very
challenging”;

“significant

staffing

shortages

in

psychiatry” reported at Tutwiler); Pl. Ex. 114, 2013
Contract-Compliance
(discussing

Report

decrease

in

(doc.

no.

treatment

1070-4)

at

1-2

availability

at

Tutwiler due to staffing cuts and increasing size of
caseload across all facilities).
In sum, inadequate identification and classification
of mental-health needs, inadequate screening for suicide
risk, and inadequate psychotherapy create a substantial
risk

of

Tutwiler.

serious

harm

to

mentally

ill

prisoners

at

On the other hand, while also concerned about

235

the number of crisis cells, suicide-watch placements,
segregation

placements,

and

treatment

and

monitoring

available in segregation and in crisis care at Tutwiler,
the court does not have sufficient evidence to find that
those areas pose a substantial risk of serious harm to
Tutwiler’s prisoners.78

10.

Other Issues

This section discusses several issues on which the
court does not at this time find for the plaintiffs.
First,

there

mental-health

is

substantial

evaluations

evidence
for

that

all

periodic

prisoners

in

segregation are inadequate, but the court, out of an
abundance

of

caution

and

exercising

its

discretion,

leaves this issue to be further addressed by the parties.
Second,

evidence

was

insufficient

to

establish

a

substantial risk of serious harm arising from ADOC’s

78. The court also notes that the experts from both
sides presented affirmative evidence that the care being
provided in the Tutwiler RTU is adequate, or close to
adequate.
236

medication management practices or the supervision of
certified registered nurse practitioners.
On the first issue, substantial evidence suggested
that

ADOC

is

not

conducting

adequate

periodic

mental-health assessments of prisoners in segregation to
identify

those

segregation.

who

become

mentally

ill

while

in

Dr. Haney credibly opined that periodic

out-of-cell assessments are necessary not only to monitor
for decompensation among those identified as mentally ill,
but also to identify prisoners not on the mental-health
caseload

who

segregation.

may

develop

mental

illness

while

in

Just as identification and classification

of mental-health needs at intake are essential in a
functioning
essential

to

mental-health
identify

care

those

treatment in segregation.

system,

who

need

it

is

also

mental-health

ADOC’s own administrative

regulation requires periodic mental-health assessments
of prisoners in segregation, even for those who are not
on the caseload, though it does not appear to require
out-of-cell assessments.

Joint Ex. 127, Admin. Reg. §

237

625 (doc. no. 1038-150).

However, evidence suggested

that such assessments at ADOC are cursory at best.
example,

as

discussed

above,

plaintiff

For

R.M.W.’s

segregation mental-health evaluation form completed in
the same month when she was sent to suicide watch twice
and had multiple incidents of self-injury simply had some
check marks and stated “inmate appropriate for placement”
and “segregation placement not impacting inmate’s mental
health.”

Joint

Segregation
MR017081.

Ex.

Inmates

404,

March

R.M.W.

28,

(doc.

2014

of

1038-859)

no.

Review

at

No mention of her suicide-watch placements or

self-injury

episodes

was

included,

risk-assessment tool was completed.
correctional

and

mental-health

and

no

suicide

Ample evidence of

understaffing--and

the

fact that staff are often unable to conduct segregation
rounds consisting of much shorter, cursory cell-front
interactions--also
provide

suggests

meaningful

that

ADOC

mental-health

prisoners in segregation.

is

unable

assessments

to
of

However, the court believes

that it should solicit more input from the parties before

238

determining whether ADOC is conducting adequate periodic
mental-health assessments of prisoners in segregation.
Therefore, the Eighth Amendment finding remains open as
to this discrete issue, and the court will take it up
with the parties after this opinion is issued.
Second, the court is able to conclude on the record
before it that plaintiffs did not present sufficient
evidence to establish that prisoners in ADOC custody face
a

substantial

risk

of

medication

management

registered

nurse

serious
and

harm

in

supervision

practitioners.

two

of

Plaintiffs

areas:

certified
did

not

present sufficient evidence to establish that ADOC’s
medication management practices are inadequate based on
ADOC allegedly letting cost concerns override clinical
needs and not being responsive to patients’ concerns
about side effects. While plaintiffs presented anecdotal
evidence of providers’ refusal to continue previously
prescribed medications or to switch medications despite
continuing
independent

side

effects,

clinical

the

court

assessments

239

of

did

not

these

see

any

patients’

medication

needs.

Absent

assessments,

credibility

evidence

ADOC’s

of

any

contrary

findings,

failure

to

or

clinical

more

prioritize

direct

patients’

clinical needs over medication costs, a constitutional
determination
medication

about

the

decisions

adequacy

would

of

invade

these

of

province

the

kinds

of

psychiatric providers’ medical judgment.

Estelle v.

Gamble, 429 U.S. 97, 107 (1976) (holding that matters for
"medical

judgment"

do

not

raise

an

Eighth

Amendment

concern). The testimony established only that clinicians
talk about the cost of medications during meetings, and
that managers commend providers for keeping prices down
as a team; further, some prisoners were discontinued on
medications they were originally prescribed, but there
is no documentation about the reasons those medications
were discontinued.
not

sufficient

to

However, these unconnected dots are
find

that

ADOC

prioritizes

cost

concerns over clinical needs when making prescription
decisions, because the court is ill-equipped to discern
whether

the

decisions

were

240

clinically

inappropriate.

Furthermore, even plaintiffs’ expert Burns found that
keeping the cost of medications in mind when making
prescribing decisions was not on its own inappropriate
or unusual, especially because MHM clinicians’ requests
for medications that are not pre-approved for use are
almost always granted.

In other words, absent contrary

clinical findings, there is not enough evidence to find
that ADOC systematically overrides clinical needs due to
cost

concerns

such

that

its

medication

management

practices are constitutionally inadequate.
In addition, plaintiffs argued that ADOC’s certified
registered

nurse

practitioners

supervised by psychiatrists.

were

not

properly

Evidence suggested that

some of the CRNPs employed by MHM could not meet the
state regulatory requirement that they collaborate with
an on-site psychiatrist at least 10 % of the hours they
work.

However, evidence also showed that psychiatrists

do supervise and collaborate with CRNPs through other,
more informal channels. Therefore, there is insufficient
evidence to establish that inadequate supervision has

241

created a substantial risk of serious harm for mentally
ill prisoners.

C. Deliberate Indifference
Having found that ADOC’s mental-health care system
creates substantial risks of serious harm to mentally ill
prisoners (defined in this opinion as those with serious
mental-health

needs),

the

court

now

turns

to

the

deliberate-indifference prong of the Eighth Amendment
inquiry.

In order to prove an Eighth Amendment violation,

plaintiffs

must

show

not

only

that

state

officials

subjected mentally ill prisoners to a substantial risk
of serious harm, but also that defendants acted with
deliberate indifference to that risk.
despite

being

repeatedly

informed

As discussed below,
that

significant

deficiencies existed, ADOC has disregarded and failed to
respond reasonably to the actual harm and substantial

242

risks

of

serious

harm

posed

by

its

deficient

indifference,

plaintiffs

mental-health care system.79
To

establish

deliberate

must show that defendants had subjective knowledge of the
harm or risk of harm, and disregarded it or failed to act
reasonably to alleviate it.

Thomas v. Bryant, 614 F.3d

1288, 1312 (11th Cir. 2010).

Officials must “be aware

of facts from which the inference could be drawn that a
substantial risk of serious harm exists,” and “draw the
inference.”

Farmer v. Brennan, 511 U.S. 825, 837 (1994).

The defendant’s subjective awareness of a risk of harm
can

be

determined

based

on

circumstantial

evidence,

including “the very fact that the risk was obvious.”

Id.

at

was

842.

In

other

words,

if

a

particular

risk

“longstanding, pervasive, well-documented, or expressly
noted

by

prison

officials

in

the

past,

and

the

79. Defendants also asserted that because the named
ADOC officials were not involved in the direct provision
of mental-health care to prisoners, they could not have
been deliberately indifferent to the plaintiffs’ serious
mental-health needs.
This court has already rejected
this argument. See Dunn v. Dunn, 219 F. Supp. 3d 1100,
1157-60 (M.D. Ala. 2016).
243

circumstances suggest that the defendant-official being
sued had been exposed to information concerning the risk
and thus ‘must have known’ about it,” such evidence
permits a trier of fact to conclude that the officials
had actual knowledge of the risk. Id. at 842-43 (internal
citation omitted).
The disregard prong can be proven in many ways.

In

the area of medical care, disregard of a risk of harm may
consist of “failing to provide care, delaying care, or
providing grossly inadequate care,” when doing so causes
a prisoner to needlessly suffer the pain resulting from
his or her illness.

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

1257 (11th Cir. 1999).

Put differently, Eighth Amendment

liability may be found if a defendant with subjective
awareness of a serious need provides “an objectively
insufficient response to that need.”
221

F.3d

considered

1254,
part

1258
of

(11th
the

Cir.

Taylor v. Adams,
2000).

subjective

Although

component,

the

requirement that the defendant disregard a risk of harm
actually evaluates her response (or lack thereof) by an

244

objective ‘reasonableness’ standard.

Farmer, 511 U.S.

at 847.
In some circumstances, a defendant’s disregard of a
known risk is quite obvious.

For example, the defendant

might “simply refuse[] to provide” medical care known to
be necessary.

Ancata v. Prison Health Servs., Inc., 769

F.2d 700, 704 (11th Cir. 1985) (allegations that prisoner
required a psychiatric evaluation that defendants refused
to

provide

satisfies

disregard

requirement).

If

a

defendant provides some medical care, the Constitution
does not require that the care be “perfect” or the “best
obtainable.”

Harris v. Thigpen, 941 F.2d 1495, 1510

(11th Cir. 1991).

Nonetheless, a defendant’s disregard

of the risk can still be found through “delaying the
treatment,” providing “grossly inadequate care,” making
“a decision to take an easier but less efficacious course
of treatment,” or providing “medical care which is so
cursory as to amount to no treatment at all.” McElligott,
182 F.3d at 1255 (collecting cases).

In other words, a

choice to provide care known to be less effective because

245

it

is

easier

indifference.

or

cheaper

can

constitute

deliberate

In the context of mental-health care, “the

quality of psychiatric care can be so substantial a
deviation

from

deliberate

indifference

needs.”

accepted

standards

to

those

as

to

serious

evidence

psychiatric

Steele v. Shah, 87 F.3d 1266, 1269 (11th Cir.

1996) (citing Greason v. Kemp, 891 F.2d 829, 835 (11th
Cir. 1990)).

Deliberate indifference can also be found

when “[a] prison official persists in a particular course
of treatment in the face of resultant pain and risk of
permanent injury” to the prisoner.

Rouse v. Plantier,

182 F.3d 192, 197 (3d Cir. 1999).
In

challenges

provision

of

to

medical

a

correctional

care,

evidence

institution’s
of

systemic

deficiencies can also establish the ‘disregard’ element
of deliberate indifference.

Harris, 941 F.2d at 1505.

For example, this element may be met “by proving that
there

are

‘such

systemic

and

gross

deficiencies

in

staffing, facilities, equipment, or procedures that the
inmate

population

is

effectively

246

denied

access

to

adequate medical care.’”

Id. (quoting Ramos v. Lamm, 639

F.2d 559, 575 (10th Cir. 1980), cert. denied, 450 U.S.
1041 (1981)).

As an evidentiary matter, these systemic

deficiencies may be identified by a “series of incidents
closely

related

in

time”

or

“[r]epeated

delayed or denied medical care.”

examples

of

Rogers v. Evans, 792

F.2d 1052, 1058-59 (11th Cir. 1986).

Further, prison

officials’ efforts to correct systemic deficiencies that
“simply do not go far enough” when weighed against the
risk

of

harm

also

support

a

finding

of

deliberate

indifference, Laube v. Haley, 234 F. Supp. 2d 1127, 1251
(M.D. Ala. 2002) (Thompson, J.), because such efforts are
not

“reasonable

measures

to

abate”

substantial risk of serious harm.

the

identified

Farmer, 511 U.S. at

847.
Finally, the defendant institution’s response to a
known

risk

negligence.”

must

be

more

blameworthy

than

“mere

Farmer, 511 U.S. at 835 (citing Estelle v.

Gamble, 429 U.S. 97, 106 (1976)).

In other words, the

defendant must have disregarded the risk with “more than

247

ordinary lack of due care for the prisoner’s interests
or safety.”

Id. (quoting Whitley v. Albers, 475 U.S.

312, 319 (1986)).

However, while an “inadvertent failure”

to provide adequate medical care does not satisfy the
deliberate-indifference standard, Estelle, 429 U.S. at
105-06, in challenges to health-care systems, repeated
examples of negligent conduct support an inference of
systemic disregard for the risk of harm facing mentally
ill prisoners.

See 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 pattern of conduct by the prison medical
staff.”).
In

an

official-capacity

suit,

the

suit

is

not

“against the official personally, for the real party in
interest is the [governmental] entity”; therefore, the
deliberate-indifference
institution’s

inquiry

“historical

focuses

on

the

indifference”

to

the

identified risk of harm, rather than the named defendant

248

official’s personal indifference. LaMarca v. Turner, 995
F.2d

1526,

1542

(11th

Cir.

1993)

(finding

that

substitution of a new defendant, “a dedicated public
servant who is trying very hard to make [the prison] an
efficient and effective correctional institution” does
not preclude a deliberate-indifference finding); see also
Laube, 234 F. Supp. 2d at 1249 (“[T]he real parties in
interest are the responsible entities: the Department of
Corrections and, ultimately, the State of Alabama.”).
This case is likely sui generis in the extent to
which the top ADOC officials had personal knowledge of
the

substantial

risks

of

serious

harm

posed

by

its

deficient care and has not responded reasonably to those
risks.
own

Much of the evidence came from ADOC officials’
mouths:

Commissioner

defendants--particularly
Naglich--and

other

officials

Associate
readily

admitted to the existence of serious deficiencies, the
risk of harm arising from them, and ADOC’s failure to
respond.

As a result, although plaintiffs do not have

to prove personal deliberate indifference by the named

249

defendants in order to establish institutional deliberate
indifference,
indifference

the
is

court’s

well

finding

supported

of

by

deliberate

defendants’

own

admissions of knowledge and failure to act, in addition
to the other circumstantial evidence more typically seen
in official-capacity suits.

1. ADOC’s Knowledge of Harm and Risk of Harm
The inadequacies plaguing ADOC’s mental-health care
system were pervasive and well-documented in multiple
ways:

ADOC

annual

received

monthly

contract-compliance

statistical
reports

reports

from

and

MHM;

ADOC

communicated with senior MHM managers through emails and
quarterly CQI meetings; ADOC received corrective-action
plans from MHM after compliance reviews and audits; ADOC
also performed two audits of MHM’s performance since 2011.
As a result, ADOC has been well aware of the risks
presented by the deficiencies in its mental-health care.
ADOC has been well aware of the significant and
adverse

impact

of

overcrowding,
250

mental-health

understaffing,

and

correctional

understaffing

on

the

provision of mental-health care.

Associate Commissioner

Naglich

2010,

admitted

struggling

to

that,

meet

since

contractual

MHM

has

requirements

staffing cuts and increasing caseloads.

been

due

to

In addition,

MHM’s program director Houser repeatedly raised concerns
about inadequate mental-health staffing with Naglich,
requesting for over a year to amend the contract to
increase

staffing

across

facilities;

she

also

told

Naglich repeatedly that MHM needed more counselors in
order

to

meet

psychological

the

rising

associates

demand,

were

not

because

taking

ADOC’s

counseling

caseloads from MHM providers as anticipated.
Both Dunn and Naglich have been aware that persistent
correctional

understaffing

has

interfered

ability to provide mental-health care.

with

MHM’s

According to

Naglich, in the years since 2010, MHM has repeatedly
informed ADOC that the lack of sufficient correctional
staffing has been seriously impacting its ability to
provide care.

ADOC’s own audit of the Donaldson RTU in

251

2013

also

revealed

that

check-in

rounds,

individual

appointments, and regularly scheduled activities had to
be delayed or canceled due to the limited number of
officers assigned to the mental-health unit. At least
since 2013, Naglich has repeatedly complained to ADOC’s
Commissioner,

former

Commissioner,

and

Associate

Commissioner of Operations about the chronic shortage of
correctional
care.

officers

interfering

with

mental-health

She characterized correctional understaffing as

“probably one of the most serious problems facing the
department.”

Naglich Testimony at vol.2, 174-75.

Ample evidence also demonstrates ADOC’s knowledge of
the

risks

of

harm

arising

out

of

the

specific

deficiencies in the treatment of mentally ill prisoners
discussed
informed

earlier.
ADOC

in

deficiencies

First,
their

reports

arising

shortages--including
counseling

sessions

undermining

their

MHM

ability

and

out

difficulties
and

managers
emails
of
in

252

provide

that

care.

the

staffing

providing

activities--were
to

repeatedly

timely

seriously
Second,

Naglich

admitted

that

that

the

failure

to

meet

the

mental-health needs of prisoners with serious mental
illness--in other words, the risk of harm arising from
failing to identify prisoners in need of mental-health
care and providing them with the appropriate level of
care--puts them at risk of decompensating.
ADOC was also well aware of the specific deficiencies.
To

begin,

ADOC

was

aware

that

its

processes

for

identifying and classifying mentally ill prisoners were
inadequate.

ADOC has had a persistently low prevalence

rate of mental illness, and ADOC officials have known
that LPNs with extremely limited training are responsible
for

identifying

services.
informed

prisoners’

needs

for

mental-health

Moreover, Associate Commissioner Naglich was
of

the

persistent

pattern

of

self-injury,

attempted suicides, and suicides involving prisoners who
had not been identified as mentally ill; MHM’s corporate
office had repeatedly informed her in contract-compliance
reports that requests for mental-health services were not
being processed appropriately according to their urgency

253

level.

In sum, the circumstances make clear that she had

been exposed to information concerning the problems and
thus ‘must have known’ about them.

Farmer, 511 U.S. at

842-43.
Deficiencies

in

treatment

planning

have

been

longstanding, persistent, and well documented, including
in reports directly delivered to Associate Commissioner
Naglich.

MHM

notified

ADOC

of

the

lack

of

individualization of treatment plans for years in audits
and

quarterly

CQI

meetings.

MHM’s

annual

contract-compliance reports to ADOC between 2011 and 2016
also noted that treatment plans were inadequate across
all levels of care, from outpatient to crisis care.
ADOC’s

own

2013

audit

of

Donaldson

identified

as

a

problem that treatment team meetings--where treatment
planning

occurs--frequently

were

held

without

all

necessary participants.
The problem of insufficient counseling services has
also been longstanding and well known.
admitted

her

knowledge

of

a

254

First, Naglich

persistent

shortage

of

counselors and increasing caseloads, as well as a chronic
shortage of correctional officers for escorting prisoners
to appointments.

Second, multiple sources informed her

and other ADOC officials of serious problems in the
provision of group counseling services; she also admitted
that the shortage of correctional officers hindered MHM’s
ability

to

provide

group

therapy

sessions.

Contract-compliance reports given to Naglich repeatedly
informed her that multiple facilities were not getting
enough group counseling sessions over the years.
monthly

operations

statistics

on

the

reports

to

ADOC,

which

number

of

individual

MHM’s
contain

treatment

encounters and group sessions each month, also made clear
that little group counseling was occurring at multiple
prisons.

For example, the monthly operations report for

April 2016 showed that no outpatient group therapy was
offered at Donaldson, Easterling, Kilby, or St. Clair.
Moreover, MHM has repeatedly discussed the problem of
increasing

caseloads

for

counselors

and

the

unavailability of group treatment at many facilities

255

during

quarterly

CQI

meetings,

which

ADOC

Chief

Psychologist Tytell attends on behalf of the agency.
ADOC officials have also been aware of the array of
well-documented problems plaguing inpatient-level care.
MHM has been reporting low utilization rates for RTU and
SU beds to Naglich and her office every month; Naglich
admitted that she has been aware of the presence of
prisoners in segregation without any mental-health needs
in

mental-health

therapeutic
revealed

units,

and

environment;

that

patients

that

ADOC’s
were

this
audit

not

disrupts
of

getting

the

Donaldson
sufficient

out-of-cell time and counseling; and Naglich has known
that

ADOC

does

not

provide

hospital-level

care

to

patients who need it.
ADOC

officials

inadequacies

in

Commissioner

Dunn

have

suicide

been

well

prevention

personally

reviews

aware

and

of

crisis

the
care.

suicide-incident

reports and has been aware of the precipitous increase
in the suicide rate in the last two years; he has been
also aware that most of the suicides were committed by

256

hanging and in segregation.

For her part, Naglich has

known even of the specific, system-wide conditions that
create substantial risks of suicide: she was notified of
the chronic crisis-cell shortage80 and the backlog at the
Bullock

SU

that

has

been

driving

the

shortage;

MHM

complained to her about unsafe crisis cells with tie-off
points and low visibility, and her office’s own audit
included the same findings; and MHM repeatedly reported
to Naglich that sharp items were found in crisis cells.
Naglich also admitted that not having a constant-watch
procedure for the most acutely suicidal inmates is a
serious problem that poses a risk of harm in such a way
that “someone could die.”

Naglich Testimony at vol. 3,

228.
Perhaps most dramatically, ADOC has been aware of
the actual harm and the substantial risk of serious harm
that ADOC’s segregation practices pose to mentally ill

80. ADOC Associate Commissioner Culliver and the
regional coordinator for medical care, Brendan Kinard,
also have been aware of crisis-cell shortage and the
resulting placement of suicidal prisoners in non-crisis
cells for years.
257

prisoners.

Commissioner Dunn has been aware of the fact

that mentally ill prisoners resided in segregation, and
that segregation could exacerbate their mental illness.
Naglich has been receiving monthly reports that showed
overrepresentation
segregation.

ADOC’s

segregation.

mentally

ill

prisoners

in

MHM staff repeatedly communicated to ADOC

officials--both
about

of

orally

placement

and
of

in

writing--their

mentally

ill

concern

prisoners

in

MHM’s annual contract-compliance reports

between 2012 and 2016 reported that multiple facilities
had

disproportionate

numbers

of

prisoners

on

the

mental-health caseload in segregation and recommended
further review of the mental-health consultation process
and

monitoring.

See

Pl.

Ex.

1191,

2012

Contract-Compliance Report (doc. no. 1070-9); Pl. Ex. 114,
2013 Contract-Compliance Report (doc. no. 1070-4); Pl.
Ex.

115,

1070-5).

2016

Contract-Compliance

Report

(doc.

no.

Moreover, MHM leadership has communicated the

grave and potentially lethal risks of such segregation
practices to ADOC officials, including Naglich.

258

For

example, over the last four to five years on multiple
occasions, Dr. Hunter, MHM’s medical director, has had
discussions with ADOC leadership regarding mentally ill
prisoners’ potential to deteriorate while in segregation.
MHM’s program director Houser has repeatedly informed
ADOC officials that placement of mentally ill prisoners
in segregation should be avoided because of the potential
harm to those prisoners.
housing

mentally

ill

Naglich herself admitted that
prisoners

in

segregation

is

“categorically inappropriate.” Naglich Testimony at vol.
5, 73.
While aware of the substantial risk of serious harm
posed by segregation, ADOC has also known that certain
ADOC disciplinary practices result in frequent placement
of mentally ill prisoners in segregation.
Commissioner

Naglich

practice

disciplining

of

admitted

that

prisoners

ADOC
for

Associate
has

had

engaging

a
in

self-injurious behaviors. Furthermore, both MHM’s and
ADOC’s

own

audits

revealed

that

the

mental-health

consultation component of the disciplinary process was

259

not properly functioning to keep mentally ill prisoners
out of segregation.
Lastly, ADOC has also been aware of the inadequate
monitoring

and

segregation.

access

to

treatment

for

prisoners

in

ADOC’s chief psychologist Tytell informed

Naglich that segregation rounds by mental-health staff
were

not

being

done

properly

and

that

mental-health

patients in segregation were not receiving treatment.
Furthermore, ADOC officials have been well aware that
segregation placement has been a common factor among
suicides.

Indeed, the great danger to mentally ill

prisoners in segregation is obvious: prisoners are locked
away for weeks at a time in cells with little monitoring
and easy access to the means to kill themselves.

In

other words, ADOC has been aware of the actual harm that
has resulted from segregation practices, in addition to
the

substantial

segregation

risk

practices

of

serious

have

prisoners.

260

imposed

harm
on

that

ADOC’s

mentally

ill

In sum, evidence established that ADOC has been aware
of the gross deficiencies found in its treatment of
mentally ill prisoners.

2. ADOC’s Disregard of Harm and Risk of Harm
Despite its knowledge of actual harm and substantial
risks of serious harm to mentally ill prisoners, ADOC has
failed to respond reasonably to identified issues in the
delivery of mental-health care.

On a global level, the

state of the mental-health care system is itself evidence
of ADOC’s disregard of harm and risk of harm: in spite
of countless reports, emails, and internal documents
putting ADOC on notice of the actual harm and substantial
risks

of

serious

harm

posed

by

the

identified

inadequacies in mental-health care, those inadequacies
have

persisted

for

years

and

years.

Suicide

risk-assessment tools are still not being used outside
of intake; referral requests are still not being triaged
according to their urgency levels; records from late 2016
indicated a continued lack of individualized treatment
261

plans and inadequate frequency of individual and group
counseling; segregation prisoners without mental-health
needs

are

still

found

in

mental-health

units;

no

hospitalization option or hospital-level care for the
most severely ill exists; suicidal prisoners continue to
be housed in unsafe cells without adequate monitoring;
and

mentally

ill

prisoners

segregation

without

a

consultation

process

and

still

meaningful
have

even

are

placed

in

mental-health
less

access

to

treatment.81
81. Likewise, the current levels of mental-health
and correctional understaffing and overcrowding also
illustrates ADOC’s disregard of risk of harm.
First,
ADOC’s response to the shortages of mental-health and
correctional staff have been objectively insufficient,
because systemic and gross deficiencies arising from
understaffing have persisted and effectively denied
prisoners access to adequate mental-health care. Taylor,
221 F.3d at 1258 (holding that the ‘disregard’ prong
under Estelle and Farmer can be satisfied through an
“objectively insufficient response” by prison officials);
Harris, 941 F.2d at 1505 (deliberate indifference can be
established through “systemic and gross deficiencies in
staffing” that effectively deny prisoners access to
adequate medical care); see also Coleman v. Wilson, 912
F.
Supp.
1282,
1319
(E.D.
Cal.
1995)(Karlton,
J.)(“[G]iven the nature and extent of the crisis and its
duration,” defendants’ purported efforts to remedy the
acute shortage of mental-health staff in the prison
262

In addition to its failure to respond reasonably to
these deficiencies, ADOC’s disregard for the substantial
system
were
not
sufficient
to
defeat
a
deliberate-indifference
finding).
Furthermore,
difficulties in recruiting do not negate the fact that
understaffing has caused this serious systemic deficiency.
See Wellman v. Faulkner, 715 F.2d 269, 273 (7th Cir. 1983)
(failure of a prison to fill authorized position weighs
“more heavily against the state than for it,” partly
because the authorized salary was woefully inadequate and
the prison’s effort was insufficient); Madrid v. Gomez,
889 F. Supp. 1146, 1227 (N.D. Cal. 1995) (Henderson, J.)
(finding
“recruitment
difficulties
do
not
excuse
compliance with constitutional mandates.”).
In other
words, ADOC’s failure to provide mental-health and
correctional staffing sufficient to operate a minimally
adequate mental-health care system is in itself an
unreasonable response under the deliberate-indifference
standard.
The same logic applies to overcrowding. While it is
true that ADOC does not have the authority to release
prisoners or stem the inflow of prisoners from the
state’s criminal justice system, ADOC’s response to
overcrowding has been objectively insufficient. This is
because the court does not consider the overcrowding
problem in a vacuum.
ADOC has been well aware of the
magnitude and impact of overcrowding on every facet of
its operations for years.
ADOC’s efforts--belatedly
pushing for construction of new prisons in 2016, for
example--to alleviate the problem have been too little
and too late, as reflected in the current 170 % occupancy
rate.
Considering
the
institution’s
historical
deliberate indifference to the problem of overcrowding,
rather than what ADOC has done under the current
leadership only, the court finds that ADOC has
disregarded to the harm and risk of harm caused by
overcrowding and understaffing.
263

risk of serious harm to mentally ill prisoners manifested
itself in two additional ways: its persistent refusal to
exercise any meaningful oversight of MHM’s delivery of
care;

and

its

unreasonable

responses

to

critical

incidents and discrete issues brought to their attention
over the years.

a.

ADOC’s Failure to Exercise Oversight of the
Provision of Mental-Health Care

ADOC’s Office of Health Services, run by Associate
Commissioner Naglich, has done vanishingly little to
exercise oversight of the provision of care to mentally
ill prisoners. This failure exemplifies ADOC’s disregard
of the substantial risk of serious harm to mentally ill
prisoners

within

ADOC.

Two

facts

provide

important

context for understanding this failure: first, ADOC has
been well aware of the inadequacies in the treatment of
mentally

ill

prisoners

discussed

above;

second,

as

explained in this section, ADOC has known that MHM’s own
quality-control
implementing

process

corrective

is

hopelessly

actions.
264

inadequate
Despite

in

clear

indications that the same inadequacies persisted year
after year, and that its contractor has been failing to
implement corrective actions, ADOC chose to exercise
close to no oversight, abdicating its constitutional
obligation to ensure that the provision of mental-health
care is minimally adequate.82
unreasonable

and

therefore

Such inaction is clearly
amounts

to

deliberate

indifference.
As an initial matter, a brief overview of MHM’s
quality-control processes illustrates the unreasonable
nature

of

ADOC’s

response.

Though

designed

for

‘continuous quality improvement,’ MHM’s quality-control
processes do not ensure that the identified deficiencies

82. In fact, instead of penalizing MHM for its known
inadequacies, ADOC extended the contract with MHM for one
more year in September 2016.
Associate Commissioner
Naglich credibly testified that, as a result of her
negative view of MHM’s performance, she recommended
awarding the mental-health contract in 2013 to another
contractor, rather than renewing the contract with MHM;
She likewise stated that before the department extended
its contract with MHM in 2016, she told Commissioner Dunn
that MHM was not “measuring up,” Naglich Testimony at
vol. 4, 121, adding that Dunn was also dissatisfied with
all the issues that ADOC has had with MHM. And yet, ADOC
renewed the contract with MHM regardless.
265

are

corrected,

mainly

because

many

of

the

necessary

corrective actions require cooperation and action by ADOC.
MHM’s

corporate

office’s

annual

contract-compliance

audit is the only system-wide review of MHM’s performance
that either MHM or ADOC conducts.

Once the review is

complete, MHM sends a contract-compliance report, as well
as

a

corrective-action

Health Services.83

plan,

to

Naglich’s

Office

of

However, it is unclear whether anyone

within MHM monitors the implementation of corrective
actions.

Moreover,

for

many

of

the

identified

deficiencies, MHM cannot address them effectively without
ADOC’s

help:

corrective

actions--such

as

obtaining

adequate staff to facilitate therapy appointments and

83. One former MHM employee testified that these
audit results are not reliable, because MHM staff on site
pull medical records to be audited ahead of time and get
them up to par before the corporate auditors review them.
Plaintiffs’ expert Dr. Burns also observed that the
facility staff select the files for review, rather than
the corporate office randomly selecting the files. While
this testimony raises a concern that the reports may have
minimized negative findings, the court relies on them to
the extent the reports still found serious deficiencies
in the provision of mental-health care.

266

group activities--often require action by ADOC officers
and, crucially, more staffing.84

As a result, without

action on ADOC’s part, contract-compliance reports often
note the same problems recurring year after year: for
example, multiple annual reports found that treatment
plans were not updated consistently; that crisis cells
in various facilities were unsafe for suicidal prisoners;
and that prisoners in segregation and mental-health units
were not getting regular treatment due to the shortage
of correctional officers.85
The

regional-level

exercises--which

includes

quarterly

quality-improvement
audits

and

‘spot

84. MHM’s corrective-action plans reflect this
conundrum:
while
MHM
is
required
to
send
a
corrective-action plan in response, much of what is
required
to
fix
the
deficiencies
identified
in
contract-compliance reports involves ADOC actions. For
example, follow-up findings in the corrective-action plan
for 2016 included statements such as: “This is a work in
progress. Due to the staffing issues currently are not
being completed during the required time frame”; “Still
working with the MHPs on ensuring that the treatment plan
is completed during this time frame of admission.” Pl.
Ex. 1247, July 2016 Bullock IP Corrective Action Plan
(doc. no. 1099-10).
85. To be clear, the court notes that many identified
problems could be fixed by MHM, but are not.
267

audits’ by MHM’s CQI manager--also do not seem to result
in corrective actions.
that

no

one

is

In fact, the CQI manager admitted

responsible

for

ensuring

that

site

administrators address the issues identified through her
spot checks: she is only responsible for reporting the
findings, not addressing the problems; no documentation
of site-level follow-up is required.
“the

buck

doesn’t

stop

with

In her own words,

anyone.”

Davis-Walker

Testimony at vol. 2, 152.86
86. Asked how she knows that MHM is meeting contract
compliance goals if all follow ups are done at the site
level and she does not see any of those results, the CQI
manager responded, “[O]bviously, you do not understand
quality.” Davis Walker Testimony at vol. 2, 237. She
testified that the purpose of CQI is “refining []
process[es],” which she defined as determining how to
collect data and reflect it in a database. Davis-Walker
Testimony at vol. 1, 83. This singular focus on process
rather than substance on her part led to one of the more
bizarre exchanges of this trial: she insisted that all
spot-audit results showing failures to meet contract or
regulatory standards were exclusively attributable to
data-entry problems, and never to any actual failure to
provide appropriate care. For example, she insisted that
noncompliance reported in the audit, such as treatment
plans that were “outdated or requiring review,” reflected
database entry problems, even though finding the date of
the latest treatment plan did not involve looking in the
database.
Davis-Walker Testimony at vol. 2, 130-32.
Needless to say, the court did not find credible her
268

Naglich was well aware of MHM’s inability to address
identified problems.

In fact, Naglich blamed MHM for

most of the deficiencies in mental-health care at ADOC
and expressed particular dissatisfaction with MHM’s CQI
process: she complained in court that MHM identifies
problems, but does not help ADOC solve those problems.
But this was the proverbial pot calling the kettle black:
in spite of her concerns about MHM’s internal oversight
and her knowledge of deficiencies in care, Naglich and
OHS--the only ADOC department with responsibility for
monitoring mental-health care--have done almost nothing
that resembles ‘quality-improvement’ or even bare-bones
contract monitoring in response.
First, Associate Commissioner Naglich admitted that
she does not review the contract-compliance reports in
full or take actions based on their findings.

She

asserted that Dr. Tytell, the only staff member at OHS
with

mental-health

reviewing

the

expertise,

reports.

is

However,

responsible

Tytell

denied

for
ever

testimony that all identified problems are attributable
to mere data entry errors.
269

receiving the reports or being responsible for reviewing
them. 87

Not

surprisingly,

Naglich’s

testimony

also

revealed that neither she nor anyone else in her office
has taken any corrective measures in response to the
numerous inadequacies identified in the reports.
Second, ADOC has failed to monitor MHM’s provision
of mental-health care, despite having the tools to do so.
ADOC’s contract with MHM grants it access to MHM’s files
and

the

right

to

performance reviews.

conduct

scheduled

and

unannounced

The contract also authorizes ADOC

to assess fines for noncompliance found during formal
audits.

However,

provisions.
only

one

ADOC

has

not

made

use

of

these

Since 2011, Naglich’s office has conducted

informal

audit--in

response

to

a

specific

concern raised by a medical provider about a mentally ill
inmate--and one ‘pilot audit,’ both of which were limited

87. Lynn Brown, the only other person within OHS who
interacts with MHM regularly, also denied ever seeing the
reports or being responsible for reviewing them.

270

to the Donaldson facility.88

(Only the first, informal

audit produced a written report.)
assessment

that

MHM

was

“not

Despite Naglich’s own

measuring

up,”

Naglich

Testimony at vol. 4, 121, ADOC has not audited, even
informally, mental-health care at any prison other than
Donaldson, and has not conducted formal audits at any
prisons.

Because it has not conducted any formal audits,

ADOC has not been able to assess MHM any fines for
contractual noncompliance.
Even when ADOC conducted the informal audits at
Donaldson,
problems.

it

did

nothing

to

address

the

identified

The 2013 informal audit of Donaldson revealed

that the care provided at the Donaldson RTU was deficient
in many ways--so much so that Associate Commissioner
Naglich

described

it

as

a

Testimony at vol. 2, 55.
detail

in

Section

“failed

audit.”

Naglich

As discussed earlier in more

V.B.5,

the

audit

revealed

that

providers had difficulties accessing patients because of
88. MHM’s program manager Houser explained that
Naglich told her the ‘pilot audit’ would not “count” and
that the results would not be used as an “I gotcha.”
Houser Testimony at vol. 2, 176.
271

the correctional staffing shortage; group programming was
inadequate; bed space in the treatment units was used to
house segregation inmates; mental-health staffing was
inadequate;

security

for

mental-health

staff

was

inadequate; and patients were not getting sufficient
out-of-cell

time.

MHM’s

corrective-action

identified tasks for both ADOC and MHM.

plan

However, Naglich

was unable to identify a single follow-up action taken
by her office or MHM to address any of these issues.
ADOC’s lead auditor, Brendan Kinard, admitted that OHS
did not do anything to resolve problems identified in the
Donaldson audit.
Associate Commissioner Naglich offered no reasonable
explanation when pressed about the reason for the lack
of

follow-up

after

Donaldson audit.
the

chief

the

dismal

results

of

the

2013

She blamed the death of Dr. Cavanaugh,

psychologist

of

OHS

and

Dr.

Tytell’s

predecessor, who unexpectedly passed away in March 2014.
According to Naglich, Cavanaugh had been responsible for
contract

monitoring,

including

272

conducting

formal

and

informal

audits

ensuring

that

adequate.

of

the

MHM’s

delivery

quality

of

of

care,

mental-health

and

for

care

is

However, Naglich’s excuse did not hold water:

when asked to produce any documentation of audits or
follow-ups done by Dr. Cavanaugh before he passed away,
she was unable to do so; he apparently produced no written
reports

or

emails

about

his

findings

or

audits.

According to MHM’s program director Houser, Cavanaugh
conducted no system-wide or even facility-wide audits;
he simply performed ‘reviews’ that did not result in
corrective-action plans or written reports.
Moreover, the testimony of Dr. Tytell, who took Dr.
Cavanaugh’s place later in 2014, made clear that ADOC
still

does

little

to

contractual requirements.

ensure

that

MHM

is

meeting

Tytell admitted that he does

not conduct any system-wide or facility-wide audits, and
that he only examines patient records when he is trying
to learn something about a specific patient.

He attends

MHM’s quarterly CQI meetings, which last a whole day, but
he leaves around lunch time; he has missed one or two of

273

the four quarterly meetings in the last year.

He does

not look into issues raised at CQI meetings, unless
specifically
although

he

told

to

receives

do

so

by

Naglich. 89

programming

logs

Likewise,

and

monthly

operations reports from MHM, Tytell does nothing with
them because the information is “already old data” that
is “a couple months behind.”

Tytell Testimony at __.

The 2015 Donaldson ‘pilot audit’ also exemplified
ADOC’s inadequate response to identified problems in the
provision of mental-health care.

While conducting the

audit, Tytell became concerned that many of the medical
records he was examining were not meeting the benchmarks,
and called Associate Commissioner Naglich in the middle
of the audit to report the “dismal” results.
Testimony at __.
audit.

Tytell

Naglich simply told him to finish the

On the last day of the audit, Tytell informally

89. Lynn Brown, the other ADOC employee who attends
the MHM CQI meetings but does not have any mental-health
training, testified that she is not responsible for
reporting from the meetings unless specifically told to
do so. This office-wide lack of involvement in the CQI
process further supports the finding that ADOC has chosen
to abdicate its duty of ensuring that MHM’s delivery of
mental-health care is minimally adequate.
274

discussed his preliminary findings in an exit interview
with the site administrator and two people from MHM’s
regional

office.

However,

no

one

at

OHS

formally

communicated with MHM regarding the problems found in the
audit or gave written feedback, even though many of the
same inadequacies from the 2013 audit were identified
again,

and

Houser

specifically

asked

for

feedback.

Because there was no written report, MHM did not develop
any corrective-action plans.
After he revised the audit tools based on the ‘pilot
audit’ results, Tytell asked Naglich whether OHS should
re-audit Donaldson using the new tools.
to not worry about it.

Naglich told him

Naglich also told him not to

conduct any more audits of any other facilities.

Tytell

disagreed with the decision not to re-audit but did as
he was told: as he explained, he “learned to stay in [his]
lane,” that is, “to do as I am ordered.” Tytell Testimony
at __.

OHS has not conducted any audit using the revised

audit tools since then.

275

In sum, in failing to exercise adequate oversight of
MHM’s performance and to address deficiencies identified
in the “failed” results of the 2013 Donaldson audit and
the “dismal results” of the 2015 Donaldson audit, ADOC’s
response to its knowledge of harm and risk of harm in the
mental-health

care

system

has

been

objectively

unreasonable.

b.
ADOC

ADOC’s Unreasonable Responses to Identified
Deficiencies
has

also

failed

to

respond

reasonably

to

discrete issues that come to its attention, even when
lives may be at stake.

In response to many of the

deficiencies identified above, ADOC officials admitted
to doing nothing in response to being informed.

ADOC

officials also repeatedly testified that they simply told
someone else about the risk of harm being created by
deficient treatment of mentally ill prisoners, and took
no

other

action,

even

though

informing

someone

else

within ADOC previously had failed to result in any change.
Insisting upon a course of action that has already proven
276

futile is not an objectively reasonable response under
the deliberate-indifference standard.
Examples

of

such

unreasonable

responses

abound.

First, as multiple ADOC and MHM staff admitted, sharp
items in crisis cells have been a recurring problem in
multiple facilities.

When Dr. Tytell was asked about

this problem, he simply stated: “I’m always told that
things will be taken care of and things will be done.
How to check up on it and follow up on it, I don’t know
how unless I’m told that it happens again.”
Testimony at __.

Tytell

Tytell’s statement epitomized ADOC’s

inadequate response to problems that pose serious risks
to prisoners: the sole ADOC official with mental-health
expertise insists on passing the buck even when the issue
involves self-harm by suicidal prisoners, and even when
his past experience has clearly shown him that simply
bringing problems to the attention of others does not fix
those problems.
Associate

Commissioner

Naglich

likewise

shirked

responsibility when asked about the issue of sharp items

277

found

in

crisis

cells:

even

though

she

knew

that

correctional officers were not following protocol by
failing to search crisis cells for sharp items that could
be used for self-harm, she maintained that she does not
have

the

authority

to

tell

correctional

officers

to

follow the protocols “because it’s a security concern,
so all that we can do is relay that concern to security.”
Naglich Testimony at vol. 4, 115.
Commissioner

Culliver

credibly

However, Associate

testified

that

as

an

associate commissioner herself, Naglich has the authority
to

tell

correctional

officers

to

comply

with

administrative regulations and protocols.
Associate Commissioner Naglich’s testimony was also
full of admissions that, despite knowledge of risks of
harm, ADOC took no action at all.

She admitted that she

had known about problems regarding visibility into crisis
cells at least since ADOC’s 2013 audit of Donaldson, but
she did not know what, if anything, had been done to
correct these problems in the years since.

When asked

why she has not done anything personally to address this

278

issue that she acknowledged as “critical,” she stated
that she does not have enough staff to do so.
Testimony at vol. 1, 173-74.

Naglich

Naglich also admitted that

ADOC officials did nothing in response to their own audit
finding

that

ADOC

had

applying

disciplinary

Likewise,

she

took

no

repeatedly-expressed

a

practice

action

in

automatically

for

sanctions

of

self-injury.

response

concern--which

she

to

MHM’s

shared--that

mentally ill prisoners are overrepresented in segregation,
until

after

prisoners

she

should

told

the

not

be

court
in

that

mentally

ill

segregation.

She

unconvincingly testified that if she had been notified
that

the

mentally

ill

were

disproportionately

being

housed in segregation, she “would have looked at each one
of those facilities.”
Naglich,

in

mentally

ill

segregation.90

fact,

Naglich Testimony at vol. 5, 138.

had

prisoners

been
have

informed
been

for

years

that

overrepresented

in

Yet, she admitted that she never inquired

90 . As explained in the knowledge section, MHM
managers, including Dr. Hunter and Houser, have both
discussed this issue with her on multiple occasions. In
279

into the facilities reported to have disproportionate
numbers of mentally ill prisoners in segregation.
ADOC’s response to the skyrocketing suicide rate also
demonstrates a frankly shocking level of disregard for a
known substantial risk of serious harm.

At the highest

level, Commissioner Dunn testified that he personally
tracks suicide rates and has looked at incident reports;
he is, of course, aware of the sharp increase in suicide
rates in the last two years within ADOC.

However, more

than a month after this trial began, he testified that
he has not ordered his staff to take any concrete measures
other than asking his chief of staff, Steve Brown, to
“look into it.”

Dunn Testimony at vol. 1, 45.

He has

never attended any meetings regarding suicides, or asked
for a written report or follow-up after suicide-related
meetings that took place in October 2015 and October 2016.
Associate Commissioner Naglich was not only aware of
the increase in the suicide rate, but also the risk
factors for suicides.

Yet, she and other ADOC officials

addition, MHM has been sending monthly operations reports
and annual contract compliance reports stating the same.
280

made

almost

no

effort

Naglich’s

view,

untreated

mental

treatment,

as

to

suicide

address

is

a

illness--in

well

suicide-prevention
risk

as

a

the

other
lack

measures,
of

risk

of

places
most

the

problem.

In

anyone

with

for
words,

a

acute
all

serious

lack

of

care

and

mentally

ill

bodily

harm

prisoners

at

possible.

She attended an October 2015 meeting focused

on the increase in suicide rates, where she learned that
segregation placement was a common factor among suicides.
However, neither she nor anyone else at ADOC took any
action to change ADOC’s housing of mentally ill prisoners
in segregation, and no follow-up meeting was scheduled
until October 2016.

During that 12-month period, six

prisoners committed suicide, doubling the annual rate
from 2015.

After the second meeting, ADOC again took no

action. Appallingly, ADOC officials directly responsible
for

mental

health--Naglich

and

Tytell--and

prisoner

placement--Culliver--all admitted that they were aware
of the sharp rise in suicides, participated in these two
meetings on the suicide rate, and took no action.

281

Associate Commissioner Naglich attempted to explain
this lack of response by stating that a new mental-health
coding system prohibiting placement of seriously mentally
ill prisoners in segregation was in the middle of a
roll-out at the time of her testimony in December 2016.
However, as explained earlier, her representation was
disputed by the testimony of two of her colleagues, who
explained that OHS moved ten mentally ill prisoners out
of segregation into the Donaldson RTU only after her
testimony, and that there was no official policy change.91
In a way, Naglich’s belated transfer of the prisoners is
all the more damning: the fact that she and Dr. Tytell
91. Tytell also tried to evade responsibility by
saying that he was not responsible for the actual
transfer or monitoring of the transfer: he first
contended that whether mentally ill prisoners are
actually being transferred out of segregation was up to
the wardens and site administrators, because they have
the mental-health codes of prisoners in segregation; he
insinuated that he did not have any way of monitoring the
movement of mentally ill prisoners in and out of
segregation. However, he then admitted that both himself
and Associate Commissioner Naglich do have access to the
mental-health codes of prisoners in segregation. At the
time of his testimony, Dr. Tytell had never run a report
to ascertain how many mentally ill prisoners remain to
be moved out of segregation, and Naglich had never
requested to see such a report.
282

could move ten RTU-level prisoners out of segregation and
into the RTU over the course of a few weeks suggests that
it was well within their ability to prevent seriously
mentally ill prisoners from being housed in segregation.
They could have taken this action in 2015, after the
first meeting on suicides, or in 2016, after the second
meeting, rather than waiting until January 2017.

By that

time, twelve more people, including a plaintiff in this
lawsuit, had committed suicide.

D. Ongoing Violation
Before granting injunctive relief against a state
official for an Eighth Amendment violation, the court
must find that the violation is ongoing and continuous
in order to fall under the Ex parte Young exception of
the Eleventh Amendment bar.

209 U.S. 123 (1908); see

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 281
(1997) (“An allegation of an ongoing violation of federal
law

where

the

requested

relief

prospective

is

ordinarily sufficient to invoke the Young fiction.”).

In

283

is

interpreting this requirement, the Eleventh Circuit has
held that “the ongoing and continuous requirement merely
distinguishes between cases where the relief sought is
prospective in nature, i.e., designed to prevent injury
that will occur in the future, and cases where relief is
retrospective.”
F.3d

1326,

1338

Summit Med. Assocs., P.C. v. Pryor, 180
(11th

Cir.

1999).

In

this

case,

plaintiffs are seeking prospective injunctive relief to
remedy serious inadequacies in the mental-health care
system that will continue to put mentally ill prisoners
at a substantial risk of serious harm if not corrected.
However, during the trial, defendants suggested that in
three different areas of mental-health care at issue here,
ADOC has started remedying the inadequacies, rendering
plaintiffs’
suitable

claims

for

as

to

resolution

those
by

the

areas

moot

court.

and

The

not

court

disagrees, and addresses each area in turn.92
92. The interplay between the mootness inquiry and
the ongoing-violation requirement under Ex parte Young
is somewhat unsettled.
However, the Eleventh Circuit,
along with the Fifth Circuit and the Sixth Circuit, has
suggested that a threat of recurrence sufficient to
284

First,
argued

during

that

the

the

2014

trial,
partial

defendants
settlement

repeatedly
between

the

parties regarding the distribution of razor blades to
prisoners

in

crisis

cells

and

segregation

units

has

rendered the issue of dangerous items in crisis cells
moot.

However, the settlement deals solely with the

policy

of

distributing

razor

blades

for

shaving

to

prisoners in those units, rather than the distinct issue
of keeping dangerous items--including but not limited to

render a claim not moot should also be sufficient for the
ongoing-violation requirement. See Nat'l Ass'n of Bds.
of Pharm. v. Bd. of Regents of the Univ. Sys. of Ga., 633
F.3d 1297, 1308-09 (11th Cir. 2011) (treating a dispute
regarding whether the plaintiff alleged an ongoing
violation as a mootness inquiry); K.P. v. LeBlanc, 729
F.3d 427, 439 (5th Cir. 2013) (rejecting the contention
that a non-moot claim did not meet the ongoing-violation
requirement, because “[that] theory, if accepted, would
work an end-run around the voluntary-cessation exception
to mootness where a state actor is involved”); Russell v.
Lundergan-Grimes, 784 F.3d 1037, 1047 (6th Cir. 2015)
(“[A]t the point that a threatened injury becomes
sufficiently imminent and particularized to confer
Article III standing, that threat of enforcement also
becomes sufficient to satisfy ... Ex parte Young.”)); see
also Muhammad v. Crews, No. 4:14CV379-MW/GRJ, 2016 WL
3360501, at *6 n.5 (N.D. Fla. June 15, 2016) (Walker,
J.) (summarizing the case law).
Here, the court
addresses
both
the
mootness
argument
and
the
ongoing-violation argument, though the analyses overlap.
285

razor blades--from being introduced into crisis cells by
other

means.

Multiple

employees

of

ADOC

and

MHM

testified that the presence of dangerous items in crisis
cells has been an ongoing problem.

Accordingly, the 2014

settlement of the razor-distribution issue does not moot
this inquiry or prevent the court from finding an ongoing
violation.
Second,
interim

defendants

agreement

protocols

moots

the

argued

that

‘revamping’
issue

crisis care in general.

of

the

January

suicide

suicide

2017

prevention

prevention

and

However, as discussed earlier,

suicide prevention encompasses much more than requiring
constant watch for the most acutely suicidal prisoners
and ensuring staggered-interval checks of others.

In

fact, various suicide prevention measures discussed in
this case are not covered by the interim agreement, and
defendants

have

not

implemented

them,

despite

their

knowledge of the risk of harm posed by the current
conditions.

For example, as this court saw firsthand

during its facility tours after the trial, segregation

286

cells and some crisis cells continue to have easily
accessible tie-off points, despite the fact that most
suicides

happen

in

segregation

cells.

93

Likewise,

despite the recommendation of defendants’ own expert that
a suicide risk-assessment tool be used for all prisoners
at a heightened risk of suicide, not just prisoners
coming through the intake process for the first time,
ADOC has failed to assess prisoners for suicide risks
outside of the intake process.94

When asked by the court

93. MHM’s program director Houser explained that
ADOC started looking into fixing the doors on the Holman
suicide watch cells (which have bars that can provide a
tie-off point) during the last week of December 2016.
This was close to a month after the trial had begun, and
years after MHM started reporting to ADOC that Holman
crisis cells are not safe.
These belated actions
illustrate that without a court order, ADOC will continue
to look the other way despite the glaring deficiencies
that put mentally ill prisoners at a substantial risk of
serious harm, including death.
94. As discussed earlier, many prisoners who commit
suicide while in ADOC custody are not actually on suicide
watch at the time; in fact, many reside in general
population units without receiving any mental-health
treatment.
This suggests that meaningful remedial
suicide prevention efforts cannot be confined to those
already identified as high risk, but also must include
identifying those at high risk among the general
population.
287

why this part of Dr. Patterson’s recommendation is not
being followed, Associate Commissioner Naglich answered
that she is “not sure where all it’s being used” and “it
would be a question better asked of MHM.” 95

Naglich

Testimony at vol. 3, 231.
Furthermore, evidence suggests that even the limited
remedial actions covered by the interim agreement have
not been fully implemented. Allegations of noncompliance
with

the

constant-watch

procedure

resulted

in

a

modification of the interim agreement in order to allow
plaintiffs’ counsel frequent monitoring visits to crisis
cells.

The court also witnessed firsthand during the

post-trial

site

visits

that

essential

parts

of

suicide-watch procedures were still not being followed:
many forms for 15-minute and 30-minute staggered-interval
checks of prisoners on suicide watch and mental-health
observation

were

pre-filled

and

at

exact

intervals.

ADOC’s inability to carry out the terms of the interim

95. The court attributes this lack of knowledge to
the Associate Commissioner being overwhelmed due to
understaffing.
288

agreement even in anticipation of this court’s announced
visit illustrates a severe, ongoing dysfunction in the
system, a striking indifference by ADOC to a substantial
risk of serious harm, or both.
court

finds

that

the

Needless to say, the

inadequacies

in

ADOC’s

suicide-prevention measures are ongoing.
Partly for this reason, the court declines to rely
on Commissioner Dunn’s testimony that he intends to abide
by

the

interim

agreement’s

constant-watch

procedures

until an expert or the court tells him otherwise.

Dunn’s

statement regarding his intent to enforce it indefinitely
is

not

reliable

given

the

evidence

of

noncompliance

already shown and Houser’s testimony that the budget and
the

layout

of

crisis

cells

make

constant

watch

unsustainable. In addition, Dunn’s statement of intention
is not enforceable in court, especially given that the
order approving the interim agreement specifically states
that it does not resolve any of the issues raised in
trial.

See

Interim

Agreement

Measures (doc. no. 1102).

on

Suicide

Prevention

In other words, defendants

289

have not satisfied the requirements for making a claim
moot by voluntary cessation: the Commissioner’s statement
cannot

be

said

to

have

“completely

and

irrevocably

eradicated the effects of the alleged violation,” and
there

is

a

reasonable

expectation

that

the

alleged

violation may recur, due to the risk and evidence of
non-compliance
defendant’s

and

the

statement

unenforceability

in

court.

See

of
Reich

the
v.

Occupational Safety and Health Review Comm’n, 102 F.3d
1200, 1202 (11th Cir. 1997) (holding that a request for
injunctive relief may become moot if: (1) “it can be said
with assurance that there is no reasonable expectation
that the alleged violation will recur and (2) interim
relief

or

events

have

completely

and

irrevocably

eradicated the effects of the alleged violation.”).
Third, defendants have also failed to show that the
inquiry into their segregation practices has become moot
or that they have stopped placing seriously mentally ill

290

prisoners in segregation.96

As discussed above, evidence

suggests that the new coding system as described by
Associate

Commissioner

implemented.

Naglich

has

not

yet

been

ADOC’s failure to address such an obvious

risk of harm despite their knowledge of the issue for
over two years vividly illustrates that the violation is
ongoing and will continue if the defendants are left to
their own devices.

E. Ex parte Young Defenses
Defendants advance two arguments regarding the Ex
parte Young doctrine: first, that the defendants, sued
in

their

official

capacities,

lack

the

authority

to

implement the remedy, and therefore cannot be proper
defendants; second, that the remedy would require the
State to expend money, and therefore is barred by the

96. Defendants did not make this argument explicitly
during the trial, but the court addresses it since
Associate Commissioner Naglich’s contention regarding
the new coding system could be construed as arguing that
plaintiffs’ claim regarding ADOC’s segregation practice
is now moot.
291

Eleventh Amendment--an argument that this court already
rejected

in

the

summary

judgment

opinion.

Neither

argument is viable under the Eleventh Amendment case law
and Ex parte Young, 209 U.S. 123 (1908).
The case law does not support the argument that the
Commissioner and the Associate Commissioner were not the
proper defendants to sue due to their alleged lack of
authority to implement the remedy.

The Supreme Court

rejected this line of argument in Papasan v. Allain, 478
U.S. 265 (1986), where the State of Mississippi contended
that plaintiffs had not sued officials who could grant
the relief requested, which was to remedy the State’s
unequal distribution of the benefits from the State’s
school land.
defendants,
defendant

The Court held that one of the named
the

because

Secretary
he

was

of

State,

responsible

was
under

a

proper
a

state

statute for “general supervision” of the local school
officials’

administration

of

the

lands

in

question;

because of those responsibilities, he could be properly
enjoined under Ex parte Young.

292

Id. at 282 & n.14.

The

Court’s holding ensured that if a state official violates
the Constitution while carrying out a responsibility
created

by

virtue

of

the

defendant’s

office,

defendant may be enjoined under Ex parte Young.

that

See also

Ex parte Young, 209 U.S. at 157 (explaining that “the
fact that the state officer, by virtue of his office, has
some connection with the enforcement of the act, is the
important and material fact”). The defendant’s authority
to implement the remedy was not relevant to the Ex Parte
Young analysis.
This circuit has repeatedly held that defendants
simply

must

have

“‘have

some

connection

with’

the

unconstitutional act or conduct complained of” in order
to be proper defendants for an injunctive-relief suit
under Ex parte Young.

Luckey v. Harris, 860 F.2d 1012,

1015-16 (11th Cir. 1988) (quoting and citing Ex parte
Young, 209 U.S. at 157 (internal alterations omitted)).
For example, in Grizzle v. Kemp, 634 F.3d 1314 (11th Cir.
2011), the Eleventh Circuit held that the Secretary of
State is a proper defendant in a suit challenging the

293

legality

of

a

state

election

law--even

though

that

official cannot implement the relief of changing the
law--since he has “both the power and the duty to ensure
that [local boards of elections] comply with Georgia’s
election code,” which “‘sufficiently connect[s] him with
the

duty

of

enforcement’”

unconstitutional law.

for

the

potentially

Id. at 1319 (quoting Ex Parte

Young, 209 U.S. at 161).

Conversely, in Summit Med.

Assocs., PC v. Pryor, 180 F.3d 1326 (11th Cir. 1999), the
court found that a state prosecutor is not a proper
defendant

in

a

lawsuit

challenging

a

private

civil-enforcement statute creating a private cause of
action, because a prosecutor has no connection with the
enforcement of a civil statute that enables an affected
private individual to sue.

The application of Ex parte

Young in the Eleventh Circuit as well as other circuits
is palpably distinct from the defendants’ formulation,
which

elides

the

distinction

between

having

“‘some

connection’ ... with the conduct complained of,” Luckey,
860 F. 2d at 1015-16 (quoting Ex Parte Young, 209 U.S.

294

at 157), and the “authority to remedy the alleged wrongs.”
Defs.’ Ex parte Young Trial Br. (doc. no. 1098) at 12.
Applying the proper formulation of Ex parte Young,
the Commissioner and the Associate Commissioner have the
constitutional
mental-health

duty
care

to
as

provide

the

minimally

officials

adequate

responsible

for

running the Alabama Department of Corrections and its
Office of Health Services; therefore, they have “the
ability to commit the unconstitutional act” of failing
to provide minimally adequate mental-health care, and the
Ex parte Young doctrine applies.

Okpalobi v. Foster, 244

F.3d 405, 421 (5th Cir. 2001) (en banc).
Defendants also seem to argue that any time a state
official requires someone else’s cooperation in order to
remedy a constitutional violation, that state official’s
unconstitutional act is immune from suit.
be.

This cannot

The Ex parte Young case law is replete with examples

where

a

court

finds

the

conduct

of

a

state

agency

unconstitutional, even when the named defendants in their
official capacities cannot remedy the violation alone.

295

For example, the Eleventh Circuit found that the Ex parte
Young

doctrine

adequacy

of

applied

counsel

to

a

provided

lawsuit
to

challenging

indigent

the

criminal

defendants in the State of Georgia in Luckey v. Harris,
860

F.2d

1012

(11th

Cir.

1988),

quoting

connection” language from Ex parte Young.

the

“some

Remedying some

of the allegations in that case, such as inadequate
supervision of court-appointed criminal defense counsel,
would have required third parties’ cooperation, including
hiring new personnel to supervise defense attorneys and
related

budget

appropriations--just

as

potential

remedies proposed by the parties in this case might
require

an

additional

budget

recruitment of new personnel.

appropriation

and

the

In other words, the fact

that the named defendants in their official capacities
may need third parties’ cooperation to carry out some of
the potential remedies does not bar Ex parte Young’s
applicability, because the doctrine only requires “some
connection”

between

the

alleged

officials’ responsibility.

296

wrongdoing

and

the

Defendants’ second argument--that the remedy would
require state expenditures in violation of the Eleventh
Amendment--is equally unavailing.

Defendants argue that

because the Commissioner and the Associate Commissioner
do not have the authority to appropriate more money to
their own budget, they are immune from this lawsuit under
the Eleventh Amendment.

The Supreme Court has clearly

held that the Eleventh Amendment does not bar an order
requiring expenditure of state funds if it is ancillary
to

injunctive

relief

for

an

ongoing

violation.

In

Edelman v. Jordan, 415 U.S. 651, 668 (1974), the Supreme
Court noted that the Eleventh Amendment did not bar suits
that had “fiscal consequences to state treasuries” that
“were the necessary result of compliance with decrees
which by their terms were prospective in nature.”

The

Court in Edelman also observed that having to spend more
money from the state treasury because the State needs to
conform its conduct to the court order is an “ancillary
effect” that is “a permissible and often an inevitable
consequence of the principle announced in Ex parte Young.”

297

Id. at 668.

The Court reiterated this principle in

Milliken v. Bradley, 433 U.S. 267, 289 (1977), upholding
a district court’s order requiring the State defendants
to pay one-half of the additional costs attributable to
a

remedial

desegregation.

education

scheme

to

support

school

In both of these cases, the Supreme Court

recognized that the State must pay for ancillary costs
of prospective, injunctive relief, regardless of whether
the named defendants in their official capacities--who
were standing in for the State based on the Ex parte
Young fiction--had the ability to appropriate more money
to their own budget.

See also Lane v. Cent. Ala. Cmty.

Coll., 772 F.3d 1349, 1351 (11th Cir. 2014) (“The Supreme
Court has recognized that compliance with the terms of
prospective injunctive relief will often necessitate the
expenditure of state funds.”) (citing Edelman v. Jordan,
415 U.S. 651 (1974)).

In fact, rather than precluding

relief, courts have found inadequate funding to be a
basis for finding of deliberate indifference.

See, e.g.,

Wellman v. Faulkner, 715 F.2d 269, 273 (7th Cir. 1983).

298

In sum, defendants are not immunized from liability
arising from ongoing constitutional violations simply
because they lack financial resources or the authority
to mandate certain specific measures that might remedy
the violation.

On the contrary, the Ex parte Young

doctrine allows this court to find liability and ensure
that

the

prison

system

provides

minimally

adequate

mental-health care.

VI. CONCLUSION
For the reasons above, the court holds that the
Commissioner of the Alabama Department of Corrections and
the Associate Commissioner of Health Services, in their
official capacities, are violating the Eighth Amendment
rights of the plaintiff class and of plaintiff Alabama
Disabilities

Advocacy

Program’s

constituents

with

serious mental-health needs who are in ADOC custody.
Simply put, ADOC’s mental-health care is horrendously
inadequate.

Based on the abundant evidence presented in

support

the

of

Eighth

Amendment
299

claim,

the

court

summarizes its factual findings in the following roadmap,
identifying the contributing factors to the inadequacies
found in ADOC’s mental-health care system:
(1) Failing

to

identify

prisoners

with

serious

mental-health needs and to classify their needs
properly;
(2) Failing to provide individualized treatment plans
to prisoners with serious mental-health needs;
(3) Failing to provide psychotherapy by qualified and
properly supervised mental-health staff and with
adequate frequency and sound confidentiality;
(4) Providing

insufficient

out-of-cell

time

and

treatment to those who need residential treatment;
and failing to provide hospital-level care to those
who need it;
(5) Failing to identify suicide risks adequately and
providing inadequate treatment and monitoring to
those who are suicidal, engaging in self-harm, or
otherwise undergoing a mental-health crisis;

300

(6) Imposing disciplinary sanctions on mentally ill
prisoners for symptoms of their mental illness,
and imposing disciplinary sanctions without regard
for the impact of sanctions on prisoners’ mental
health;
(7) Placing

seriously

mentally

ill

prisoners

in

segregation without extenuating circumstances and
for prolonged periods of time;97 placing prisoners
with serious mental-health needs in segregation
without adequate consideration of the impact of
segregation

on

mental

health;

and

providing

inadequate treatment and monitoring in segregation.
The court further finds that persistent and severe
shortages of mental-health staff and correctional staff,
combined with chronic and significant overcrowding, are
the

overarching

above-identified

issues

that

contributing

permeate
factors

each
of

of

the

inadequate

mental-health care.
97. The
court
recognizes
that
‘extenuating
circumstances’ and ‘prolonged periods of time’ are
somewhat ambiguous terms but leaves them to be defined
during the remedy phase with the parties’ input.
301

* * *
Accordingly, it is ORDERED that the court and the
parties

will

meet

to

discuss

a

remedy.

The

court

emphasizes that given the severity and urgency of the
need for mental-health care explained in this opinion,
the proposed relief must be both immediate and long term.
No partial final judgment shall issue at this time as to
the claim resolved in this entry.
DONE, this the 27th day of June, 2017.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE