Dunn et al v. Thomas et al

Filing 1656

PHASE 2A UNDERSTAFFING REMEDIAL OPINION. Signed by Honorable Judge Myron H. Thompson on 2/20/2018. (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)

PHASE 2A UNDERSTAFFING REMEDIAL OPINION
Previously this court found that the State of Alabama
provides inadequate mental-health care in its prisons in
violation of the Eighth Amendment’s prohibition against
cruel and unusual punishment.

See Braggs v. Dunn, 257

F. Supp. 3d 1171, 1267 (M.D. Ala. 2017) (Thompson, J.).
The court now finds that the State’s proposed plan to
remedy

one

overarching

violation--correctional
understaffing--is

minimally

aspect
and

adequate

albeit with minor modifications.

of

the

mental-health
and

acceptable,

I.

Background

A. Procedural Background
The plaintiffs in this class-action lawsuit include
a group of mentally ill prisoners in the custody of the
Alabama Department of Corrections (ADOC or Department).
The defendants are ADOC Commissioner Jefferson Dunn and
the ADOC Associate Commissioner of Health Services Ruth
Naglich,

who

capacities.

are

both

sued

in

only

their

official

In a liability opinion entered on June 27,

2017, this court found that ADOC’s mental-health care for
prisoners

in

its

custody

horrendously inadequate.”
1267.

was,

“[s]imply

put,

...

Braggs, 257 F. Supp. 3d at

The court laid out seven factors contributing to

the Eighth Amendment violation.

Id. at 1267-68.

In

addition, it found that “persistent and severe shortages
of mental-health staff and correctional staff” constitute
an “overarching issue[] that permeate[s] each of the ...
contributing factors of inadequate mental-health care.”
Id. at 1268.

“[G]iven the severity and urgency of the

2

need for mental-health care explained in [the] opinion,”
the court emphasized, “the proposed relief must be both
immediate and long term.”
After

two

months

Id.
of

mediation

to

develop

a

comprehensive remedial plan, it became apparent that the
remedy was too large and complex to be addressed all at
once.

The

court

therefore

severed

the

remedy

several discrete issues, to be addressed seriatim.
Phase

2A

Revised

Remedy

Scheduling

Amendment Claim (doc. no. 1357).

Order

on

into
See

Eighth

The court explained:

“To be sure, in a sense all of the contributing factors
identified in the court’s June 27 opinion warrant urgent
resolution.

Indeed,

a

continuing

Eighth

Amendment

violation, because it is ‘cruel and unusual,’ could be
viewed as in need of swift and serious attention of both
courts and the parties involved.

Yet the court is

convinced that breaking down the issues in the above
manner will, in the long run, result in a more efficient,
timely,

and

litigation.”

full

resolution

Id. at 7-8.

3

of

this

aspect

of

this

Because of the centrality of understaffing to other
problems in ADOC’s provision of mental-health care, it
was determined that this issue “must be addressed at the
outset,” and that “the earlier the problem is attacked
the better.”

Id. at 4-5.

Accordingly, on October 9,

2017, the defendants submitted a proposed remedial plan
on understaffing, to which the plaintiffs were allowed
to respond.

The court then held a nine-day evidentiary

hearing, and heard oral argument, in late 2017 on whether
the plan should be adopted as proposed, and whether a
remedial order should be entered at this time.

After

oral argument, the parties were instructed to submit
proposed orders.

Because the plan changed in certain

respects over the course of this process, the defendants
submitted a revised timeline.

B. Liability Findings as to Understaffing
In addition to the seven “contributing factors” to
the

Eighth

Amendment

violation,

the

court

more

specifically found that persistent and severe shortages

4

of correctional and mental-health staff have “cascading
effects” that “contribute to all of the deficiencies in
ADOC’s treatment of mentally ill prisoners.”
F. Supp. 3d at 1188, 1193.
maintained

mental-health

chronically

Braggs, 257

The court noted: “ADOC has
staffing

insufficient

levels

across

that

disciplines

are
and

facilities. Witness after witness identified significant
mental-health staffing shortages as one of the major
reasons

for

ADOC’s

inability

to

meet

mental-health care needs of prisoners.”

the

rising

Id. at 1194.

Indeed, ADOC Commissioner Dunn described understaffing,
along with overcrowding, as a “two-headed monster” facing
the prison system.
Moreover,

Id. at 1184.

as

the

court

explained,

ADOC’s

understaffing problem is self-compounding: shortages in
mental-health staff lead to unbearably high caseloads for
mental-health
turnover

and

caseloads.
correctional

staff
further

members,

understaffing,

Id. at 1196.
staff

which

in

turn

causes

and

even

higher

The Department’s lack of

“leaves

5

many

ADOC

facilities

incredibly

dangerous

“prisoners

and

and

out

of

correctional

control”

officers

witnesses

testified

at

alike”

causes
to

be

Id. at 1198.

“justifiably afraid for their safety.”
multiple

and

As

the

understaffing

remedial hearing, this legitimate perception of danger
to

correctional

staff--which

understaffing--begets

further

is

a

direct

result

understaffing:

it

of

is

a

major impediment to recruitment and retention.
The court found that understaffing underlies ADOC’s
deficient
shortage

mental-health
of

plethora

care

mental-health
of

in

staff

issues,

several
has

ways.

resulted

including

The
in

“a

insufficient

identification of mental illness at intake and referrals;
missed counseling appointments and group sessions; and
inadequate

monitoring

crises.”

Id.

at

of

prisoners

1197.

Further,

in

mental-health

the

shortage

in

correctional staffing inhibits the delivery of adequate
mental-health

care

because

it

prevents

ADOC

from

escorting inmates to their mental-health appointments;
hinders

correctional

officers’

6

ability

to

supervise

mentally ill prisoners; and diminishes officers’ ability
to identify and refer potentially mentally ill prisoners
for

treatment.

understaffing

Id.

“also

at

has

a

1200-04.
more

Correctional

direct

impact

on

prisoners’ mental health” in that “[t]he combination of
overcrowding and understaffing leads to an increased
level of violence” in ADOC facilities.
addition,

the

correctional

court
and

found

that

mental-health

the

Id. at 1200.
lack

staffing

of

In

both

results

in

inadequate monitoring of prisoners in segregation, and
contributes to “a vicious cycle of isolation, inadequate
treatment, and decompensation.”

II.

Id. at 1243-45.

Legal Standard

The Prison Litigation Reform Act (PLRA) provides that
a “court shall not grant or approve any prospective
relief

unless

the

court

finds

that

such

relief

is

narrowly drawn, extends no further than necessary to
correct the violation of a Federal right, and is the
least intrusive means necessary to correct the violation

7

of the Federal right.”

18 U.S.C. § 3626(a)(1)(A).

In

conducting this ‘need-narrowness-intrusiveness’ inquiry,
a court is required to “give substantial weight to any
adverse impact on public safety or the operation of a
criminal justice system caused by the relief.”

Id.

“As this court has stated before, [prison officials
in cases challenging prison conditions] should be given
considerable
remedy

for

deference
the

in

determining

constitutional

an

violations

appropriate
involved.”

Laube v. Haley, 242 F. Supp. 2d 1150, 1153 (M.D. Ala.
2003) (Thompson, J.) (citing Bell v. Wolfish, 441 U.S.
520, 547-48 (1979)); see also Turner v. Safley, 482 U.S.
78, 85 (1987) (“[F]ederal courts have ... reason to
accord

deference

to

the

appropriate

prison

authorities.”).
Nevertheless,

courts

retain

remedy constitutional violations.

a

responsibility

to

See Brown v. Plata,

563 U.S. 493, 511 (2011) (citing Hutto v. Finney, 437
U.S. 678, 687, n.9 (1978)).

“Courts must be sensitive

to the State’s interest in punishment, deterrence, and

8

rehabilitation, as well as the need for deference to
experienced and expert prison administrators faced with
the difficult and dangerous task of housing large numbers
of convicted criminals. Courts nevertheless must not
shrink

from

their
rights

constitutional

obligation
of

all

to

enforce

‘persons,’

the

including

prisoners. Courts may not allow constitutional violations
to

continue

simply

because

a

remedy

would

involve

intrusion into the realm of prison administration.”
at

511.

(quotation

Accordingly,

marks

the

administrators

in

and

citations

deference

remedying

must not be “complete.”

afforded

constitutional

Id.

omitted).
prison
violations

See King v. McCarty, 781 F.3d

889, 897 (7th Cir. 2015) (per curiam) (citing Plata, 563
U.S. at 511).

III.
A.

Discussion

The Defendants’ Proposed
Remedial Plan

The defendants’ proposed remedial plan has evolved
in some respects during the course of the evidentiary
9

hearing and oral argument.

Accordingly, the court now

sets out its understanding of the plan, including minor
tweaks, which it today adopts.

1. Correctional Staffing
a.

The

Savages’

Staffing

Analyses.

In

order

to

determine how many officers are needed to address ADOC’s
correctional understaffing problem, the defendants have
retained experts Margaret and Merle Savage to conduct
comprehensive staffing analyses at each of ADOC’s major
facilities, with the exception of the Julia Tutwiler
Prison

for

Women.1

By

the

time

of

the

evidentiary

1. A staffing analysis of Tutwiler was recently
conducted by The Moss Group pursuant to a Consent Decree
in United States v. Alabama, Case No. 2:15-cv-368-MHT-TFM
(M.D. Ala.) (Thompson, J.). Although that case involved
sexual harassment and assault of inmates, rather than
mental-health care, the parties have agreed that the
analysis provides an adequate basis for determining
Tutwiler’s current correctional staffing needs, and that
the Savages need not conduct a separate staffing analysis
of Tutwiler at this time. The court understands that the
Savages will therefore use The Moss Group’s analysis in
formulating their recommendations for Tutwiler, and-along with the analyses of other facilities--their
recommendations for ADOC’s system as a whole.
In
addition, to the extent that future remedial orders
10

hearing, the Savages had already completed preliminary
analyses at three facilities: Bibb Correctional Facility,
Donaldson Correctional Facility, and Hamilton Aged and
Infirmed Center.

According to the defendants’ plan, the

Savages are to complete final staffing analyses for all
15

major

short-

and

facilities
long-term

except

Tutwiler,

recommendations

as

for

well
all

as

major

facilities including Tutwiler, by May 1, 2018.2

require the Savages to reevaluate facilities based on new
programmatic needs or other changes in circumstances, any
such reevaluations will necessarily include Tutwiler
because the current staffing analysis does not account
for those changes.
2. In the defendants’ proposed remedial plan (doc.
no. 1374), in the defendants’ pretrial brief (doc. no.
1478), throughout the nine-day evidentiary hearing on
understaffing, and during the post-trial oral argument
on January 24, 2018, the defendants maintained that the
proposed remedy as to understaffing would apply to all
15 major ADOC facilities, with the exception that the
Savages would not conduct a staffing analysis at the
Tutwiler facility at this time because one has recently
been done (as discussed above). However, the defendants’
proposed opinion, as an apparent afterthought, suggested
that the court limit its supervision of the remedial
plan’s implementation to six facilities, on the theory
that the plaintiffs allegedly had failed to establish a
violation
based
on
correctional
or
mental-health
understaffing at the other ADOC facilities.
The
defendants subsequently admitted that they are “not aware
11

All parties agree that any dispute related to the
Savages’

recommendations

should

first

be

put

before

United States Magistrate Judge John Ott for mediation and
that, if and when Judge Ott concludes that all or part
of

the

dispute

cannot

be

successfully

mediated,

any

party may then put the dispute, to the extent it is not
resolved,

to

United

States

Magistrate

Judge

Gray

M.

Borden for consideration pursuant to 28 U.S.C. § 636,
with allowable review, in turn, by this court pursuant
to § 636. (The court, however, reserves the discretion

of any section of the Court’s liability opinion in which
the Court indicated an intent to limit its liability
findings to [those six facilities].” Response to Court’s
February 2, 2018 Order (doc. no. 1595) at 1. Moreover,
as the court and the defendants have repeatedly
recognized, all of ADOC’s major prisons--and in
particular the prisons for men--form part of an
interlocking system. The court cannot fully appreciate
what is happening, and what needs to be done, at a subset
of these facilities without receiving a full evidentiary
picture of what is happening in the system overall. For
example, it would make little sense to order increased
staffing at one understaffed prison if the staffing were
to be filled by merely transferring staff from another,
slightly less understaffed facility.
It therefore
declines to adopt the suggested limitation, which could
fatally hinder its ability to remedy the constitutional
violation found.
12

to

hear

and

resolve

any

dispute

itself

without

the

parties having gone through mediation or presented the
dispute to Judge Borden for consideration.)
The court finds that the Savages, who have conducted
correctional

staffing

analyses

in

more

than

10

correctional systems, and who each possess over 40 years
of experience in prison management and staffing, are
qualified to conduct the staffing analysis.
While the plaintiffs do not challenge the Savages’
qualifications to conduct a staffing analysis and do not
dispute that a staffing analysis must be conducted, they
have

expressed

preliminary

concerns

analyses

about

were

how

the

conducted.

first

three

Accordingly,

plaintiffs sought to have their correctional expert,
Eldon

Vail,

conclusion

collaborate
of

the

with

staffing

the

Savages

analyses.

before

the

During

the

understaffing remedial hearing, the Savages met with Vail
and reached an agreement as to how they would collaborate
through the remainder of the staffing-analysis process.
Per the agreement, as Ms. Savage testified, the Savages

13

will

produce

to

Vail

the

post

plan,

institutional

profile, and activities chart for each facility as they
are completed for Vail’s review and consideration.

The

Savages will also produce these materials for the three
facilities

they

have

already

Bibb, Donaldson, and Hamilton.

preliminarily

assessed:

The Savages and Vail will

then schedule a conference call to discuss any questions
or areas of concern.

The Savages will also provide any

additional information needed for the conference call
discussions.

Finally, if Vail deems it necessary, he

will travel to one of the facilities at the conclusion
of the Savages’ visit so that they can walk through their
process with him and address any remaining questions or
concerns.

Neither party objects to the agreement reached

by the Savages and Vail.

Therefore, the court adopts

this agreement as part of the defendants’ remedial plan.
b.

Consultant

Recruitment

and

Analyses

Retention.

of
The

Compensation
defendants

and

propose

employing consultants to determine how to recruit, hire,
and retain more correctional officers.

14

The evidence

presented at the remedial hearing, including the Savages’
preliminary analyses of Bibb, Donaldson, and Hamilton,
plainly indicated that the understaffing remedy will
require ADOC to hire significant numbers of additional
correctional officers.

Yet ADOC, despite its purported

efforts to hire more officers, has in fact continued to
hemorrhage correctional staff since the time of the June
2017 liability opinion--that is, when this court had
already found that “persistent and severe shortages of
... correctional staff” was an “overarching issue[]” that
contributed
violation.

to

the

defendants’

Eighth

Braggs, 257 F. Supp. 3d at 1268.

Amendment
Much of

the problem, then, appears to be not whether but how ADOC
can

effectively

officers.

increase

the

number

of

correctional

Accordingly, the defendants have retained two

consulting firms to aid in the implementation of the
Savages’ recommendations, as modified by any agreements
between the parties or orders of the court.
The

defendants

have

retained

Troy

University’s

“Center for Public Service” and Stephen Condrey, Ph.D.,

15

to “conduct a comprehensive analysis of the compensation
and

benefits

offered

by

ADOC

to

correctional

staff,

including a comparison of ADOC compensation and benefits
for correctional staff to the compensation and benefits
afforded

by

law

enforcement

county, and local level.”

agencies

at

the

state,

Defendants’ Phase 2A Proposed

Remedial Plan on Correctional and Mental Health Staffing
(doc. no. 1374) at 13-14.

Condrey is to submit his

recommendations by April 1, 2018.

Defendants’ Timeline

for Correctional and Mental Health Staffing (doc. no.
1583) at 1.
Here the court merely observes, as it suggested at
the evidentiary hearing, that the level of compensation
and benefits required to be on an equal competitive
footing with other employers in the same market may
differ

from

that

required

to

hire

expeditiously

a

significant number of new staff, as may be required by
the ultimate staffing plan.

Recommendations aimed at the

former

in

execute

may

miss

their

the

mark

remedial

plan.

16

helping
The

the

defendants

defendants

may

therefore want Condrey to grapple with this potential
issue.
The defendants have also retained Brian Bateh and
his team at the firm of Warren Averett to “conduct a
comprehensive analysis of ADOC’s policies, practices, and
procedures relating to or affecting the recruitment,
employment, and retention of correctional staff.”

Id.

at 13. Bateh is to submit his recommendations by November
1, 2018.

Id. at 2.

The court, having reviewed the qualifications of
Bateh

and

Condrey

and

heard

their

testimony

at

the

remedial evidentiary hearing, and seeing no objections
from the plaintiffs, finds that they are qualified to
perform the above analyses.

2. Mental-Health Staffing
The defendants’ plan to the extent it addresses
mental-health understaffing contains two “centerpieces.”
Defendants’

Phase

2A

Proposed

Remedial

Plan

on

Correctional and Mental Health Staffing (doc. no. 1374)

17

at 16.

In the short run, a Request for Proposal (“RFP”)

issued in July 2017 will nearly double the number of ADOC
mental-health staff when implemented.
ADOC

has

retained

three

In the long run,

consultants

to

develop

mental-health staffing ratios, which will be used along
with the Department’s caseload numbers to generate an
appropriate number of mental-health staff.

In addition,

between January 2017 and October 2017, ADOC increased its
spending on mental-health staff by approximately five
million

dollars

and

added

approximately

60

full-time-equivalent positions (“FTEs”).
a. July 2017 Request for Proposal.

As the first step

to address mental-health understaffing, the defendants
in July 2017 released an RFP for a new mental-health
services

vendor.

The

RFP

is

designed

to

add

approximately 125 FTEs, nearly doubling the number of
psychiatrists, psychologists, certified registered nurse
practitioners, licensed mental-health professionals, and
registered nurses.

As such, it represents a significant

and commendable start to addressing ADOC’s mental-health

18

understaffing.

Both

sides

to

this

litigation

acknowledge, however, that this increase will ultimately
be insufficient to remedy the violations shown.
Although, in the past, ADOC has through negotiations
with vendors allowed the provision of fewer positions
than called for in a given RFP, both Commissioner Dunn
and his counsel assured the court at the remedial hearing
that

the

resulting

contract

will

not

go

below

the

staffing numbers provided in the July 2017 RFP.

In

addition, the defendants’ plan provides that “ADOC will
require the contractor to fully staff the positions and
will impose strict financial penalties if the contractor
fails to do so, except for certain delineated support
positions.”

Id. at 18.

Under the original timeline published with the RFP,
the contract was to be awarded by September 4, 2017, and
implemented by January 1, 2018.

On September 1, 2017,

the vendor selection date was extended to October 16,
2017, and the implementation date was extended to April
1, 2018.

At the time of the understaffing remedial

19

hearing

in

late

2017,

the

vendor

had

not

yet

been

selected, though ADOC had informed bidders that it was
beginning

negotiations

with

Wexford

Health

Sources.

Commissioner Dunn testified that an award would be made
by

the

end

of

December

2017,

and

that

he

would

do

everything in his power to meet the implementation date
of April 1, 2018.

However, under the timeline recently

submitted to the court, implementation is merely to begin
by April 1, 2018, with the RFP positions to be fully
filled by July 1, 2018.
a

remedial

order

Although the court today enters

adopting

the

defendants'

proposed

timeline, it notes that it has already deferred to their
repeated

delays

in

executing

the

contract

for

and

implementing the RFP, and there can be no more delays.
b.

Mental-Health

Staffing

Ratios.

The

second,

long-run “centerpiece” of the defendants’ plan is to
develop mental-health staffing ratios, which will be used
along with the Department’s future caseload numbers to
generate an appropriate number of mental-health staff.
To produce the ratios, ADOC has retained consultants

20

Catherine

Knox,

M.S.N.,

R.N.,

CCHP-RN,

Jeffrey

L.

Metzner, M.D., and Mary Perrien, Ph.D.
According to the defendants’ proposed timeline, the
consultants

are

to

begin

work

to

develop

the

mental-health ratios on September 1, 2018, in order to
allow time for ADOC to implement fully the July 2017 RFP
and

for

new

positions.

mental-health
The

staff

consultants

are

to

adjust

to

their

to

submit

finalized

mental-health staffing ratios by March 1, 2019.
All parties agree that any dispute related to the
ratio recommendations should first be put before United
States Magistrate Judge John Ott for mediation and that,
if and when Judge Ott concludes that all or part of the
dispute cannot be successfully mediated, any party may
then put the dispute, to the extent it is not resolved,
to United States Magistrate Judge Gray M. Borden for
consideration pursuant to 28 U.S.C. § 636, with allowable
review, in turn, by this court pursuant to § 636.
court,

however,

reserves

the

discretion

to

hear

(The
and

resolve any dispute itself without the parties having

21

gone through mediation or presented the dispute to Judge
Borden for consideration.)
ADOC

is

then

to

modify

its

contract

with

the

mental-health vendor in accordance with the mental-health
staffing ratios, as modified by any agreements between
the parties or orders of the court, by August 15, 2019.
By November 15, 2019, ADOC’s vendor is to implement the
finalized staffing ratios as required by the modified
contract, with all mental-health staffing positions to
be filled consistent with the contract by February 15,
2020.

Knox,

Metzner,

and

Perrien

are

to

review

implementation of the finalized staffing ratios under the
modified contract, and to make any recommendations for
revising those ratios by January 15, 2020.
The court, having reviewed the qualifications of
Knox, Metzner, and Perrien, having heard their testimony
at the evidentiary hearing, and seeing no objections from
the plaintiffs, finds that they are qualified to produce
the mental-health ratios, and to oversee and review their
implementation, as described above.

22

3.

Office of Health Services Staffing

ADOC’s Office of Health Services (OHS), headed by
Associate Commissioner for Health Services Naglich, is
“the

only

ADOC

department

with

responsibility

for

monitoring mental-health care,” Braggs, 257 F. Supp. 3d
at

1258,

which

ADOC

third-party vendor.

contracts

out

to

a

private,

As the court found, however, OHS

“has done vanishingly little” to exercise oversight,
engage

in

quality

improvement,

or

take

corrective

measures in response to identified deficiencies in care.
Id.

at

1257-58.

Associate

Commissioner

Naglich’s

testimony at the liability trial revealed that these
failures

were

due

in

significant

part

to

severe

understaffing within OHS, and that Naglich and others had
unsuccessfully sought additional OHS staff on multiple
occasions since 2008.

Naglich further testified that she

believes

independent

having

an

contract

monitor

or

additional OHS staffing to perform contract monitoring
would be beneficial.

Specifically, she testified that

23

OHS needs at least two psychologists, preferably in the
regional offices, in addition to David Tytell (OHS’s
chief

psychologist)

to

monitor

and

audit

mental-health vendor’s contract compliance.

the

During the

understaffing remedial hearing, Naglich again testified
that more OHS staff is needed.
In preparation for the remedial hearing, the court
specifically ordered the defendants to “present evidence
of their plan to forthwith and adequately staff the
Office of Health Services ..., including benchmarks for
the implementation of that plan.”

Pretrial Order: Phase

2A Correctional Understaffing Issues (doc. no. 1436) at
4.

In response to the court’s concerns, the defendants

submitted

a

new

organizational

structure

for

the

mental-health functions within OHS, see 2018-2019 OHS
Organizational Chart (doc. no. 1478-1), and on November
30, 2017, submitted a timeline for hiring additional OHS
personnel, see Defs’ Ex. 3000 (doc. no. 1515-124).3

3. Although the court asked the defendants to submit
their OHS staffing plan, Associate Commissioner Naglich
testified that the plan was developed in the spring or
24

With regard to mental-health services, the new OHS
staffing

plan

registered

provides

nurses

who

mental-health nursing.
of

those

positions

for
will

three

and

Those positions are not new.

Two

currently

both

clinical

medical

are

oversee

regional

filled.

The

OHS

staffing plan provides for a new ombudsman position,
which has not yet been filled.

ADOC has received State

Personnel Board approval for that position. Commissioner
Dunn testified, in November 2017, that ADOC could begin
seeking a qualified candidate through the state register
within 30 days.

Commissioner Dunn projected, consistent

with the proposed timeline, that it could take three to
four months to fill the position.
The

plan

Psychiatry,

provides
a

position

for

a

that

Clinical

Director

is

yet

not

of

filled.

Commissioner Dunn testified, in November 2017, that the
position would be appointed and would not require any
additional approvals before it could be advertised.

summer of 2017--that is, perhaps even
liability opinion entered on June 2017.
25

prior

to

He

the

also testified that he had instructed his staff to begin
advertising for this position within seven to 10 days of
his

testimony.

He

estimated,

consistent

with

the

proposed timeline, that it could take up to nine months
to fill this position.
The OHS plan calls for having two psychologists, one
in each region, and a Director of Mental Health.

Tytell,

who currently serves as Director of Psychology, will fill
the

Northern

Regional

Psychologist

Psychologist

position.
Position

The

Southern

Regional

remains

unfilled.

Commissioner Dunn estimated in November 2017,

consistent with the proposed timeline, that it would take
between four and six months to fill this position once
the State Personnel Department has approved it.
The

Director

of

Mental

Health

will

be

a

health

services administrator who provides administrative but
not clinical oversight.

ADOC requested in the late

spring or early summer of 2017 that the State Personnel
Department create this position.
unfilled.

The position remains

Commissioner Dunn estimated in November 2017,

26

consistent with the proposed timeline, that it would take
between four and six months to fill this position once
the State Personnel Department has approved it.

B. The Plaintiffs’ Response
to the Proposed Plan
In response to the defendants’ plan, the plaintiffs
raise several serious concerns, including that the number
of ADOC correctional officers has precipitously declined
since the liability trial in late 2016 and early 2017,
and, indeed, even since the liability opinion was entered
in

late

June

repeatedly

2017.

delayed

Moreover,

the

negotiating,

defendants

have

executing,

and

implementing the July 2017 RFP.
The

plaintiffs

argue

that

a

remedial

order

is

necessary at this time and is not unduly intrusive, given
the severity and urgency of the violations shown, and the
defendants’

longstanding

these violations.4

deliberate

indifference

to

They therefore request a series of

4. As the liability opinion noted, “This case is
likely sui generis in the extent to which the top ADOC
27

specific measures, many of which are grounded, to a
certain extent, in the recommendations of ADOC’s own
experts and officials.

Notably, the plaintiffs argue

that a remedial order should require the defendants to
meet specific hiring benchmarks for correctional officers
at four six-month intervals, based initially on ADOC’s
own

number

subsequently

of
on

already
the

authorized

Savages’

positions,

recommendations.5

and
With

regard to mental-health understaffing, the plaintiffs
similarly propose that the defendants be immediately
ordered

to

begin

increasing

staff

according

to

the

provisional mental-health staffing ratios developed by
Knox, Metzner, and Perrien, see ADOC’s Provisional Mental

officials had personal knowledge of the substantial risks
of serious harm posed by its deficient care and has not
responded reasonably to those risks.”
Braggs, 257 F.
Supp. 3d at 1252.
5. The plaintiffs point out that the Savages’
preliminary analyses of three ADOC facilities recommend
staffing numbers that are fairly similar to the number
of authorized positions, and the plaintiffs therefore
argue that a first benchmark could be based on the latter
figure
before
the
completion
of
the
Savages’
recommendations.
28

Health Staffing Ratios (doc. no. 1374-4), and that the
hiring goals in the order later be adjusted when the
consultants develop finalized ratios.6
Finally, because, under the PLRA, remedial orders
are terminable upon the motion of any party or intervenor
after

two

years,

see

18

U.S.C. § 3626(b)(1),

the

plaintiffs expressed concern that the defendants’ plan
will not remedy the understaffing violation within a
two-year

time

period.

However,

both

defendants

and

plaintiffs have acknowledged this fact and agreed that
the understaffing problem will likely require several
years

to

remedy.

Moreover,

even

when

a

motion

to

terminate is made, the PLRA allows the court to extend a
remedial order upon specific findings that it remains
necessary to correct a current and ongoing violation, and
that

the

order

continues

to

meet

the

6. The defendants maintained during the evidentiary
hearing and at oral argument that these “Provisional
Mental Health Staffing Ratios” were not prepared by their
mental-health consultants for potential implementation,
but were merely examples of what the ultimate work
product would consist of, and should therefore not be
used as an initial target.
29

need-narrowness-intrusiveness test.

Id. § 3626(b)(3);

see also Cason v. Seckinger , 231 F.3d 777, 782-83 (11th
Cir. 2000) (holding that, upon a motion to terminate a
remedial order governed by the PLRA, plaintiffs must be
given

an

opportunity

for

an

evidentiary

hearing

to

demonstrate a current and ongoing violation).

C.

The Court’s Position

The court agrees with the plaintiffs that, in light
of the serious and longstanding violations shown, and the
lack of progress on understaffing--indeed, in many ways,
regression--since trial, a remedial order is necessary.
The State of Alabama cannot be allowed to kick the can
down the road.
However,

as

the

evidence

and

argument

have

demonstrated, the defendants’ proposed plan represents a
serious, albeit concededly minimal, effort to remedy a
complex and difficult problem.

Despite the immediate

need to remedy understaffing, and distressing indications
that the problem may have worsened since the liability

30

opinion, it may simply not be possible to turn this ship
around on a dime.

The defendants will, therefore, be

given an opportunity to implement its proposed remedy and
to

demonstrate

that

immediate results.

it

is

producing

meaningful

and

The court today, therefore, enters a

remedial order adopting the defendants’ plan, albeit with
some

modifications.7

With

regard

to

the

deadlines

adopted, the court emphasizes that the defendants are not
to delay implementation until the last minute, but are
to

begin

immediately

and

swiftly

upon

receiving

the

relevant recommendations.
While the court, in deference to the State and in
its

discretion,

today

declines

to

order

the

recommendations proposed by the plaintiffs, it will not
abdicate

its

constitutional

constitutional
prisoners.”

rights

of

duty

all

“to

enforce

‘persons,’

the

including

Brown v. Plata, 563 U.S. 493, 511 (2011).

7. For example, the timeline in the remedial order
for hiring additional OHS personnel reflects the outer
ranges--that is, the longest--of the estimates provided
by the defendants on November 30, 2017. See Defs’ Ex.
3000 (doc. no. 1515-124).
31

In overseeing the defendants’ implementation of their
plan, the court will “not allow constitutional violations
to

continue

simply

because

a

remedy

would

involve

intrusion into the realm of prison administration.”

Id.

Rather, it will remain poised to step in should the
defendants fail to uphold their commitment, or should the
plan prove inadequate to remedy, in a timely fashion, the
violations shown.

IV.

PLRA Requirements

Section 3626(a)(1)
courts

to

make

of

the

PLRA

particularized

requires

findings

district

that

each

provision of prospective relief ordered satisfies the
‘need-narrowness-intrusiveness’ requirement.

See United

States v. Sec’y, Fla. Dep’t of Corr., 778 F.3d 1223, 1228
(11th Cir. 2015).

This court now makes such findings,

and concludes that the ordered relief complies with the
PLRA.
With

regard

to

correctional

understaffing,

the

defendants’ plan to use the Savages’ staffing analyses

32

and resulting recommendations will provide the defendants
with

a

comprehensive

understanding

of

the

ADOC’s

correctional staffing needs and with an opportunity for
all parties to respond and resolve any disputes that may
arise.

Further, as the defendants explained, and in

light of ample evidence from all parties that ADOC faces
a serious and complex problem in hiring and retaining
correctional officers, the analyses and recommendations
to be prepared by Bateh and Condrey are necessary for the
defendants to understand how to implement the Savages’
recommendations.

The court finds that such relief is

narrowly drawn, extends no further than necessary to
remedy the constitutional violation found, and is the
least intrusive means of doing so.
With

regard

to

mental-health

understaffing,

all

parties recognize that the implementation of the July
2017 RFP constitutes a necessary first step to address
ADOC’s mental-health understaffing.
defendants
analyses

recognize,
and

the

recommended

Further, as the

mental-health

consultants’

ratios

provide

33

will

the

defendants with a comprehensive understanding of the
ADOC’s

mental-health

staffing

needs

and

with

an

opportunity for all parties to respond and resolve any
disputes that may arise. The court finds that such relief
is narrowly drawn, extends no further than necessary to
remedy the constitutional violation found, and is the
least intrusive means of doing so.
As

Associate

Commissioner

Naglich

testified

extensively at the liability trial and remedial hearing,
additional
oversee

OHS
the

staffing

is

third-party

necessary

to

vendor’s

monitor

and

provision

of

mental-health care. The court finds that the proposed
relief,

which

adopts

the

defendants’

proposed

OHS

structure and outer timeline for hiring those positions,
is narrowly drawn, extends no further than necessary to
remedy the constitutional violation found, and is the
least intrusive means of doing so.
The

defendants

have

proposed

quarterly

reporting

requirements, and the court will enact those requirements
in its remedial order. The court finds that the quarterly

34

reporting

requirements

comply

with

the

PLRA

because

ongoing reporting, as proposed by the defendants, is
necessary to apprise the court of whether the defendants’
plan is addressing ADOC’s correctional and mental-health
understaffing effectively and as quickly as possible, and
to alert the court if additional measures are needed.
Thus, the court finds that such relief is narrowly drawn,
extends

no

further

constitutional

than

violation

necessary
found,

and

to

remedy

is

the

the
least

intrusive means of doing so.
In addition, the defendants ask that “[n]o quarterly
report ... be admissible against the State, ADOC, its
employees, contractors, or contractor’s employees in any
civil action or other proceeding.”

Defendants’ Pretrial

Brief and Witness and Exhibit List (doc. no. 1478) at 33.
The

court

cannot

agree

to

this

condition,

primarily

because the purpose of the reports is to inform the
plaintiffs and the court about what is occurring, so that
they may act on this knowledge as necessary.

It is

difficult to understand how the parties and the court are

35

to use the reports to this end if they are not admissible
in any civil action, as the proposed language now states.
If the defendants, in fact, intended that the reports be
admissible in this action but not in others, they may
again

raise

that

issue

later

for

the

court’s

consideration.
Finally, the court finds that the proposed relief
will have no adverse effect on public safety or the
operation of the criminal-justice system.
§ 3626(a)(1)(A).

See 18 U.S.C.

As numerous ADOC officials testified

at the liability trial and remedy hearing, and as this
court has previously found, correctional understaffing
at

ADOC

facilities

has

resulted

in

a

dangerous

environment for both ADOC staff and inmates.

Moreover,

ADOC’s persistent and severe lack of mental-health staff
has resulted in inmates with serious mental-health needs
being

under-identified

and

inadequately

treated.

Requiring the defendants simply to execute their plan to
remedy what ADOC officials have acknowledged is a serious
and urgent problem can, if anything, be expected to have

36

a positive impact on public safety and the operation of
the criminal-justice system.

***
For the reasons given above, the court will enter an
order adopting the defendants’ proposed plan, with some
modifications, as a remedy for understaffing.
DONE, this the 20th day of February, 2018.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE