Dunn et al v. Thomas et al

Filing 1754

PHASE 2A OPINION AND ORDER REGARDING PLAINTIFFS SECOND REQUEST TO PRESENT ADDITIONAL EVIDENCE ON SEGREGATION: Accordingly, it is ORDERED as follows: (1) Plaintiffs' second request to present limited additional evidence regarding segregation ( doc. no. 1747 ) is granted. That evidence is to be heard at the hearing on April 23, 2018, regarding the first alleged suicide. (2) Plaintiffs are, by April 13, 2018, to identify to defendants any witnesses they anticipate calling on this issue. (3) Upon hearing the above evidence, the evidence regarding segregation remedy will be closed until the entry of any remedial order. Additional evidence will not be heard by the court absent extraordinary circumstances, as described in this opinion and order. Signed by Honorable Judge Myron H. Thompson on 4/11/2018. (kh, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
EDWARD BRAGGS, et al.,

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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 OPINION AND ORDER REGARDING PLAINTIFFS’ SECOND
REQUEST TO PRESENT ADDITIONAL EVIDENCE ON SEGREGATION
This
defendants

cause,

in

are

which

liable

the

for

court

held

violating

that

the

the

Eighth

Amendment of the United States Constitution, see Braggs
v.

Dunn,

(Thompson,

257
J.),

F.
is

Supp.

3d

before

1171

the

(M.D.

court

on

Ala.

2017)

plaintiffs’

second motion to present limited additional evidence on
segregation remedy, specifically regarding an alleged
inmate suicide.

For the reasons below, the motion will

be granted, with the proviso that the evidence on the

Phase

2A

Eighth

Amendment

segregation

remedy

will

thereafter be closed, and that future evidence pending
the issuance of any remedial order will not be heard
absent extraordinary circumstances.

I. BACKGROUND
On February 28, 2018, the court stated that the
evidence in the segregation remedial trial was closed,
with

the

exception

of

certain

additional

evidence

regarding the Bibb County Correctional Facility.

See

Order (doc. no. 1689) (recognizing that evidence was
closed with that exception).

Subsequently, on March

29, the plaintiffs filed a motion to present limited
additional

evidence

(“first motion”).
Additional
1719).

regarding

the

segregation

remedy

See Pls.’ Request to Present Limited

Evidence

Regarding

Segregation

(doc.

no.

The motion sought to introduce evidence about

an alleged suicide that was committed in a segregation
unit at Holman Correctional Facility on February 27 by
an inmate who was on the mental-health caseload but not
2

identified by the defendants as having a serious mental
illness (SMI).

The defendants responded to the motion.

See Defs.’ Response in Opposition to Pls.’ Request to
Present Limited Additional Evidence (doc. no. 1727).
After

hearing

oral

argument

during

an

on-the-record

conference call, the court granted the first motion and
set an evidentiary hearing for April 23, 2018.

See

Order (doc. no. 1733).
A

few

days

later,

the

plaintiffs

submitted

the

pending second motion to present evidence regarding an
additional alleged suicide (“second motion”), which is
said to have been committed on March 31 by an inmate in
segregation at St. Clair Correctional Facility.
Pls.’

Second

Request

to

Present

Limited

Additional

Evidence Regarding Segregation (doc. no. 1747).
inmate

allegedly

was

not

on

the

See

caseload

when

The
he

entered segregation, but after a prolonged period in
segregation was subsequently placed on the caseload,
although never identified as having an SMI.

The court

held an on-the-record conference call to discuss the
3

motion on April 6, and then allowed the defendants time
to

respond

in

writing.

See

Defs.’

Response

in

Opposition to Pls.’ Second Request to Present Limited
Additional Evidence (doc. no. 1753).

II. DISCUSSION
The

plaintiffs’

“[e]vidence
segregation

second

relating
is

to

directly

motion

argues

the

recent

relevant

to

suicides

the

that
in

segregation

remedies the Court has yet to order,” because it will
“show that addressing understaffing and removing people
with serious mental illnesses from segregation--the two
main

components

plan--will

not

of

Defendants’

alone

be

proposed

sufficient

to

remedial

remedy

the

ongoing constitutional violations the Court found with
regard
Present

to

segregation.”
Limited

Pls.’

Additional

Segregation (doc. no. 1747) at 2.

Second
Evidence

Request

to

Regarding

It further explains

that plaintiffs have been approved for a visit with
likely witnesses for April 10 and anticipate being able
4

to identify their testifying witnesses for defendants
during the week of April 9.

Id. at 3.

In addition,

the plaintiffs assured the court during the April 6
conference call that, if the motion were granted, they
would be prepared to put on the evidence during the
April 23 hearing already scheduled on the first motion.
The defendants raised several objections during the
April 6 conference call and in their subsequent written
response:

(1)

irrelevant
would

be

to

the
the

more

proposed
issue

additional

appropriately

is

segregation

of

evidence
remedy,

and

heard

during

the

remedy

hearing on suicide prevention, currently scheduled for
September

10,

cumulative,
economy;

2018;

and

(3)

(2)

hearing
the

the
it

additional

would

defendants

evidence

undermine
would

be

is

judicial
unfairly

prejudiced because none of the witnesses have yet been
identified, and so introduction of the evidence amounts
to “trial by ambush”; and (4) the plaintiffs’ continued
submission of “and-one-more-thing” type requests admits

5

of no logical end point.

The court addresses each of

these objections in turn.
With regard to relevance, the plaintiffs argue--as
with their first motion--that an alleged suicide by an
inmate who was on the mental-health caseload, but who
was not identified as having as having an SMI, tends to
show that the defendants’ proposed remedial plan fails
to

address

regard

sufficiently

to

the

non-SMIs.

violations

That

is,

found
the

with

alleged

decompensation and suicide of a prisoner not identified
as

having

an

SMI

tends

to

support

the

plaintiffs’

position that the defendants’ plan focuses primarily on
inmates with SMIs, but affords little relief to (1)
inmates who are on the caseload but do not have SMIs,
(2) inmates who are not on the caseload but who have
unidentified
inmates

who

serious
enter

mental-health

segregation

needs,

without

and

(3)

serious-mental

health needs but subsequently pass into the plaintiff
class

by

developing

those

placement in segregation.

needs

as

a

result

of

See Pls.’ Response to Defs.’
6

Proposed Segregation Remedial Plan (doc. no. 1546) at
43-46.

Secondarily, the plaintiffs also argued on the

conference call that the proposed evidence is relevant
because it tends to show that the current monitoring
and suicide-proofing of cells are insufficient, and by
extension that a plan that does not swiftly address
these ongoing problems is inadequate.

The defendants

did not substantially rebut these arguments, but rather
repeated the fact, which both parties acknowledge, that
the court had previously closed evidence with respect
to segregation remedy with the possible exception of
Bibb

County

Correctional

Facility,

and

that

proposed evidence does not relate to Bibb.
reaching

the

merits

of

the

plaintiffs’

the

Without

contentions

regarding the proposed segregation remedy, or whether
the

proposed

evidence

will

in

fact

support

those

contentions when heard, the court is satisfied that the
evidence is relevant for these reasons.
As to the defendants’ suggestion that the second
motion’s proposed evidence should be heard during the
7

September 10 hearing on suicide prevention, the court
is, as an initial matter, concerned about putting off
for

several

squarely
suicide

to

both

evidence
issues

prevention),

nature.
present

months

and

that

appears

(that

is,

which

is

to

relate

segregation
of

so

and

serious

a

Indeed, as the plaintiffs’ first motion to
additional

evidence

noted,

twice

during

the

remedial hearing on segregation the court asked to hear
about any suicides in the defendants’ custody.

See

Pls.’ Request to Present Limited Additional Evidence
Regarding

Segregation

transcripts).

(doc.

no.

1719)

at

1

(citing

However, even assuming for the sake of

argument that the fact of the alleged second suicide is
irrelevant to the segregation remedy or better suited
for the September hearing, there remains the alleged
decompensation of the inmate in segregation independent
of

his

suicide--that

is,

both

his

initial

decompensation to the point that he was placed on the
caseload,

and

his

subsequent

point of committing suicide.
8

decompensation

to

the

When asked on-the-record

why this evidence was not relevant or better suited for
the

hearing

on

suicide

prevention,

counsel

for

the

defendants was, simply put, at a loss.

Accordingly,

the

evidence

court

concludes

that

the

proposed

is

relevant to the segregation remedy, regardless of any
additional

relevance

to

the

later

issue

of

suicide

prevention.
Second, the defendants argue that the additional
evidence is cumulative, and would undermine judicial
economy by taking up the time and resources of the
parties, the court, and the potential witnesses.

Given

the alleged facts of the incident, and the proposed
schedule
convinced

for

hearing

otherwise.

the

evidence,

Perhaps

the

the

court

defendants

is
are

prepared to concede that suicides in their segregation
units continue to be such a common occurrence that the
proposed evidence of an additional suicide would merely
be expected or cumulative.

In any event, while the

plaintiffs are already to present evidence regarding
the alleged suicide that occurred on February 27, there
9

are

a

number

of

potentially

distinguishing

circumstances surrounding the second alleged incident
that

would

provide

the

court

with

additional

information: the second alleged suicide was committed
at a different facility, and by an inmate who allegedly
entered segregation while not on the caseload, but was
subsequently placed on the caseload.

As to the matter

of judicial economy, the plaintiffs have stated that
they are prepared to put on the additional evidence
during the existing hearing on April 23, so there is no
need to set a separate hearing, require the counsel to
arrange separate travel to the courthouse, and so on.
Further,

the

plaintiffs

have

stated

that

they

anticipate that the proposed evidence, and the evidence
of

the

first

approximately

alleged

one-half

suicide,

day

to

put

will

each

on.

There

take
are

therefore no significant concerns of judicial economy
that

outweigh

the

value

of

evidence.

10

hearing

the

proposed

Third, the defendants state they would be unfairly
prejudiced by granting the plaintiffs’ motion, because
the witnesses have yet to be identified and they will
not

have

sufficient

time

to

prepare.

However,

the

motion explains that plaintiffs’ counsel had already
been approved for a meeting with potential witnesses on
April 10, and would be able to identify the testifying
witnesses by the end of that week.

Given the discrete

and urgent nature of the issue raised, and the fact
that the defendants have (and in fact, control) access
to the potential witnesses, the court is satisfied that
defendants
notified

of

will
the

not

be

unfairly

prejudiced

potential witnesses,

at

by

being

the

latest,

approximately one-and-a-half weeks in advance.

In any

event, should it become clear during the proceedings
that the defendants need an additional opportunity to
respond, the court will provide such an opportunity.
The bottom line is the court will make sure that the
defendants are not unfairly prejudiced.

11

Finally, the defendants object that the plaintiffs’
second motion suggests that they will continue to seek
to

introduce

evidence

despite

the

“closed,” with no logical endpoint.

record

being

This a legitimate

concern, for the parties and the court both have an
interest in finality.
plaintiffs’

That concern is bolstered by the

resistance

on

the

conference

call

to

proposing any limiting principle or endpoint to their
ability

to

interest
otherwise
balanced

present

in

further

finality

barred
against

by

is

not

a

the

evidence.

rule

However,

absolute,
of

tendency

this

but--when

not

evidence--must

be

of

the

additional

evidence to aid the court in arriving at a fair and
just disposition of the case.

Cf. Fed. R. Civ. P.

60(b)(5) (permitting courts to modify a final judgment
or

order,

among

other

instances,

where

“applying

it

prospectively is no longer equitable”).

In addition,

the

is

defendants’

concern

about

finality

mitigated

here by the fact that the procedural history in this
case

suggests

a

natural

cutoff
12

after

granting

the

instant

motion:

alleged

suicide

the
is

evidence

coming

regarding

in,

among

the

other

first

reasons,

because of its urgent and central nature to the issue
of

segregation

remedy,

and

because

the

incident

apparently occurred prior to the parties’ agreement to
close

evidence

plaintiffs

of

and

the

without

issue

at

defendants
that

time.

informing
With

that

hearing already set, and for the reasons above, the
court

is

granting

plaintiffs’

motion

evidence regarding the second incident.

to

present

However, apart

from the evidence regarding these two incidents, the
record on segregation remedy will be closed.

Further

evidence on this issue will not be heard prior to the
entry

of

any

remedial

order

absent

extraordinary

circumstances, and the fact of an additional suicide
alone will not satisfy that standard.
***
Accordingly, it is ORDERED as follows:
(1) Plaintiffs’ second request to present limited
additional

evidence

regarding
13

segregation

(doc.

no.

1747) is granted.

That evidence is to be heard at the

hearing on April 23, 2018, regarding the first alleged
suicide.
(2) Plaintiffs are, by April 13, 2018, to identify
to defendants any witnesses they anticipate calling on
this issue.
(3) Upon hearing the above evidence, the evidence
regarding segregation remedy will be closed until the
entry of any remedial order.
not

be

heard

by

the

Additional evidence will

court

absent

extraordinary

circumstances, as described in this opinion and order.
DONE, this the 11th day of April, 2018.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

14