Dunn et al v. Thomas et al

Filing 2136

PHASE 2A OPINION AND ORDER ON DEFENDANTS' ORAL MOTION FOR CLARIFICATION: Accordingly, it is ORDERED that defendants' oral motion to clarify, made in open court on September 19, 2018, is granted to the extent that it is DECLARED that the Phase 2A Understaffing Remedial Order (doc. no. 1657 )-- and the ADOC contract referred to in it--required that defendants were to ensure that all 263.2 mental-health FTEs listed in the contract's "minimum staffing requirements" were filled by July 1, 2018. Signed by Honorable Judge Myron H. Thompson on 10/29/2018. (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.

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

PHASE 2A OPINION AND ORDER ON DEFENDANTS’
ORAL MOTION FOR CLARIFICATION
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.).
“[S]evere shortages” of mental-health care staff have
contributed to these constitutional violations.
1268.
that

Id. at

The court issued an Understaffing Remedial Order
established

deadlines

by

which

the

Alabama

Department of Corrections (ADOC) was to increase its
mental-health

staffing.

See

Phase

Remedial Order (doc. no. 1657) at 4.

2A

Understaffing

Subsequently, in a

motion to require defendants to show cause why they
should not be held in contempt, plaintiffs alleged that
defendants have failed to meet these deadlines.
contempt

hearing,

defendants

orally

moved

At the
for

clarification as to what staffing increases the remedial
order required.
In

this

opinion

and

order,

the

court

addresses

defendants’ oral motion for clarification and explains
that

the

deadlines

required

exactly

what

the

plain

language of the Understaffing Remedial Order--and an ADOC
contract referred to in it--say they required: defendants
were to ensure that all of the mental-health staffing
positions listed in the contract’s “minimum staffing
requirements” were filled by July 1, 2018.

2

I.

Procedural History

Plaintiffs in this class-action lawsuit include a
group of mentally ill prisoners in the custody of ADOC.
Defendants are ADOC Commissioner Jefferson Dunn and ADOC
Associate Commissioner of Health Services Ruth Naglich,
who are both sued in only their official capacities.

In

a liability opinion entered on June 27, 2017, this court
found that ADOC’s mental-health care for prisoners in its
custody

was,

simply

put,

“horrendously

Braggs, 257 F. Supp. 3d at 1267.
seven

factors

contributing

to

inadequate.”

The court laid out

the

Eighth

Amendment

violations, in addition to an eighth overarching factor
that permeates all of the others:

the “persistent and

severe shortages of mental-health staff and correctional
staff.”

Id. at 1267-68.

The court divided the remedial phase along the lines
of

the

eight

identified

factors

contributing

to

the

Eighth Amendment violations, to be addressed one after
another.

Because of the centrality of understaffing to

ADOC’s mental-health care failings, it was determined
3

that “this issue must be addressed at the outset and that
the earlier the problem is attacked the better.”

Braggs

v. Dunn, 2018 WL 985759, at *1 (M.D. Ala. Feb. 20, 2018)
(Thompson, J.) (internal quotation marks omitted).
On

February

20,

2018,

the

court

issued

an

Understaffing Remedial Opinion, id., and an accompanying
Understaffing Remedial Order, (doc. no. 1657).

The order

mandated

remedying

the

following

deadlines

for

mental-health staffing:
“(a) By April 1, 2018, ADOC’s new mental-health
vendor shall begin providing mental-health
services.
“(b) By May 1, 2018, ADOC’s new mental-health
vendor, shall, in addition to continuing to fill
those positions in place at the time of this
order, fill at least 65 % of the additional
mental-health staffing positions provided for in
the contract.
“(c) By June 1, 2018, ADOC’s new mental-health
vendor, shall, in addition to continuing to fill
those positions in place at the time of this
order, fill at least 75 % of the additional
mental-health staffing positions provided for in
the contract.
“(d) By July 1, 2018, ADOC’s new mental-health
vendor, shall fill the mental-health staffing
positions consistent with the contract.”
4

Id. at 4.

The July 1, 2018, staffing requirement is to

remain in effect until November 2019, when new staffing
ratios will be implemented.

See id. at 5.

On July 2, 2018--after all relevant deadlines in the
Understaffing

Remedial

Order

had

passed--plaintiffs

filed a notice of non-compliance and motion for an order
to show cause why defendants should not be held in
contempt for violating the order.

The court granted the

motion and set a hearing, finding that plaintiffs had
adequately alleged that defendants had failed to meet the
staffing deadlines.

On September 19, 2018, the second

day of the contempt hearing, defendants orally moved for
clarification as to what the order’s staffing deadlines
required.

The court ultimately suspended resolution of

plaintiffs’ show-cause motion for a reason unrelated to
the issue now before the court.

II. Discussion
The
increases

dispositive
the

question

Understaffing
5

here

is

Remedial

what

staffing

Order

required

defendants to make by the third deadline, on July 1,
2018.1

The parties dispute the increases that deadline

required.

Essentially,

the

parties

disagree

on

the

meaning of the phrase “consistent with the contract” in
the order, which stated that, by July 1, 2018, defendants
“shall

fill

the

mental-health

consistent with the contract.”

staffing

positions

Understaffing Remedial

Order (doc. no. 1657) at 4 (emphasis added).
Plaintiffs contend that the contract and court order
“require

263.2

FTE

[(full-time

equivalent)]

mental-

health staff by July 1, 2018.”

Contempt Motion (doc. no.

1916)

to

at

10.

straightforward.

The

route

this

conclusion

is

“[T]he contract” mentioned in the order

refers to the Healthcare Services Agreement that ADOC
signed with its vendor Wexford Health Sources, Inc. for

1. The third deadline is dispositive because
defendants admit that they “failed to meet” the first two
deadlines (May 1 and June 1) by which the court ordered
them to increase their mental-health staff. Defendants’
Response (doc. no. 1936) at 5. Furthermore, the staffing
increases required by the July 1 deadline remain in
effect until November 2019 and are higher than those
required by the May 1 and June 1 deadlines.
6

the latter to provide healthcare services to inmates in
ADOC’s custody.

This contract expressly incorporates the

Request for Proposal for Comprehensive Inmate Healthcare
Services (RFP) issued by ADOC in July 2017, pursuant to
which ADOC ultimately selected Wexford.
Contract (doc. no. 1936-1) at 23-24.

See ADOC-Wexford
The RFP, in turn,

specifies that: “Minimum staffing levels at both the
facility and regional management levels are outlined as
Appendix F to this RFP.”

RFP (doc. no. 1936-1) at 146.

Appendix F, titled “Minimum Staffing Requirements,” lists
25 different types of mental-health “positions” to be
filled.

Id.

“Psychiatrist,”

at

246-48.

These

“Program

positions

Director,”

include

“Psychologist

(PhD),” “RN,” “Observer,” and “Mental Health Clerk,”
among others. Id. at 247-48. Appendix F further provides
the number of staff for each type of position that must
be filled at each facility, as well as at the “Alabama
Central Office.”

Id. at 249-59.

The numbers of required

staff for each type of position at the facilities and
central office are measured
7

in terms of FTEs.

For

example, Appendix F lists 1.0 FTE mental-health program
director at the central office, 0.75 FTE psychiatrists
and 1.0 FTE psychologist at the Limestone facility, 2.0
FTE licensed mental-health professionals (MHPs) and 5.0
FTE observers at the Holman facility, and 1.0 FTE mentalhealth clerk at the St. Clair facility.

See id.

Adding

up all the FTEs for each of the 25 types of mental-health
positions

at

the

facilities

“Total FTE’s” are “263.20.”
according

to

mental-health

plaintiffs,
staffing

and

central

office,

Id. at 259.
the

positions

order

to

consistent

the

Therefore,
“fill

the

with

the

contract” meant that defendants had to ensure that all
263.2 mental-health FTEs, by position types and locations
as set forth in Appendix F, were filled by July 1, 2018.
By contrast, defendants invoke a “staffing paybacks”
provision in the contract to argue that the order did not
require them to fill all of the 263.2 mental-health FTEs
by July 1, 2018.

Under the staffing-paybacks provision,

Wexford must pay a penalty to ADOC if it fails to fill
at an 85 % rate certain staff positions enumerated in the
8

“Minimum

Staffing

Requirements.”

Id.

at

147-48.2

Defendants claim that the 85 % threshold for triggering
penalties on their vendor Wexford means that the order
does not require filling 100 % of the 263.2 mental-health
FTEs.
For

the

reasons

interpretation

is

outlined
correct

and

below,

plaintiffs’

defendants’

is

unreasonable.

A. The Order Requires Defendants to Ensure that All
of the Mental-Health Positions Are Filled
That the order requires the filling of all assigned
FTEs for all 25 of the different types of mental-health
positions

at

all

designated

locations--and

thus

the

filling of all 263.2 FTEs--is made clear by the terms of
the

ADOC-Wexford

Associate

contract,

Commissioner

of

and
Health

confirmed
Services

by

ADOC

Naglich’s

unequivocal testimony about the contract’s meaning.

2. Certain staff positions are exempt from the
staffing-paybacks provision, including, among others,
the mental health clerk, receptionist, and administrative
assistant positions. See id. at 147.
9

To

start,

a

plain

reading

of

the

term

“Minimum

Staffing Requirements” in the contract shows that the
order requires filling all 263.2 FTEs listed for the 25
positions.
F

of

Id. at 246-259.

the

contract,

As discussed above, Appendix
titled

“Minimum

Staffing

Requirements,” lists how many FTE staff for each of the
25 positions must be placed at the central office and
each facility.
acceptable

or

The word “minimum” means “the smallest
possible

quantity

in

a

given

case.”

Minimum, Black’s Law Dictionary (10th ed. 2014).
word

“requirement”

means

“[s]omething

done...”; “an imperative command.”
Law Dictionary (10th ed. 2014).
in

the

numbers

“Minimum
of

FTEs

Staffing
needed

must

be

Requirement, Black’s

Therefore, by providing

Requirements”
for

that

The

each

the

position

specific
at

each

facility, the contract creates an “imperative command”
that the number of FTEs listed for each position at each
facility--amounting

in

total

to

263.2

FTEs--is

“smallest acceptable ... quantity” of FTEs.

10

the

Failing to

fill all 263.2 of the FTEs listed for the 25 types of
positions is unacceptable.
Perhaps more importantly, defendants’ argument that
the staffing payback provision’s 85 % threshold means
that the order requires less than 100 %--and as low as
85 %--of the 263.2 FTEs to be filled conflicts in two
fundamental

ways

with

how

the

contract

says

the

staffing-payback provision actually functions.
First,

the

contract

establishes

that

payback

penalties are imposed based on whether the required FTEs
for a particular position at a particular facility are
filled at an 85 % rate during a set period, not on whether
globally

85 %

of

all

263.2

FTEs

are

filled.

See

ADOC-Wexford Contract (doc. no. 1936-1) at 32; RFP (doc.
no. 1936-1) at 148.

Given that the 85 % threshold in the

payback provision applies to only a particular position
at a particular facility, the court struggles to see how
anyone could reasonably interpret the order to require
85 % of all 263.2 FTEs to be filled, as defendants now
suggest.
11

Relatedly, reading the court order to require filling
only 85 % of the 263.2 FTEs would lead to the absurd
result that defendants could be deemed in compliance with
the

order,

even

though

none

of

the

11.95

FTE

psychiatrists and 7.5 FTE psychologists required by the
contract were employed by Wexford.

Defendants could

maintain 92.6 % compliance without any such professionals
providing mental-health care to inmates.
course,

failing

to

employ

any

In reality, of

psychologists

or

psychiatrists would violate the order, as it would mean
that two of the 25 position types were unfilled.

12

Second,

the

contract

explicitly

states3--and

Associate Commissioner Naglich confirmed4--that whether
Wexford meets the 85 % threshold is calculated based on
the number of hours worked during a period, not the number
of FTE staff that are employed to fill the positions at
each

facility.

This

fact

is

fatal

to

defendants’

argument: the order to “fill the mental-health staffing
positions consistent with the contract” cannot mean to
fill 85 % of the FTEs required for the 25 types of
positions,

given

refers

the

to

that

the

percentage

contract’s
of

hours

85 %

worked,

threshold
not

the

percentage of required staff that is employed.

3. The contract provides that: “The monthly
calculation of staffing requirements will compare the
required number of FTE’s by eligible position, multiplied
by eight (8) hours per day, multiplied by the number of
week days in the calendar month at the required threshold
percentage ... to the total of all hours paid for an
individual position classification at each assigned
facility. ... The sum of the hours required for the time
periods ... will be compared to the total of actual hours
worked for that same time period.” ADOC-Wexford Contract
(doc. no. 1936-1) at 32.
4. “That’s 85 percent of hours worked. That doesn’t
mean 85 percent of positions filled.” Naglich Testimony,
Nov. 29, 2017 (doc. no. 2035) at 40.
13

Indeed, the contract indicates that the 15 % leeway
allowed by the 85 % threshold for triggering penalties
is intended to “accommodate[] Vendor’s staff vacation
time, sick time, holidays or paid time off (PTO).”

RFP

(doc. no. 1936-1) at 148; see also Naglich Testimony,
Nov. 29, 2017 (doc. no. 2035) at 41 (“[T]hey’ve got to
take days off and they have to have holidays, and that’s
where [you get] that 15 percent.”).

Crucially, this

language in the contract shows that the purpose of the
85 % rate is to allow Wexford to avoid penalties due to
employed staff missing work for legitimate reasons, not
to mean that Wexford complies with the contract even if
it employs only 85 % of the required staff.
In addition to the contradictions between the terms
of the contract and defendants’ proposed interpretation,
ADOC Associate Commissioner Naglich’s testimony directly
confirms

that

the

contract--and

thus

order--requires

filling all of the 263.2 FTEs listed in the contract’s
“Minimum Staffing Requirements.”

Prior to issuing the

remedial order, on November 29, 2017, the court asked
14

Naglich whether the minimum staffing numbers in the RFP
“have to be met up to 85 percent, or do they have to be
met absolutely?”
put

out

looking

have
for

Id. at 39.

to

100

She responded: “All numbers

be--absolutely,
percent

Your

staffing.

...

Honor.
I

You’re

think

it’s

confusing that people think we’re just asking that they
fill at 85 percent.

That’s not what we’re asking.

asking at 100 percent.”

Id. at 39.

We’re

Naglich reaffirmed

this understanding of the contract when she testified at
the contempt hearing on September 18, 2018.
It is hard to accept defendants’ argument that the
payback provision’s 85 % threshold means that filling all
263.2

FTEs

is

not

required,

when

Naglich,

ADOC’s

Associate Commissioner of Health Services, has twice told
the court exactly the opposite.
To summarize, defendants’ contention that the order
to “fill the mental-health staffing positions consistent
with the contract” allows Wexford to fill fewer than
263.2 FTEs is belied by a plain reading of the term
"Minimum Staffing Requirements” in the contract, as well
15

as

the

fact

that

the

contract

provides--and

Naglich

confirmed--that the 85 % threshold (1) is assessed on a
position-by-position rather than global basis and (2)
measures hours worked--not the number of FTE staff that
are employed to fill the positions at each facility.
Accordingly,

the

court

formally

declares

that

the

Understaffing Remedial Order required that, by July 1,
2018, defendants were to have filled all 263.2 of the
mental-health FTEs.

B. Measuring Compliance
The next question is how to determine whether all
263.2 mental-health FTEs for the 25 types of positions
are filled, in compliance with the order. The answer, in
broad strokes, is that Wexford must employ the 263.2 FTEs
enumerated in the “Minimum Staffing Requirements.”

Two

more specific points are worth highlighting here.
First, in assessing compliance, the inquiry is not
whether

263.2

mental-health

FTEs

of

any

kind

are

employed; rather, it is whether the FTE requirements for
16

each position at each facility are met.

In other words,

defendants are not in compliance if Wexford employs 263.2
FTE mental-health clerks.

To comply, Wexford must employ

0.50 FTE psychiatrists and 2.80 FTE licensed MHPs at the
Easterling facility, and 2.0 FTE observers for the Bibb
facility, and so forth, as enumerated by the “Minimum
Staffing Requirements.”5
Second,

determining

whether

Wexford

employs

all

263.2 FTEs is not a head count, that is, does not mean
263.2

individual

employees.

Instead,

the

contract

indicates that one FTE equals 40 hours worked per week.
See

ADOC-Wexford

Contract

(doc.

no.

1936-1)

at

32.

Therefore, to determine whether Wexford is employing the
2.0 FTE psychiatrists at the Bullock facility (excluding
outpatient)

that

the

contract

requires,

the

court

assesses whether, adding together all the hours per week

5. The parties have mentioned Wexford’s use of
subcontractors, sometimes referred to as “locums.” The
contract provides that “all persons assigned and
performing the work requirements of the” contract must
be “employees of Vendor or authorized subcontractors,
and hold all required licenses to perform the work
required herein.” RPF (doc. no. 1936-1) at 154.
17

(or

month)

specified

in

Wexford’s

contracts

with

psychiatrists hired to work at Bullock, they amount to
2.0 FTEs.6

That is, the court evaluates whether Wexford

has entered into contracts with psychiatrists to work at
Bullock 80 (2 x 40) hours per week, or 320 (2 x 160)
hours per month, etc., depending on what the appropriate
measuring time period is.7

C. All Reasonable Efforts Standard
If, at a contempt proceeding, plaintiffs prove that
defendants have not complied with the order’s requirement

6. Clearly, ADOC would not be in compliance with the
order if the 263.2 FTE staff employed by Wexford to fill
the minimum staffing requirements were actually working
substantially fewer hours than those required under their
contracts with Wexford. If confronted with evidence of
such a problem, the court could assess whether at least
85 % of the contracted hours for each position, at each
facility, were being worked, as is required by the
contract’s staffing-payback provision.
Of course, the
court understands that employed staff will miss work for
legitimate reasons such as “staff vacation time, sick
time, holidays or paid time off (PTO).” RFP (doc. no.
1936-1) at 148.
7. However, the court is not suggesting what the
appropriate measuring time (week, month, or whatever)
should be for a particular purpose.
18

to fill all 263.2 mental-health FTEs, defendants may
raise

the

defense

of

an

inability

to

comply.

The

“inability to comply is a complete defense to a contempt
citation.”

Newman v. Graddick, 740 F.2d 1513, 1525 (11th

Cir. 1984).

In raising the inability-to-comply defense,

“the defendant has a burden of production.”

United

States v. Rylander, 460 U.S. 752, 757 (1983). “To satisfy
this burden a contemnor must offer proof beyond the mere
assertion of inability.”

Chairs v. Burgess, 143 F.3d

1432, 1436 (11th Cir. 1998).

“Instead, a contemnor

‘demonstrate[s] an inability to comply only by showing
that [he has] made ‘in good faith all reasonable efforts
to comply.’”

Id. (quoting United States v. Ryan, 402

U.S. 530, 534 (1971)).
Thus, if defendants claim they are unable to comply,
they would have to show that they made all reasonable
efforts to ensure that Wexford employed all 263.2 mentalhealth FTEs, as required by the order.
required

by

the

rigorous

‘all

reasonable

comply’ standard is a substantial one.”
19

“The showing
efforts

to

United States

v. Roberts, 858 F.2d 698, 702 (11th Cir. 1998).
Eleventh

Circuit

Court

requirement strictly.”

of

Appeals

The

“construe[s]

this

Combs v. Ryan’s Coal Co., Inc.,

785 F.2d 970, 984 (11th Cir. 1986).

“Even if the efforts

[the contemnor] did make were substantial, diligent or
in good faith, ... the fact that he did not make all
reasonable efforts establishes that [the contemnor] did
not sufficiently rebut the ... prima facie showing of
contempt.”

United States v. Hayes, 722 F.2d 723, 725-26

(11th Cir. 1984) (internal quotation marks omitted).

***

Accordingly, it is ORDERED that defendants’ oral
motion to clarify, made in open court on September 19,
2018, is granted to the extent that it is DECLARED that
the

Phase

2A

Understaffing

Remedial

Order

(doc.

no.

1657)--and the ADOC contract referred to in it--required
that

defendants

were

to

20

ensure

that

all

263.2

mental-health FTEs listed in the contract’s “minimum
staffing requirements” were filled by July 1, 2018.
DONE, this the 29th day of October, 2018.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

21