Dunn et al v. Thomas et al

Filing 2702

PHASE 2A OPINION AND ORDER ON A PROCESS TO IDENTIFY FUNCTIONAL SEGREGATION: Accordingly, it is ORDERED that the defendants are to file with the court, by noon on Friday, January 24, 2020, a report by Dr. Perrien proposing a process for the defend ants to determine when a cell or unit is functioning as segregation, accompanied by any commentary the defendants deem appropriate. The plaintiffs are to respond by noon on Friday, February 7, 2020. Signed by Honorable Judge Myron H. Thompson on 12/19/2019. (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
A PROCESS TO IDENTIFY FUNCTIONAL SEGREGATION
The plaintiffs have twice asked this court, as part
of

both

the

segregation

remedial

trial

and

the

suicide-prevention remedial trial, to extend relief to
units

that

allegedly

function

as

segregation,

even

though the defendants do not formally label them as
such.
opinion

While
that

this

court

segregation

explained

in

“generally

its
refers

liability
to

the

correctional practice of keeping a prisoner in a cell
for 22.5 hours or more a day,” Braggs v. Dunn, 257 F.

Supp. 3d 1171, 1235 (M.D. Ala. 2017), calculating the
amount of out-of-cell time has proven more difficult
than the definition might suggest.

As a result, during

a subsequent on-the-record hearing on December 6, 2019,
the court asked both parties how to determine whether a
cell or unit is functioning as segregation.
6,

2019

Status

Conference

Tr.

(doc.

no.

See Dec.
2686)

at

88:21-25.
The plaintiffs and defendants each argued that the
court should adopt their expert’s recommendations.
id.

at

88:21-90:12

(plaintiffs’

(defendants’ argument).
trial,

both

argument),

See

92:11-16

During the suicide-prevention

plaintiffs’

expert

Dr.

Burns

and

defendants’ expert Dr. Perrien agreed with the court’s
use of a functional definition of segregation based on
the amount of out-of-cell time a person receives.
Apr.

9,

2019

165:20-166:7.*

of

Rough

Draft

(R.D.)

Trial

Tr.

See
at

As the court pointed out, both experts

*
The court has previously cited to rough drafts
transcripts not yet docketed, including this
2

also jointly recommended that the court extend certain
relief to units functioning as segregation, even if not
formally labelled as such.
about

where

“30-minute
Relief

to

custody

In response to questions

apply

their

rounds

in

Recommendations

(doc.

recommendation

segregation,”
no.

2416-4)

for

Immediate
at

4,

the

plaintiffs’ expert explained that such rounds “should
happen in any place that’s functioning as a segregation
unit or a segregation-like unit,” Apr. 9, 2019 R.D.
Trial Tr. at 193:6-11.

The defendants’ expert agreed

that her “understanding was [that their recommendation
particular
rough
draft
of
testimony
from
the
suicide-prevention remedial trial.
See, e.g., Braggs
v. Dunn, 383 F. Supp. 3d 1218, 1229 (M.D. Ala. 2019)
(citing the same rough draft of the April 9, 2019
testimony).
As a general matter, the rough drafts
cited in this opinion and order and throughout this
litigation accurately reflect the court’s independent
memory of the testimony. Further, both the plaintiffs
and the defendants have also specifically cited to
rough drafts of the suicide-prevention trial and do not
contest their accuracy.
See, e.g. Pls.’ Br. on
Segregation-Like Units (doc. no. 2645) at 3 (citing the
same rough draft of the April 9, 2019 testimony);
Defs.’ Br. Regarding ‘Segregation-Like’ Issue (doc. no.
2646) at 9 (citing rough drafts of testimony from April
4, 5, 10, and 12, 2019).

3

applied to] units that are segregation or functioning
as segregation.”

Id. at 193:13-14.

In Dr. Perrien’s

view, the two experts made this joint recommendation in
order to address the acute risk of suicide in these
settings.

See id. at 193:17-194:1.

Following the suicide-prevention trial, the court
ordered the defendants to conduct security checks every
30 minutes in formal segregation, see Braggs v. Dunn,
383 F. Supp. 3d 1218, 1273-74 (M.D. Ala. 2019), but
reserved the issue of whether to extend such relief to
functional segregation, for the simple reason that if
the court were to extend relief to certain cells or
units functioning as segregation, there would need to
be a process for how to identify such cells or units,
see id. at 1228.

To that end, the court notes several

significant

methodological

disagreements

that,

preliminary

matter,

need

resolved

would

develop such a process.

to

be

as

a
to

For example, since the court

initially suggested that the defendants could use the
average amount of out-of-cell time per day as a way to
4

identify functional segregation, see Order (doc. no.
2282)

at

2

n.*

(emphasis

added),

there

has

been

a

question whether the average should be calculated over
the course of a week, month, quarter, or some other
period

of

time,

‘Segregation-Like’

see,
Issue

e.g.
(doc.

Defs.’
no.

Br.

on

at

20.

2646)

Further, although the defendants initially represented
that “[d]etermining the average out-of-cell time would
require ADOC to review the duty post logs for each
individualized cell for the relevant period of time,”
Defs.’ Mot. for Recons. (doc. no. 2300) at 14, they
later challenged the plaintiffs’ reliance on duty post
logs

as

Warden

evidence
Christopher

of

out-of-cell

Gordy’s

time,

testimony

pointing

that

to

“there's

several logs, other logs, that are attached to the duty
post

logs

that

reflects

inmates’

out-of-cell

Apr. 5, 2019, R.D. Trial Tr. at 224:16-22.

time,”

Finally,

the parties also disagreed about whether to count time
spent in all out-of-cell activities or only particular
out-of-cell activities.

The experts disagreed too, at
5

least in part.

Based on their testimony, the court

understands that Dr. Burns would not count activities
such

as

showers,

haircuts,

pill

call,

sick

call,

diabetic finger sticks, the taking of vital signs, or
the picking up of meal trays as out-of-cell time.

See

Apr. 8, 2019 R.D. Trial Tr. at 118:2-119:2; see also
Apr.

10,

2019

R.D.

Trial

Tr.

at

143:12-19.

In

contrast, the court understands that Dr. Perrien would,
at least if it were practical to do so. See Apr. 10,
2019 R.D. Trial Tr. at 143:20-25.
Because Dr. Burns and Dr. Perrien suggested that
they

would

count

out-of-cell

time

differently,

the

plaintiffs proposed that the court give the defendants
an opportunity to come up with a complete process to
determine

when

segregation;
that

Dr.

proposal.

a

the

Perrien

cell

or

defendants
should

be

unit
agreed

is
to

allowed

functioning
that
to

as

idea

and

develop

the

See Dec. 6, 2019 Status Conference Tr. (doc.

no. 2686) at 90:17-24 (plaintiffs’ proposal), 95:15-17
(defendants’

acceptance),
6

95:22-23

(plaintiffs’

acceptance).

As Dr. Perrien herself explained, “there

needs

a

to

be

way

to

out-of-cell time.”
143:23-24.

With

track

who

received

what

...

Apr. 10, 2019 R.D. Trial Tr. at
that

understanding,

and

with

the

parties’ agreement, the court will give Dr. Perrien an
opportunity to find a way.
To

be

clear,

methodological
cells

or

the

proposal

units

court
for

function

is

how
as

interested
to

in

determine

segregation,

a

which

not

an

evaluation of the specific evidence presented during
the

suicide-prevention

trial.

For

example,

the

proposal could address on which form defendants should
record out-of-cell activities, for which types of cells
or units, and with what specificity.
proposal

could

distinguish

In addition, the

between

out-of-cell

activities based on the length of the activity (brief
versus extended), as was discussed during the latest
status conference, see Dec. 6, 2019 Status Conference
Tr.

(doc.

no.

2686)

at

91:22-92:2,

as

well

as

the

frequency of the activity (regular versus irregular),
7

the purpose of the activity (social or not), or some
other characteristic of the activity.
More generally, regardless of the specifics, the
proposal should address how it balances the importance
of identifying cells or units for which relief may be
appropriate with the goals of creating a manageable,
not overly burdensome, and yet objectively verifiable
process.
***
Accordingly, it is ORDERED that the defendants are
to file with the court, by noon on Friday, January 24,
2020, a report by Dr. Perrien proposing a process for
the defendants to determine when a cell or unit is
functioning
commentary

as
the

segregation,
defendants

accompanied

deem

by

appropriate.

any
The

plaintiffs are to respond by noon on Friday, February
7, 2020.
DONE, this the 19th day of December, 2019.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE