Dunn et al v. Thomas et al

Filing 2726

PHASE 2A OPINION AND ORDER ON VITEK ISSUE: Accordingly, it is ORDERED that an on-the-record conference call is set for January 15, 2020, at 2:00 p.m., to discuss how to proceed on the matter discussed above. Signed by Honorable Judge Myron H. Thompson on 1/14/2020. (furn: calendar, ag) (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 VITEK ISSUE
Pending before the court is the issue of whether the
transfer of prisoners from the Alabama Department of
Corrections (ADOC) to outside hospitals for mental-health
care requires the due process protections outlined in
Vitek v. Jones, 445 U.S. 480 (1980).

The court has

concerns

before

that

resolution.

this

issue

is

properly

it

for

This opinion sets forth those concerns.

The Vitek issue arose in the process of determining
a remedy for the court’s finding that ADOC fails to
provide hospital-level mental-health care to those who

need it, in violation of the Eighth Amendment. See Braggs
v. Dunn, 257 F. Supp. 3d 1171, 1217 (M.D. Ala. 2017).
The State first proposed a plan to remedy this issue,
which

included

transferring

prisoners

in

need

hospital-level care to an outside private hospital.

of
See

State’s Proposed Remedial Plan on Hospital-Level Care
(doc. no. 1514) at 3. The plaintiffs then raised concerns
about

the

procedural

State’s
due

failure

process

to

include

protections

in
for

its

plan

prisoners

transferred to outside hospitals against their wishes,
which the plaintiffs contend are required by Vitek v.
Jones, 445 U.S. 480 (1980).

Since that time, the parties

have negotiated and entered into stipulations regarding
the provision of hospital-level care, see Stipulations
Regarding

Hospital-Level

Care

(doc.

nos.

2383-1

and

2383-2), which the court recently entered as a temporary
injunction, see Interim Injunction Regarding HospitalLevel Care (doc. no. 2717).

These stipulations exclude

the issue of the applicability of Vitek, as the parties
previously jointly requested that the court decide that

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issue and stated that they would negotiate to develop a
Vitek-compliant procedure if the court determines that
Vitek applies.
1-2.

See Joint Proposal (doc. no. 2308) at

In the meantime, the State has also contracted with

a private hospital to provide hospital-level care, see
Contract Review Report (doc. no. 2289-2), and prisoners
have already been transferred there for such care.
A hearing on the applicability of Vitek is now set
for January 24, 2020.
procedural

history

of

However, upon review of the
this

issue

and

the

parties’

arguments, the court has a threshold concern of whether
it can properly decide the applicability of Vitek in this
case.
First, the court questions whether, in the current
posture of the case, it can decide the issue.

Relying

solely on the Eighth Amendment, the court found the
defendants were liable because ADOC provided virtually
no hospital-level care, despite the presence of prisoners
in need of such intensive treatment.
Supp. 3d at 1217.

See Braggs, 257 F.

The court held that “hospital-level

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care or hospitalization should be available when patients
pose a danger to self or others and interventions in the
[stabilization unit] do not improve their condition.”
Id.

The court then turned to the issue of a remedy for

this Eighth Amendment violation.

A due process claim was

neither pleaded nor addressed in the liability opinion.
The court has serious doubts about its ability to order
a remedy for which it did not find any violation in its
liability opinion.
The court is also concerned whether any due process
remedy it might order would satisfy the requirements of
the

Prison

Litigation

§ 3626(a)(1)(A).

Reform

Act

(PLRA),

18

U.S.C.

The 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 the
Federal right, and is the least intrusive means necessary
to correct the violation of the Federal right.”

Id.

The

court has made no finding that the State has violated the
due

process

rights

of

individuals

4

in

need

of

hospital-level care by transferring them to a hospital
against their wishes and without adequate procedure.

How

can the court fashion a remedy that is no more than
necessary to address a violation where no violation has
been found?
Second, no prisoner has complained that ADOC is
involuntarily providing him with hospital-level care in
violation of due process.
liability,

the

Alabama

Indeed, since the court found
Disabilities

Advocacy

Program

(ADAP) has conferred with a number of prisoners who were
transferred to receive hospital-level care, and none has
objected.
practical
prisoner

This

lack

of

implications.
will

object

a

complaining

It
in

the

is

prisoner

conceivable

reasonably

has

that

no

foreseeable

future, for it is reasonable to conclude that prisoners
would likely view staying in a hospital as much more
preferable to residing in one of Alabama’s prisons.

And,

if and when a prisoner does complain, it is unclear what
the nature of the circumstances would be then.

The State

might simply yield to a prisoner’s objection and not

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provide such care.

(The court is not sure how the

plaintiffs would respond to such a circumstance.)

Or,

if the State should decide to seek to provide such care
in the face of a prisoner’s objection, the liability
opinion left open the possibility that the State could
provide hospital-level care in an actual hospital or in
a hospital-like setting.
1218.

Braggs, 257 F. Supp. 3d at

At that time, the State might be able to provide

hospital-level care either in one of the prisons it says
it plans to build or otherwise in a hospital-like setting
in one of its current prisons, circumventing a situation
arguably triggering Vitek protections.

See Plaintiffs’

Brief (doc. no. 2289) at 4 (describing the Vitek case as
requiring protections where “ADOC cannot provide the
level of care necessary to treat that patient within the
walls of an ADOC facility”).

In short, the applicability

of Vitek could vary based on many facts that could arise
in the future.
concerned

that

Without concrete facts, the court is
it

could

do

hypothetical answer.

6

no

more

than

offer

a

Because the court is raising this threshold matter
for the first time, an on-the-record conference call will
be scheduled to discuss how to proceed.
* * *
Accordingly, it is ORDERED that an on-the-record
conference call is set for January 15, 2020, at 2:00
p.m., to discuss how to proceed on the matter discussed
above.
DONE, this the 14th day of January, 2020.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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