Dunn et al v. Thomas et al

Filing 2824

PHASE 2A OPINION AND ORDER ON NEXT STEPS FOR A PROCESS TO IDENTIFY FUNCTIONAL SEGREGATION, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 6/1/2020. (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 OPINION AND ORDER ON NEXT STEPS
FOR A PROCESS TO IDENTIFY FUNCTIONAL SEGREGATION
After an on-the-record hearing on December 6, 2019,
this court solicited the views of defense expert Dr.
Mary Perrien about how “to determine when a cell or
unit is functioning as segregation.”

Braggs v. Dunn,

No. 2:14-cv-601, 2019 WL 7041620, at *2 (M.D. Ala. Dec.
19,

2019)

“note[d]

(Thompson,
several

J.).

At

the

significant

time,

the

court

methodological

disagreements that, as a preliminary matter, would need
to be resolved to develop such a process.”
short,

these

disagreements

were

about

Id.
(1)

In
how

out-of-cell

time

should

be

documented;

(2)

how

out-of-cell time should be averaged; and (3) whether
certain out-of-cell activities should be excluded from
the calculation.

See id.

Dr. Perrien’s proposal (doc. no. 2772-1) clearly
addresses two of the three significant methodological
disagreements.

In short, as to (1), how out-of-cell

time should be documented, Dr. Perrien proposes that
the Alabama Department of Corrections (ADOC) create a
written schedule of planned out-of-cell time in a unit,
and

have

officers

document

deviations

from

the

schedule; and, as to (2), how out-of-cell time should
be

averaged,

she

proposes

to

determine

the

average

weekly out-of-cell time for the unit over the course of
a quarter.

A unit providing less than an average of 11

hours per week of out-of-cell time would be determined
to

be

proposal

functioning
does

not

as

segregation.

specifically

address

Dr.

Perrien’s

(3),

whether

certain out-of-cell activities should be excluded from
the

calculation.

However,
2

Dr.

Perrien

previously

explained

any

out-of-cell

activity, if it were practical to do so.

See Braggs,

2019

that

WL

she

would

7041620,

count

at

*2

(citing

to

the

both

the

suicide-prevention trial).
The

court

plaintiffs
proposal.

also

and

the

sought

the

defendants

views
as

to

of
Dr.

Perrien’s

The plaintiffs agree with the premise of the

proposal but ask this court specifically to modify it
in part.
2

(“The

See, e.g., Pls.’ Response (doc. no. 2805) at
premise

of

Dr.

Perrien’s

proposal

is

that

celled housing units should adhere to out-of-cell time
schedules to ensure that such units do not function as
segregation....

Plaintiffs agree with this concept and

find it to be consistent with expert testimony.”).

As

to (1), how out-of-cell time should be documented, the
plaintiffs
weekly

agree

schedule

with
of

Dr.

Perrien’s

planned

proposal

out-of-cell

of

a

activity.

However, the plaintiffs request that the documentation
specifically include a count of the number of inmates
who participate and who refuse to participate in each
3

activity.

As to (2), how out-of-cell time should be

averaged,

the

plaintiffs

request

that

the

average

weekly out-of-cell time be averaged over a month rather
than

a

quarter.

out-of-cell

And,

activities

calculation,

the

as

to

should

plaintiffs

(3),
be

whether

excluded

request

certain

from

that

the

certain

activities, such as showers, haircuts, pill calls, sick
calls, diabetic finger sticks, vital sign checks, and
picking up meal trays not be counted, given the prior
testimony of the plaintiff expert Dr. Kathryn Burns.
Beyond

the

preliminary

methodological

disagreements, the plaintiffs additionally propose to
apply

this

measurement

process

to

any

units

that

plaintiffs “in good faith believe to be operating as
segregation.”

Pls.’ Response (doc. no. 2805) at 9.

Further,

Dr.

while

Perrien

proposes

that

any

relief

provided for units found to be operating as segregation
be determined on a unit-by-unit basis by ADOC “with
input
Report

from
(doc.

the
no.

External

Compliance
at

2772-1)
4

Team,”
the

4

n.2,

Perrien

plaintiffs

instead

“ask

the

Court

to

order

relief

for

segregation-like units that is consistent with relief
that has already been ordered for officially designated
segregation units ... and ... re-assert their request
for additional segregation relief that remains pending
before the Court.”

Pls.’ Response (doc. no. 2805) at

11.
The defendants view Dr. Perrien’s proposal as “an
acceptable process in large measure,” though they did
not comment on its specifics.

Defs.’ Notice Regarding

Proposal (doc. no. 2772) at 7-8 ¶ 8.

Nonetheless, the

defendants

the

request
function

ask

to
as

this

extend

court

segregation,

deny

to

relief

to

units

for

reasons

plaintiffs’

that
which

allegedly
will

be

discussed later.
The

court

scheduled
generally.

oral

is

cognizant

argument

on

of
this

the
issue

fact
was

that

the

continued

In order to continue moving forward on this

issue in the interim, and for the reasons that follow,
the court will order limited additional briefing prior
5

to the oral argument to clarify the pending proposal as
it

relates

discussed

to

the

above.

methodological

The

court

will

disagreements
also

deny

the

defendants’ broad request to deny any relief to units
found to be functioning as segregation, regardless of
the

specific

process

for

tracking

out-of-cell

time.

The court will address the extent of appropriate relief
as part of the pending segregation opinion, which will
encompass

relief

for

units

that

are

both

formally

labelled as segregation and found to be functionally
operating as segregation.

I.

DR. PERRIEN’S PROPOSAL AND PLAINTIFFS’ RESPONSE
The

requests

court
to

will

adopt

in

first
part

detail
and

the

modify

plaintiffs’
in

part

Dr.

Perrien’s proposal, explaining the views that motivate
the order for additional briefing.

6

A.

Documentation of Out-of-Cell Time

In order to calculate the amount of out-of-cell
time provided per week, Dr. Perrien has proposed that
“ADOC will develop a schedule for all Contested Units
with celled housing that provides for at least two (2)
hours of out-of-cell activity per inmate per day,” or
14 hours of out-of-cell activity per inmate per week.
Perrien Report (doc. no. 2772-1) at 2.
each

shift,

deviations

the

from

the

unit

officer

unit’s

[would]

scheduled

“sign[ing] [the] daily schedule.”

“At the end of
note

activities”

any
by

Id. at 2-3 & n.1.

Because “[t]he signatures of officers [would] mean that
the activity, unless otherwise noted, occurred,” id. at
2-3

n.1,

the

documentation

would

allow

ADOC

to

calculate the “weekly provided out-of-cell time” for
each unit as the “sum of [scheduled] activity hours
minus

program

shutdown

activity

hours.”

Id.

at

3.

“Program shutdown activity hours” are presumably the
hours for which an activity was scheduled but did not
occur.
7

The

plaintiffs

additionally

that

ask
the

this

court

officer

to

“document

require
how

many

prisoners participated in [each] activity and how many
refused,” Pls.’ Response (doc. no. 2805) at 8, for two
distinct reasons.

First, the plaintiffs are concerned

that not all scheduled activities may be offered to all
prisoners in a unit.
housing

units,”

For example, “in some celled

according

to

the

plaintiffs,

“activities like yard are not offered to the entire
unit at once but rather to a portion of the unit (also
known as a ‘tier’ or ‘side,’ depending on the unit).”
Id. at 7.

Second, the plaintiffs are concerned that

even if activities are offered to all prisoners in a
unit, they may be “offered at times or in manners that
discourage participation.”

Id.

While these concerns are valid, the court does not
believe
necessary.

that
As

such
the

additional
court

has

documentation

previously

noted,

is
any

system to identify function segregation must “balance[]
the importance of identifying cells or units for which
8

relief may be appropriate with the goals of creating a
manageable, not overly burdensome, and yet objectively
verifiable process.”

Braggs, 2019 WL 7041620, at *2.

Dr. Perrien balanced these goals by proposing a system
that

is

focused

on

the

unit-level,

however

defined, rather than the individual-level.
is

unwilling

this stage.
in

which

to

upset

that

balance,

that

is

The court

particularly

at

The plaintiffs’ concern about the manner
activities

are

offered

would

be

better

addressed as part of a broad monitoring scheme rather
than

transforming

Dr.

Perrien’s

proposal

requirement for very detailed paperwork.

into

a

Otherwise,

the court would risk enmeshing itself in the operation
of ADOC and overburdening the defendants.
On a practical level, the additional documentation
would also not affect the proposed calculation of the
“weekly provided out-of-cell time” for each unit, which
is the “sum of [scheduled] activity hours minus program
shutdown
2772-1)

activity
at

3.

hours.”
Neither

Perrien
the
9

number

Report
of

(doc.

no.

persons

who

participate in an activity nor the number of persons
who refuse are factored into the number of scheduled
avidity hours or the number “program shutdown activity
hours.”

Importantly, the plaintiffs do not disagree

with this proposed method.

See Pls.’ Response (doc.

no. 2805) at 2 (“The premise of Dr. Perrien’s proposal
is

that

celled

housing

units

out-of-cell time scheduled....

should

adhere

to

Plaintiffs agree with

this concept.”); id. at 3 (“Plaintiffs agree with Dr.
Perrien
posted

that

compliance

schedule

signatures

on

should
the

with
be

and

deviation

documented

schedules,

along

with
with

from

the

officers’
a

written

explanation for any deviation.”); id. at 4 (“Plaintiffs
agree with Dr. Perrien that out-of-cell time ... should
be documented daily and calculated weekly.”).
Nonetheless, the court agrees with the plaintiffs’
first concern that not all scheduled activities may be
offered to all prisoners in a unit to the extent it is
alternatively understood as a concern that the unit may
not

always

be

the

right

level
10

of

measurement

for

identifying

functional

segregation.

Instead,

some

units may be better tracked as separate tiers.

Dr.

Perrien’s proposal, while sparse, does not suggest it
would be appropriate to count time offered to one tier
as time for the entire unit.

Instead, it suggests that

the scheduled activities are intended to be offered to
each inmate.

See Perrien Report (doc. no. 2772-1) at 3

(“It will not be necessary to track out-of-cell hours
by inmate because the schedule’s purpose is to provide
sufficient hours for each inmate within the unit.”).
As a result, the court believes that a more practical
way to accommodate the plaintiffs’ concern would be to
make

explicit

that

scheduled

activities

in

Dr.

Perrien’s proposal are required to be offered to each
inmate and that, as a result, tracking tiers separately
will

be

necessary

when

different

tiers

receive

different access to out-of-cell activities.
Finally,

Dr.

Perrien

also

stated

that,

“To

the

extent that the schedule deviates from [the] goal of 11
or more hours of out-of-cell time per week, there may
11

need to be alternative or additional documentation.”
Id. at 3.

This does not warrant a different outcome.

First,

plaintiffs

the

statement.
meant

by

did

not

address

Dr.

Perrien’s

Second, it is not clear what Dr. Perrien
the

concerned

statement.

about

documentation

any

of

In

general,

resulting

out-of-cell

the

uncertainty
time,

court
about

particularly

is
the
in

light of the parties’ previous dispute about whether
duty logs were a comprehensive source of out-of-cell
time.

See, e.g., Defs.’ Notice (doc. no. 2772) at

4 ¶ 3 (“Plaintiffs offered nothing more than criticisms
of the thoroughness of ADOC’s documentation.”).

B.

Averaging of Out-of-Cell Time

Dr. Perrien proposes that the defendants average
the

amount

of

out-of-cell

time

each

week

“over

the

course of a quarter,” Perrien Report (doc. no. 2772-1)
at 3, such that there is a determination about whether
or not a unit is functioning as segregation four times
a year.

In contrast, the plaintiffs propose averaging
12

the

amount

course

of

of
a

out-of-cell
month,

such

time

each

over

there

that

week

the

is

instead

a

determination about whether a unit is functioning as
segregation twelve times a year.

See Pls.’ Response

(doc. no. 2805) at 4-5.
Dr.

Perrien

selecting

has

quarters

offered
as

her

no

explanation

proposed

for

period

of

measurement.

Further, the plaintiffs have only pointed

to

to

the

need

remove

persons

with

serious

mental

illnesses (SMI) from segregation-like settings as soon
as possible to justify the alternative monthly measure.
See

id.

at

5.

But

this

is

only

a

partial

justification, as the plaintiffs’ requested relief is
much broader than extending protections for SMIs.

See

id. at 10-11 (plaintiffs’ request for relief).

C.

Counting of Out-of-Cell Activities

In

prior

testimony,

plaintiff

expert

Dr.

Burns

explained that she would not count activities such as
showers,

haircuts,

pill

call,
13

sick

call,

diabetic

finger

sticks,

the

taking

of

vital

signs,

or

the

picking up of meal trays as out-of-cell time.

See

Braggs,

the

2019

WL

7041620,

suicide-prevention

at

*2

trial).

In

(citing

to

contrast,

the

defendants’ expert Dr. Perrien explained that she would
count these activities, if it were practical to do so.
See

id.

(emphasis

added).

Dr.

Perrien’s

proposal,

however, does not address whether or not it would be
practical to do so.

As a result, the plaintiffs ask

this court to credit Dr. Burns’ prior testimony and
find

that

these

brief

activities

“should

not

be

counted,” regardless of whether it is practical to do
so.

Pls.’ Response (doc. no. 2805) at 7.
The

plaintiffs,

however,

are

presuming

that

the

defendants believe it would be practical to count such
activities and intend to do so.
not

comment

on

Dr.

Perrien’s

But the defendants did
proposal

with

such

specificity as to know how they intend to implement it.

14

D.

Nomination of Housing Units for Time-Tracking

The

court

solicited

the

above-discussed

proposal

from Dr. Perrien in order to determine whether a cell
or unit should be covered by remedial orders related to
ADOC’s use of segregation. See generally Braggs, 2019
WL 7041620.

The court thus intended for the proposal

to be flexible enough to be applied during the duration
of any relief ordered.
As the plaintiffs point out, “units within ADOC’s
major facilities frequently change purpose and use, and
segregation-like
eliminated

at

units

are

Defendants’

created,

sole

Response (doc. no. 2805) at 9.

moved,

discretion.”

and
Pls.’

In anticipation of

this, the plaintiffs ask this court to “permit them to
request

time-tracking

of

any

additional

units

that

Plaintiffs in good faith believe to be operating as
segregation.”

Id.

Dr. Perrien’s proposal, however, does not clearly
address how the plaintiffs should nominate a unit for
time-tracking.

On the one hand, Dr. Perrien’s proposal
15

explicitly “only addresses” those housing units alleged
by the plaintiffs to function as segregation during the
suicide-prevention
2772-1) at 2.

trial.

Perrien

Report

(doc.

no.

On the other hand, the proposal is also

forward-looking,

explaining

that

it

generally

“addresses a process to identify housing units that may
function like restrictive housing units (RHUs) based
upon limited out-of-cell time.”

Id.

Relatedly, the

proposal explains that “ADOC will develop a schedule
for

all

Contested

(emphasis added).

Units

with

celled

housing.”

Id.

Because the court understands that

each of the units currently identified as “Contested
Units”
appears

are

celled

to

housing,

contemplate

additional units.

the

future

additional

language

allegations

about

The proposal also specifies that it

would apply only to celled housing units and not to
either the mental-health units or “any cell or housing
unit

used

for

isolation/quarantine.”

purposes
Id. at 4.

16

of

medical

Because

the

plaintiffs

agree

that

the

inquiry

should be limited in this way,* they suggest that “the
universe

of

units

that

could

be

segregation-like

is

*
The plaintiffs agree with Dr. Perrien that the
inquiry would be limited to celled housing units and
will not apply to units already designated by ADOC as
formal segregation.
See Perrien Report (doc. no.
2772-1) at 4 (process “does not apply to any housing
unit designated as a formal RHU”); Pls.’ Response (doc.
no. 2805) at 3 (“Plaintiffs agree ... that [process]
should not apply to formally designated segregation”).
The process would also not apply to mental-health
units, which are already required to provide a minimum
amount of out-of-cell time; units used for purposes of
medical isolation/quarantine, at least as long as
medical isolation does not become commonplace during
COVID-19; and crisis cells, which will be subject to a
different arrangement.
See Perrien Report (doc. no.
2772-1) at 4 (process “does not apply to ... any
housing unit for which ADOC may otherwise be required
to provide a minimum of out-of-cell time, for example
the Stabilization Units, Residential Treatment Units,
or the Structured Living Unit,” and, further, “inmates
housed in crisis cells or medical cells/infirmary ...
will be provided appropriate out of cell activity after
72 hours unless contraindicated”); Pls.’ Response (doc.
no. 2805) at 3-4 (“Plaintiffs agree ... that [process]
should not apply to ... medical isolation/quarantine,
stabilization, residential treatment, and structured
living units”); id. at 3 n.5 (“Plaintiffs reserve the
right to reassess whether medical isolation cells
should be subject to segregation remedies if prolonged
medical isolation becomes a more common practice within
ADOC” given COVID-19); id. at 4 (“Plaintiffs agree ...
that it is appropriate to provide out-of-cell time to
people in crisis ... cells after 72 unless a clinical
contraindication is documented”).
17

relatively small.”
12

n.10.

Pls.’ Response (doc. no. 2805) at

The

court,

however,

does

not

have

a

housing

unit

is

sufficient factual record to verify this.

E.

Remedy

Dr.

Perrien

proposes

that

if

a

considered functional segregation, then it “may become
subject

to

some

of

the

requirements

applicable

to

[formal segregation] as determined on a unit-by-unit
basis.”

Perrien

(emphasis

Report

added).

(doc.

no.

However,

2772-1)

“many

of

at
the

3-4
...

requirements might not be applicable to certain types
of housing units or cells.”
the

“ADOC,

Team,”

with

would

input

“determine

from

Id. at 4 n.2.
the

which

Ultimately,

External

requirements

appropriate on a unit-by-unit basis.”

Compliance
might

be

Id.

Because “there is currently no External Compliance
Team ... in place,” the plaintiffs “request that any
unit-by-unit exceptions be approved by Dr. Perrien and

18

... Dr. Kathryn Burns.”

Pls.’ Response (doc. no. 2805)

at 4.
But the plaintiffs also “ask the Court to order
relief for segregation-like units that is consistent
with

relief

officially
re-assert

that

has

designated
their

already

segregation

request

for

been

ordered

for

units

...

...

additional

and

segregation

relief that remains pending before the Court.”

Id. at

11.
It

is

not

exactly

clear

to

the

court

how

the

plaintiffs’ multiple requests are compatible with one
another or what would constitute “consistent” relief.
Further, the court is concerned though that not all
remedial

relief

for

segregation

already

ordered

or

pending before the court would be appropriate for all
segregation-like

units,

primarily

because

such

units

can change their status over time, transforming from
functional
providing

segregation
enough

in

one

out-of-cell

quarter.
19

month

time

the

or

quarter

next

month

to
or

Finally,

the

court

is

also

cognizant

about

the

different nature of the evidence presented during the
liability

trial

segregation.
reviewed
created

as

formal

and

functional

During the liability trial, this court

evidence
by

to

on

the

segregation

in

“risks

of

general

segregation units in particular.”

decompensation
and

by

ADOC’s

Braggs v. Dunn, 257

F. Supp. 3d 1171, 1240 (M.D. Ala. 2017) (Thompson, J.)
(emphasis

added).

The

risks

of

decompensation

by

segregation in general would apply to both formal and
functional segregation because the risks flow form the
shared lack of out-of-cell time.
decompensation
particular

may

by
only

ADOC’s
be

But the risks of

segregation

directly

relevant

units
to

in

formal

segregation.

II. DEFENDANTS’ OBJECTIONS TO RELIEF
In general, the defendants object to extending any
relief to units functioning as segregation, regardless
of the ultimate process for tracking out-of-cell time.
20

The defendants offer five arguments, none of which are
persuasive:

(1)

the

lack

of

evidence

in

the

suicide-prevention trial; (2) the lack of a “current,
ongoing constitutional violation”; (3) the “justified
reasons for limiting inmates’ out-of-cell time”; (4)
the

fact

that

the

plaintiffs

“cannot

rewrite

the

remedial stipulations and orders regarding restrictive
housing”;

and

(5)

the

“conflict[]

with

the

PLRA’s

need-narrowness-intrusiveness requirements,” because of
the lack of a liability finding.

Id. at 3 ¶ 2.

The defendants’ first two claims are both related
to

the

evidence

trial.

First,

evidence

before

presented
the
the

at

the

defendants
Court

suicide-prevention
claim

that

disproved

“[t]he

Plaintiffs’

allegations concerning the allegedly ‘segregation-like’
settings.”

Defs.’ Notice (doc. no. 2772) at 3 ¶ 2.a,

3 ¶ 3 (emphasis added).

Second, the defendants claim

that the plaintiffs “fail to show a current, ongoing
constitutional violation” because “the record contains
no

evidence

regarding

the

current

21

use

or

conditions

within the Contested Units.”
(emphasis

added).

misconceive

the

presented.

But

role

Id. at 3 ¶ 2.b, 4 ¶ 4

both

arguments

the

of

related
evidence

previously

During the suicide-prevention trial “both

experts ... jointly recommended that the court extend
certain

relief

to

units

functioning

as

even if not formally labelled as such.”
WL

7041620,

provided

at

the

*1.

The

foundation

evidence

for

segregation,
Braggs, 2019

presented

thus

inquiry

into

further

precisely how to best determine when and where units
are currently operating as functional segregation.

In

fact, when the court solicited Dr. Perrien’s proposal,
it

explained

methodological
cells

or

that

it

proposal

units

was

for

function

“interested

how
as

to

in

determine

segregation,

a

which

not

an

evaluation of the specific evidence presented during
the

suicide-prevention

7041620,

at

*2

trial.”

(emphasis

Braggs,

added).

2019

Because

WL
the

determination of whether or not a unit is functioning
as

segregation

will

be

based
22

on

the

time-tracking

method

proposed

argument

about

by
the

Dr.

Perrien,

evidence

or

the
lack

defendants’
of

evidence

presented during the suicide-prevention trial is not a
basis for denying all relief.
The defendants’ third, fourth, and fifth claims all
relate to the potential relief.

The defendants’ third

claim is that that any relief would be “overly broad”
because

it

would

“ignore

the

necessary,

justified

reasons for limiting inmates’ out-of-cell time,” such
as when an inmate is “placed on suicide watch or other
crisis placement”

or is “subject to restrictions and

observation by members of the medical staff.”
3 ¶ 2.c,

5 ¶ 5.

Fourth,

applying

“the

regarding

restrictive

the

remedial

defendants

stipulations

housing”

to

Id. at

claim
and

that

orders

segregation-like

settings would be inappropriate because the defendants
“never agreed that the ... [s]tipulations applied to
the

Contested

Units

or

‘segregation-like’ setting.”

any

other

allegedly

Id. at 3 ¶ 2.e, 6—7 ¶ 7.

Fifth, the defendants claim that “[t]he relief sought
23

by

the

Plaintiffs

related

to

the

Contested

Units

conflicts with the PLRA’s need-narrowness-intrusiveness
requirements”

because

“the

Court

made

no

liability

finding with respect to the Contested Units.”

Id. at

3 ¶ 2.d, 6 ¶ 6.
Both

the

third

and

fourth

claims

are

now

moot.

Both Dr. Perrien and the plaintiffs have agreed that
cells

or

units

used

for

suicide

watch,

crisis

placement, or medical isolation will not be considered
functional

segregation,

out-of-cell

time,

defendants.

for

See

supra

plaintiffs

have

segregation

remedies

regardless
the

reasons

note

clarified
apply

of

only

lack

cited

of

by

the

Further,

*.

that

the

the

“[t]he
to

stipulated

units

ADOC

has

officially designated as segregation units” and that
they

“do

not

now

seek

to

undermine

[the

remedial

stipulations] by asking that they be read to include
segregation-like

units.”

2805) at 10 & n.8.

Pls.’

Response

(doc.

no.

Instead, the plaintiffs “ask the

[c]ourt to order relief for segregation-like units that
24

is consistent with relief that has already been ordered
for

officially

“re-assert

designated

their

request

segregation

for

additional

units”

and

segregation

relief that remains pending before the [c]ourt... which
should apply to both segregation and segregation-like
units.”

Id.

concerns,

at

as

11.

As

reflected

a

in

result,
their

the

third

defendants’
and

fourth

arguments, are adequately addressed and are not a basis
for denying relief.
The flaw with the defendants’ fifth claim related
to the PLRA is that it misconceives the nature of the
violation found in the liability opinion.
found

that

Eighth

one

Amendment

segregation,
ill

of

factors

violation

including

prisoners

circumstances

the

in
and

was

contributing

to

the

use

“[p]lacing

segregation
for

This court

State’s

seriously
without

prolonged

the
of

mentally

extenuating

periods

of

time;

placing prisoners with serious mental-health needs in
segregation

without

adequate

consideration

of

the

impact of segregation on mental health; and providing
25

inadequate treatment and monitoring in segregation.”
Braggs

v.

Dunn,

257

F.

Supp.

3d

1268 ¶ 7 (M.D. Ala. 2017) (Thompson, J.).

1171,

It is true

that the appropriate relief for units functioning as
segregation may be different than for units formally
designated as segregation, because the violation found
in the liability opinion stemmed from both the general
lack of out-of-cell time and the particular conditions
of formal segregation units.

Nonetheless, “[t]he court

heard significant evidence that extended segregation—
even absent consideration of the conditions at ADOC—
poses a substantial risk of harm to all mentally ill
prisoners.”

Id. at 1245 (emphasis added).

The court

cannot be at the mercy of defendants’ nomenclature as
to what is and what is not segregation.

As a result,

determining whether units function as segregation—based
on the limited amount of out-of—cell time provided—is
necessary

to

remedying

contributed

to

the

Nonetheless,

the

court

one
Eighth
will
26

of

the

factors

Amendment
consider

the

that

violation.
extent

of

appropriate

relief

in

light

of

both

its

liability

finding and the PLRA.
***
Accordingly, it is ORDERED as follows:
(1)

As to the documentation of out-of-cell time,

the

court

needs

the

Perrien

is

following

additional

information:
(a)

Dr.

to

clarify

whether

the

“provided

activity

hours”

are

actually

the

scheduled

activity

hours

and

whether

the

“program shutdown activity hours” are the hours
for which an activity was scheduled but did not
occur.
1.

Perrien Proposal (doc. no. 2772-1) at

The court believes it would benefit from an

example.
(b)

Dr. Perrien is to address additionally (1)

whether scheduled activities are required to be
offered to each inmate and (2) whether, as a
result,
necessary

tracking
when

tiers

separately

different
27

tiers

will

be

receive

different access to out-of-cell activities.

If

scheduled

be

activities

are

not

required

to

offered to each inmate, Dr. Perrien is to also
address (3) how such a system will ensure that
there are “sufficient [out-of-cell] hours for
each

inmate

within

the

unit.”

Id.

at

1.

Again, the court believes it would benefit from
an example of a possible schedule.
(c)

Dr. Perrien is to finally clarify what she

meant by the statement that, “To the extent
that the schedule deviates from [the] goal of
11 or more hours of out-of-cell time per week,
there may need to be alternative or additional
documentation,”

id.

at

3,

in

light

of

the

parties’ previous dispute about whether duty
logs were a comprehensive source of out-of-cell
time.
(d)

The defendants may address Dr. Perrien’s

response in their commentary.

The plaintiffs

need not address this issue further.
28

(2)

As to the averaging of out-of-cell time, the

court needs the following additional information:
(a)

Dr. Perrien is to explain the basis for

her decision to use a quarterly measure.
(b)
for

The plaintiffs are to explain the basis
their

decision

to

propose

a

monthly

measure, beyond the basis already provided.
(c)

Both Dr. Perrien and the plaintiffs are

also to address whether a monthly measure may
be appropriate for enforcing protections for
SMIs

while

a

quarterly

measure

may

be

appropriate for other forms of relief.
(d)

The defendants may also address this in

their commentary.
(e)

Finally,

whether

the

they

defendants

agree

or

are

to

disagree

explain

with

the

plaintiffs’ proposal that (1) a warden should
be

responsible

for

calculating

the

average

amount of out-of-cell time and that (2) these

29

numbers should be provided to plaintiffs within
a specified period of time.
(3)

As to the counting of out-of-cell activities,

the

court

needs

the

following

additional

information:
(a)

The defendants are to explain whether they

intend

to

schedule

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

when

implementing Dr. Perrien’s proposal.
(b)

If the defendants do intend to schedule

any of these activities as out-of-cell time,
the

defendants

are

to

additionally

explain

precisely how they will implement Dr. Perrien’s
proposal

and

fulfill

its

purpose

of

“provid[ing] sufficient [out-of-cell] hours for
each inmate within the unit,” Perrien Proposal
(doc. no. 2772-1) at 3, particularly if the
activities will not be offered to every inmate.
30

For

example,

while

showers

presumably

are

offered to each inmate, diabetic finger sticks
are not.
from

The court believes it would benefit

an

activities

example
that

about

the

the

defendants

out-of-cell
intend

to

schedule.
(4)

As

to

the

time-tracking,

nomination
the

court

of

future

needs

units

the

for

following

additional information:
(a)

Dr. Perrien is to address the plaintiffs’

counter-proposal.
(b)

If

Dr.

Perrien

does

not

agree

with

the

plaintiffs’ counter-proposal, Dr. Perrien is to
additionally propose an alternative method by
which the plaintiffs will be able to nominate
additional units for future time-tracking.
(c)
the

Further, in order to evaluate the scope of
plaintiffs’

defendants

are

to

counter-proposal,
supply

this

court

the
with

information on the universe of celled housing
31

units which are not officially designated as
restrictive
treatment

housing
units,

units,

residential

stabilization

units,

or

structured living units, including the number
of such units; the number of cells in such
units; and, for comparison purposes, the number
of total units and number of total cells across
ADOC’s major facilities.
choose
gathered

to

rely
as

on

part

The defendants may

information
the

Savages’

may

also

previously
staffing

analysis, if relevant.
(d)

The

defendants

address

the

plaintiffs’ counter-proposal or Dr. Perrien’s
response in their commentary.
(e)

The plaintiffs need not address this issue

further.
(5)

As to the remedy, the court needs the following

additional information:
(a)

The

plaintiffs

are

to

address

how

the

request that “any unit-by-unit exceptions be
32

approved by Dr. Perrien ... and Dr. Kathryn
Burns,” Pls.’ Response (doc. no. 2805) at 4, is
compatible with their “[ask]ing the Court to
order relief for segregation-like units that is
consistent with relief that has already been
ordered for officially designated segregation
units ... and ... re-assert[ing] their request
for additional segregation relief that remains
pending before the Court.”
plaintiffs

are

to

Id. at 11.

additionally

The

clarify

what

would constitute “consistent” relief.
(b)
each

The

plaintiffs

aspect

already

of

been

segregation

are

the

also

relief

stipulated

units

or

to
that
to

that

address
has

why

either

for

formal

remains

pending

before the court for the segregation opinion
under submission is appropriate for units found
to be functioning as segregation, in light of
two factors: (1) segregation-like units can, by
definition,

change
33

their

status

over

time,

transforming from functional segregation in one
month

or

quarter

to

providing

enough

out-of-cell time the next month or quarter; and
(2)

while

liability

the

court

opinion

made

findings

about

its

risks

the

in

of

decompensation created by both the practice of
segregation

in

general

segregation

units

in

and

ADOC’s

particular,

former may be relevant here.

formal

only

the

The court is

particularly interested in whether each aspect
of the requested relief is justified in light
of these facts and whether some forms of relief
should

be

prioritized

over

others,

such

as

enforcing protections for SMIs or implementing
security checks.
(c)

The defendants may address this in their

commentary.
(6)

The defendants are to file with the court, by

noon on July 13, 2020, a response by Dr. Perrien to
the portion of court’s order directed towards her,
34

along

with

any

commentary

the

defendants

deem

appropriate.
(7)

The defendants are to additionally file with

the court, by noon on July 13, 2020, a response to
the portion of the court’s order directed towards
them.

The defendants may include these responses

along with their commentary or separate from their
commentary, whichever they prefer.
(8)

The plaintiffs are to file with the court, by

noon on July 13, 2020, a response to the portion of
court’s order directed towards them.
(9)

If the court desires any counter-responses, the

court will let the parties know at a later date.
DONE, this the 1st day of June, 2020.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE