Dunn et al v. Thomas et al

Filing 2859

PHASE 2A ORDER TO MEDIATE ON ISSUE OF CORRECTIONAL STAFFING: Accordingly, it is ORDERED as follows: (1) The parties are to mediate immediately with Magistrate Judge John Ott on the issue of correctional staffing, including but not limited to the s pecific issues detailed above. (2) The parties are to file a brief, either jointly or separately, by noon on Monday, July 27, 2020, updating the court as to (a) which disputes, if any, have been resolved and, if so, how; and (b) which disputes, if any, remain for this court to address. Signed by Honorable Judge Myron H. Thompson on 7/2/2020. (kh, )

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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 ORDER TO MEDIATE ON ISSUE OF CORRECTIONAL STAFFING This court previously expressed its concern about the trend in correctional staffing. See Phase 2A Order on Correctional Staffing Trend (doc. no. 2834). The subsequent responses by both the defendants (doc. no. 2838) and the plaintiffs (doc. no. 2847), as well as the representations made on the record during a status conference on June 24, 2020, raised a range of related issues that this court may ultimately need to resolve. However, the court will first order the parties to mediate their dispute with Magistrate Judge John Ott. See Phase 2A Understaffing Remedial Opinion (doc. no. 1656) at 12 (“All parties agree that any dispute related to the Savages’ recommendations should first be put before United States Magistrate Judge John Ott for mediation.”); see also Phase 2A Understaffing Remedial Order (doc. no. 1657) (companion order); Order on Reappointment of Judge Ott as Mediator (doc. no. 2852). While this mediation may cover any of the related staffing issues, such as whether the Savages’ staffing recommendations represent a floor or a ceiling, at this juncture the mediation must specifically address how the defendants will (1) update the information included in the quarterly staffing reports such that this court can accurately track the defendants’ progress with this court’s remedial order (doc. no. 1657); and (2) obtain the experts’ assessment of their progress to date, as further detailed below. 2 I. This submit QUARTERLY STAFFING REPORTS court initially quarterly particular ordered correctional information, the defendants staffing including reports (a) the to with number of correctional staff assigned to each ADOC facility; (b) the number of correctional staff employed by each facility at the end of each quarter; (c) the turnover rate; (d) the retention rate; and (e) the vacancy rate. See Phase 1657) at 2A Understaffing 7-9. Since Remedial their first Order (doc. quarterly no. report, which was submitted before the Savages had completed their staffing Staffing analysis, Report (explaining (doc. this), the see no. Q4-2017 2325-1) defendants Correctional at have 2 & 2 n.1 reported the Savages’ recommendations for 3,326 full-time equivalent correctional supervisors staff as (a) and the 500 number full-time of equivalent correctional that should be assigned to each facility. See Defs.’ Response (doc. no. 2838) at 5 (confirming this). 3 staff The court used these quarterly staffing reports to assess the defendants’ progress in meeting the Savages’ recommendations. In response to the court’s comparisons of (a) the Savages’ recommendations with (b) the actual number of actual correctional staff employed, the defendants pointed out that the Savages’ recommendations “rely on full-time equivalents ... as opposed to Id. at 4. a physical headcount of actual persons.” As the defendants explained, a full-time equivalent, or FTE, “may be filled in a variety of ways, including, overtime.” Id. for example, through part-time and As a result, the defendants suggested that comparing (a) the Savages’ recommendations to (b) the defendants’ actual number of staff was “futile.” Id. The court, however, must be able to assess the defendants’ progress towards complying with its order that, “[b]y have fully February 20, implemented 2022, the the defendants Savages’ shall correctional staffing recommendations,” regardless of whether those 4 recommendations persons or parties set full-time Understaffing 3 ¶ (e). are Remedial forth in terms of actual equivalents. See Phase 2A Order no. 1657) at (doc. For this reason, the court will order the to mediate about how to best satisfy the plaintiffs’ request for the quarterly staffing reports to be modified to include (1) “FTE equivalents” and (2) “an explanation for how [defendants] are calculating FTEs for correctional staff.” 2847) at reports 6. Importantly, must be Pls.’ Reply (doc. no. the modified quarterly both staffing historically and prospectively in order to permit the court to assess staffing progress over time. Further, observed the defendants decline attributable, in classification of in Response (doc. supervisors part, K-9 no. pointed to staff 2838) at a out over In the time was in the change members. 3. that See Defs.’ short, the defendants previously counted members of the K-9 staff as supervisors but no longer do so. 5 It is not clear whether K-9 staff are now counted as officers or not counted at all. In light of this, the court will order the parties to mediate on the classification of K-9 staff in order to confirm and to consider agreement that the parties whether the are in quarterly staffing reports should be modified, if at all. As above, it is important that any modification be made both historically and prospectively. II. EXPERT ASSESSMENT OF PROGRESS-TO-DATE Beyond distinctions between actual persons and FTEs, or supervisors and K-9 staff, the defendants also detailed their relevant marketing efforts, compensation efforts, and retention efforts to increase the number of correctional staff. In general, the defendants represented that they have so far “effectively executed the plan”; that they “continue[] to implement and follow the recommendations” of their experts; and that they “remain[] optimistic” that they will be able to meet this court’s February 6 20, 2022, deadline for staffing. For Defs’ Response (doc. no. 2838) at 1, 7, 21. their defendants part, have the plaintiffs actually believe “made that dangerously little progress toward complying with their own plan.” Reply (doc. no. 2847) at 2. the Pls.’ As a result, and for the same reasons this court previously articulated when it reviewed the correctional staffing trend to date, the court will order the parties to come up with a means to solicit from defendants’ expected the relevant efforts impact; so (2) far experts are whether whether in the fact (1) the having the defendants are on track to meet this court’s deadline; and (3) whether any modifications in the defendants’ plans or approach need to be made. *** Accordingly, it is ORDERED as follows: (1) The parties Magistrate Judge are to John 7 mediate Ott on immediately the issue with of correctional staffing, including but not limited to the specific issues detailed above. (2) The parties are to file a brief, either jointly or separately, by noon on Monday, July 27, 2020, updating the court as to (a) which disputes, if any, have been resolved and, if so, how; and (b) which disputes, if any, remain for this court to address. DONE, this the 2nd of July, 2020. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE 8

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