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, )

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 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

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