Dunn et al v. Thomas et al

Filing 2915

PHASE 2A OPINION AND ORDER ON MONITORING OF EIGHTH AMENDMENT REMEDY: Therefore, it is ORDERED as follows: (1) The monitoring scheme, as described above, is adopted as the order of the court. (2) The court will, over time, issue a series of orders to enforce this monitoring scheme, beginning with an order for the selection and appointment of members of the external monitoring team. Signed by Honorable Judge Myron H. Thompson on 9/2/2020. (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.

CIVIL ACTION NO.
2:14cv601-MHT
(WO)

PHASE 2A OPINION AND ORDER
ON MONITORING OF EIGHTH AMENDMENT REMEDY
Previously,

this

court

found

that

the

State

of

Alabama provides inadequate mental-health care in its
prisons

in

violation

of

the

Eighth

Amendment’s

prohibition against cruel and unusual punishment.

See

Braggs v. Dunn, 367 F. Supp. 3d 1340 (M.D. Ala. 2019)
(Thompson, J.); Braggs v. Dunn, 257 F. Supp. 3d 1171
(M.D. Ala. 2017) (Thompson, J.).
the

court

compliance

is

the

with

development

the

court’s

of

The issue now before
a

orders

plan
to

to

monitor

remedy

that

constitutional violation.

The court will adopt in large

part the defendants’ plan--substantial portions to which
the plaintiffs have agreed--with some alterations.
significantly,
overarching

the

court

proposal

will

that,

adopt

in

the

light

Most

defendants’

of

their

own

admission that they lack the capacity to self-monitor,
outside experts will initially monitor compliance and
will draw on their expertise to develop many of the
details of the monitoring plan.

See Defs.’ Response

(doc. no. 2295) at 14.

Those outside experts will train

and

control

eventually

hand

over

to

an

internal

monitoring team, building the capacity of the Alabama
Department of Corrections (ADOC) to regulate itself.

The

court hopes that this monitoring scheme will help the
ADOC

attain

compliance

timely,

with

the

meaningful,
court’s

and

remedial

sustainable
orders

on

mental-health care and bring this litigation to an end
as soon as is reasonably possible.

2

I. PROCEDURAL BACKGROUND
The plaintiffs in this class-action lawsuit are ADOC
inmates

who

have

mental

illness

and

the

Alabama

Disabilities Advocacy Program, which represents mentally
ill inmates in Alabama.
Commissioner

and

the

The defendants are the ADOC

ADOC

Associate

Commissioner

of

Health Services, who are both sued in only their official
capacities.

In a liability opinion, this court found

that ADOC’s mental-health care was, “[s]imply put, ...
horrendously inadequate.”
1267.
the

Braggs, 257 F. Supp. 3d at

The court laid out seven factors contributing to

Eighth

Amendment

“overarching”
overcrowding.

violation,

problems

of

Id. at 1267-68.

in

addition

understaffing

to

the
and

After two months of

mediation to develop a comprehensive remedial plan, it
became apparent that the remedy was too large and complex
to be addressed all at once.

The court therefore severed

the remedy into the various contributing factors, to be
addressed seriatim.

See Phase 2A Revised Scheduling

Order (doc. no. 1357).

3

The court has now issued remedial opinions and orders
regarding, among other things, understaffing, see Braggs
v. Dunn, No. 2:14cv601-MHT, 2018 WL 985759 (M.D. Ala.
Feb. 20, 2018) (Thompson, J.), and inpatient treatment,
see Braggs v. Dunn, No. 2:14cv601-MHT, 2020 WL 2789880
(M.D. Ala. May 29, 2020) (Thompson, J.).

The court has

also issued several remedial orders temporarily adopting
the parties’ stipulations regarding other contributing
factors, see, e.g., Braggs, v. Dunn, No. 2:14cv601-MHT,
2018 WL 2168705 (M.D. Ala. Apr. 25, 2018).
2020,

based

on

the

parties’

agreement

In March
that

their

stipulations temporarily satisfy the Prison Litigation
Reform Act (PLRA), 18 U.S.C. § 3626(a)(1)(A), the court
issued

an

interim

injunction

extending

until, at the latest, December 30, 2020.
Injunction (doc. no. 2793).

these

orders

See Interim

The issue of whether the

stipulations satisfy the requirements of the PLRA beyond
that date is set for a hearing in September, and the
court will defer judgment as to whether the measures are
warranted until that hearing has occurred.

4

Throughout the process of resolving each remedial
issue, the question of monitoring compliance with the
court’s orders has repeatedly arisen.

The issue of

monitoring “raises important questions regarding, on the
one hand, the duty of courts to avoid overly intruding
into the executive matter of prison administration, and
on the other hand, the duty of courts to ensure that the
constitutional

violations

remedied

timely

in

a

they

find

fashion.”

Monitoring (doc. no. 1927) at 2-3.

are

Phase

effectively
2A

Order

on

In pursuit of the

proper balance of these important interests, the court
opted to resolve the issue of monitoring separately from
all substantive remedial orders and on a global scale,
rather than as to each individual order.1

See id.

1. As part of its order for immediate relief for
suicide prevention, the court established an interim
external monitoring scheme and required ADOC to establish
a formal internal monitoring scheme. See Braggs v. Dunn,
383 F. Supp. 3d 1218, 1282 (M.D. Ala. 2019) (Thompson,
J.). Both forms of monitoring were narrowly focused on
the immediate suicide-prevention relief.
See id.
However, at the request of the parties, the court stayed
that order and substituted the parties’ voluntary
agreement.
See Order (doc. no. 2569) at 2.
At this
point, the order remains stayed pending the court’s
5

The court also suggested to the parties that the
scheme

for

court

‘external’

monitoring

should

monitoring

‘external-monitoring
‘internal’

include

by

team’

monitoring

experts

or
by

not

EMT)
ADOC

‘internal-monitoring team’ or IMT).

but

only
(an

eventual

itself

(an

In other words, for

part of the period of monitoring, the court substituted
internal

monitoring

for

external

monitoring.

As

explained in more detail later, the model would divide
the traditional period of monitoring into three parts,
bringing ADOC into the process earlier and in a more
substantive role than usual.
will

assess

and

monitor

In the first phase, the EMT

ADOC's

compliance

with

the

court's remedial orders; next, the EMT, as part of its
monitoring, will train the ADOC, through its IMT, how to
monitor itself; and, finally, ADOC, through its IMT, will
monitor itself.

determination of whether the parties’ agreement complies
with the PLRA.
See Phase 2A Revised Scheduling Order
(doc. no. 2784) at 5.
6

The court adopted this model in the hope that it
would facilitate a more effective, less intrusive process
and avoid an indeterminate period of external monitoring.
External monitoring and internal monitoring complement
each

other:

external

monitors

offer

an

outside

perspective on ongoing issues, while internal monitors
have

more

familiarity

remediation

efforts.

with

and

External

investment

monitoring

in

will

the
also

provide valuable information for ADOC, allowing it to
more effectively implement its own system of internal
monitoring.
The

court

further

believed

that

self-monitoring

would help ADOC develop internal buy-in, resulting in
more active cooperation and timely compliance.
method

invites

monitoring

ADOC

effort,

to

be

directly

encouraging

involved

This
in

collaboration

the
and

investment in reform rather than an adversarial posture.
The internal monitoring team will work with and learn
from

the

external

monitoring

7

team,

building

ADOC’s

capacity and making the eventual termination of court
oversight more seamless.
Finally, in light of the fact that the ultimate goal
of this litigation is not just monitoring of ADOC but
adequate

monitoring by ADOC,

this

model

should

build

ADOC’s internal capacity and help it sustain compliance
over the long term.

Ultimately, the court hopes that

this hybrid monitoring process will finally bring to an
end

the

history

of

repeated

litigation

ADOC

has

confronted over its mental-health care since the 1970s,
as described in the final section of this opinion.

Both

the plaintiffs and the defendants have agreed to this
model, should the court order external monitoring.
When the court reached the monitoring issue, it first
gave the defendants an opportunity to propose an overall
plan and allowed the plaintiffs to respond.

See Defs.’

Proposed Monitoring Plan (doc. no. 2115); Pls.’ Response
(doc. no. 2133).

The court then held a hearing on the

defendants’ proposed monitoring plan in which it heard
testimony

from

plaintiffs’

8

correctional

psychiatry

expert

Dr.

Kathryn

Burns;

plaintiffs’

correctional

administration expert Eldon Vail; Executive Director of
the Alabama Disabilities Advocacy Program James Tucker;
ADOC Associate Commissioner for Health Services Ruth
Naglich;

ADOC

Commissioner

individuals

the

monitoring

team:

Jefferson

defendants
Larry

proposed
Linton,

Dunn;
as

and

four

the

external

MargaRita

Pauley,

psychiatrist Dr. Robert Stern, and psychologist Dr. David
Clayman.
In April 2019, following the hearing and the parties’
subsequent briefing on the monitoring issue, the United
States Department of Justice (DOJ) issued a findings
letter regarding unsafe conditions in ADOC facilities,
including
violence.

due

to

understaffing,

overcrowding,

and

See DOJ Findings Letter (Pls.’ Ex. 2739); SPLC

Letter to Governor Ivey and Commissioner Dunn (doc. no.
2472).

The

parties

subsequently

filed

a

joint

motion--which the court granted--to stay all matters
under

submission

in

this

litigation,

including

the

monitoring issue, for 90 days to allow the parties to

9

pursue a global resolution, via mediation, between the
parties as well as with DOJ.

See Joint Notice and Mot.

to Stay (doc. no. 2560); Order (doc. no. 2569).

This

stay was twice extended upon joint motions of the parties
to allow for further mediation.

See Order (doc. no.

2608); Phase 2A Revised Scheduling Order (doc. no. 2720).
On March 25, 2020, the parties informed the court during
an

on-the-record

conference

call

that

they

had

been

unable to reach an agreement on the monitoring issue in
their negotiations and that the issue was thus again
submitted to the court for resolution.
Revised

Scheduling

Order

(doc.

no.

See Phase 2A

2784).

Today’s

opinion fully resolves the remedial monitoring issue.
Though

the

remedies

for

all

seven

factors

contributing to the constitutional violation have not yet
been reduced to final orders with PLRA findings, and
though there remain some additional remedial issues for
resolution

(for

example,

segregation

and

inpatient

treatment), the court need not wait to issue those orders
prior to resolving the monitoring issue.

10

This is because

the court’s order today is not specific to any particular
remedial measures in that it does not set up the means
of

measuring

establishes

compliance;

an

rather,

overarching

the

monitoring

court’s

order

structure

and

scheme, the details of which the court leaves to be filled
in by the experts, as both sides agree is appropriate.

II. THE MONITORING SCHEME
The

parties

are

to

of

be

commended

agreement

on

for
the

reaching

significant

areas

issue

of

monitoring.

They agree that the monitoring scheme here

has two fundamental goals: (1) to oversee compliance with
the court’s remedial orders and (2) to build ADOC’s
capacity to exercise sustainable internal oversight of
mental-health care--that is, to identify and correct
problems.

They also agree on the overarching structure

of this monitoring.

Specifically, they agree that the

scheme should: (1) include the EMT; (2) consist of three
phases,

with

the

EMT

teaching--and

then

ultimately

handing the reins over to--the IMT; (3) empower the EMT

11

to determine many of the details of how to carry out
monitoring,

including

fashioning

performance

measures

and audit tools; and (4) consist of a number of essential
components

of

monitoring,

including

document

review,

observation, feedback, consultation, and handoff to ADOC
to monitor itself going forward.
At

the

regarding

same

time,

specifics

agreement.

there

under

are

each

some

disagreements

broader

point

of

These areas of dispute are outlined below.

The court will first summarize each area of dispute and
then explain the court’s resolution.
Overall, the defendants assert that the court should
approve

their

plan

without

entering

any

order

on

monitoring because ADOC should be allowed to “voluntarily
undertake culture change.”
2295) at 9.

Defs.’ Response (doc. no.

But, as described in detail in the final

section of this opinion, ADOC’s record as set forth in
the liability opinion--and inadequate implementation of
remedial orders in this case--shows that Alabama’s prison
officials

are

unable

to

change

12

their

system

without

monitoring.

While

the

court

is

encouraged

by

Commissioner Dunn’s own admission that monitoring is
needed, see Dunn Nov. 26, 2018, Trial Tr. (doc. no. 2250)
at 16 (“The Court desires to see certain outcomes in the
department. I desire to see certain outcomes in the
department. And there's a way in which we can create a
monitoring structure, if you will, that will enable us
to do that.”), it shares the plaintiffs’ concerns about
allowing the defendants to implement their plan without
a court order; “[m]id-litigation assurances are all too
easy to make and all too hard to enforce, which probably
explains why the Supreme Court has refused to accept
them.”

W. Alabama Women's Ctr. v. Williamson, 900 F.3d

1310, 1328 (11th Cir. 2018) (affirming an injunction
despite a non-binding clarification from the State),
cert. denied sub nom. Harris v. W. Alabama Women's Ctr.,
––– U.S. ––––, 139 S. Ct. 2606 (2019); see also Stenberg
v. Carhart, 530 U.S. 914, 940 (2000) (cautioning against
accepting

an

Attorney

interpretation of a state law).

13

General's

non-binding

The court agrees with the defendants that it is
critical for ADOC to “buy in” to the process of attaining
compliance with the court’s remedial orders.
this

does

not

unfettered

require

discretion

that
to

the

However,

defendants

drive

the

be

given

monitoring

process--buy-in can be achieved by implementing much of
the defendants’ plan as proposed, involving ADOC staff
in monitoring efforts from the beginning, and appointing
monitors

in

which

all

parties

have

faith.2

These

priorities are reflected in the monitoring plan described
below.
But

before

turning

to

these

specific

areas

of

dispute, the court must turn to the question whether the
court’s monitoring order is governed by the PLRA.

This

statute provides that a “court shall not grant or approve
any prospective relief unless the court finds that such

2. Significantly, the court’s order today does not
involve a receivership and does not infringe on the
autonomy of ADOC any more than the Constitution requires.
Ultimately, it is ADOC that is responsible for carrying
out its obligations under the Constitution, and the
court’s order does not shift that responsibility.
14

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.”

18 U.S.C. § 3626(a)(1)(A). The plaintiffs say that, with
an exception or two, the PLRA does not apply, while the
defendants say that it applies fully.

As explained later

in this opinion, however, the court need not resolve this
issue, for, whether the PLRA is applicable or not, the
court finds that the monitoring scheme it has fashioned
fully complies with the statute.
In discussing why each part of the court’s order
satisfies

the

PLRA's

need-narrowness-intrusiveness

requirement, 18 U.S.C. § 3626(a)(1)(A), the court in its
analysis will largely focus on a single inquiry: Is the
monitoring

provision

constitutional
discussed

in

violation
prior

necessary
found?

opinions,

this

to
As

correct
the

single

court
inquiry

the
has
is

distilled from the three requirements of the PLRA--that
the relief is (1) “narrowly drawn,” (2) “extends no

15

further than necessary,” and (3) “is the least intrusive
means necessary to correct the violation,” 18 U.S.C.
§ 3626(a)(1)(A)--and
analysis.

allows

for

a

more

streamlined

See Braggs v. Dunn, 383 F. Supp. 3d 1218, 1252

(M.D. Ala. 2019) (Thompson, J.).

“[I]f the ordered

relief is necessary to correct the violation, then--by
definition--no other form of relief would be sufficient
to correct it.

And if no other form of relief is

sufficient [to] correct the violation, then the ordered
relief is--by definition--‘narrowly drawn’ and the ‘least
intrusive means necessary’ to correct it; any narrower
or less intrusive relief would not be sufficient.”
at

1252

n.19

(citing

18

U.S.C.

Id.

§ 3626(a)(1)(A)).

Similarly, if the ordered relief is necessary, then it
‘extends no further than necessary,’ because any part of
the relief extending further than what is necessary would
render it unnecessary.”

Id.

16

A. External Monitoring Team
The parties agree that the monitoring scheme should
involve, from the outset, an EMT, but disagree about the
composition of the EMT, the process for selecting its
members,

the

status

of

its

members,

and

the

rules

regarding conflicts of interest.

1. Composition
a. Dispute
Both the plaintiffs and the defendants propose that
the

EMT

consist

of

at

least

one

psychiatrist,

one

psychologist, and one nurse to represent the professional
perspectives of the members of ADOC’s treatment teams.
The plaintiffs also assert that the EMT should have an
expert in correctional administration (whom they call a
“security monitor”); a counselor or social worker, as
would also be included in treatment teams; and a data
monitor with expertise in collection and processing.

The

defendants contend that a correctional administration
expert is unnecessary because the court already receives
17

quarterly correctional staffing reports.

See Defs.’

Response (doc. no. 2295) at 38-39.

b. The Court’s Resolution
The court will adopt the parties’ common proposal
that the EMT must include at least one psychiatrist, one
psychologist, and one nurse.

The court will also require

the inclusion of a correctional administration expert,
in

accordance

with

the

opinions

of

both

of

the

plaintiffs’ experts.
As

plaintiffs’

correctional

expert

Eldon

Vail

credibly testified, improving ADOC’s mental-health care
requires

the

cooperation

and

compliance

of

not

just

mental-health staff, but of correctional staff as well.
See Vail Nov. 29, 2018, Trial Tr. (doc. no. 2340) at 7.
For example, Vail testified that: “Access to treatment
is dependent oftentimes on the ability of correctional
staff to escort people, make sure that they get there.
Once they get there, there's issues of confidentiality
that need to be understood by the correctional staff and

18

honored in the context of them doing their security job.”
Id. at 8.
role

in

Correctional officers also play an important
ensuring

that

self-referrals

communicated to mental-health staff.
A

correctional

by

inmates

are

See id.

administration

expert

is

also

necessary to evaluate, for example, whether “extenuating
circumstances”
inmate

with

exist
a

to

require

serious

the

mental

placement

illness

of

(SMI)

an
in

segregation--the only scenario in which such placement
is permissible.

See Braggs v. Dunn, 257 F. Supp. 3d

1171, 1245-46 (M.D. Ala. 2017) (Thompson, J.).
judgments

of

correctional

staff

regarding

The

whether

circumstances are “extenuating” cannot be fully evaluated
by mental-health experts on the EMT, for they may lack
expertise in correctional management and would be unable
to ascertain whether such security-related judgments are
reasonable.

By

contrast,

as

Vail

testified,

a

corrections expert would be able to ask staff: “What is
exceptional about this situation, and were there other
ways that you could handle it?

19

And by the way, here’s a

way that you might have been able to handle it.
that have worked?”
no. 2340) at 23.

Would

Vail Nov. 29, 2018, Trial Tr. (doc.

Commissioner Dunn also agreed that the

remedial orders contain security-related matters that
require the participation of correctional staff.

See

Dunn Nov. 26, 2018, Trial Tr. (doc. no. 2250) at 201-202.
Because of the intricate involvement of correctional
staff

in

provision

of

care,

some

security-related

matters, which are part of the court’s remedial orders
must be monitored as part and parcel of mental-health
monitoring.

The need for a corrections expert on the EMT

clearly follows.
Plaintiffs’ experts Vail and Dr. Burns both testified
that

it

is

particularly

necessary

to

include

a

corrections expert on the EMT in light of the ongoing
challenges posed by correctional understaffing at ADOC.
In the liability opinion, the court found understaffing
problematic

not

in

isolation,

but

as

an

issue

that

“permeate[s] each of the ... identified contributing
factors of inadequate mental-health care.”

20

Braggs, 257

F. Supp. 3d at 1268. While the quarterly staffing reports
submitted to the court are critical to understanding
ADOC’s progress on the understaffing issue, the reports
alone

do

custody

not

provide

staff

are

any

information

supporting

and

as

to

whether

implementing

the

required improvements to mental-health care; in other
words,

they

do

not

reflect

the

critical

impact

understaffing (which impact could be significantly and
adversely changing if there is a significant adverse
change in overcrowding) might be having on the delivery
of mental-health care.

A correctional administration

expert is necessary for the EMT to be able to evaluate
whether,

based

overcrowded

on

the

availability

conditions,

correctional

deployed

properly

“mak[e]

sure

to

that

both

“keep[]

prisoners

of

officers

staff
people

get

are

being

safe”

mental

in

and

health

treatment”--a compliance issue that cannot be ascertained
by simply reviewing the total number of staff reported.
Vail Nov. 29, 2018, Trial Tr. (doc. no. 2340) at 18; see

21

also Burns Dec. 6, 2018, Trial Tr. (doc. no. 2254) at
112-13.
At

the

same

time,

the

court

will

not

initially

require the inclusion of the other members proposed by
the plaintiffs on the EMT--a counselor or social worker,
and a data expert--but will instead leave it to the EMT,
which would be more knowledgeable than the court about
such matters, to determine whether additional members or
support staff are necessary.

If it so determines, the

EMT may ask the court to appoint additional members,
either on an ad hoc or permanent basis.

Accordingly, the

court adds only one additional member to the defendants’
proposed monitoring team structure.
The composition of the EMT, largely proposed by the
defendants,

meets

the

need-narrowness-intrusiveness
U.S.C. § 3626(a)(1)(A).

requirement.

PLRA's
See

18

As described, the addition of a

correctional administration expert is necessary to ensure
that officers and clinical staff alike are complying with
the court’s remedial orders.

22

Particularly in light of

ADOC’s continued difficulties with understaffing, the
court must be sure that ADOC is doing all that it can to
comply with the court’s orders by properly training and
deploying the limited staff that it has.
The court believes there should also be a head of
the EMT with the administrative abilities to coordinate
monitoring efforts and to serve as a liaison with the
court.
court

Before deciding who this person should be, the
will

solicit

input

from

the

parties.

This

additional, administrative provision meets the PLRA's
need-narrowness-intrusiveness
team

requires

a

leader

to

requirement
manage

its

because

the

operations

effectively and to coordinate with the court.

See 18

U.S.C. § 3626(a)(1)(A).

2. Selection Process
a. Dispute
While the defendants contend that the EMT members
should be selected from a pool of candidates that was
exclusively proposed by them at the monitoring hearing,

23

the plaintiffs argue that there should be a collaborative
selection

process

between

the

plaintiffs

and

the

defendants. The defendants propose two alternative teams
of external monitors: one led by individuals previously
affiliated

with

Corizon

Correctional

Healthcare,

the

former medical care provider for ADOC, and one comprised
of individuals employed by PSIMED, Inc., a company that
subcontracts with Wexford Health Sources, Inc. to provide
mental-health care in West Virginia prisons. See Pls.’
Proposed Opinion (doc. no. 2260) at 13.

The defendants

further assert that members of the EMT must be licensed
in Alabama if they are to make recommendations based on
clinical judgment that would require a license.

Defs.’

Proposed Monitoring Plan (doc. no. 2115) at 28.
contend

that

the

plaintiffs

essentially

waived

They
the

opportunity to participate in the selection of the EMT
members

by

failing

remedial hearing.

to

propose

candidates

during

the

See Defs.’ Response (doc. no. 2295)

at 27-28.

24

By contrast, the plaintiffs argue that there should
be

a

collaborative

selection

process

between

the

plaintiffs and the defendants, under which the parties
first attempt to reach an agreement on the EMT members,
and then, if they cannot, submit proposed candidates to
the court for selection.

The EMT members, the plaintiffs

contend, should not be limited to those licensed in
Alabama.

b. The Court’s Resolution
The court will adopt the plaintiffs’ proposal for a
joint selection process, with the condition that the
court will have ultimate authority to approve the experts
agreed upon by the parties.

The court will not limit the

pool of candidates for the EMT to those licensed in
Alabama.
The court finds it both unwise and unfair for the
plaintiffs to have no role in selecting the EMT members;
joint selection is necessary to ensure impartiality of
the EMT and trust by all parties and the court in their

25

monitoring

work.

The

court

believes

that

such

collaboration is necessary to ensure that both parties,
not just the defendants, buy into the process.

The court

was also not impressed by the monitors proposed by the
defendants,

some

of

whom

had

no

court

monitoring

experience and some of whom presented serious questions
about possible conflicts of interest.3

Meanwhile, the

court finds it unnecessarily restrictive to require that
the experts be licensed in Alabama, though, as described
in the section below on qualitative review, the court

3. At the time of the monitoring trial, PSIMED was
employed in the West Virginia Department of Corrections
as a subcontractor of Wexford Health Sources, Inc.,
ADOC’s current provider of mental-health care.
This
business relationship between the proposed EMT members
and ADOC’s vendor could create, at a minimum, a perceived
conflict of interest, which the defendants themselves
sought to avoid under their proposed monitoring plan.
See Defs.’ Proposed Monitoring Plan (doc. no. 2115) at
24. Even more concerningly, the owner of PSIMED was also
involved in a corruption charge brought by the West
Virginia
Ethics
Commission
against
the
former
Commissioner of the West Virginia Department of
Corrections. See Stern Nov. 27, 2018, Trial Tr. (doc.
no. 2415) at 68-73. Other individuals proposed by the
defendants had previously worked for ADOC’s prior
healthcare contractor, Corizon Correctional Healthcare,
another possible conflict of interest.
26

will authorize the EMT to evaluate clinical judgments.
Such an eligibility requirement could unnecessarily limit
the

pool

should

of

be

available
chosen

candidates.

based

on

Finally,

their

members

background

and

expertise--with a preference for those with monitoring
experience--which should make clear their qualification
for the role.
The court will give the parties a reasonable period
of time to reach an agreement about the composition of
the EMT. If the parties are unable to agree on all EMT
members, the court will select any missing members of the
EMT or will come up with a means for selection.

This

process will also extend to the replacement of an EMT
member who is removed or resigns.

Removal of an EMT

member for good cause may be proposed by either party and
will be subject to the court’s approval.
The requirements for selection and qualifications of
the EMT meet the PLRA's need-narrowness-intrusiveness
requirement.

See

18

U.S.C.

§

3626(a)(1)(A).

The

cornerstone of the defendants’ proposed monitoring plan,

27

which the court will largely adopt, is that the EMT will
be responsible for filling in key details based on its
members’ expertise.
is

a

critical

The choice of experts, therefore,

issue

to

ensure

the

success

of

the

monitoring phase of this case, and thus ADOC’s ability
to provide constitutionally adequate mental-health care
in the long-term.

Still, the court’s resolution again

gives the defendants an opportunity to suggest potential
experts, who will be appointed if they are satisfactory
to

both

the

plaintiffs

and

the

court.

Under

this

collaborative process, the defendants can work to ensure
that staff members will not “come to resent” each expert
chosen “as an outside critic who is not invested in the
department’s mission.”

See Defs.’ Response (doc. no.

2295) at 7.

3. Status of EMT Members
a. Dispute
The defendants propose that the EMT members serve as
independent contractors of ADOC but that ADOC shall not

28

“possess

any

activities,

supervisory
reports,

authority

findings,

over

or

the

[EMT’s]

recommendations.”

Defs.’ Proposed Monitoring Plan (doc. no. 2115) at 11.
Despite this, the defendants assert that ADOC should have
the power to negotiate each EMT member’s fees, expenses,
and budget for monitoring.

See id. at 10.

By contrast,

the plaintiffs contend that, for the monitors to remain
“neutral and independent, they should be court-appointed
under Federal Rule of Evidence 706 and paid by through
the

court’s

registry

rather

than

directly

by

ADOC.”

Pls.’ Proposed Opinion (doc. no. 2260) at 23.

b. The Court’s Resolution
The court will not order the EMT to be paid by the
defendants

through

the

court’s

Federal Rule of Evidence 706.

registry

pursuant

to

The court believes that

the most efficient and least intrusive arrangement is for
ADOC to pay the EMT directly, rather than through the
court, which would be complex and likely more expensive.
Therefore,

the

court

will

29

allow

the

defendants

to

negotiate the fees, expenses, and budgets of the EMT,
subject to the court’s approval in the event a dispute
arises.

(The court has found, from past experience, that

the State has been fair in such negotiations, and hopes
that it will continue to be the same here.

See, e.g.,

Consent Decree (doc. no. 11) at 114, United States v.
Alabama, No. 2:15cv368-MHT (M.D. Ala. June 18, 2015)
(Thompson, J.)).
directly,

EMT

And though ADOC will pay the EMT

members

should

be

introduced

to

ADOC

employees and any other parties as neutral and totally
independent.

The EMT members will not be under ADOC’s

supervision, but under the direction of the court.

(The

court finds, again from past experience, that monitors
of state institutions can be fair and neutral despite
being paid by the state.
finds

this

See, e.g., id.)

resolution

satisfies

need-narrowness-intrusiveness

The court

the

requirement,

as

PLRA’s
it

is

substantially in line with the defendants’ proposal. See
18 U.S.C. § 3626(a)(1)(A).

30

4. Conflict of Interest Rules
a. Dispute
The defendants’ proposal includes a restriction that
EMT members may not “testify in any other civil action
or

proceeding

omission

of

concerning

ADOC

or

its

or

relating

employees,

to

any

act

or

contractors,

or

agents, or testify regarding any subject or matter that
any [EMT] member learned, or might have learned, as a
result of his or her performance as a member of the [EMT],
or serve as a non-testifying expert regarding any subject
or matter that any [EMT] member learned, or might have
learned, as a result of his or her performance as a member
of the [EMT].”
2115) at 29.

Defs.’ Proposed Monitoring Plan (doc. no.
The defendants contend that such a rule is

necessary to ensure ADOC employees and contractors feel
the EMT members are “on their side” and will not be
gathering evidence against them.
no. 2295) at 36.
limitation

would

Defs.’ Response (doc.

The plaintiffs assert that this strict
deter

otherwise

willing

potential

experts and that instead, possible conflicts of interests

31

of EMT members should be reviewed on a case-by-case
basis.

b. The Court’s Resolution
The court agrees with the defendants that to ensure
cooperation between the EMT and those implementing the
remedial measures, some limitation on participation in
future actions against the State and its contractors is
necessary.

However, the rules proposed by the defendants

are overly restrictive, and there is a serious question
as to whether they are even enforceable by this court--in
particular, with regard to limitations on participation
in another court proceeding, state or federal.

The court

will restrict EMT members from providing paid testimony
or serving as paid non-testifying experts in any action
against

ADOC

or

its

employees

or

against

an

ADOC

contractor in an action the subject matter of which
pertains to ADOC facilities specifically.

As many prison

healthcare providers are active in multiple states, the
court

will

not

issue

a

blanket

32

ban

on

EMT

members

testifying or serving as experts in actions involving
ADOC contractors outside of Alabama.

The parties may

raise concerns about conflicts of interest in such cases
on a case-by-case basis.
The defendants have not provided any legal basis to
restrict

or

prevent

the

EMT

experts

from

otherwise

testifying in other cases if subpoenaed to do so.

The

court will therefore not impose that limitation.
The court finds the adoption of some restrictions on
the ability of EMT members to testify, largely proposed
by

the

defendants,

need-narrowness-intrusiveness
U.S.C. § 3626(a)(1)(A).

meets

requirement.

the
See

18

The court’s resolution loosens

the defendants’ proposed restriction only to the extent
necessary to ensure that the parties can jointly recruit
qualified experts who may otherwise be deterred by their
inability to find other work if they accept appointment
in this case.

33

B. Measuring Compliance
1. Establishing Performance Measures
a. Dispute
The parties agree that the monitoring scheme should
empower the EMT members, who are the experts here, to
determine

many

monitoring,

of

including

measures to use.
by

which

the

defendants
orders.

details

of

how

determining

to

what

carry

out

performance

Performance measures are the metrics

monitors

are

are

complying

to

with

evaluate
the

whether

court’s

the

remedial

See Defs.’ Proposed Monitoring Plan (doc. no.

2115) at 2-3.
the

the

In their initial proposed monitoring plan,

defendants

measures

to

proposed

evaluate

remedial orders.

Id.

259

potential

compliance

with

performance
then-existing

For example, proposed performance

measure number 37 states that “[i]ntake RN [registered
nurses] shall conduct intake MH [mental-health] screening
in a confidential location,” Defs.’ Proposed Monitoring
Plan (doc. no. 2115-1) at 3, and is meant to measure
compliance

with

one

of

the

34

court’s

orders

regarding

identification
treatment.
Despite

of

inmates

in

need

of

mental-health

See Identification Order (doc. no. 1794-1).

having

initially

proposed

these

performance

measures, it is clear from testimony that Commissioner
Dunn and Associate Commissioner Naglich understand the
defendants’ proposal to allow for the EMT to modify the
259 measures proposed as it deems appropriate.
Nov.

26,

2018,

Trial

Tr.

(doc.

no.

2250)

See Dunn
at

148

(testifying that if the EMT determines the performance
measures fail to adequately address the remedial orders,
the EMT members “have the ability to create measures that
do”); Naglich Nov. 7, 2018, Trial Tr. (doc. no. 2249) at
180-82 (testifying that the EMT should be allowed to
develop and change performance measures and that there
is

nothing

wrong

with

the

EMT

coming

up

with

the

performance measures in the first place, “as long as
they’re reflective of” the remedial orders).
This point of agreement is emblematic of the overall
theme of the defendants’ monitoring plan, in which they
acknowledge that the EMT “must drive the process of

35

filling in the open components” of the plan.
Response

(doc.

“intentionally

no.
left

2295)
open

at

14.

certain

The

Defs.’

defendants

aspects”

of

their

proposed plan so that the EMT could “guide ADOC in filling
in these remaining details.”

Id.

The defendants seek

to empower the EMT to fill out the details of the plan
because of the EMT’s “expertise.”

Id. at 15.

The

plaintiffs

to

EMT

agree

significant

it

is

authority

appropriate
to

determine

give

how

the

to

conduct

monitoring, including as to the performance measures
used.

b. The Court’s Resolution
The court will adopt the defendants’ plan to give
the EMT authority to modify the 259 initially proposed
performance
changing

measures,

their

including

language,

performance measures.

or

by

removing

creating

entirely

them,
new

The EMT, in exercise of its unique

expertise, recognized by the defendants, is to create the
performance

measures

necessary

36

to

evaluate

the

defendants’ compliance with the court’s remedial orders.
Once the performance measures are established but before
monitoring

begins,

the

parties

will

be

given

an

opportunity to raise objections to any of the proposed
measures through a standard dispute resolution process:
the objection must be raised first with the EMT, then via
mediation,

and

finally

with

the

court

if

still

unresolved.
The court finds that allowing the experts, rather
than the court, to establish the performance measures
necessary

to

monitor

compliance

need-narrowness-intrusiveness

meets

requirement.

See

the
18

U.S.C. § 3626(a)(1)(A). Because the performance measures
will be limited to the court’s remedial orders, which
must

also

satisfy

the

PLRA,

they

will

be

narrowly

tailored to evaluate only ADOC’s progress with regard to
the remedies ordered in this case.

37

2. Self-Correction
a. Dispute
The plaintiffs seek a provision requiring ADOC to
create corrective action plans when monitoring reveals
noncompliance.

Pls.’ Response (doc. no. 2133) at 75-78.

The plaintiffs concede that the PLRA applies to this
proposed order because it does not have the goal of
informing the court of ongoing violations but is intended
to improve ADOC’s internal capacity to comply with all
remedial orders.
creation

and

Id. at 54.

auditing

of

They assert, however, that

corrective

action

absolutely necessary to ensure compliance.
plaintiffs
designate

also
a

urge

the

“Compliance

court

to

Id.

require

Coordinator”

to

plans

ADOC

oversee

is
The
to
the

creation and implementation of corrective action plans
and

other

monitoring

activities,

and

to

designate

additional clinical staff who are dedicated solely to
internal monitoring.

Id. at 52-53, 60-61.

The defendants state that they expect corrective
action planning to be part of ADOC’s response to findings

38

of noncompliance.
at

38

n.4.

See Defs.’ Response (doc. no. 2295)

However,

they

assert

that,

“[w]hile

corrective action is constitutionally required in the
face of a constitutional violation, a specific corrective
action plan is not.”

Id. at 38.

They argue that a

requirement that ADOC create corrective action plans
would

therefore

not

meet

the

need-narrowness-intrusiveness requirement of the PLRA.
See 18 U.S.C. § 3626(a)(1)(A).

b. The Court’s Resolution
The court will not order ADOC to create corrective
action plans, though the court agrees with both parties
that doing so will likely be a necessary step toward
achieving

compliance.

In

the

event

of

finding

a

deficiency, the EMT should provide instruction to ADOC
as to what corrective action should be taken, suggest how
to plan for that action, and monitor whether that action
has been taken.

Nonetheless the court will accept, for

now, Commissioner Dunn’s assertion that “common sense”

39

will

lead

ADOC

to

self-correct

evidence of its noncompliance.

when

presented

with

Dunn Nov. 26, 2018, Trial

Tr. (doc. no. 2250) at 153-54.

Common sense will also

dictate that the court will be very concerned to learn
through the monitoring process that ADOC has failed,
absent

a

valid

reason,

suggested by the EMT.

to

take

corrective

actions

As the defendants have repeatedly

acknowledged, “self-identification and self-correction
of systemwide problems is the best long-term solution.”
Defs.’ Proposed Monitoring Plan (doc. no. 2115) at 6.
Plaintiffs’ expert Dr. Burns credibly testified that
self-correction “is kind of the definition of continuous
quality

improvement:

That

you

self-monitor,

identify

deficiencies, study the problem, prepare a solution,
apply the solution, restudy the issue to see that it has
been resolved.”
2254) at 89.

Burns Dec. 6, 2018, Trial Tr. (doc. no.

The capacity to self-monitor necessarily

includes an understanding of “how a system needs to
change in response to internal experience.”

Id. at 90.

The court will not be convinced that external monitoring

40

is no longer needed until ADOC has demonstrated that it
has the capacity to engage in both of these twin elements
of self-monitoring.

The experts on the EMT are best

positioned to help ADOC develop this capacity and may do
so through the “feedback” and “consultation” processes
described below.
is

The court finds that this resolution

narrowly

tailored

and

meets

the

need-narrowness-intrusiveness requirement of the PLRA.
See 18 U.S.C. § 3626(a)(1)(A).
The court will also not order ADOC to designate a
“Compliance Coordinator” or otherwise dictate how ADOC
organizes and manages its internal monitoring staff.

For

now, the court will defer to ADOC to establish an IMT as
it deems appropriate.
court

that

they

plan

The defendants have informed the
to

appoint

to

the

IMT

one

psychiatrist, one psychologist, two registered nurses,
and

any

other

staff

quarterly reports.

deemed

necessary

to

complete

See Defs.’ Proposed Monitoring Plan

(doc. no. 2115) at 12.

While the court understands the

plaintiffs’ concern that appointing members of the IMT

41

who

already

have

clinical

duties

may

mean

they

are

stretched too thin, the provisions plaintiffs seek are
overly

intrusive.

The

issue

of

whether

the

IMT

established by ADOC has sufficient expertise and capacity
to monitor compliance will be properly before the court
when the court considers whether to terminate external
monitoring, as described in the “Handoff” section of this
opinion.

3. Qualitative Review
a. Dispute
Though

initially

a

point

of

concern

for

the

plaintiffs, it now appears the parties agree that in
assessing whether ADOC is complying with the performance
measures, and thus remedial orders, the EMT can make
“qualitative

assessments

decision-making.”

relating

to

clinical

Defs.’ Response (doc. no. 2295) at 30;

see also Pls.’ Proposed Opinion (doc. no. 2260) at 26.
The

defendants

urge

that

such

assessments

may

not

constitute second-guessing of the reasonable judgment of

42

clinicians, but acknowledge, based on the testimony of
Dr. Robert Stern, one of their own proposed external
monitors, that assessment of many performance measures
will “require[] a clinical perspective.”
2018, Trial Tr. (doc. no. 2415) at 116.

Stern Nov. 27,
For example, Dr.

Stern testified that the EMT should be able to determine
whether

a

counseling

“gibberish,”
whether

a

rather

referral

progress
than

note

clinical

decision

is

contains

merely

observations,

within

the

range

or
of

appropriate actions. Id. at 150. According to Dr. Stern,
there would be “something wrong” if a monitoring plan did
not allow for this type of qualitative review.

Id. at

123; see also Burns Dec. 6, 2018, Trial Tr. (doc. no.
2254) at 92-93 (testifying that that monitors must be
able to assess clinical judgment).

b. The Court’s Resolution
Based on the parties’ agreement, the EMT will have
authority to make qualitative assessments of whether
clinicians

are

making

reasonable

43

clinical

judgments.

This assessment will often entail evaluating whether the
clinicians based their judgment on clinically relevant
information, as well as evaluating the documented reasons
for making the judgment.

As described by plaintiffs’

expert Dr. Burns, the EMT’s role is not to second-guess
clinicians' clinical judgments, but to see “if there’s a
rationale involved for the choices that are made and the
interventions that are provided.”
Trial Tr. (doc. no. 2254) at 93.

Burns Dec. 6, 2018,

As such, the EMT cannot

find that the defendants did not satisfy a performance
measure because a clinician made a decision that was
reasonable, but different from the decision the EMT would
have made.
The

court

finds

this

resolution

satisfies

the

need-narrowness-intrusiveness requirement of the PLRA.
See

18

U.S.C.

§

3626(a)(1)(A).

Reviewing

clinical

judgment is necessary to assess compliance with remedial
orders because practitioners cannot comply with remedial
orders

while

engaging

in

clinically

unreasonable

judgment. For example, if clinicians systematically fail

44

to diagnose people with SMIs despite clear indicators,
ADOC will be unable to attain compliance with the court’s
remedial orders regarding identification of people in
need

of

mental-health

care.

The

parties’

agreement

regarding qualitative evaluations and the testimony of
witnesses from both sides support the court’s finding
that this resolution satisfies the PLRA.

See 18 U.S.C.

§ 3626(a)(1)(A); see also Braggs v. Dunn, 383 F. Supp.
3d 1218, 1253 (M.D. Ala. 2019) (Thompson, J.) (finding
the defendants’ agreement to a remedial provision is
strong evidence of PLRA compliance).

4. Audit Tools
a. Dispute
In order to perform qualitative review, the parties
agree that the EMT shall have the authority to develop
“audit tools.”

See Pls.’ Proposed Opinion (doc. no.

2260) at 27; Defs.’ Response (doc. no. 2295) at 17-18.
While

the

term

“audit

tool”

has

not

been

precisely

defined by either party, it essentially refers to the

45

method or procedure by which the EMT members assess
compliance with the performance measures.

See Defs.’

Proposed Monitoring Plan (doc. no. 2115) at 15-16; Burns
Dec. 7, 2018, Trial Tr. (doc. no. 2256) at 242-43.

For

example, the defendants’ proposed performance measure 45
is that “any referral by the intake [registered nurse]
must be designated as emergent, urgent, or routine.”
Defs.’ Proposed Monitoring Plan (doc. no. 2115-1) at 4.
The proposed audit tool for that performance measure-referred

to

as

a

“Method

of

Measurement”

in

the

defendants’ performance measures chart--is to “review a
minimum of 10 charts for inmates referred for evaluation
by the intake RN [registered nurse] during the applicable
quarter for each identified facility.”

Id.

Just as both parties propose empowering the EMT to
develop

performance

measures,

they

also

propose

empowering the EMT to develop audit tools for evaluating
compliance with their performance measures.

It is not

clear, however, whether the defendants agree that the
EMT’s authority to create the audit tools should be

46

complete or whether their proposal would require final
approval from ADOC.
Overall, the defendants’ plan also limits the EMT to
evaluating no more than three facilities per quarter.
This would seem to mean that only 12 of the 14 major
facilities would be evaluated even once in a year.

b. The Court’s Resolution
The court will order that the EMT will have the
authority and discretion to develop and adjust audit
tools as it deems appropriate to evaluate compliance with
the performance measures and ADOC’s developing ability
to self-correct.

Since the audit tools are another

important element of the monitoring plan to be filled in,
the defendants acknowledge that the EMT should devise
them, in light of their expertise. See Defs.’ Proposed
Monitoring Plan (doc. no. 2115) at 18.

As with the

performance measures, the audit tools will be limited to
assessing

ADOC’s

progress

as

to

the

court’s

limited

remedial orders and its capacity to self-monitor.

47

And,

as with the performance measures, the parties will be
given an opportunity to raise objections to any of the
proposed audit tools before monitoring begins, first with
the EMT, then via mediation, and finally with the court
if still unresolved.
The court will also leave it to the experts to decide
how many and which facilities to evaluate on a quarterly
basis within the constraints of the rest of today’s
order.

It is in the interest of all parties and the

court for ADOC to achieve compliance and attain the
capacity to self-monitor as swiftly and effectively as
possible.

Though

seemingly

aimed

to

minimize

the

intrusion to ADOC facilities, arbitrarily limiting the
number of facilities to be evaluated each quarter could
have the opposite effect, slowing ADOC’s progress toward
termination of the court’s remedial orders and extending
the duration of external monitoring.
The court finds that this resolution satisfies the
PLRA's need-narrowness-intrusiveness requirement.
18 U.S.C. § 3626(a)(1)(A).

See

Allowing the EMT to create

48

the tools and schedule it deems necessary to evaluate
compliance is essential to ensure the EMT’s expertise
shapes and drives the overall monitoring scheme.

5. Contempt and Dispute Resolution
a. Dispute
The

defendants’

plan

includes

a

significant

limitation on the ability of the plaintiffs to initiate
contempt proceedings, allowing for the plaintiffs to do
so

only

where

the

monitoring

team

has

issued

three

consecutive quarterly reports finding noncompliance with
respect

to

the

same

performance

measurement

and

the

plaintiffs have exhausted “all reasonable efforts to
resolve any sustained noncompliance through the dispute
resolution process.”
(doc. no. 2115) at 21.

Defs.’ Proposed Monitoring Plan
Under the defendants’ plan, the

plaintiffs must first raise concerns about noncompliance
with the EMT and the defendants, then engage in mediation
to

resolve

motion.

any

disputes

prior

to

filing

a

contempt

The plaintiffs assert that such a limitation

49

unduly limits their ability to timely raise concerns
about noncompliance with remedial orders, including those
that are a matter of life or death.

b. The Court’s Resolution
The court will not adopt in full the defendants’
proposed

limitation

on

the

plaintiffs’

ability

to

initiate contempt or other proceedings, which the court
finds an unwarranted restriction.

The court understands

the plaintiffs’ concern that three quarters is simply too
long

for

some

unremedied.

forms

of

noncompliance

to

continue

For example, because the risk of suicide is

“so severe and imminent,” see Braggs v. Dunn, 383 F.
Supp.

3d

1218,

1227

(M.D.

Ala.

2019),

the

remedial

measures on suicide prevention must be complied with
100 % of the time, see Burns Dec. 7, 2018, Trial Tr.
(doc. no. 2256) at 122-23.
However, following the court’s prior practice in this
case, see, e.g., Order (doc. no. 1926) (directing parties
to mediate before the defendants would be ordered to

50

respond to the plaintiffs’ contempt motion), the court
will order that, absent an extraordinary urgency, the
plaintiffs must initially mediate their concerns before
initiating
balances

contempt
the

proceedings.

defendants’

interest

This
in

restriction
having

the

opportunity to correct noncompliance without litigation
with the plaintiffs’ concern about the need to ensure
complete and immediate compliance with some remedial
orders.

The court finds this provision satisfies the

need-narrowness-intrusiveness requirement of the PLRA.
See 18 U.S.C. § 3626(a)(1)(A).
Logically, even in the absence of this restriction,
it would be more difficult for the plaintiffs to succeed
on a non-urgent contempt motion brought prematurely in
the monitoring process.

And the court expects that other

elements of this order will obviate the need perceived
by the plaintiffs to initiate contempt proceedings early
on.

By ensuring the plaintiffs have a role in selecting

the EMT members, who will fill in many of the details
within the monitoring structure, the plaintiffs will have

51

greater trust in the monitoring plan to address ADOC’s
deficiencies.

Meanwhile, improvements to ADOC’s efforts

and ability to self-correct will help to assure the
plaintiffs that ADOC is taking meaningful steps toward
compliance.

C. Components of Monitoring
The

parties

are

in

agreement

as

to

the

overall

structure and phases of monitoring, and the court will
order

that

agreement.

the

monitoring

scheme

comport

with

this

This includes that the monitoring scheme will

consist of three phases, with an external monitoring team
teaching--and then ultimately handing the reins over
to--an internal monitoring team; that the IMT should
consist of professionals with clinical expertise who are
exclusively chosen and employed by ADOC; and that the
monitoring

scheme

should

consist

of

five

essential

components of monitoring outlined above and described in
detail below.

52

The parties disagree, however, about the timeline
for

the

phases

of

monitoring,

as

well

components within this broader structure.

as

various

The court will

describe and resolve each disagreement in turn.

1. Document Review
a. Dispute
The

parties

agree

that

ADOC

must

produce

documentation to the EMT, and that the EMT shall have
ultimate authority to identify which documents to review.
However, the parties disagree as to the sample size that
must be reviewed.

The defendants propose requiring a

minimum sample size of documents to be reviewed for each
performance measure (generally 10 documents), while the
plaintiffs contend that the sample size should be left
to the EMT’s discretion.
monitoring

has

been

Once the responsibility for

transferred

to

the

IMT,

the

plaintiffs propose that the IMT cannot reduce or change
the amount of documentation identified for review by the

53

EMT unless ADOC has been found in compliance with respect
to a particular order.
The plaintiffs also propose that documents produced
to the EMT or IMT be produced to plaintiffs’ counsel,
while the defendants argue that the plaintiffs should
receive

only

Compliance

Teams

compliance.”
Finally,

“all

the

of

the

actually

documentation
rely

upon

that

in

the

evaluating

Defs.’ Response (doc. no. 2295) at 29.
plaintiffs

propose

a

list

of

types

of

documents to serve as a starting point for review, in
addition to any others requested by the EMT.

See Pls.’

Proposed Opinion (doc. no. 2260) at 67.

b. The Court’s Resolution
With regard to document review, the court will again
leave much to be decided by the experts.

The parties

appear to agree that the EMT may review an unlimited
number of documents.

Rather than set a minimum number

of documents, as the defendants propose, the court will
leave it to the EMT to decide both how many and which

54

documents to review.

While the court acknowledges the

defendants’ concern that a review of too few documents
may result in an unrepresentative and unfair sample, this
is an issue that the qualified experts on the EMT will
be capable of recognizing and addressing as appropriate.
The

court

will

not

adopt

the

plaintiffs’

proposed

requirement that the IMT follow precisely the choices for
document review made by the EMT.

The issue of how to

review an adequate number or scope of documents is one
on which the court expects the EMT will train the IMT,
as discussed below.

Evidence that the IMT is failing to

follow that training may support a finding that external
monitoring continues to be necessary.
The court declines to adopt the plaintiffs’ proposal
that all documents produced to the EMT or IMT also be
produced to plaintiffs’ counsel.
whether,

in

practice,

there

The court is unsure

will

be

a

meaningful

difference between the parties’ proposals on this point.
Therefore, though willing to revisit the issue if this
resolution proves unworkable, the court will first adopt

55

the

defendants’

counsel

receive

Compliance
compliance.”

narrower
“all

Teams

position

of

the

actually

that

plaintiffs’

documentation

rely

upon

in

that

the

evaluating

See Defs.’ Response (doc. no. 2295) at 29.

Because the court has difficulty defining in the abstract
the exact meaning of “actual reliance,” the court will
initially leave it to the defendants to interpret this
language and will simply address any issues as they
arise.

In accordance with the defendants’ proposed EMT

member Dr. Stern’s testimony, the EMT must also retain
all documents it reviews in the event its findings are
contested by either party.

See Stern Nov. 27, 2018,

Trial Tr. (doc. no. 2415) at 111.
The

court

finds

that

this

requirement

regarding

document review is inherently narrow, as it is adopted
in large part from the defendants’ proposal and the
parties’ agreements and again gives discretion to the
experts to determine what is necessary.
finds

it

meets

Thus, the court

the

need-narrowness-intrusiveness

requirement of the PLRA.

See 18 U.S.C. § 3626(a)(1)(A).

56

2. Observation
a. Dispute
The parties agree that site visits should be part of
monitoring.

In broad strokes, the key difference is

that, while the defendants propose that the EMT conduct
site visits upon its request, the plaintiffs want to
require at least yearly site visits to each facility at
the start of monitoring.
The defendants propose that, within 60 days of the
entry of this order, any EMT member who has not visited
ADOC facilities should visit as many facilities as he or
she

deems

necessary

to

become

familiar

with

them.

Subsequently, under the defendants’ plan, EMT members may
request a site visit to any facility, but if any party
disputes

such

a

request

or

deems

it

unnecessary

or

inappropriate, such request shall be resolved through
mediation.
By contrast, the plaintiffs propose requiring that,
in

the

first

phase

of

monitoring,

57

each

major

ADOC

facility be visited by the EMT members at least once, but
no

more

than

twice,

per

year,

unless

extraordinary

circumstances require more visits.

See Pls.’ Proposed

Opinion (doc. no. 2260) at 41-42.

As facilities come

into compliance, the plaintiffs propose, the members may
reduce

the

frequency

of

visits.

With

regard

to

scheduling site visits, the plaintiffs propose that the
EMT determine the schedule of visits in consultation with
the defendants, and that prior to each quarter, the EMT
notify the defendants of the facilities to be visited
during that quarter with at least two weeks’ notice
before any site visit.
The plaintiffs also propose limiting each site visit
to no more than five full business days at any facility
with inpatient treatment units or intake processing, and
no more than three full business days at any other
facility, unless explicitly agreed to by the parties or
permitted by the court upon the EMT's request.

The

defendants do not have a proposal regarding the duration

58

of site visits but have repeatedly raised concerns that
site visits may be distracting and intrusive.
The defendants similarly do not have a proposal
regarding the scope of observation of the EMT members
allowed during site visits.

The plaintiffs propose that

monitors be allowed to (1) observe processes, including
treatment, with the permission of patients; (2) inspect
areas where inmates are housed and where mental-health
services

and

confidential
request

programming
interviews

mental-health

are
with

performed;
inmates

services;

who

(4)

(3)

conduct

receive
speak

or

with

correctional and mental-health staff as needed, in a way
that

limits

as

much

as

possible

the

impact

on

the

provision of care; (5) have access to documents they
request either on site or within 10 days after a visit;
and (6) have, to the extent possible, a confidential
setting in which to conduct interviews.

Finally, the

plaintiffs propose that each party be allowed to send a
single attorney each day for site visits.

The defendants

do not appear to have a position on this issue.

59

b. The Court’s Resolution
The court will order regular site visits by the EMT
throughout the monitoring process, rather than just at
the outset.

However, the court will not dictate the

precise number required and will leave that decision to
the EMT.

The court credits the testimony of plaintiffs’

experts Dr. Burns and Vail as well as the defendants’ own
witness Dr. Stern, who all agreed that site visits are
necessary

to

help

understand

and

verify

ADOC’s

documentation, to catch issues that are undetectable
through document review, to foster collaboration between
the EMT and ADOC staff, and to allow for the teaching and
cultural

shift

self-monitor.

required

for

ADOC

to

eventually

See Stern Nov. 27, 2018, Trial Tr. (doc.

no. 2415) at 152-53; Vail Nov. 29, 2018, Trial Tr. (doc.
no. 2340) at 21; Burns Dec. 6, 2018, Trial Tr. (doc. no.
2254) at 64.
As proposed by the defendants, it will be up the EMT
to

determine

the

exact

frequency

60

of

visiting

each

facility, including prior to the start of monitoring.
recognition

of

the

defendants’

concern

that

In

overly

frequent site visits may be disruptive to the facilities’
operation, however, the court will limit the number of
site visits by the EMT to no more than two per facility
per year, unless explicitly agreed to by the parties or
permitted by the court upon the monitors’ request.

This

requirement is based on the testimony of both Dr. Burns
and Vail, who stated that they would expect the EMT to
conduct two site visits per facility per year, at least
to start, with an emphasis on those facilities “that have
the most involvement in carrying out all of the remedial
plans,” such as the mental-health treatment hubs.

Burns

Dec. 6, 2018, Trial Tr. (doc. no. 2254) at 64; see also
Vail Nov. 29, 2018, Trial Tr. (doc. no. 2340) at 25-28.
Because it is up to the EMT which facilities to visit and
how often, it is possible, and perhaps likely, that fewer
than two visits to some facilities will occur in a year.
The court will require the EMT to determine the
schedule

for

site

visits

in

61

consultation

with

the

defendants and to inform the defendants of a proposed
visiting schedule on a quarterly basis, giving no less
than two weeks of notice prior to any visit.

The court

finds the defendants’ proposal that ADOC may dispute any
site

visit

broad.

as

“unnecessary

or

inappropriate”

overly

Instead, there will be a presumption that a site

visit will occur as deemed appropriate by the EMT--a
presumption that may be overcome based on extraordinary
circumstances, such as an extreme security risk.

The

court expects that scheduling disputes will be resolved
between the EMT and the defendants; however, any disputes
that cannot be resolved are to be submitted for mediation
and then to the court if the parties are still unable to
resolve the matter.
Though the court will leave the issue of duration of
site visits to the EMT, the court will do so with the
restriction that site visits may last no more than four
full

business

days

at

any

facility

with

inpatient

treatment units or intake processing, and no more than
three full business days at any other facility, unless

62

explicitly agreed to by the parties or permitted by the
court upon the monitors’ request.

The court adopts this

proposal as an assurance to the defendants and based on
testimony
visits

by

could

plaintiffs’
be

expert

disruptive

Dr.
“if

Burns
they

that

site

lasted

30

days ... but the plan would be that you would design this
to last probably three or four days at a given site.”
Burns Dec. 7, 2018, Trial Tr. (doc. no. 2256) at 242.
The court will also adopt the plaintiffs’ proposal
regarding the extent of access by the EMT during the site
visits.

The court finds this level of access minimally

required for monitors to ensure a meaningful and accurate
review

of

ADOC’s

compliance.

Dr.

Burns

credibly

testified that site visits provide insight that cannot
be gathered from reviewing the paperwork, particularly
regarding how various processes work together in the
context of each facility.

See Burns Dec. 6, 2018, Trial

Tr. (doc. no. 2254) at 57.
Observing processes in person is also useful to
determine whether they are being done “as intended to be

63

done in terms of all the various components.”

Id. at 56.

For example, Dr. Burns testified that compliance with the
remedial order requiring that suicide-watch checks be
made at staggered intervals cannot be fully evaluated
without a site visit.
documents

regarding

See id. at 165-67.
this

remedial

observation logs kept by staff.

The available

measure

are

the

Upon review of these

logs from the months prior to the monitoring trial, Dr.
Burns testified that the logs noted checks at staggered
times, but repeated at precisely the same times over
multiple

logs

in

different

months.

See

id.

The

explanation Dr. Burns suggested was that the logs were
likely filled in, in advance.

See id.

However, without

a site visit “to observe the observers and their logs
contemporaneous with the observation” and to watch the
actual practice of staff, monitors would be left unsure
of when the checks actually happened and whether the logs
are trustworthy.

Id. at 167.

Plaintiffs’ expert Vail

testified that allowing the monitors to interview ADOC
staff will also increase the monitors’ understanding of

64

staff

actions

and

decisions

conclusion regarding compliance.

before

they

reach

a

See Vail Nov. 29, 2018,

Trial Tr. (doc. no. 2340) at 15-16.
Both Vail and Dr. Burns agreed that interviewing
inmates is another important way to detect patterns of
compliance or noncompliance with remedial measures.

For

example, Dr. Burns testified that interviewing inmates
is sometimes necessary to investigate issues such as how
quickly patients are being evaluated in response to their
requests for mental-health treatment and whether they are
seen by mental-health staff in a confidential space.

See

Burns Dec. 6, 2018, Trial Tr. (doc. no. 2254) at 55.
The court will leave the issue of including attorneys
during site visits up to the EMT.
credibly

testified

attorneys

during

stated

that

the

that

visits

the
can

presence

be
of

interviews could be appropriate.

While Dr. Burns

presence

of

disruptive,
counsel

multiple
she

during

See id. at 48.

also
exit
The

court believes the EMT members are best positioned to

65

evaluate when and whether to invite a limited number of
attorneys from both parties to be present.
The

court

finds

that

these

provisions

meet

the

need-narrowness-intrusiveness requirement of the PLRA.
See 18 U.S.C. § 3626(a)(1)(A).
site

visits

balances

the

The requirement regarding

defendants’

concerns

about

disruptions caused by in-person monitoring with the need
for

monitors

to

achieve

a

complete

understanding

of

ADOC’s operations and its progress toward constitutional
compliance.
witness

Dr.

As plaintiffs’ experts and defendants’ own
Stern

testified,

some

site

visits,

particularly initial visits, “are absolutely necessary.”
Stern Nov. 27, 2018, Trial Tr. (doc. no. 2415) at 102;
see also Vail Nov. 29, 2018, Trial Tr. (doc. no. 2340)
at

25

(agreeing

that

site

visits

are

“necessary

to

establish the working relationships with the people in
the system, and it’s also necessary to be able to see and
feel the progress that's occurring or lack of progress”).
However, the court agrees with plaintiffs’ expert Vail
that, “beyond a required ... visit [to] each facility, I

66

think [the issue of site visits] should be left up to the
judgment of the monitors.”

Vail Nov. 29, 2018, Trial Tr.

(doc. no. 2340), at 59.
The court’s relief embraces the defendants’ logic
that site visits should occur as deemed necessary by the
experts.

It

also

limits

the

intrusion

into

ADOC’s

operations by capping the duration of each visit and
allowing a total of only two visits per facility per
year, absent the consent of all parties or the court’s
approval.

As facilities demonstrate their compliance

with remedial orders, logically the EMT should find that
less monitoring is required and thus the number of site
visits will diminish.

3. Feedback
Citing Dr. Burns, the plaintiffs and defendants both
list “feedback” and “consultation” as two of the five
components of monitoring.
these

two

concepts,

it

difference between them.

Given the similarity between
is

important

to

define

the

The court refers to “feedback”
67

as activity by the monitors to inform the court and
parties

of

the

defendants’

orders and the Constitution.
they

may

also

advise

policy, and more.4

compliance

with

remedial

As part of this process,

defendants

on

best

practices,

“Consultation,” by contrast, refers

to actions taken to teach ADOC how to self-monitor.

a. Dispute
In broad strokes, whereas the defendants propose that
feedback essentially be limited to the quarterly reports
produced by the EMT, the plaintiffs contend that feedback
should also include face-to-face meetings.

4.
Dr.
Burns
testified
that
as
part
of
“consultation,” the parties can advise the defendants on
policy development, such as suggesting that ADOC look at
model policies or practices from other States or
suggesting certain ADOC facilities consult with one
another.
See Burns Dec. 6, 2018, Trial Tr. (doc. no.
2254) at 68-69. However, for purposes of the analysis
here, the court will treat this type of advising as
“feedback,” and “consultation” as exclusively related to
teaching about monitoring. This is because advising on
policies and practices is more closely related to giving
feedback
about
compliance
with
orders
and
the
Constitution than it is with consulting about monitoring.
68

With regard to the written reports, the parties agree
that quarterly monitoring reports should be submitted to
the

court,

and

that

both

parties

should

have

the

opportunity to contest the reports or to provide feedback
to the EMT.

However, the parties’ proposals include

three minor discrepancies: (1) the plaintiffs propose
that, during the second phase, the IMT, in addition the
EMT, produce quarterly reports to learn how to do so; (2)
the defendants propose that all quarterly monitoring
reports as well as supporting documentation be kept under
seal and treated as confidential; and (3) the defendants
propose

that

finding

or

within

a

“[n]o

Quarterly

recommendation

Quarterly

of

Evaluation

Evaluation
the

[EMT]

Report,

Report,
and/or

is

or

[IMT]

admissible

against ADOC, its employees, contractors, or contractor’s
employees in any other civil action or other proceeding.”
Defs.’ Proposed Monitoring Plan (doc. no. 2115) at 20-21.
With

regard

to

the

face-to-face

feedback,

the

plaintiffs propose that for each site visit, there be an
entrance and exit interview between the monitoring team

69

and

the

institutional

staff

as

well

as

any

party

representatives that are present.
Finally, the plaintiffs also propose that the EMT be
able

to

defendants

communicate
(and

with

presumably

the

plaintiffs

their

and

the

representatives),

separately or together, at its discretion, outside of the
context of a site visit.

By contrast, the defendants’

proposal provides for regular communication (outside of
quarterly reports) only between the EMT and ADOC and
prohibits

the

EMT

from

informing

one

party

“of

any

decision, recommendation, or report in advance of the
time it is given to all parties.”

Defs.’ Proposed

Monitoring Plan (doc. no. 2115) at 21.

Specifically, the

defendants’ proposal provides that the EMT “may convene
conference calls on a monthly or otherwise regular basis
with

ADOC

to

discuss

implementation

of

the

Remedial

Orders, to obtain updates, and to address questions or
concerns.”

Id.

70

b. The Court’s Resolution
The court will largely adopt the parties’ agreement
that the EMT must issue its quarterly reports to the
parties within 30 days of the conclusion of each quarter
to provide an opportunity to object or provide feedback
prior to submission to the court.
(doc. no. 2295) at 10.
identify

the

basis

interviews, etc.).

for

See Defs.’ Response

In its reports, the EMT shall
its

findings

(documentation,

As to when the reports are to be

filed, the court will make that decision after it has
input from the EMT.
Once filed, in light of the strong presumption in
favor of public access to judicial records, there will
not be a blanket seal on the reports; rather, the either
party or the EMT may move to seal prior to the EMT’s
filing of the reports on a case-by-case basis. See Braggs
v. Dunn, 382 F. Supp. 3d 1267, 1270 (M.D. Ala. 2019)
(Thompson,

J.)

(finding

that

“[t]he

public

has

a

common-law right to inspect and copy judicial records and
documents” (citing Nixon v. Warner Commc’ns, Inc., 435

71

U.S. 589, 597 (1978) & Newman v. Graddick, 696 F.2d 796,
802-04 (11th Cir. 1983)).

As this court has stated,

“Alabamians indisputably have a powerful interest in
overseeing

ADOC’s

performance.”

Id.

at

1272.

The

defendants’ proposal that the reports be inadmissible in
other

proceedings

is

due

to

be

rejected,

as

the

defendants do not identify any legal basis for such a
requirement.

The

court

will

address

in

the

“Consultation” section below the parties’ disagreement
regarding the IMT’s participation in producing quarterly
reports.
With regard to the face-to-face feedback, the EMT
has authority, upon its request, to conduct entrance or
exit interviews with ADOC personnel.

ADOC shall comply

with these requests, absent extenuating circumstances,
such as an extreme security risk.
EMT

deems

appropriate

participation
during

these

permit such participation.

of

As described, if the

the

parties’

interviews,

the

lawyers

court

will

Plaintiffs’ expert Dr. Burns

testified that these in-person meetings are important to

72

provide

immediate

monitor’s

feedback

findings

and

for

to

ADOC

the

regarding

monitors

to

the
make

suggestions of improvements where appropriate. See Burns
Dec. 6, 2018, Trial Tr. (doc. no. 2254) at 66-67.

Vail

testified that on-the-ground feedback from ADOC to the
monitors is also important to ensure that the monitors
have an accurate impression of ADOC’s activities and to
correct any misunderstandings prior to the writing of the
monitoring reports.

See Vail Nov. 29, 2018, Trial Tr.

(doc.

15.

no.

2340)

at

This

two-way

feedback,

he

testified, helps the monitoring process because “the
people on the ground in any state know the details of
their system better than an outsider ever will, no matter
how good the monitor is.”

Id.

Finally, with regard to communication between the
parties and the EMT, the court will allow the EMT to meet
with

and

otherwise

communicate

with

the

parties,

including ADOC staff, at its discretion, separately or
together.
delivery

Fluid
of

communication

feedback.

The

73

will

aid

defendants’

the
own

two-way
proposed

monitor

Dr.

Stern

also

testified

that

communication

between the EMT and counsel for all parties is important
during the monitoring process.

See Stern Nov. 27, 2018,

Trial Tr. (doc. no. 2415) at 54. However, if the monitors
rely on information from these communications in the
quarterly reports, they must cite the communication in
the report.

Consistent with the defendants’ proposal,

the court will order that the EMT may not provide the
quarterly report to one party ahead of the other.
The

court

feedback

finds

meet

that

the

these

provisions

regarding

need-narrowness-intrusiveness

requirement of the PLRA.

See 18 U.S.C. § 3626(a)(1)(A).

Once again, the parties’ agreement regarding the filing
of

quarterly

compliance.

reports

is

strong

evidence

of

PLRA

See Braggs v. Dunn, 383 F. Supp. 3d 1218,

1253 (M.D. Ala. 2019) (Thompson, J.).

Allowing the EMT

discretion to request face-to-face feedback when they
believe it is necessary will help to ensure swift and
productive collaboration between the EMT and ADOC--a
critical

feature

of

this

monitoring

74

scheme.

Such

meetings

will

be

limited

to

what

is

necessary,

as

determined by the experts on the EMT, to limit the
intrusion into ADOC’s operations.

4. Consultation
a. Dispute
As used here, “consultation” refers to the EMT’s
actions to teach the defendants how to self-monitor.
Consultation differs from “feedback” in that it is not
focused on informing the parties and the court about
compliance.

In broad strokes, the parties agree that

teaching should be a big part of the monitoring scheme.
The parties’ disagreement lies in how this teaching and
capacity-building will take place.
the

proposed

IMT--including

division
the

of

EMT’s

labor

The distinctions in
between

supervisory

the

role

EMT

and

over

the

IMT--reflect the parties’ different proposed processes
by which the EMT will teach the IMT how to monitor.
In the first phase, the parties agree that the EMT
will

exclusively

conduct

monitoring.

75

However,

the

parties’ proposals differ slightly in that the plaintiffs
propose that the IMT observe the EMT during the first
phase, see Pls.’ Proposed Opinion (doc. no. 2260) at 72,
whereas the defendants simply propose that the EMT make
the results of its quarterly evaluations available to the
IMT, see Defs.’ Proposed Monitoring Plan (doc. no. 2115)
at 13.
In the second phase, the plaintiffs propose that the
IMT

observe

the

EMT

and

participate

only

“as

appropriate,” Pls.’ Proposed Opinion (doc. no. 2260) at
72, whereas the defendants propose that the EMT and IMT
jointly conduct the evaluations, see Defs.’ Proposed
Monitoring Plan (doc. no. 2115) at 13-14.

Unlike the

defendants, the plaintiffs also propose that the IMT
produce separate draft quarterly evaluations during the
second phase (in addition to the evaluations produced by
the

EMT),

which

thoroughness,

and

the

EMT

would

efficacy.

review

This

way,

for

accuracy,

according

to

plaintiffs, the EMT “will be able to teach the Internal
Monitoring Team the skills they need to take the lead in

76

monitoring and will be able to evaluate the progress of
the Internal Monitoring Team in developing the capacity
to take over the monitoring process.”
Opinion

(doc.

no.

2260)

at

See Pls.’ Proposed

74.

Another

crucial

difference, discussed in the “Handoff” section below, is
that

defendants

propose

that

the

second

phase

automatically end after two years of monitoring.
In the third phase, the plaintiffs propose that the
EMT continue to observe the IMT and retain the authority
to return monitoring to the second phase. By contrast,
the defendants want monitoring in the third phase to be
exclusively

conducted

by

the

IMT,

without

EMT

supervision.

b. The Court’s Resolution
The court will order that the IMT’s responsibilities
and involvement will be largely driven by what the EMT
members,

who

are

the

experts,

believe

is

necessary.

During the first and second phases, the EMT shall be
allowed to invite the IMT to observe the EMT in its

77

monitoring activities, unless there is an activity that
the EMT requests to conduct without being observed, such
as a confidential interview.
the

EMT

shall

retain

During the second phase,

primary

responsibility

for

monitoring and producing the quarterly reports; however,
the IMT shall participate in those activities to the
extent the EMT deems appropriate.

The court will not

adopt the plaintiffs’ proposal that, during the second
phase, in addition to the EMT-produced report, the IMT
produce a separate draft report for the sole purpose of
training.

Instead, the court will leave it to the EMT

to determine how best to involve the IMT in drafting
reports

and

other

monitoring

activities

as

necessary for training and capacity-building.

it

deems

Finally,

the court will order that, during the third phase, the
EMT shall remain available for consultation with the IMT,
the parties, and the court, should any issues or disputes
arise.
The court finds these steps necessary to ensure that
the IMT not only receives the necessary training, but

78

also

that

it

is

capable

of

executing

the

monitoring in accordance with that training.

work

of

Allowing

for collaboration between the EMT and IMT in every phase
of monitoring is essential to ensure that, one day, ADOC
will have the capacity to self-monitor.

The court also

expects that involving the IMT from the very beginning
of

monitoring

will

help

to

improve

the

working

relationship between the EMT and ADOC and help develop
the IMT into a “cultural force” for institutional change.
Vail Nov. 29, 2018, Trial Tr. (doc. no. 2340) at 69.
This

provision

satisfies

the

need-narrowness-intrusiveness requirement of the PLRA.
See 18 U.S.C. § 3626(a)(1)(A).

The consultation element

of monitoring is particularly critical in light of the
admission

of

the

defendants

that

ADOC

lacks

the

“training” to self-monitor.

Defs.’ Proposed Monitoring

Plan (doc. no. 2115) at 2.

Commissioner Dunn himself

testified that he instructed his staff to develop a
monitoring plan that focused “on training, education, and
building internal capacity.”

79

Dunn Nov. 26, 2018, Trial

Tr. (doc. no. 2250) at 7.

Consultation is “one of the

ways in which the monitor helps the agency develop the
internal knowledge and skill set to be able to assume
responsibility

for

internal

monitoring,

continuous quality improvement process.”
2018, Trial Tr. (doc. no. 2254) at 68.

ongoing,

Burns Dec. 6,

The court’s order

limits the consultation element of monitoring to only
what

is

ability

necessary
to

to

ensure

self-monitor,

that

rather

ADOC
than

develops

the

requiring

the

redundant reporting by the IMT in the second phase or the
intrusive supervision over the IMT in the third phase
sought

by

the

plaintiffs.

Consultation,

like

all

elements of the court’s monitoring order, is also limited
in scope to the requirements of this court’s remedial
orders and is thus narrowly tailored to redress the
violations found by this court.

5. Handoff to ADOC
The “handoff” to ADOC involves two central issues.
First, when does the EMT transfer primary monitoring

80

responsibilities

to

the

IMT,

that

is,

when

does

monitoring move from phase two to phase three?

Second,

when

parties

does

court

monitoring

terminate?

The

disagree on both issues.

a. Timing of Monitoring Phases
i. Dispute
As to the first issue of transition from phase two
to phase three of monitoring, the defendants propose
automatic termination of the EMT and transition to phase
three after two years of monitoring--four quarters in
phase one and four quarters in phase two.

By contrast,

the plaintiffs contend that the EMT “cannot automatically
disband after two years.” Pls.’ Proposed Opinion (doc.
no. 2260) at 52.

The plaintiffs propose that the EMT

conduct monitoring until the EMT determines that the IMT
“has developed the competence to lead the monitoring
efforts,” id. at 72, or until the defendants demonstrate
to the court “that the remedies being monitored can be
terminated because they are no longer necessary to remedy

81

ongoing

constitutional

violations,”

id.

at

52.

The

plaintiffs further assert that, in the third phase of
monitoring, the EMT should continue to exercise oversight
of

the

IMT’s

monitoring,

including

directing

which

facilities are to be audited.
The defendants take issue with the fact that the
plaintiffs “do not propose any clear point in time for
transitioning from the [EMT] to the [IMT].”
Response (doc. no. 2295) at 33.

Defs.’

Under the plaintiffs’

plan, they complain, the determination of when the IMT
is prepared to assume primary monitoring responsibilities
would be left “entirely to the subjective opinion of the
[EMT] without holding the [EMT] accountable for training
and mentoring the [IMT].”

Id.

The defendants argue that

the EMT would have no incentive to conclude its work and
allow ADOC to take over monitoring.

ii. The Court’s Resolution
The court will adopt the defendants’ proposal that
after one year, monitoring will automatically shift from

82

phase one to phase two.
that

monitoring

will

However, the court will order

move

from

phase

two

to

phase

three--that is, the IMT will assume responsibility for
monitoring--when the court determines, after a hearing,
that the IMT is sufficiently competent that monitoring
by the EMT is no longer necessary.

Of course, in phase

three, monitoring by the court would continue, albeit by
way of the IMT, until monitoring is no longer needed.
The defendants’ critique and proposal suffer from
two key problems.

First, the defendants’ plan would in

no way incentivize the IMT or ADOC to build its internal
monitoring capacity.

The fixed, two-year cut off sends

the message that, regardless of the IMT’s monitoring
capacity after two years, the IMT would take over and
external monitoring will end at that time.

Second, and

perhaps more importantly, a fixed two-year cut-off would
mean that external monitoring would end regardless of the
status of compliance by ADOC.
Burns

stated,

under

the

As plaintiffs’ expert Dr.

defendants’

proposal,

the

transition would occur “based on the passage of time, not

83

necessarily improvements in the system.”

Burns Dec. 6,

2018, Trial Tr. (doc. no. 2254) at 51.

As explained

above,

external

monitoring

is

necessary

ongoing constitutional violations.

to

address

This is because ADOC

has failed to self-identify and self-correct problems
with its provision of mental-health services to inmates,
see Braggs v. Dunn, 257 F. Supp. 3d 1171, 1257 (M.D. Ala.
2017)

(Thompson,

J.),

and

because

this

failure

has

continued since the liability opinion, demonstrated by
ADOC’s ongoing failure to self-monitor compliance with
remedial orders, as described in the final section of
this

opinion.

Therefore,

external

monitoring

will

continue to be necessary until the defendants have the
capacity to self-monitor; that is, until the IMT has
built and demonstrated its competency both to identify
and correct deficiencies, or rather, ADOC itself has
built and demonstrated such.

The court has no reason to

believe that ADOC, via the IMT, will automatically obtain
competency after two years of monitoring, that is, that
it will have a documented, substantial track record of

84

identifying

and

successfully

correcting

deficiencies.

Cf. Burns Dec. 6, 2018, Trial Tr. (doc. no. 2254) at 116
(estimating that in the best-case scenario, ADOC will
reach constitutional compliance in five years).
The

court

shares

the

defendants’

concern

that

monitoring may extend indefinitely. Therefore, the court
will rely on the process set forth by the PLRA for making
the

determination

that

the

IMT

is

ready

to

assume

responsibility for monitoring--an approach that ensures
external monitoring continues only as long as it is truly
necessary.

Accordingly, at any point at least two years

after the entry of this order, any party may move to
terminate the monitoring by the EMT.
§ 3626(b)(1).

See 18 U.S.C.

(After all, ADOC itself may conclude,

after two years of experience with the EMT and in light
of then-current conditions, that it then realizes that
it is not quite ready for self-monitoring.)
that

motion,

monitoring

and

the
hand

court
it

will
over

to

terminate
the

IMT

Pursuant to
the

EMT’s

unless

the

plaintiffs demonstrate, at an evidentiary hearing, that

85

external

monitoring

remains

necessary

to

correct

a

current and ongoing constitutional violation, and that
the

monitoring

order

continues

need-narrowness-intrusiveness

to
See

test.

meet
18

the
U.S.C.

§ 3626(b)(3); see also Cason v. Seckinger, 231 F.3d 777,
782-83 (11th Cir. 2000).
the

court

will

In the event of such a hearing,

consider,

among

other

evidence,

the

opinions of the members of the EMT as to whether the IMT
has

developed

responsibilities
self-correction.

the

capacity
and

to

engage

assume

monitoring

successfully

in

The court expects that, through the

various mechanisms in this process designed to build the
IMT’s capacity, once monitoring shifts into phase three,
the IMT will take over monitoring for the remaining
duration of the court’s oversight.

However, the court

will reserve the authority to return monitoring to phase
two and re-engage the EMT experts as primary monitors if
the court determines, upon the motion of either party and
after an evidentiary hearing, that the IMT is no longer
fulfilling its obligations.

86

The court understands the defendants’ concern that
the experts on the EMT, who are paid for their work, may
have competing interests with regard to handing over the
reins to ADOC.

However, this concern is insufficient to

support automatic and arbitrary termination of external
monitoring after two years.

And regardless of the EMT’s

motivations, the court’s resolution will provide ADOC the
opportunity to show the court that it is ready to take
over monitoring.
All that said, the court agrees with the defendants
that the IMT would benefit from having clear goals and
criteria for determining whether it has the ability to
assume responsibility for monitoring.

Students should

know what their teachers require for a passing grade.
Accordingly, in phase one, the EMT will develop and
provide the IMT with criteria--much like performance
measures--for eventually assessing whether it is able to
assume the reins of monitoring.

The IMT’s performance

in meeting these criteria would serve as evidence, in a
future hearing to terminate phase two, of whether the IMT

87

has the capacity to take over monitoring.
with

the

teaching

metaphor,

members

of

To continue
the

EMT

can

testify about whether the IMT has a passing grade; the
defendants and IMT can always disagree and argue for a
better grade.

Ultimately, it will be the court that

determines whether the IMT has the passing grade to
graduate and take over monitoring.

As stated, the court

will not adopt the plaintiffs’ proposal that the EMT
continue to exercise a supervisory role over the IMT once
the IMT takes over monitoring.

Instead, the court will

require that the EMT remain available for consultation
with the court and the parties as needed.
The

court’s

resolution

satisfies

the

need-narrowness-intrusiveness requirement of the PLRA.
See 18 U.S.C. § 3626(a)(1)(A).

The entire exercise of

monitoring would be just that, an exercise, if the EMT’s
oversight and consultation were to end before ADOC has
gained the capacity to self-monitor.

However, under this

scheme, the EMT will exist only as long as it is necessary
to help ADOC achieve that end.

88

Moreover, the court would emphasize that this case
may be unique in that the monitoring scheme adopted here
does not consist exclusively of external monitoring.
Instead, the court has substituted internal monitoring
for part of the external monitoring that would otherwise
be imposed. To this extent, the monitoring scheme is less
intrusive than it otherwise would be.

b. Termination of Court Monitoring
i. Dispute
The defendants assert that court monitoring--as well
as the underlying remedial orders--should terminate when
there

is

“sustained

performance measures.

substantial

that

court

with

See Defs.’ Proposed Monitoring

Plan (doc. no. 2115) at 30.
propose

compliance”

By contrast, the plaintiffs

monitoring

continue

until

the

underlying remedial orders are terminated based on a
finding,

under

the

PLRA,

that

they

are

no

longer

necessary to correct a current and ongoing violation.
See Pls.’ Proposed Opinion (doc. no. 2260) at 28, 75.

89

The defendants further assert that when ADOC achieves
“sustained substantial compliance” with respect to a
single performance measure, all court monitoring of that
particular performance measure should cease, and the
portion of the court’s remedial order related to that
performance

measure

should

also

terminate.

Defs.’

Proposed Monitoring Plan (doc. no. 2115) at 21.

They

propose that, “[a]s a general matter, the Compliance
Teams

should

use

eighty-five

percent

(85 %)

as

the

threshold for substantial compliance,” and many of their
proposed

performance

threshold.5

Id.

at

measures
18.

specify

Crucially,

85

%

as

the

however,

the

5. For example, the defendants’ proposed performance
measure number 139 is that “[a] member of the MH staff
will complete a MH Progress Note for each inmate
participating in a group activity or therapy and place
the note in the inmate’s record.”
Defs.’ Proposed
Monitoring Plan (doc. no. 2115-1) at 15. Their proposed
audit tool is to “[r]eview a minimum of 10 charts for
inmates on the MH caseload who participated in a group
activity or therapy during the applicable quarter for
each identified facility.” Id. Their proposal states
that “substantial compliance” shall be 85 % or greater.
See id. Accordingly, to achieve substantial compliance
with this performance measure, at least 85 % of the
reviewed charts must show that a member of the
90

defendants maintain that the EMT has the authority under
their plan to modify the proposed compliance percentage
for a particular performance measure and make it higher.
See Defs.’ Response (doc. no. 2295) at 21-23.
According to the defendants, “sustained substantial
compliance”

occurs

with

respect

to

a

particular

performance measure when the EMT determines that ADOC has
substantially complied with that performance measure for
three

quarters

at

any

ADOC

facility

or

facilities.

Defs.’ Proposed Monitoring Plan (doc. no. 2115) at 9-10.
The

substantial

compliance

need

not

be

for

three

consecutive quarters, as long as there is no intervening
quarter with a finding of noncompliance (generally less
than 65 % compliance) as to that performance measure.
Id.

Consequently, under the defendants’ plan, it would

appear that termination of monitoring of a performance
measure

at

all

ADOC

facilities--as

well

as

the

termination of the corresponding portion of the remedial

mental-health staff completed a mental-health progress
note.
91

order--can

be

based

on

a

finding

of

substantial

compliance in just a few facilities, or even a single
one, in three, not necessarily consecutive, quarters.
The

defendants

propose

that,

even

though

court

monitoring of a performance measure will end once there
is sustained substantial compliance, ADOC will continue
to monitor compliance with the performance measure at
least on an annual basis as part of its ongoing continuous
quality improvement activities (CQI). See id. at 14.

Of

course, the results of this CQI self-oversight would not
be reported to the court or the plaintiffs.

Under the

defendants’ plan, all court monitoring and the court’s
remedial

orders

would

end

as

soon

as

sustained

substantial compliance is achieved for every performance
measure.
The

plaintiffs

definition

of

disagree

substantial

with

the

compliance.

defendants’
Their

main

objections are that the defendants’ definition is purely
numerical, rather than also qualitative, and that, as
their

expert

Dr.

Burns

and

92

the

defendants’

proposed

monitor Dr. Stern testified, some remedial measures must
be complied with 100 % of the time, rather than 85 % of
the time, to be effective. See Burns Dec. 7, 2018, Trial
Tr. (doc. no. 2256) at 123; Stern Nov. 27, 2018, Trial
Tr. (doc. no. 2415) at 156.
propose

that

the

court

Instead, the plaintiffs

adopt

the

definition

of

substantial compliance utilized in the opinion adopting
the

United

regarding

States

conditions

v.
at

Alabama

settlement

Tutwiler

prison.

agreement
See

No.

2:15cv368-MHT, 2015 WL 3796526 (M.D. Ala. June 18, 2015)
(Thompson, J.) (opinion adopting settlement agreement).6
They thus propose that the EMT “may identify a numerical
threshold

for

any

remedial

requirement

they

deem

appropriate, but the monitors must also consider whether

6.
Specifically,
plaintiffs
propose
that
“‘[s]ubstantial [c]ompliance’ indicates that defendants
have achieved material compliance with most or all
components of the relevant remedial requirement.” Pls.’
Proposed Opinion (doc. no. 2260) at 64.
“Material
[c]ompliance,” in turn, “requires that, for each remedial
requirement, defendants have developed and implemented a
policy incorporating the requirement, trained relevant
personnel on the policy, and relevant personnel are
complying with the requirement in actual practice as
measured both quantitatively and qualitatively.” Id.
93

policies

are

developed,

policies are followed.”
2260) at 53.

staff

are

trained,

and

the

Pls.’ Proposed Opinion (doc. no.

Another area of disagreement is that the

plaintiffs insist that substantial compliance as well as
sustained

substantial

facility-by-facility
defendants’

compliance

basis.

proposal

be

This

that

measured

differs

sustained

on

from

a
the

substantial

compliance for all facilities can be found based on
substantial compliance in just one or a few facilities.
Even

though

the

plaintiffs

propose

a

different

definition of substantial compliance, their proposal does
not make clear the immediate relevance of substantial
compliance.

Unlike the defendants, they do not tie the

end of monitoring of each performance measure to the
achievement
connecting
substantial

of

substantial

the

termination

compliance,

the

compliance.
of

plaintiffs

of

monitoring

court

Instead

to

propose

that,

under the PLRA, “the defendants may move to terminate the
court’s

remedial

orders

(and

thus

any

concomitant

monitoring) after two years, and the court will order

94

such if the evidence shows that the remedial orders are
no

longer

necessary

violations.”

to

correct

current

and

ongoing

Id. at 75.

ii. The Court’s Resolution
The court will adopt the same approach as above with
regard to the second “handoff” issue of termination of
court monitoring.

That is, the court will simply rely

on the process set forth by the PLRA for determining when
to terminate relief.

Accordingly, at any point at least

two years after the entry of this order, any party or
intervenor

may

altogether.
terminate

move

to

terminate

court

See 18 U.S.C. § 3626(b)(1).
court

demonstrate,

at

monitoring
an

unless

evidentiary

monitoring

The court will
the

hearing,

plaintiffs
that

court

monitoring remains necessary to correct a current and
ongoing

constitutional

monitoring

violation,

continues

to

need-narrowness-intrusiveness test.

and

that
meet

court
the

Id. § 3626(b)(3);

see also Cason v. Seckinger, 231 F.3d 777, 782-83 (11th

95

Cir. 2000). In the event of such a hearing, the inquiries
will be whether ADOC is complying with the remedial
orders and whether the IMT has the ability to identify
and

successfully

correct

problems

without

court

oversight.
Accordingly,
whether

court

crucial

evidence

monitoring

remains

for

determining

necessary

will

be

whether ADOC has achieved substantial compliance with the
performance measures.

As both parties agree, the EMT

will have the authority to define substantial compliance
for each performance measure.

This could include, if the

EMT so determines, the ability to take into account more
qualitative

criteria,
are

such

as

trained,

“whether

policies

are

and

policies

are

developed,

staff

the

followed.”

Pls.’ Proposed Opinion (doc. no. 2260) at 53.

As proposed by the defendants, even after monitoring is
transferred from the EMT to the IMT, the IMT must continue
to use the EMT’s definitions of substantial compliance,

96

unless a change is approved by the plaintiffs or the
court.7
There is merit to the defendants’ argument that
“loose and subjective standards” risk having ADOC and its
mental-health vendor “feel that they [are] aiming at a
moving target.” Defs.’ Response (doc. no. 2295) at 13-14.
Dr.

Burns

agreed

that

the

expectations

for

the

mental-health staff’s performance should be very clear.
See Burns Dec. 7, 2018, Trial Tr. (doc. no. 2256) at 220,
251.

These concerns are adequately taken into account

by allowing the EMT to create a definition of substantial
compliance that includes both quantitative percentages,
as

well

developed,
followed.

as

consideration

staff
These

are

of

trained,

assessments

empirically determined.

whether

policies

are

and

policies

are

objectively

and

can

the
be

And, by clarifying from the

7.
The defendants proposed that, “[u]nlike the
[EMT], the [IMT] shall not deviate from the substantial
compliance and partial compliance percentages utilized
by the [EMT] during the Phase I and Phase II evaluations,
unless such deviation is approved by (a) Plaintiffs or
(b) the Court.” Defs.’ Proposed Monitoring Plan (doc. no.
2115) at 18.
97

outset

that

substantial

compliance

will

be

crucial

evidence for showing that court monitoring is no longer
necessary, the defendants receive “fair notice of what
standard

they

must

reach”

to

terminate

monitoring.

Defs.’ Response (doc. no. 2295) at 13.
The court need not resolve whether, as proposed by
the plaintiffs, substantial compliance must be shown on
a

facility-by-facility

basis

for

each

performance

measure, or whether sustained substantial compliance at
a few facilities is sufficient to terminate monitoring
of

the

performance

measure

proposed by the defendants.

for

all

facilities,

as

This is because the question

presented at the hearing to terminate court monitoring
will

be

whether

Obviously,
sustained

if

court
the

substantial

monitoring

defendants
compliance

remains

present
in

just

necessary.

evidence
one

or

of
two

facilities for a performance measure, that evidence may
be less compelling than if they present evidence of
sustained substantial compliance throughout the system.

98

The EMT experts shall have the authority, without a
hearing, to stop evaluating a particular performance
measure at a particular facility, or stop evaluating a
facility altogether, based on their own determination of
sustained

substantial

compliance.

As

with

the

defendants’ proposal that the IMT must continue to use
the definitions of substantial compliance developed by
the EMT, the IMT must also continue to evaluate the
performance measures and facilities that the EMT is still
assessing at time of transition to the IMT.

The IMT may

only stop assessing them upon a determination, after a
hearing, that they are no longer necessary, or by consent
of the parties.

Because the duration of court monitoring

is tied to the status of compliance and capacity of the
IMT, rather than an arbitrary schedule, monitoring will
only “intrude” as long as necessary to report and correct
the constitutional violation.
Finally,
terminate
underlying

the

just

underlying

because

remedial

remedial

monitoring

orders

99

will

of

orders
them

terminate

do

not

ends;

the

separately

based on the same procedure set forth in the PLRA--that
is, when, after a hearing, they are determined to be no
longer necessary.

18 U.S.C. § 3626(b)(3); see also Cason

v. Seckinger, 231 F.3d 777, 782-83 (11th Cir. 2000).
Dr.

Burns

monitoring

testified,
and

the

inquiries

terminating

the

for

remedial

As

terminating
orders

are

different; even if ADOC is not yet in adequate compliance
with all of the court’s remedial orders, if “there’s a
plan in place and the internal team and the department
ha[ve] demonstrated that they know how to take that
information, develop a plan of correction, implement it,
and

change

things,”

longer be necessary.
no. 2254) at 74.

then

external

monitoring

may

no

Burns Dec. 6, 2018, Trial Tr. (doc.

Of course, the evidence of substantial

compliance to show that monitoring is no longer necessary
will

also

be

directly

relevant

to

proving

that

underlying remedial order is no longer necessary.

the

Thus,

there may be overlap between when court monitoring and
underlying remedial orders end.

100

III. MONITORING AND THE PLRA
It is a complicated question whether the PLRA’s
requirements

apply

monitoring.

With

to

the

regard

court’s
to

some

order
of

regarding

the

court’s

monitoring provisions adopted today, the parties appear
to agree that the PLRA governs.

The plaintiffs admit

that, “[w]here the remedy includes setting up internal
processes

for

self-monitoring

and

self-correction,

courts must determine whether the [PLRA’s] requirement
is met.”
at 3.

Pls.’ Response Regarding PLRA (doc. no. 2213)

As stated, the parties disagree, however, about

whether external monitoring is “prospective relief” and
therefore

subject

the

PLRA’s

need-narrowness-intrusiveness requirement.

18 U.S.C. §

3626(a)(1)(A).
contrast,

the

to

The defendants contend that it is.
plaintiffs

argue

that,

to

the

By

extent

monitoring is limited to informing the court whether the
defendants comply with court orders, the requirement does
not apply because such monitoring constitutes a means to

101

relief, as opposed to “prospective relief” within the
meaning of the PLRA.
The

caselaw

Id.

is

unclear

need-narrowness-intrusiveness
court monitoring.

as

to

requirement

whether

the

applies

to

Some district courts agree with the

plaintiffs that monitoring is a means to relief, rather
than “prospective relief,” and therefore is not subject
to the requirement.

See, e.g., Carruthers v. Jenne, 209

F. Supp. 2d 1294, 1300 (S.D. Fla. 2002) (Hoeveler, J.)
(“Clearly monitoring is not an ‘ultimate remedy’ and only
aids the prisoners in obtaining relief.”); Benjamin v.
Fraser, 156 F. Supp. 2d 333, 342-43 (S.D.N.Y. 2001)
(Baer, J.) (holding that monitoring “cannot be relief”
and “[t]o find otherwise would conflate relief with the
means

to

guarantee

its

provision”),

aff’d

in

part,

vacated in part on other grounds, 343 F.3d 35 (2d Cir.
2003).

On the other hand, the Second Circuit stated in

dictum

that

it

was

“somewhat

problematic”

for

the

district court in the case before it to conclude that
monitoring is not relief within the meaning of the PLRA.

102

Benjamin v. Fraser, 343 F.3d 35, 48-49 (2d Cir. 2003),
overruled on other grounds by Caiozzo v. Koreman, 581
F.3d 63 (2d Cir. 2009).

The appellate court reasoned

that placing the monitoring body beyond the reach of the
PLRA would “frustrat[e] one of the Act’s broad goals of
limiting ‘the micromanag[ing] [of] State and local prison
systems.’”

Id. at 49 (citing 146 Cong. Rec. S14611,

14626 (1995) (statement of Sen. Dole)).

Additionally,

because the monitoring body at issue had “substantial
responsibilities,” there was “no easy distinction between
relief itself and the monitoring of relief.”

Id.

After

making these observations, the Second Circuit refrained
from

resolving

whether

monitoring

constituted

prospective relief, because it held that the district
court

had

made

the

need-narrowness-intrusiveness findings.
Ultimately,

this

court

need

not

appropriate
See id.
resolve

whether

external monitoring is “prospective relief” subject to
the

PLRA’s

need-narrowness-intrusiveness

requirement,

because, as elaborated above, the monitoring ordered here

103

satisfies the requirement.

So, to the extent monitoring

must meet the requirement, it does.
Several courts have indicated that in applying the
need-narrowness-intrusiveness requirement, a history of
non-compliance helps justify an intrusive remedy.

See

Benjamin, 343 F.3d at 49 (finding that an independent
monitoring

body

with

substantial

responsibilities

satisfied the need-narrowness-intrusiveness requirements
in part because of the district court’s finding that “the
nearly twenty year history of incomplete compliance with
the

consent

external

decrees

monitoring”

amply

attests

(citation

to

the

omitted));

need
see

for
also

Benjamin v. Schriro, 370 Fed. App'x 168, 171 (2d Cir.
2010) (unpublished) (“The needs-narrowness-intrusiveness
requirement of the PLRA notwithstanding, we find that
nearly a half-decade of untruthfulness, non-compliance
and inaction constitutes sufficient justification for the
intrusiveness of a subsequent order to compel compliance
with an original order entered pursuant to the PLRA that
has been ignored.”); Clark v. California, 739 F. Supp.

104

2d 1168, 1233-35 (N.D. Cal. 2010) (Breyer, J.) (stating
that, in fashioning relief, courts “may take into account
a

history

finding

of

noncompliance

that

further

with

prior

orders

need-narrowness-intrusiveness

orders,”

satisfied

requirements

in

and
the
part

because of evidence of non-compliance with prior orders
and because “defendants have demonstrated an inability
to

take

remedial

steps

absent

court

intervention”).

Thus, the evidence of ADOC’s failure to comply with the
remedial orders in this case, described in detail in the
final section of this opinion, would likely justify even
a far more intrusive monitoring order than the court
enters today.
Nonetheless, the monitoring scheme that the court
orders today is the least intrusive possible as it is
largely drawn from the defendants’ own plan.

And the

fact that the defendants agree that some degree of both
external and internal monitoring is necessary, see, e.g.,
Dunn Nov. 26, 2018, Trial Tr. (doc. no. 2250) at 35
(Commissioner Dunn testifying: “Q. Have you ever taken

105

the position that the state should not be subject to
monitoring or oversight on these issues?

A. No.”),

further supports the court’s finding that the overall
monitoring

scheme

satisfies

the

PLRA,

see

18

U.S.C.

§ 3626(a)(1)(A); Braggs v. Dunn, 383 F. Supp. 3d 1218,
1253

(M.D.

Ala.

2019)

(Thompson,

J.)

(finding

the

defendants’ agreement to a remedial provision is strong
evidence of PLRA compliance).

IV. WHY COURT-ORDERED MONITORING IS NEEDED
The defendants argue that ADOC should be allowed to
“voluntarily undertake culture change” without a court
order.8

Defs.’ Response (doc. no. 2295) at 9.

But ADOC

8. Overall, the court is not persuaded by the
defendants’ central critique of what they call the
“historical,”
“coercive”
model
of
court-ordered
monitoring, which they claim has failed. Defs.’ Response
(doc. no. 2295) at 7.
Though the defendants never
explicitly define what they consider the “historical”
approach, in their critiques they refer to monitoring
schemes that involve court-appointed external monitors
and termination of monitoring based on progress rather
than a set schedule. See Dunn Nov. 26, 2018, Trial Tr.
(doc. no. 2250) at 9-14. According to the defendants,
this approach “‘is basically based on compulsion [with]
someone looking over your shoulder all the time and
106

has had ample opportunity, in this litigation and for
decades

prior,

to

correct

voluntarily

its

failings

regarding the mental-health care in its prisons, and its
conduct

during

the

course

of

this

case

has

been

coming in and, in effect, taking over a core function of
the
department...,’
i.e.
the
continuous
quality
improvement (“CQI”) process of improving the delivery of
mental-health care.” Defs.’ Response (doc. no. 2295) at
7 (quoting Dunn Nov. 26, 2018, Trial Tr. (doc. no. 2250)
at 9). The court is unpersuaded by this argument because
the defendants presented absolutely no evidence of the
failure of this “historical” model. They highlight that,
as described below, there has been repeated litigation
over prison conditions in Alabama.
But that is not
evidence that it was the monitoring that led to the
recurrence of unconstitutional prison conditions. It is
an equally plausible explanation--and, indeed, the court
finds it is more likely--that the lack of effort or
resources invested by ADOC to make sustainable change led
to the recurrence.
The defendants also rely exclusively on Commissioner
Dunn’s testimony at the monitoring hearing to contend
that external monitoring in California prisons has failed
under the “historical” model. But Dunn’s testimony is
based on a few conversations he had with California
prison officials. This evidence is unpersuasive--it is
a hearsay account of one side of the story (the prison
officials’) for why there has been protracted prison
litigation in California.
Again, the reason for
protracted litigation in California may have nothing to
do with the monitoring order in that case, and everything
to do with failures on the part of California prison
officials or other factors.
107

consistent with its historical failures to do so.

While

prison officials in cases challenging prison conditions
“should be given considerable deference in determining
an appropriate remedy for the constitutional violations
involved,” Laube v. Haley, 242 F. Supp. 2d 1150, 1153
(M.D. Ala. 2003) (Thompson, J.) (citing Bell v. Wolfish,
441

U.S.

520,

responsibility

547-48
to

(1979)),

remedy

the

court

constitutional

retains

a

violations

found, see Brown v. Plata, 563 U.S. 493, 511 (2011)
(citing Hutto v. Finney, 437 U.S. 678, 687, n.9 (1978)).
The monitoring scheme the court orders today has indeed
largely

been

determined

by

the

prison

officials

responsible for remedying the constitutional violations
involved.

However, the court simply cannot leave it to

those officials to implement this scheme without a court
order.

Cf. W. Alabama Women's Ctr. v. Williamson, 900

F.3d 1310, 1328 (11th Cir. 2018) (cautioning against
accepting assurances made during litigation).
reasons

described

below,

court-ordered

For the

monitoring

is

necessary to ensure ADOC’s compliance with the remedial

108

orders in this case and thus for the court to fulfill its
responsibility.

A. Liability Finding
First, the court’s monitoring order is supported by
the finding in the liability opinion that ADOC fails to
self-monitor its provision of mental-health care.

See

Braggs v. Dunn, 257 F. Supp. 3d 1171, 1257-60 (M.D. Ala.
2017) (Thompson, J.).

As this court described: “On a

global level, the state of the mental-health care system
is itself evidence of ADOC's disregard of harm and risk
of harm: in spite of countless reports, emails, and
internal documents putting ADOC on notice of the actual
harm and substantial risks of serious harm posed by the
identified

inadequacies

in

mental-health

care,

inadequacies have persisted for years and years.”
at 1256.

those
Id.

ADOC’s lack of internal capacity or willingness

to respond to deficiencies, even about which it is aware,
supports the court’s finding that, without a period of

109

external monitoring, ADOC will simply continue to subject
mentally ill inmates to unconstitutional conditions.

B. Failure to Self-Monitor Since Liability Finding
Second, even since this court’s liability finding
three years ago, ADOC has still not adequately monitored
its provision of mental-health care.

This includes a

failure to identify and correct noncompliance even with
remedial measures to which the defendants have agreed.
For example, in January 2017, the court entered as an
order

an

interim

agreement

by

the

parties

regarding

suicide prevention measures, including that suicide risk
assessments and suicide watch follow-up appointments must
be conducted in confidential, out-of-cell settings.
Interim Agreement (doc. no. 1106-1) at 1-3.

See

In June

2018, the court entered two remedial orders incorporating
stipulations by the parties that also aimed to improve
confidentiality in treatment. See Psychotherapy Remedial
Order (doc. nos. 1899-1) at 4; Confidentiality Remedial
Order (doc. no. 1900-1).

In May 2019, however, the court

110

found “repeated examples of custody staff intrusions into
the provision of mental health contacts through their
presence

during

clinical

encounters

and

pressure

on

clinical staff that minimized inmate concerns and reports
of suicidality.”
1218,

1277

See Braggs v. Dunn, 383 F. Supp. 3d

(M.D.

Ala.

May

4,

2019)

(Thompson,

J.)

(quoting Joint Expert Report and Recommendations (doc.
no. 2416-1) at 16).

Accordingly, the court found that

“ADOC continues to violate the terms of previous remedial
orders

covering

this

issue.

ADOC

fails

to

provide

adequate confidentiality during clinical encounters to
inmates, comply with the agreements they made with the
plaintiffs,

and

comply

confidentiality.”

with

court

orders

regarding

Id.

At that time, ADOC itself also recognized various
other serious and “systemic failures to comply with court
orders.”

Id.

ADOC0475738).

at

1229

These

(quoting

included

Pls.

systemic

Ex.

2710

at

failures

to

properly document inmates’ SMI designations, properly
complete suicide risk assessments, place inmates on acute

111

suicide watch when indicated, document consultation with
a psychiatrist or psychologist prior to discharging an
inmate from crisis placement, and complete pre-placement
screenings and seven-day assessments of inmates placed
in segregation.

See id. at 1229 n.3 (quoting Pls. Ex.

2710 at ADOC0475738).
Unfortunately, ADOC’s detection of these failures
appears

to

be

self-monitor.

a

rare

example

of

its

effort

to

Much more common in this litigation are

examples of ADOC’s continued failure to uncover its own
noncompliance. For example, the court previously adopted
as

an

order

the

parties’

agreement

that

ADOC

start

assessing every person placed in segregation to determine
whether they have a serious mental illness by July 1,
2018.

See

Identification

1792-1) at 2.

Remedial

Order

(doc.

no.

However, ADOC apparently did not inquire

as to whether its mental-health vendor was conducting
these assessments until after the plaintiffs raised the
issue

with

the

defendants,

assessments were to begin.

a

full

month

after

the

See Joint Notice (doc. no.

112

1965) at 3, 5.
ADOC’s

Similarly, even after this court found

suicide-prevention

practices

“woefully

inadequate,” Braggs v. Dunn, 257 F. Supp. 3d 1171, 1229
(M.D. Ala. 2017) (Thompson, J.), ADOC continued to fail
to properly review inmates’ suicides and serious suicide
attempts.

Plaintiffs’ expert Dr. Burns testified in

December 2018 about her concerns that problems “that
might have been found and corrected [via these reviews]
still exist and put people at risk.”

Braggs, 383 F.

Supp. 3d at 1279 (citing Burns Dec. 7, 2018, Trial Tr.
(doc. no. 2256) at 102).

Tragically, “[h]er fears were

borne out: Six prisoners killed themselves since she
testified;

and

...

their

cases

inadequacies in suicide prevention.”

were

rife

with

Id.

Even after court intervention, ADOC has been unable
or unwilling to take necessary steps to monitor its own
practices.

These failures serve as evidence that this

monitoring order is necessary.
343

F.3d

35,

49

(2d

Cir.

See Benjamin v. Fraser,

2003)

(upholding

district

court's finding that external monitoring satisfied the

113

PLRA's

need-narrowness-intrusiveness

requirement,

“particularly in light of the district court's finding
that

the

City's

compliance

with

its

remedial

responsibilities has been consistently incomplete and
inadequate”), overruled on other grounds by Caiozzo v.
Koreman, 581 F.3d 63 (2d Cir. 2009).

As this court has

stated, “[t]he more someone fails to do something he
agreed to do, the bigger the need to supervise whether
he does it in the future.”

Braggs, 383 F. Supp. 3d at

1281.
To be sure, understaffing has posed a significant
impediment both to compliance with many of the court’s
remedial orders and to self-monitoring.

Plaintiffs’

expert Dr. Burns testified that it would indeed have been
a challenge for ADOC to comply with the ordered timelines
of all remedial orders given “limited resources in terms
of staffing.”

Burns Dec. 7, 2018, Trial Tr. (doc. no.

2256) at 205-208.
would

have

at

However, Dr. Burns also testified she

least

expected

to

see

“a

plan

that

identified those most significant, high-risk areas, and

114

focus[ed] on those, as opposed to some of the lower risk
things.”

Id.

implemented

at

the

206.

Instead,

remedial

ADOC

measures

had

that

characterized as “the low-hanging fruit.”

not
Dr.

even
Burns

Id. at 209.

C. ADOC’s Own Acknowledgment
The defendants’ open admission that some degree of
external and internal monitoring is necessary further
supports

the

court’s

order.

As

Commissioner

Dunn

testified, “we all want to get at some point in the future
to a place where the department has the capacity to
self-correct and to address these issues in a way that
not

only

is

satisfactory

to

the

Court,

but,

importantly, is just simply what we should do.”
Nov. 26, 2018, Trial Tr. (doc. no. 2250) at 22.

more
Dunn

At the

same time, the defendants acknowledge that ADOC currently
does not “possess the internal resources to fulfill the
significant

oversight

functions

mandated”

by

their

proposed monitoring plan, and “necessarily requires the
initial assistance of a team of mental health experts”

115

to develop ADOC’s capacities. Defs.’ Proposed Monitoring
Plan (doc. no. 2115) at 2; see also Dunn Nov. 26, 2018,
Trial Tr. (doc. no. 2250) at 35.

The court’s order today

is narrowly tailored to achieve constitutional compliance
with precisely the goal of sustainability in mind.

Cf.

Newman v. Alabama, 559 F.2d 283, 290 (5th Cir. 1977)
(requiring the installation of a monitor at each prison
to observe and inform the court of ADOC’s progress),
cert. granted in part, judgment rev’d in part on other
grounds sub nom. Alabama v. Pugh, 438 U.S. 781 (1978).
Finally, the court would again emphasize that this
case may be unique in that the court has substituted
internal monitoring for part of the external monitoring
that

would

otherwise

be

imposed,

and

that,

to

this

extent, the monitoring scheme is less intrusive than it
otherwise would be.9
9. In adopting self-monitoring as a part of court
monitoring, the court has taken into consideration the
defendants' critique that monitoring “‘is basically based
on compulsion [with] someone looking over your shoulder
all the time and coming in and, in effect, taking over a
core function of the department...,’ i.e. the continuous
quality improvement (“CQI”) process of improving the
116

D. Half-Century History of Litigation Regarding
Inadequate Mental-Health Care
Finally, ADOC’s long history of repeated litigation
regarding the inadequacy of its mental-health care is
independent

evidence

of

its

inability

to

sustain

improvements without the type of oversight ordered today.
This history serves as evidence of why court monitoring
is necessary.

It also serves as a driving force behind

the emphasis in this order on building ADOC’s capacity
to self-monitor and self-correct in the long term.

See

Dunn Nov. 26, 2018, Trial Tr. (doc. no. 2250) at 24-25
(acknowledging the need for internal capacity-building
to “truly reform the system for the long term”).
As early as 1972, ADOC’s mental-health care was found
by a district court to be constitutionally inadequate.
See Newman v. Alabama, 349 F. Supp. 278, 284 (M.D. Ala.
1972) (Johnson, C.J.) (“[T]he large majority of mentally

delivery of mental-health care.” Defs.’ Response (doc.
no. 2295) at 7 (quoting Dunn Nov. 26, 2018, Trial Tr.
(doc. no. 2250) at 9).
117

disturbed prisoners receive no treatment whatsoever. It
is

tautological

that

such

care

is

constitutionally

inadequate.”), vacated in part on other grounds, 522 F.2d
71 (5th Cir. 1975).

Four years later, in 1976, the court

found that still “nothing ha[d] been done” to address the
court’s findings, and that ADOC continued to violate the
Eighth

Amendment

mental-health care.

by

failing

to

provide

adequate

Pugh v. Locke, 406 F. Supp. 318, 324

(M.D. Ala. 1976) (Johnson, C.J.), aff’d and remanded sub
nom. Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977),
cert. granted in part, judgment rev’d in part on other
grounds sub nom. Alabama v. Pugh, 438 U.S. 781 (1978).
At that time, the district court appointed a state-funded
“Human Rights Committee” to monitor compliance with the
court’s remedial order to address the violation found.
Id. at 331.

Finding the district court’s order overly

intrusive, however, the former Fifth Circuit Court of
Appeals instead required the installation of a monitor
at each prison to observe and inform the court of ADOC’s
progress.

Newman v. Alabama, 559 F.2d 283, 290 (5th Cir.

118

1977), cert. granted in part, judgment rev’d in part on
other grounds sub nom. Alabama v. Pugh, 438 U.S. 781
(1978).

In 1979, the district court again found that,

despite monitoring, “nothing ha[d] been done to correct
the situation.”

Newman v. Alabama, 466 F. Supp. 628, 631

(M.D. Ala. 1979) (Johnson, C.J.).

The court stated, in

a finding nearly identical to this court’s finding 40
years later in the present litigation:
“There is now some effort at identification of
those with mental problems. But the record of
housing and treatment of such persons is one of
total
failure
and
non-compliance.
What
defendants deem the best facility for housing
those with severe emotional and mental problems
is the same 12 cell area at Kilby that was in
use at the time of this Court’s original hearing.
Many of those with mental problems at Fountain,
Holman, and Tutwiler are housed in segregation
cells and in punitive isolation.
...
In light of the clear mandate of the Court in
this area, the minimal efforts at compliance by
the Board reflect an attitude of deliberate
indifference to the mental health needs of the
inmate population.”

119

Id. at 631-32.

Finding a “lack of any significant

progress,” despite monitoring, the court then placed ADOC
into a receivership.

Id. at 635.

Finally, in 1988, after 16 years of the court’s
jurisdiction over ADOC’s mental-health care, the court
found ADOC had achieved the objectives of the court’s
remedial orders and no longer required court supervision.
See Memorandum Opinion (doc. no. 2133-1) at 20, Newman
v. Alabama, Civil Action No. 3501-N, (M.D. Ala. Dec. 28,
1988) (Varner, J.) (dismissing case with prejudice).
Just

four

years

after

the

court’s

oversight

terminated, however, a new complaint was filed, again
alleging unconstitutional conditions for mentally ill
inmates in ADOC’s custody.

See Complaint (doc. no. 1),

Bradley v. Haley, No. 2:92cv70-WHA (M.D. Ala. Jan. 15,
1992) (Albritton, J.).

Through a settlement reached in

2000, the Bradley litigation again significantly improved
ADOC’s provision of mental-health care.

By the end of

the agreed-upon duration of monitoring in that case, the
monitor concluded that ADOC had achieved “remarkable”

120

progress over three years, making significant strides on
issues such as staffing, the capacity of mental-health
units, and intake and referral processes.

See Bradley

Final Monitoring Report (doc. no. 2133-3) at 1, 4, 6,
Braggs v. Dunn, No. 14cv601-MHT (M.D. Ala. Oct. 25, 2018)
(Thompson, J.).

And yet, as the plaintiffs point out

here, nine of the 11 areas in which ADOC had been found
by the Bradley monitor to have improved by 2003--intake,
classification,
segregation,

discipline,

psychotherapy,

suicide

inpatient

prevention,

treatment,

and

monitoring, see id. at 6-7--were found by this court in
2017 to again be seriously deficient.

See generally

Braggs v. Dunn, 257 F. Supp. 3d 1171 (M.D. Ala. 2017)
(Thompson, J.).
“The history of federal litigation in Alabama is
replete with instances of state officials who could have
chosen

one

of

any

number

of

courses

to

alleviate

unconstitutional conditions of which they were fully
aware, and who chose instead to do nothing.”
Alabama,

466

F.

Supp.

628,

121

635–36

(M.D.

Newman v.
Ala.

1979)

(Johnson, C.J.).
the

court’s

With the monitoring scheme created by

order

today--largely

drawn

from

the

defendants’ own proposal--the court joins the State in
hoping that this will be “the last ... chapter in the
history of court oversight of ADOC.”

Defs.’ Response

(doc. no. 2295) at 40.

V. CONCLUSION
In

finding

that

each

of

the

above

monitoring

provisions satisfies the need-narrowness-intrusiveness
requirement--both individually and in concert--the court
gave “substantial weight to any adverse impact on public
safety or the operation of a criminal justice system
caused by the relief.”

18 U.S.C. § 3626(a)(1)(A).

The

court finds that there is no such adverse impact and
that, in fact, the court-ordered monitoring provisions,
by helping to improve mental-health care for inmates,
will

serve

only

to

enhance

public

operation of a criminal justice system.

122

safety

and

the

It is clear that the court and the parties share the
same goal for monitoring in this case: that ADOC acquire
the

tools,

resources,

and

capacity

to

provide

constitutionally adequate mental-health care to those in
its custody without court supervision.

As this court has

previously stated: “[T]he real success would be that it
will no longer be needed for this court or any federal
court

to

system....
not

interject

itself

in

[Alabama’s]

prison

I look forward to the day when not only I’m

necessary,

but

no

federal

court

is

necessary.”

Thompson Apr. 23, 2018, Trial Tr. (doc. no. 2689) at 4.
With

the

defendants’

own

proposal

and

the

parties’

agreements forming the basis of this monitoring scheme,
today’s order is an important step in that direction.

***
Therefore, it is ORDERED as follows:
(1) The monitoring scheme, as described above, is
adopted as the order of the court.

123

(2) The court will, over time, issue a series of
orders to enforce this monitoring scheme, beginning with
an order for the selection and appointment of members of
the external monitoring team.
DONE, this the 2nd day of September, 2020.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE