Dunn et al v. Thomas et al
OPINION AND ORDER REGARDING THE "CURRENT AND ONGOING VIOLATION" ISSUE: Accordingly, it is ORDERED that the above understanding of 18 U.S.C. 3626(a) 1)(A) shall govern the upcoming hearings. Signed by Honorable Judge Myron H. Thompson on 9/14/2020. (kh, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
EDWARD BRAGGS, et al.,
JEFFERSON S. DUNN, in his
official capacity as
the Alabama Department of
Corrections, et al.,
CIVIL ACTION NO.
OPINION AND ORDER REGARDING
THE “CURRENT AND ONGOING VIOLATION” ISSUE
An important issue before the court in the upcoming
PLRA hearings is whether various stipulations that have
‘need-narrowness-intrusiveness’ test established by 18
U.S.C. § 3626(a)(1)(A).
See Phase 2A Order and Interim
Injunction with Regard to Thirteen Stipulations (doc. no.
2793) at 1-3.
The text of § 3626(a)(1)(A) requires a
court entering prospective relief in a civil action with
respect to prison conditions to find that the 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.”
includes a requirement that the court find a “current and
ongoing violation” of federal law and that the relief at
issue meets the ‘need-narrowness-intrusiveness’ test as
address the findings a court must make when a State seeks
current and ongoing violation of the Federal right”).
§ 3626(a)(1)(A) does not include the ‘current and ongoing
violation’ requirement, the court is still obligated to
make such a finding during the upcoming hearings even if
they are conducted under the standard of § 3626(a)(1)(A).
See Defs’ Pretrial Br. (doc. no. 2908) at 30.
In response to this argument, defense counsel is
directed to read the following language from the Eleventh
Circuit’s decision in Thomas v. Bryant, 614 F.3d 1288
(11th Cir. 2010), where the court considered precisely
the defendants’ position:
“[T]he defendants make the related argument that
McKinney's incarceration at UCI prevents him
from establishing a ‘current and ongoing’
violation under the PLRA.
See 18 U.S.C. §
3626(b)(3) (providing that ‘[p]rospective relief
shall not terminate if the court makes written
findings based on the record that prospective
relief remains necessary to correct a current
and ongoing violation of the Federal right’).
Although the defendants recognize that this
provision of the PLRA governs termination
proceedings (whereas we are reviewing the
district court’s initial entry of injunctive
relief), they argue that the ‘current and
ongoing’ violation requirement should inform our
"The defendants’ only authority for this
proposition is a statement made in dicta by the
Ninth Circuit that ‘the standard for termination
does not differ materially from the standard to
be applied in deciding whether prospective
relief is proper.’ Hallett v. Morgan, 296 F.3d
732, 743 (9th Cir. 2002). We are not persuaded
that the Ninth Circuit's comment is apposite to
this case; that comment was made in the different
context of the court's review of a grant of a
motion to terminate injunctive relief.
circuit has previously recognized that the
‘current and ongoing’ requirement is distinct
from the standard governing the initial entry of
injunctive relief. See Cason v. Seckinger, 231
F.3d 777, 784 (11th Cir. 2000) (‘[A] “current
and ongoing violation” is a violation that
exists at the time the district court conducts
the § 3626(b)(3) inquiry, and not a potential
future violation.’). Additionally, there is no
indication in the PLRA, its legislative history,
or the case law to suggest that the ‘current and
ongoing’ requirement was intended by Congress to
amend the well-established law that injunctive
relief is available in the first instance ‘to
prevent a substantial risk of serious injury
from ripening into actual harm,’ i.e., to
prevent future harm. Farmer, 511 U.S. at 845.
limitation governs the initial entry of an
injunctive relief in prison litigation cases.
18 U.S.C. § 3626(a)(1)(A). Whether there is a
‘current and ongoing’ constitutional violation
sufficient to avoid termination of the current
injunction is a matter to be considered upon
motion by either party in a termination
proceeding, at least two years after the
district court's initial award of relief.
U.S.C. § 3626(b)(3).”
Thomas, 614 F.3d at 1319-20.
This court is bound by the text of the PLRA and by
the Eleventh Circuit’s decisions interpreting that text.
Both are unambiguous.
The Eleventh Circuit squarely
rejected the defendants’ reading of § 3626(a)(1)(A) in
Thomas v. Bryant.
Although the defendants in that case
requirement was in the section of the statute governing
termination proceedings,1 they argued “that the ‘current
and ongoing’ violation requirement should inform our
inquiry” under § 3626(a)(1)(A).
But as the Eleventh Circuit explained, “the ‘current
and ongoing’ requirement is distinct from the standard
governing the initial entry of injunctive relief” under
initial entry of injunctive relief in prison litigation
By contrast, “[w]hether there is a ‘current
and ongoing’ constitutional violation sufficient to avoid
termination of the current injunction is a matter to be
Defense counsel in this case seemed also to
acknowledge as much on the record during the pretrial
conference on September 9, 2020.
considered upon motion by either party in a termination
Against this square holding of the Eleventh Circuit
and the plain language of § 3626(a)(1)(A), the defendants
have arrayed three cases in their pretrial brief and on
the record during the pretrial conference on September
9, 2020: Cason v. Seckinger, 231 F.3d 777 (11th Cir.
2000); United States v. Secretary, Florida Department of
Corrections, 778 F.3d 1223 (11th Cir. 2015); and Hoffer
v. Secretary, Florida Department of Corrections, No.
19-11921, 2020 WL 5105013 (11th Cir. Aug. 31, 2020). None
supports the defendants’ position.
findings under either § 3626(a)(1)(A) or § 3626(b)(3)
The court has recently been presented with a
stipulations. See generally Defs.’ Motion to Terminate
(doc. no. 2924). The court has not yet decided how to
proceed on that motion. This opinion refers only to the
standard governing the initial entry of PLRA findings for
the identified stipulations.
must be made.
Hoffer, 2020 WL 5105013, at *11 (“[T]he
particularity required by § 3626(a)(1)(A) is the same as
that required by § 3626(b)(3).”); United States, 778 F.3d
at 1228 (“We see no reason why the term ‘finds’ in
§ 3626(a)(1) does not require the same particularity as
the term ‘findings’ in § 3626(b)(3).”); Cason, 231 F.3d
at 785 (“We read § 3626(b)(3) as requiring particularized
findings, on a provision-by-provision basis, that each
requirement imposed by the consent decrees satisfies the
need-narrowness-intrusiveness criteria, given the nature
particularized the court’s findings must be under either
§ 3626(a)(1)(A) or § 3626(b)(3) is a different question
from what time period should be the reference point for
findings made under those two sections.
None of the
decisions cited by the defendants addressed the question
whether § 3626(a)(1)(A) incorporates sub silentio the
§ 3626(b)(3), and none contradicted the straightforward
holding of the Eleventh Circuit in Thomas that it does
In effect, the defendants ask for an exception to
the governing statutory text because of the length of
time between the liability findings and remedial orders
in this case.
The court is not empowered to grant such
an exception against the contrary words of Congress and
the Eleventh Circuit.
By its plain terms and under the
interpretation of the Eleventh Circuit, § 3626(a)(1)(A)
contains no requirement that the court find a current and
ongoing violation of federal law.
understanding of 18 U.S.C. § 3626(a)(1)(A) shall govern
the upcoming hearings.
DONE, this the 14th of September, 2020.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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