Dunn et al v. Thomas et al

Filing 2977

PHASE 2A OPINION AND ORDER REGARDING LONG-TERM SUICIDE PREVENTION STIPULATIONS: Accordingly, it is ORDERED that the motion to terminate will be denied as to the order on the long-term suicide-prevention stipulations (doc. nos. 2699 & 2699 -1). The court will determine at a later date how and when to make PLRA findings on those stipulations under 3626(a)(1)(A). Signed by Honorable Judge Myron H. Thompson on 9/23/2020. (kh, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
EDWARD BRAGGS, et al.,
Plaintiffs,
v.
JEFFERSON S. DUNN, in his
official capacity as
Commissioner of
the Alabama Department of
Corrections, et al.,
Defendants.

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

PHASE 2A OPINION AND ORDER REGARDING LONG-TERM SUICIDE
PREVENTION STIPULATIONS
Before
terminate
entered

the

court

certain
without

is

the

stipulations
the

defendants’
that

were

motion

to

originally

‘need-narrowness-intrusiveness’

findings required by the Prison Litigation Reform Act
(PLRA).

See generally Motion to Terminate (doc. no.

2924); see also 18 U.S.C. § 3626(a)(1)(A).

The parties

will soon start discovery on the motion to terminate.
Before this begins, the court has determined that it is
necessary to clarify one aspect of the scope of the

motion: its application to the order regarding the longterm suicide-prevention stipulations.
Of the 15 orders identified by the defendants in
their motion to terminate, 13 explicitly enjoined the
defendants from failing to comply with their provisions.1
One of the two that did not contain an express injunction
nonetheless
undertake

specifically
certain

designation
illness

and

system

actions,
for

providing

appropriate staff.

ordered

the

such

defendants

to

as

maintaining

a

inmates

with

training

on

serious
the

mental

system

to

See Phase 2A Order re: Segregation

Remedy (doc. no. 1720) at 1-3.

But the other identified

by the defendants--the order regarding the long-term

1. See Understaffing Remedial Order (doc. no. 1657)
at 1; Bibb Segregation Remedy (doc. no. 1751) at 2; Mental
Health Coding Order (doc. no. 1792) at 2; Mental Health
Intake Order (doc. no. 1794) at 2; Segregation PrePlacement Order (doc. no. 1815) at 2; Mental Health
Referral Order (doc. no. 1821) at 2; Treatment Planning
Order (doc. no. 1865) at 2; Psychotherapy Order (doc. no.
1899) at 2-3; Confidentiality Order (doc. no. 1900) at
2; Mental Health Understaffing Order (doc. no. 2301) at
2; Mental Health Staffing Remedy (doc. no. 2688) at 2-3;
Hospital-Level Care Order (doc. no. 2717) at 3); Mental
Health Consultation Order (doc. no. 2718) at 3.
2

suicide-prevention stipulations--was entered without an
injunction and ordered no action by the defendants.

See

Order Approving Suicide-Prevention Agreement (doc. no.
2699) at 1-2.
of

the

other

As explained below, that order, unlike all
orders

at

issues

in

the

termination

proceedings, was never intended to be, and has never
been,

enforceable

provision

for

by

court

the

court,

and

enforcement.

it

contains

As

such,

no
the

defendants’ motion to terminate that order is improper
and will be denied.

I. BACKGROUND
The PLRA requires that a court entering prospective
relief regarding prison conditions make findings on the
record 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.” 18 U.S.C.
§ 3626(a)(1)(A).

This is generally referred to as the

‘need-narrowness-intrusiveness’
3

test.

The

defendants

are empowered by the statute to move at any time to
terminate orders entered “in the absence of” such a
finding.

Id. § 3626(b)(2).

After such a motion, the

relief will terminate unless the court determines that a
“current and ongoing violation” of federal law exists and
that the relief meets the need-narrowness-intrusiveness
test as to that ongoing violation.

Id. § 3626(b)(3).

In this case, over the course of two or three years,
the parties agreed to a series of stipulations resolving
significant

aspects

remedial disputes.

of

the

litigation’s

sprawling

At the request of the parties, the

court entered these stipulations as orders.

However,

these orders generally did not contain findings about
whether

the

provisions

of

the

stipulations

met

the

need-narrowness-intrusiveness requirements of 18 U.S.C.
§ 3626(a)(1)(A).
In February 2019, the defendants raised as an issue
that these orders did not have PLRA findings.

The court

then

determine

scheduled

whether

the

an

evidentiary

stipulations

met
4

hearing
the

to

need-narrowness-

intrusiveness

requirements.

In

the

meantime,

by

agreement of the parties, the court found that each of
the orders “temporarily satisf[ied] the requirements of
the

PLRA”

pending

scheduled hearings.

a

final

determination

after

the

See Phase 2A Opinion and Interim

Injunction (doc. no. 2716) at 4.

These hearings were

continued multiple times due to COVID-19 and efforts at
mediation.

They were eventually scheduled to begin on

September 14, 2020, with the duration of the temporary
PLRA findings extended no longer than December 30, 2020.
See Phase 2A Order and Interim Injunction (doc. no. 2793)
at 3; Phase 2A Revised Remedy Scheduling Order (doc. no.
2914) at 7.
In their pretrial brief, the defendants indicated an
intent to move to terminate some or all of the orders
scheduled for consideration.
no. 2908) at 55-57.

Defs.’ Pretrial Br. (doc.

In a subsequent motion to terminate

in response to the court’s request for clarification, the
defendants

identified

various

orders

slated

for

consideration at the PLRA hearings, seeking termination
5

of these orders under 18 U.S.C. § 3626(b)(2) and (b)(1).
See generally Motion to Terminate (doc. no. 2924).

The

court is currently proceeding on this motion.

II. LEGAL STANDARD
As the Eleventh Circuit has explained, “[t]he PLRA
altered the landscape of prison reform litigation in two
primary respects.”

Cason v. Seckinger, 231 F.3d 777, 780

(11th Cir. 2000).

First, it limits the “prospective

relief” that a district court may impose to only what is
“necessary to correct the violation of the Federal right
of a particular plaintiff or plaintiffs.”
§ 3626(a)(1)(A).

This

requires

the

court

18 U.S.C.
to

make

findings that the relief is “narrowly drawn, extends no
further than necessary ... and is the least intrusive
means necessary to correct the violation of the Federal
right.”

Id.

The prospective relief limited by this

subsection includes court-enforceable consent decrees.
See id. § 3626(c)(1), (g)(1), (g)(6).

6

Second, the PLRA limits the continuation of such
relief.

If prospective relief is ordered “in the absence

of a finding by the court that the relief” meets the
need-narrowness-intrusiveness

test

set

forth

in

§ 3626(a)(1)(A), a defendant may move to terminate the
relief

immediately.

18 U.S.C.

§ 3626(b)(2).

Alternatively, defendants may move to terminate relief
ordered with such findings after two years, and then
again one year after any denial of a motion to terminate.
See id. § 3626(b)(1)(A).
Subsections (b)(1)(A) and (b)(2) are both limited by
§ 3626(b)(3).

That

provision

requires

that

the

prospective 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, extends no
further than necessary to correct the violation of the
Federal

right,

and

that

the

prospective

relief

is

narrowly drawn and the least intrusive means to correct
the violation.”

Id. § 3626(b)(3).
7

The issue that the court planned to take up at the
PLRA hearings was whether the stipulations entered in
this case comply with the need-narrowness-intrusiveness
test of § 3626(a)(1)(A).

See Phase 2A Order and Interim

Injunction with Regard to Thirteen Stipulations (doc. no.
2793) at 1-3.
the

Throughout the lead-up to the hearings,

defendants

incorporates

maintained

the

that

§ 3626(a)(1)(A)

current-and-ongoing

violation

requirement applicable to motions to terminate, making
the

standard

under

that

provision

standard under § 3626(b)(3).

identical

to

the

The court has now held that

subsection (a)(1) contains no such requirement.

See

generally Braggs v. Dunn, 2020 WL 5517262 (M.D. Ala.
Sept.

14,

2020)

(Thompson,

current-and-ongoing-violation

J.)

(discussing

standard).

Because

the
the

statutory provisions that apply to motions to terminate
do require a showing of a current-and-ongoing violation,
see 18 U.S.C. § 3636(b)(3), the court must determine
whether

the

order

regarding

the

long-term

suicide-prevention stipulations is subject to a motion
8

to terminate and thus subject to that requirement.

The

court holds that it is not.

III. SUICIDE-PREVENTION STIPULATIONS
Unlike the other orders identified by the defendants,
the

parties’

suicide-prevention

stipulations

are

not

currently terminable for a simple reason: They are not
now and have never been subject to court enforcement.
Nearly all of the orders being considered at this
stage

of

language.

the

litigation

were

entered

with

identical

In every case, the orders attached a set of

agreed-upon remedial provisions and issued an express
order that Defendants Dunn and Naglich “are ENJOINED and
RESTRAINED

from

provisions.”

failing

to

comply

with

the

attached

See Understaffing Remedial Order (doc. no.

1657) at 1 (referring to the defendants’ “remedial plan”
rather than the “attached provisions,” but otherwise
duplicating this language); Bibb Segregation Remedy (doc.
no. 1751) at 2 (using the above language); Mental Health
Coding Order (doc. no. 1792) at 2 (same); Mental Health
9

Intake Order (doc. no. 1794) at 2 (same); Segregation
Pre-Placement Order (doc. no. 1815) at 2 (same); Mental
Health

Referral

Order

(doc.

no.

1821)

at

2

(same);

Treatment Planning Order (doc. no. 1865) at 2 (same);
Psychotherapy Order (doc. no. 1899) at 2-3 (same, but
referring to the “stipulations” instead of the “attached
provisions”); Confidentiality Order (doc. no. 1900) at 2
(using the above language); Mental Health Understaffing
Order (doc. no. 2301) at 2 (same); Mental Health Staffing
Remedy (doc. no. 2688) at 2-3 (same); Hospital-Level Care
Order (doc. no. 2717) at 3) (same, but referring to the
“stipulation”); Mental Health Consultation Order (doc.
no. 2718) at 3 (same).
Of

the

two

orders

that

did

not

replicate

this

language, one nonetheless included a series of actions
that the defendants were ordered to take.

That order,

the Segregation Remedy, directed the defendants to modify
its system for designating inmates with serious mental
illness and to develop and provide training to relevant
mental-health staff on the application of the modified
10

system.

See Phase 2A Order re: Segregation Remedy (doc.

no. 1720) at 1-3.
The order regarding the long-term suicide-prevention
stipulations, however, is quite different.
other

orders,

otherwise

it

neither

demonstrated

issued

the

an

Unlike the

injunction

imposition

of

nor

relief.

Although this difference is apparent on the face of the
order, the course of litigation leading to its entry
further

illuminates

its

distinct

nature

and

lack

of

court-enforceability at this time.
In May 2019, the court issued an opinion and order
imposing various requirements on the defendants related
to suicide prevention.

See generally Braggs v. Dunn, 383

F. Supp. 3d 1218 (M.D. Ala. 2019) (Thompson, J.).

This

opinion included provision-by-provision findings under
the PLRA.

See, e.g., id. at 1254.

Soon thereafter, the

parties entered a short-term agreement on the subject and
requested that the court stay its mandates and impose the
stipulated short-term remedy instead.
to Stay (doc. nos. 2560, 2560-1).
11

See Joint Motion
The court did so,

adopting

temporary

PLRA

findings

parties for that agreement.
Order (doc. no. 2698).

stipulated

by

the

See Order (doc. no 2569);

The short-term agreement is

currently in effect, and the defendants have not moved
to terminate it.
The parties later reached a separate agreement on
long-term suicide relief.

See Joint Filing of Agreements

on Suicide Prevention Measures and Mental Health Staffing
(doc. nos. 2606, 2606-1).

The parties submitted that

agreement to the court, and the court issued an order
approving the stipulations.

See Phase 2A Order Approving

Suicide-Prevention Agreement (doc. no. 2699) at 1-2.
However, in contrast to past practice, the court did not
issue

an

associated

enforceability

of

injunction.

the

order

was

Id.
put

Instead,

the

on

and

hold

conditioned on the entry of final PLRA findings.

See id.

Indeed, on the record during the hearing to discuss
whether

to

approve

the

long-term

stipulations,

the

plaintiffs explicitly requested that the stipulations not
be entered as an enforceable order until PLRA findings
12

could later be made, and the court agreed.

See Sept. 6,

2019, Rough Draft (R.D.) Hr’g Tr. at 33:11-34:24.
meantime,

the

short-term

stipulations

and

In the

associated

temporary PLRA findings would remain in place as the
operative

and

enforceable

agreement.

See

Phase

2A

Revised Remedy Scheduling Order (doc. no. 2914) at 6
(noting that the short-term agreement is “[i]n effect
until court enters opinion regarding compliance of” the
long-term stipulations with the PLRA).
It is the long-term stipulations that the defendants
now seek to terminate.

See Motion to Terminate (doc. no.

2924) at 12, 16-17, 19, 21.

But because the court has

not yet issued an opinion about the compliance of these
stipulations with the PLRA, the long-term agreement has
never been entered as an enforceable consent decree, or
as any other form of court-mandated “prospective relief.”
See 18 U.S.C. § 3626(a)(1)(A), (c)(1), (g)(1).2

As such,

2.
Defense counsel has expressed confusion about
the implications of the court’s styling of the order
approving the long-term stipulations as “order[ing]”
their approval. See Defs.’ Response to the Court’s Order
13

the defendants are not currently empowered by the statute
to move to terminate it.3
The defendants’ motion will therefore be denied as
to the suicide-prevention stipulations, for, as explained
above, there is no enforceable relief yet to terminate.
Accordingly,

it

is

ORDERED

that

the

motion

to

terminate will be denied as to the order on the long-term
suicide-prevention stipulations (doc. nos. 2699 & 2699-

(doc. no. 2970) at 5.
While the court does not think
there is any confusion with regard to whether the longterm stipulations are enforceable at this time, the court
now makes unequivocal that its intent was not to impose
remedial obligations, but merely to indicate approval of
the stipulated agreement pending PLRA findings.
Cf.
Spates v. Manson, 619 F.2d 204, 209 n.3 (2d Cir. 1980)
(Friendly, J.) (holding that “nothing turns on the use
of the word ‘judgment’” and that an order’s finality as
a remedial mandate “turns on what has been ordered, not
on how it has been described”).
3. The court notes that a separate provision of the
PLRA, § 3626(c)(2), governs agreements between the
parties that are not subject to court enforcement, and
it expressly condones such agreements regardless of
whether
they
comply
with
the
need-narrownessintrusiveness requirements of § 3626(a)(1)(A). Nothing
in the statutory text entitles a defendant to use the
vehicle of the PLRA’s termination provisions to seek
relief from such agreements.
14

1).

The court will determine at a later date how and

when to make PLRA findings on those stipulations under
§ 3626(a)(1)(A).
DONE, this the 23rd day of September, 2020.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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