Dunn et al v. Thomas et al

Filing 2984

PHASE 2A OPINION AND ORDER ON GOOD CAUSE: Accordingly, it is ORDERED that: (1) The plaintiffs' motion to postpone the stay (doc. no. [2980[) is granted. The automatic stay of the orders identified in the defendants' motion to terminate d oc. no. 2924 ) will be postponed by 60 days under 18 U.S.C. 3626(e)(3). (2) The orders that are identified in the motion to terminate and that are properly subject to that motion will be stayed on November 29, 2020, unless the court finds before then that the relief meets the requirements of 18 U.S.C. 626(b)(3). Signed by Honorable Judge Myron H. Thompson on 9/24/2020. (kh, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
EDWARD BRAGGS, et al.,

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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 GOOD CAUSE
The defendants have filed a motion to terminate
certain stipulated remedial orders entered in this case
that

were

originally

put

in

place

without

the

‘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).
any

prospective

The PLRA imposes a mandatory stay of
relief

30

days

after

a

motion

to

terminate that relief is filed, continuing until the
motion is resolved.

See 18 U.S.C. § 3626(e)(2)(A)(i).

The defendants initially indicated their intent to seek
termination of the stipulated remedial orders in a brief
filed August 31, 2020, so the court assumes the mandatory
stay should be scheduled to take effect on September 30.
See Defs.’ Pretrial Br. (doc. no. 2908) at 55-57.

The

court may postpone this automatic stay for up to 60 days
for good cause, as long as the postponement is not made
to

accommodate

calendar.”

“general

congestion

of

the

court’s

18 U.S.C. § 3626(e)(3).

Now before the court is the plaintiffs’ motion for a
postponement.

See generally Pls.’ Motion to Postpone

Stay (doc. no. 2980).

For the reasons below, the court

finds that good cause exists to postpone the operation
of the automatic stay for 60 days.

The stay set to begin

on September 30 will start on November 29 instead.

I.

BACKGROUND

Over the course of several years, the parties in this
longstanding

class

stipulations

to

action

resolve

agreed

significant
2

to

a

series

aspects

of

of
the

litigation’s sprawling remedial dispute.

At the request

of the parties, the court entered these stipulations as
orders.

The court assumed that the parties agreed that

these stipulations complied with the PLRA.

However, the

orders entered before February 2019 generally did not
contain findings as to whether the provisions of the
stipulations

met

the

‘need-narrowness-intrusiveness’

test established by 18 U.S.C. § 3626(a)(1)(A).

The PLRA

gives defendants the right to move to terminate orders
entered without such findings at any time.

See 18 U.S.C.

§ 3626(b)(2).
The

court

scheduled

an

evidentiary

hearing

to

determine whether these entered stipulations met the
need-narrowness-intrusiveness requirement of the PLRA.
At the close of the defendants’ pretrial brief, they
exercised

their

rights

under

the

PLRA

and

moved

to

terminate many or all of the remedial orders that were
scheduled for consideration at the PLRA hearings.
Defs.’ Pretrial Br. (doc. no. 2908) at 55-57.

3

See

The court asked the defendants to provide a motion
to terminate separate from the pretrial brief to clarify
which orders or provisions they sought to terminate and
under what statutory provisions they sought termination.
In

their

provisions

subsequent
of

each

motion,

they

of

stipulations

the

identified

various

slated

for

consideration at the PLRA hearings and sought termination
of these provisions.

See generally Motion to Terminate

(doc.

The

no.

repeatedly

2924).
about

defendants

whether

the

lists

have

vacillated

of

provisions

identified in their motion are exhaustive, returning
intermittently to a position asserted in the pretrial
brief that their intent is to terminate all of the
stipulated remedial orders in their entirety.

See Defs.’

Response to the Court’s Order (doc. no. 2970) at 4 (noting
intent to seek termination of every provision of every
order, including provisions not mentioned in the motion
to terminate).

But see, e.g., Motion Hearing Tr. (doc.

no. 2955) at 51-52 (stating the opposite); Motion to
Terminate (doc. no. 2924) at 8 (indicating that the
4

motion to terminate “provides a list of all provisions
...

that

[the

State]

currently

believes

must

be

terminated or modified”).
The

motion

to

terminate

remains

pending.

The

remedial orders identified therein are thus subject to
the automatic stay mandates of 18 U.S.C. § 3626(e) until
the court resolves the motion.

II. LEGAL STANDARD
As mentioned above, the PLRA permits district courts
to postpone the operation of the automatic stay mandated
by 18 U.S.C. § 3626(e)(2)(A) for up to 60 days “for good
cause.”

18 U.S.C. § 3626(e)(3).

There is little case

law interpreting this provision, but what exists suggests
that the threshold for finding good cause is not high.
The

Supreme

Court

has

called

‘good

cause’

standard of § 3626(e)(3) “relatively generous.”

Miller

v. French, 530 U.S. 327, 340 (2000).

the

Moreover, Judge

Bybee of the Ninth Circuit, dissenting from a case that
upheld the imposition of a lengthy notice requirement on
5

defendants before filing a motion to terminate because
of

the

burden

of

preparing

to

defend

against

such

motions, still found that good cause should be all but
presumed in labyrinthine class actions like the present
litigation.

See Plata v. Brown, 754 F.3d 1070, 1082 (9th

Cir. 2014) (Bybee, J. dissenting).

As Judge Bybee wrote:

“Good cause presumably exists in unusually complex cases
like this one.”

Id.

III. GOOD CAUSE
The court finds that good cause exists in this case
to postpone the operation of the automatic stay for 60
days.

The

compose

a

evidentiary
defense

of

burden

these

on

the

orders,

plaintiffs

the

breadth

to
and

complexity of the remedial relief on which the plaintiffs
must now seek discovery, and the compressed schedule the
PLRA sets forth--compressed further by the uncertainty
regarding

the

intended

scope

of

the

defendants’

motion--convince the court that the circumstances here

6

meet the “relatively generous” good cause threshold of
§ 3626(e)(3).
The

plaintiffs

first

received

notice

of

the

defendants’ motion to terminate in the state’s pretrial
brief on the eve of a series of hearings on a separate
PLRA issue, hearings for which the parties had spent more
than a year preparing.
Scheduling

Order

scheduling

the

(doc.

hearings

See Phase 2A Revised Remedy
no.

2537)

for

July

at

3-4

2019).

(initially
The

court

recognizes that this put the plaintiffs in the difficult
position of not only having to turn the ship around, but
to get going almost instantly in another direction.

The

plaintiffs were required to end their preparation for
those

hearings,

reassess

their

arguments

under

a

different legal standard, see generally Braggs v. Dunn,
2020 WL 5517262 (M.D. Ala. Sept. 14, 2020) (discussing
the “current and ongoing violation” standard that governs
motions to terminate), conceive a discovery plan to meet
the newly applicable standard, and ready themselves to
defend a substantial part of the case’s remedial scheme
7

from being wiped clean.

The plaintiffs indicated on the

record at a hearing on September 9 that they would need
significant discovery as to current conditions in ADOC
facilities
defense.

to

be

fairly

prepared

to

present

their

See Motion Hr’g Tr. (doc. no. 2955) at 76-77

(“[I]t would be akin to essentially redoing a lot of the
liability trial over again.”).

This is, simply put, a

task that takes more than the 30 days the PLRA permits
by default.
The default deadline has been made all the more
infeasible as the plaintiffs continue to labor under
confusion about exactly which provisions or orders the
state is moving to terminate.

The defendants’ pretrial

brief appeared to express an intent to seek wholesale
termination of all of the orders.
Br. (doc. no. 2908) at 57.

See Defs.’ Pretrial

The defendants’ motion to

terminate, at several points, suggested the opposite.
See, e.g., Motion to Terminate (doc. no. 2924) at 8
(“Below, the State provides a list of all provisions by
categorical objection that it currently believes must be
8

terminated or modified.”). Perhaps most puzzlingly, when
asked

about

this

ambiguity

on

the

record

at

the

September 9 status conference, defense counsel told the
court in no uncertain terms that the defendants were
moving to terminate only specified provisions of orders,
not all of the orders in their entirety.
Tr. (doc. no. 2955) at 51-52.
following

exchange

with

See Motion Hr’g

The court conducted the

defense

counsel

during

that

conference:
“THE COURT: Just some clarification, Mr. Lunsford.
With your motion to terminate, are you seeking to
terminate all orders or just portions of orders?
“MR. LUNSFORD: Your Honor, mostly what we're moving
to terminate is the portions of the orders that we've
identified in the motion to terminate. There are some
orders in their entirety that we believe should not
be finalized or carried further, and so that--there
are some discrete orders we've identified, but for
the most part it is discrete parts.
“THE COURT: Okay. So, then, you're seeking to
terminate some whole orders and some parts of orders?
“MR. LUNSFORD: That's correct, but mostly parts. Just
a few orders in their entirety.
“THE COURT: Okay. Very good. That helps a lot. And
you've identified that for us; right?
9

MR. LUNSFORD: Yes, sir, we have. We identified all
those sections to the extent we could in the--in our
motion to terminate.”
Id.
At the September 17 and 18 status conferences, less
than two weeks before the default date for the automatic
stay, the defendants purported to clarify that in fact
they sought to terminate all of the remedial orders in
their entirety.
R.D.

Tr.

at

See, e.g., Sept. 18, 2020, Motion Hr’g

3:16-4:2.

But

at

a

subsequent

status

conference on September 23, the defendants seemed to
advance

yet

another

position

on

which

orders

or

provisions are at issue, indicating that they intended
to

terminate

in

their

entirety

the

remedial

orders

entered more than two years ago--the majority, but not
all,

of

the

orders

identified

in

the

motion

to

terminate--and only certain provisions from the more
recent orders.

See Sept. 23, 2020, Motion Hr’g R.D. Tr.

at 14:16-19, 17:19-21, 19:6-20.
In another twist, the defendants have indicated that
they may only seek to modify, rather than terminate, some
10

orders or provisions they identify as having been made
unworkable by the coronavirus pandemic.

But they have

said they won’t be able to clarify for the court or the
plaintiffs what orders they seek only to modify or how
they seek to modify them until the close of business on
September 29, one day before the stay is scheduled to go
into effect.

See id. at 5:15-6:11, 24:21-25:12.

Even

if it were true, as the defendants argue, that the extent
of the necessary discovery does not alone provide a basis
for good cause, see Defs.’ Rule 26(f) Report (doc. no.
2976) at 1 n.2,1 the defendants’ persistent mercuriality
since

filing

their

motion

about

which

orders

or

1.
The court finds it difficult to square this
argument with the Eleventh Circuit’s repeated insistence
that a district court abuses its discretion by failing
to provide plaintiffs an evidentiary hearing and adequate
opportunity to supplement the record when faced with a
motion to terminate. See Cason v. Seckinger, 231 F.3d
777, 782-83 (11th Cir. 2000); Loyd v. Ala. Dep’t of
Corrs., 176 F.3d 1336, 1342 (11th Cir. 1999). Following
the
defendants’
argument
would
seem
particularly
problematic in the circumstances of this case, where the
coronavirus pandemic presents a new and significant issue
on which plaintiffs have never had discovery.
11

provisions they seek to terminate and the plaintiffs’
fair

confusion

on

that

question

would

still

justify

postponing the stay.2
The plaintiffs additionally note that courts have
found good cause based on indicia in the existing record
of

continuing

constitutional

violations.

See

Pls.’

Motion to Postpone Stay (doc. no. 2980) at 1-2.

The

parties disagree about how fulsome such indicia must be
to

support

a

finding

of

good

cause.

They

cite

a

smattering of mostly unreported cases in which district
courts across the country have articulated various views
of the requirements for a finding of good cause based on
evidence
instance,

of

ongoing
as

constitutional

requiring

only

violations:

for

“allegations”

of

2. The ongoing coronavirus pandemic will likely make
the plaintiffs’ task of developing evidence even more
difficult because of the complications it has created for
legal visitors attempting to enter prisons and interview
prisoners. Indeed, the defendants have argued that the
risks caused by the pandemic should prevent the
plaintiffs’
expert
from
conducting
any
facility
inspections whatsoever in preparation for the termination
hearings. See Defs.’ Rule 26(f) Report (doc. no. 2976)
at 1 n.2.
12

constitutional deficiency, see Skinner v. Uphoff, 410 F.
Supp.

2d

“evidence

1104,

1112

arguably

(D.

Wyo.

supporting”

2006)
such

(Brimmer,

allegations,

J.),
see

Lancaster v. Tilton, 2007 WL 4145963, at *1 (N.D. Cal.
Nov. 19, 2007) (Alsup, J.), a “strong indication in the
record that a constitutional violation persists,” Balla
v. Idaho State Bd. of Corrs., 2019 WL 9831023, at *1
(D. Idaho Mar. 28, 2019) (Winmill, J.) (quoting 3 Michael
B. Mushlin, Rights of Prisoners § 17:10 (5th ed. 2018)),
or,

most

stringently,

that

the

record

already

demonstrates “widespread constitutional violations,” see
Merriweather

v.

Sherwood,

235

F.

Supp.

2d

339,

344

(S.D.N.Y. 2002) (McMahon, J.).3

3.
Although the court takes no position today on
which (if any) of these formulations accurately
characterizes the necessary showing for good cause based
on evidence of current violations, the district court’s
dictum in Merriweather appears incompatible both with the
Eleventh Circuit’s mandate that plaintiffs must be
allowed an opportunity to develop a record of current
violations before determinations are made regarding a
motion to terminate, see Cason, 231 F.3d at 782-83; Loyd,
136 F.3d at 1342, and with the Second Circuit’s position
at the time Merriweather was decided that the good cause
postponement provision exists in part to “provide
13

As recently as September 2, 2020, the court observed
that

“ADOC

has

still

not

adequately

monitored

its

provision of mental-health care,” that “ADOC has been
unable or unwilling to take necessary steps to monitor
its own practices,” and that “external monitoring is
necessary to address ongoing constitutional violations.”
Braggs v. Dunn, -- F. Supp. 3d ---, 2020 WL 5231302, at
*21,

*27-28

original).
the

(M.D.

Ala.

Sept.

2,

2020)

(emphases

in

But the court sees no need to rule on whether

existing

evidence

of

ongoing

constitutional

violations provides an independent basis for good cause
in light of the extraordinary complexity of the issues
on which the parties must prepare to present evidence and
the continuing opacity about what orders or provisions
are being challenged.

plaintiffs with ‘an opportunity to present evidence
showing the need for continuation of prospective
relief,’” see Merriweather, 235 F. Supp. 2d at 344
(quoting Benjamin v. Jacobson, 172 F.3d 144, 166 (2d Cir.
1999)).
14

As other courts contemplating motions to terminate
in complex cases like this one have noted, the mandate
of § 3626(b)(3) that the plaintiffs must show a “current
and ongoing violation” of federal law and that each order
“remains necessary to correct” that violation tends to
require the development of “substantial evidence” and a
“detailed factual inquiry.”

See Plata v. Brown, 2013 WL

654996, at *1 (N.D. Cal. Feb. 21, 2013) (Henderson, J.).
In light of the nigh-insurmountable difficulty that the
30-day default deadline places on parties preparing for
such hearings when the remedial disputes are as expansive
and nuanced as those presented here, Congress created the
60-day extension to allow the parties enough time to put
together a fair and adequate case while still ensuring
that the court rules promptly on termination motions.
See Plata, 754 F.3d at 1082 (Bybee, J., dissenting).

A

default schedule that would at best be implausible was
here made impossible by the frequent changes in the
defendants’ position about precisely what relief they
sought

to

terminate.

Granting
15

an

extension

today

appropriately recognizes the immensity of the task that
the court and the parties face at this juncture.
For all of these reasons, pursuant to 18 U.S.C.
§ 3626(e)(3), the court finds good cause to postpone for
60

days

the

automatic

stay

of

the

remedial

orders

identified in the defendants’ motion to terminate.
Accordingly, it is ORDERED that:
(1) The

plaintiffs’

motion

(doc. no. 2980) is granted.

to

postpone

the

stay

The automatic stay of the

orders identified in the defendants’ motion to terminate
(doc. no. 2924) will be postponed by 60 days under
18 U.S.C. § 3626(e)(3).
(2) The orders that are identified in the motion to
terminate and that are properly subject to that motion
will be stayed on November 29, 2020, unless the court
finds before then that the relief meets the requirements
of 18 U.S.C. § 3626(b)(3).
DONE, this the 24th day of September, 2020.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
16