Dunn et al v. Thomas et al

Filing 3078

OPINION AND ORDER ON A PROCESS FOR FINALIZING THE PHASE 2A REMEDIAL ORDERS directing that: (1) By 5:00 p.m. on 1/15/2021, the parties should file a joint discovery plan tailored to developing their proposals for the omnibus remedial order desc ribed above. This discovery should include evidence of current conditions in ADOC facilities, including the effects of COVID-19. The plan should initially limit discovery to methods that avoid on-site inspections, but it should provide a process for the parties to request that the court order site visits during the course of discovery if such visits become necessary; (2) By 5:00 p.m. on 4/21/2021, the plaintiffs should file their proposed omnibus remedial order, as described above; (3) By 5:00 p.m. on 5/5/2021, the defendants should file in response their proposed omnibus remedial order. The plaintiffs will have until 5:00 p.m. on 5/12/2021, to reply to the defendants' proposed order; (4) The court will hold a Pretrial Conference w ith the parties regarding their proposed omnibus remedial orders at 10:00 a.m. on 5/17/2021 before Honorable Judge Myron H. Thompson, by videoconferencing; (5) an Evidentiary Hearing on the parties' proposed omnibus remedial orders will begin at 10:00 a.m. on 5/24/2021 before Honorable Judge Myron H. Thompson; the court will determine later whether the hearing will be in person, by videoconferencing, or a combination of both. Signed by Honorable Judge Myron H. Thompson on 12/29/2020. Furnished to calendar group & AG.(djy, )

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)

OPINION AND ORDER ON A PROCESS FOR FINALIZING
THE PHASE 2A REMEDIAL ORDERS
In the current phase of this longstanding litigation
about the provision of mental-health care in Alabama’s
prisons, the court has entered a series of agreed-upon
remedial

orders,

resolution

of

Litigation

Reform

which

whether
Act

are
they

now

in

comply

(PLRA).

effect
with

After

the

pending
Prison

substantial

litigation regarding these orders, the issue of how to
determine their compliance with the PLRA evolved into a
broader question of how to put in place a durable remedial

framework to conclude a significant part of this phase
of the litigation beyond the orders at issue.
Now before the court are the parties’ proposals
regarding a process for finalizing this relief.

The

court has carefully considered the parties’ submissions.
For the reasons set forth below, the court will not adopt
either proposal in its entirety, although it has drawn
primarily on the defendants’ proposal to develop the plan
it lays out in this opinion.

I.
A.

BACKGROUND

Procedural History

This court found in 2017 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, 257

F. Supp. 3d 1171 (M.D. Ala. 2017) (Thompson, J.); see
also Braggs v. Dunn, 367 F. Supp. 3d 1340 (M.D. Ala.
2019) (Thompson, J.) (supplemental liability opinion on
periodic

mental-health

evaluations
2

of

prisoners

in

segregation).

Over the years since the court’s initial

liability opinion, the parties have agreed to a series
of stipulations resolving significant aspects of the
sprawling remedial disputes present in this phase of the
litigation.

For each stipulation, the court held an

on-the-record hearing, reviewing in detail and clarifying
the terms of the agreement.

At the request of the

parties, the court then entered these stipulations as
orders.
At

the

believed

time

it

that

entered
the

these

orders,

agreements

the

court

met

the

‘need-narrowness-intrusiveness’

requirements

of

the

PLRA, 18 U.S.C. § 3626(a)(1)(A).

See Cason v. Seckinger,

231 F.3d 777, 785 n.8 (11th Cir. 2000) (“[W]e do not mean
to

suggest

evidentiary

that

the

hearing

district
about

or

court

must

enter

conduct

an

particularized

findings concerning any facts or factors about which
there is not dispute.

The parties are free to make any

concessions or enter into any stipulations they deem
appropriate.”).

However, the orders generally did not
3

contain findings that the provisions of the stipulations
met the PLRA’s requirements.
In February 2019, the defendants raised as an issue
the possibility that these orders did not comply with the
PLRA because they did not have PLRA findings.

The court

then scheduled a set of evidentiary hearings to determine
whether

the

stipulations

met

the

‘need-narrowness-intrusiveness’ standard of the PLRA. 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

determination after the scheduled hearings.

a

final

Phase 2A

Opinion and Interim Injunction (doc. no. 2716) at 4.
These hearings were continued multiple times.

They

were first continued at the parties’ joint request so
that the parties could attempt to negotiate a resolution
of the remedial disputes addressed by the stipulations
in light of the newly raised PLRA concern.
process,

the

parties

successfully

During that

negotiated

certain

remedial agreements related to suicide prevention.
4

See

Joint Notice and Motion to Stay (doc. no. 2706) at 2-3.
After

a

lengthy

period

of

mediation,

the

parties

ultimately informed the court on March 20, 2020, that the
negotiations

on

the

remaining

disputes

had

successful.

See Joint Notice Regarding Monitoring and

PLRA Negotiations (doc. no. 2775) at 1.

not

been

The court

scheduled the hearings to begin on April 13, 2020.

See

Phase 2A Revised Remedy Scheduling Order (doc. no. 2778)
at 5.
The day the parties informed the court that their
negotiations had failed, the Alabama State Health Officer
suspended all public gatherings of 25 or more people due
to the onset of the novel coronavirus (COVID-19) pandemic
in Alabama and across the country.

See State Health

Officer Issues Amended Health Order Suspending Public
Gatherings,
https://www.alabamapublichealth.gov/news/2020/03/20.htm
l (Mar. 20, 2020).
death

of

announced.

an

Five days later, the first confirmed

Alabama

resident

due

to

COVID-19

was

See Alabama Announces First Death of a State
5

Resident

Who

Tested

Positive

for

COVID-19,

https://www.alabamapublichealth.gov/news/2020/03/25b.ht
ml (Mar. 25, 2020).

On April 3, the State Health Officer

issued a stay-at-home order requiring “every person in
Alabama to stay at his or her place of residence except
as necessary to perform essential activities.”

Order of

the

Officer,

State

Health

https://governor.alabama.gov/assets/2020/04/Final-State
wide-Order-4.3.2020.pdf (Apr. 3, 2020).
As

the

threat

of

COVID-19

became

apparent,

the

parties each moved to continue the April 13 hearings.
See generally Defs.’ Unopposed Motion to Continue (doc.
no. 2779); Pls.’ Motion to Continue (doc. no. 2780).

In

their motion, the defendants aptly explained that, while
“the

medical

and

scientific

community

continues

to

analyze the nature of COVID-19, this global pandemic
represents an unprecedented threat to public health due
to its contagious nature and rate of mortality for those
at significant risk for complications.” Defs.’ Unopposed
Motion to Continue (doc. no. 2779) at 2.
6

They requested

a continuance to “protect the health of the inmates in
the custody of the Alabama Department of Corrections.”
Id. at 3.
The hearings were eventually rescheduled to start on
September 14, 2020, with the duration of the temporary
PLRA findings on the stipulated remedial orders extended
to December 30.
Long-Term

See Phase 2A Opinion and Order Regarding

Suicide

Prevention

Stipulations

2977), 2020 WL 5658886 (M.D. Ala. 2020)

(doc.
at 5.

no.
Just

before the hearings were set to begin, at the close of
the defendants’ pretrial brief, the defendants indicated
an intent to move under the PLRA, 18 U.S.C. § 3626(b)(1)
& (b)(2), to terminate some or all of the orders scheduled
for consideration.
no. 2908) at 55-57.

See Defs.’ Pretrial Memorandum (doc.
The court requested clarification

of the defendants’ intent, and the defendants filed a
formal motion to terminate.

See generally Defs.’ Motion

to Terminate (doc. no. 2924).
Under the PLRA, the defendants’ motion to terminate
placed the burden on the plaintiffs to show that the
7

stipulated remedial orders remained necessary to correct
a

“current

and

ongoing

violation”

of

federal

law.

See 18 U.S.C. § 3626(b)(3); see also Opinion and Order
Regarding the “Current and Ongoing Violation” Issue (doc.
no. 2954), 2020 WL 5517262 (M.D. Ala. 2020).

The statute

also required the court to rule on the motion within 30
days, extendable to 90 days for good cause, or else a
mandatory
effect.

stay

of

prospective

relief

would

go

into

See generally Phase 2A Opinion and Order on Good

Cause (doc. no. 2984), 2020 WL 5735086 (M.D. Ala. 2020).
The plaintiffs therefore moved that they be allowed to
conduct immediate on-site prison inspections to develop
the

evidence

of

current

conditions

that

would

be

necessary for the court to be able to consider the
remedies under this standard and in this abbreviated
timeframe.

See generally Pls.’ Motion to Require Onsite

Prison Inspections (doc. no. 2986).
The

court

held

an

evidentiary

hearing

on

the

plaintiffs’ motion on September 30, during which it heard
testimony

by

experts

for

both
8

parties

about

whether

on-site visits were necessary and the degree to which the
inevitable risks involved in conducting these visits
could be mitigated.

All of the experts testified that

on-site visits were necessary, disagreeing mainly about
the

appropriate

duration

of

the

visits.

See

Order

Granting Motion for On-Site Prison Inspections (doc. no.
3000) at 3, 2020 WL 5909086 (M.D. Ala. 2020).
considering

this

testimony,

plaintiffs’

motion

while

the

court

recognizing

concerns raised by the defendants.

the

After

granted

the

significant

The court explained

that, although “the coronavirus pandemic is most serious
and that it is impossible to eliminate all risks of
COVID-19 transmission from the proposed site visits,” the
court had to balance this risk against “the grave issue
of the provision of mental-health care in the Alabama
prison system” and the need for the plaintiffs, in the
context

of

determine

the
how

motion

to

terminate,

mental-health

currently operating.

care

Id. at 2-3.

9

in

to
the

be

able

to

prisons

is

In response, the defendants withdrew their motion to
terminate.

See Oral Motion to Withdraw (doc. no. 3004);

Order (doc. no. 3005).
withdraw

their

motion,

While allowing the defendants to
the

court

emphasized

that

it

nevertheless took seriously the issues that had prompted
the motion.
address,

with

It explained that it would “continue to
reasonable

speed,

which

items

in

the

remedial orders at issue may be terminated or modified,
either by agreement or court action, as part of the
resolution of the PLRA findings or otherwise.”
(doc. no. 3005) at 1-2.

Order

The parties have since agreed

to extend the duration of the current remedial orders
until their PLRA compliance is resolved.

See Joint

Request to Extend Phase 2A Remedial Orders (doc. no.
3076) at 1-2; Phase 2A Revised Remedy Scheduling Order
(doc. no. 3077).
In the meantime, the court issued an opinion setting
forth a plan for monitoring the State’s compliance with
the court’s orders once those orders are finalized.

See

generally Braggs v. Dunn, -- F. Supp. 3d. ---, 2020 WL
10

5231302 (M.D. Ala. Sept. 2, 2020) (Thompson, J.).

The

monitoring scheme described by that opinion involves a
panel

of

outside

experts

functioning

as

an

external

monitoring team (EMT), which over time “will train and
eventually hand control over to an internal monitoring
team, building the capacity of the [ADOC] to regulate
itself.”

Id.

at

*1.

The

members

of

the

EMT--a

psychiatrist, a psychologist, a nurse, and a correctional
administrator--have been appointed.

See Order (doc. no.

3066).
At the court’s request, the parties have now each
proposed a process for re-evaluating and finalizing all
of the relief ordered in this phase of the litigation.
The court sought these proposals to help it consider the
weighty and complex issues involved in charting a path
forward from this litigation’s current posture, keeping
in mind both the court’s findings of serious deficiencies
in the State’s provision of mental-health care in ADOC
facilities

and

the

exigencies

of

the

coronavirus

pandemic, which has seized and disrupted the progress of
11

this suit as it has the quotidian rituals of all of our
lives.

Although the nascent rollout of COVID-19 vaccines

provides reason to hope that the effects of the pandemic
may begin to wane in the coming months, finalizing the
disputed remedies remains an urgent task.

Today the

court considers the parties’ proposals and sketches out
a plan to help conclude its entry of relief in this phase
of the litigation.

B.
The

The Plaintiffs’ Proposals

plaintiffs

proposals.

presented

the

court

with

two

The court describes each in turn.

1.

The Plaintiffs’ Proposal #1

The plaintiffs’ first proposal is that the court
begin with the PLRA hearing it originally scheduled after
the

defendants

raised

this

issue

in

early

2019,

determining whether the relief ordered in the stipulated
remedies is “narrowly drawn, extends no further than
necessary to correct the violation of the Federal right,
12

and is the least intrusive means necessary to correct the
violation

of

the

§ 3626(a)(1)(A).
initial

entry

Federal

right.”

18

U.S.C.

This provision of the PLRA governs the
of

prospective

relief,

and

so

the

plaintiffs say the relevant time period for evidence
showing

that

the

relief

meets

this

‘need-narrowness-intrusiveness’ test would be the time
of the court’s liability opinion in June 2017.
Proposal

for

Finalizing

Phase

2A

See Pls.’

Remedial

Orders

(hereinafter “Pls.’ Proposal”) (doc. no. 3032) at 3-4;
see also Opinion and Order on the “Current and Ongoing
Violation” Issue (doc. no. 2954), 2020 WL 5517262 (M.D.
Ala.

2020)

(finding

that

§ 3626(a)(1)(A),

unlike

§ 3626(b)(3), contains no statutory requirement that the
court find a “current and ongoing violation” of federal
law).

As such, there would be no need for the plaintiffs

to conduct on-site inspections before the hearings.

See

Pls.’ Clarification Regarding Site Visits (doc. no. 3036)
at 1.

13

Once

these

hearings

concluded

and

‘need-narrowness-intrusiveness’ findings were entered,
the court could hold a second hearing if the defendants
sought to modify or vacate any of these orders.
Pls.’ Proposal (doc. no. 3032) at 4.

See

The modifications

that the court would consider at this stage would include
only permanent changes to the orders based on claims that
they

were

no

longer

necessary

in

light

of

current

conditions; the court would not consider any temporary
modifications that the defendants may request based on
the effects of COVID-19 on their capacity to comply with
certain

orders

plaintiffs

during

would

modification

the

seek

hearing.

pandemic.
site

See

See

visits
id.;

see

id.

The

before

this

also

Pls.’

Clarification Regarding Site Visits (doc. no. 3036) at
1.
After this second hearing, the plaintiffs say that
the court would have the full scope of remedial relief
in place.

It could then pass the orders it had entered

to the EMT, which would develop performance measures and
14

audit tools to track the defendants’ compliance with
these orders.

See Pls.’ Proposal (doc. no. 3032) at 5.

The EMT would also consider any temporary modifications
related to COVID-19 in consultation with an infectious
disease expert.

Id. at 5-6.

The plaintiffs propose that the initial PLRA hearings
would take 20-25 days and that the court could issue its
‘need-narrowness-intrusiveness’ findings on the remedial
orders about one month after the hearings concluded.

The

parties would then conduct several weeks of discovery
leading up to the hearing on permanent modifications.
Throughout this time, the EMT would begin developing its
monitoring

tools

modifications.

2.

and

considering

COVID-related

See id. at 6-7.

The Plaintiffs’ Proposal #2

In the alternative, the plaintiffs suggest that the
process should begin with their expert Dr. Kathryn Burns
and

the

reviewing

defendants’
the

expert

stipulated

Dr.

Mary

remedial
15

Perrien

orders,

jointly

proposing

alterations

to

provisions,

the

and

orders

to
any

recommending

believe are appropriate.

remove
other

unnecessary
changes

they

The court would then hold an

evidentiary hearing on the experts’ recommendations and
would

determine

whether

the

orders

met

the

‘need-narrowness-intrusiveness’ requirement of the PLRA
with the alterations suggested by the experts, or whether
alternative or additional changes were necessary.
the

plaintiffs’

first

proposal,

the

court

As in

would

not

consider temporary modifications due to COVID-19 at this
initial step; those again would be left to the EMT.
The

review

by

Drs.

involve site visits.

Burns

and

Perrien

would

not

The experts would instead “consult

with ADOC clinicians and review whatever documents they
deemed appropriate.”

Pls.’ Clarification Regarding Site

Visits (doc. no. 3036) at 1-2.

The court understands

that the plaintiffs do not seek site visits because Drs.
Burns

and

Perrien

would

be

considering

whether

the

experts’ recommended remedies were necessary to correct
the

violations

found

in

the
16

court’s

2017

liability

opinion, not whether they were necessary in light of
current

conditions

in

ADOC

facilities.

Proposal (doc. no. 3032) at 10-11.

See

Pls.’

Under the plaintiffs’

second proposal, the review by Drs. Burns and Perrien
would take six weeks, with a 15-day hearing on the
recommendations following immediately thereafter.

See

id. at 12.

C.
The

The Defendants’ Proposal

defendants’

plan

is

distinguished

from

the

plaintiffs’ largely by the greater and earlier role it
gives the EMT in revising the remedial orders.
State’s

proposal,

the

plaintiffs

would

Under the

initiate

the

process by submitting a proposed omnibus remedial order
encapsulating the relief contained in the all of the
remedial orders issued in this phase of the litigation,
as

well

as

addressing

outstanding

issues

such

as

inpatient treatment and segregation-like conditions. See
Defs.’ Proposal for Finalizing the Phase 2A Remedial
Orders (hereinafter “Defs.’ Proposal”) (doc. no. 3031)
17

at 5.

In developing this proposed omnibus order, the

plaintiffs would consider the concerns raised by the
defendants and the court in the course of the proceedings
on the motion to terminate, as well as the impact of
COVID-19 on ADOC’s capacity to comply with the orders.
See id.

The plaintiffs would not have the opportunity

to propound discovery while developing their proposal.
Following a brief period of negotiation between the
parties to attempt to resolve any disputes arising from
the proposed omnibus order, the plaintiffs’ proposed
order would be distributed to the EMT for review.

The

team would begin “deliberations” on the proposed order,
id. at 6, during which time it would have access to
various documents that have been filed on the record in
this case, as well as “any other documentation that they
might request in order to complete their review,” Defs.’
Response to the Court’s Order (doc. no. 3037) at 6-7.
After

several

weeks

of

deliberations,

the

EMT

would

submit to the court recommendations for a new proposed
omnibus remedial order, and the court would issue a
18

proposed

order

based

on

those

recommendations.

See

Defs.’ Proposal (doc. no. 3031) at 6.
The court would hold a hearing to consider whether
this omnibus remedial order complied with the PLRA only
if a party objected to the order.
defendants

preserve

§ 3626(a)(1)(A)

would

their

See id. at 7.

continued

require

the

argument

court

to

The
that

find

a

“current and ongoing violation” of federal law before
entering PLRA findings on this omnibus order.
at 6 n.7.

See id.

Also, no site visits would take place before

the hearing.

See Defs.’ Response to the Court’s Order

(doc. no. 3037) at 4 (“[T]he State’s Proposal does not
provide for site visits by Plaintiffs or the EMT because
the Court ruled that it did not need to find a ‘current
and ongoing’ constitutional violation when entering a
final remedial order.”).
Once the court entered a final omnibus remedial
order, either after the hearing or without one if neither
party objected to the court’s proposed order, the EMT
would develop its audit tools and performance metrics and
19

would begin site visits in the course of its monitoring
duties.

See Defs.’ Proposal (doc. no. 3031) at 7.

The

timeline for these site visits is left to be determined.
See id.

II. DISCUSSION
A. The Court’s Concerns with the Proposals
Ultimately, the court will not adopt either party’s
proposal wholesale, although it derives much of the plan
outlined below from the defendants’ proposal.
discussing
explain

the

why

plan
it

the

does

court
not

adopts,

follow

it

Before

pauses

either

to

party’s

recommendation in its entirety.
The court is concerned that the plaintiffs’ proposal
largely

sidelines

the

EMT,

an

invaluable

source

of

expertise for the development of appropriate relief in
this case and a central player in this litigation as the
current phase moves into monitoring.

The EMT will play

a vital role in developing the performance measures and
audit tools by which the defendants’ progress toward
20

compliance with the ordered relief will be tracked.

The

input of the EMT members will be critical in helping the
court determine the shape of the omnibus remedial order.
Moreover, receiving this input during the development of
the order will provide for a smoother transition into
monitoring as the team members will build familiarity
with the remedies and the complex facts of this case.
The court hopes that this will head off any subsequent
need to modify the orders due to difficulties monitoring
the relief.
Under both proposals in the plaintiffs’ plan, the
EMT would be relegated to a mostly passive role.

The

team would receive the orders from the court and would
be responsible for just two circumscribed aspects of
putting

them

into

effect:

proposing

temporary

modifications due to COVID-19 and developing the tools
that the team would use to monitor the State’s compliance
with the orders.

This is too limited a role for such an

important and knowledgeable actor in this litigation,
particularly one on whom so much of the State’s capacity
21

to

succeed

in

installing

constitutionally

adequate

mental-health care will depend.
For

similar

reasons,

the

court

agrees

with

the

defendants that excluding the EMT from the process of
developing

an

inefficient.

omnibus

remedial

order

would

be

The court believes it is critical that the

EMT members begin engaging in the case as quickly as
possible.

To be effective monitors, the team members

must develop deep familiarity with the proceedings in
this case and the facts surrounding the provision of
mental-health care in ADOC facilities.

The proceedings

and

litigation

facts

in

this

phase

of

the

are

extraordinarily nuanced; creating the remedial scheme has
been a three-plus-year endeavor of the court and the
parties.

The court agrees with the defendants that the

sooner the monitors can begin to educate themselves about
the case and build trust with all parties, the better.
Moreover,

the

court

finds

significant

problems with the plaintiffs’ proposals.

practical

In short, the

court is concerned that the bulk of the process outlined
22

by the plaintiffs--everything prior to the potential
modification

hearings--would

leave

the

court

different a position than it currently stands.

in

no

After a

series of hearings and a possible six-week review by Drs.
Perrien and Burns, the court would be left still with no
information either about whether the remedial orders were
appropriately tailored to current conditions in ADOC
facilities

or

about

the

impacts

of

COVID-19

on

the

present feasibility of complying with the orders.
All

that

said,

the

court

does

not

adopt

either

party’s plan in its entirety for a simple reason.

Both

plans fail to take sufficient account of the need to
gather evidence of current conditions in ADOC facilities
in

order

to

develop

an

omnibus

remedial

order

with

appropriately tailored relief, as well as the possibility
that gathering this evidence may require site visits.
The court has an obligation under the PLRA to ensure
that

whatever

relief

it

enters

meets

the

statute’s

‘need-narrowness-intrusiveness’ requirement: that it is
necessary to correct a constitutional violation, and that
23

it is narrowly tailored and the least intrusive means of
doing so.
is

no

In the absence of a motion to terminate, there

statutory

requirement

that

the

court

find

a

“current and ongoing violation” of federal law before
entering this relief.

See Thomas v. Bryant, 614 F.3d

1288, 1319-20 (11th Cir. 2010); see also Opinion and
Order Regarding the “Current and Ongoing Violation” Issue
(doc. no. 2954), 2020 WL 5517262 (M.D. Ala. 2020).

But

the procedural circumstances of this case leave the court
with grave concerns about implementing relief without
ensuring that it is necessary under current conditions.
Years have passed since the liability trial and
opinion. As discussed above, each individual protraction
of this delay has been understandable, arising first from
stays

sought

by

both

parties

for

the

purposes

of

mediation and then out of the crisis caused by the
COVID-19 pandemic.

Still, because so much time has

passed, the court agrees with the defendants that it
would be inappropriate to enter a final remedy resolving
this phase of the litigation without finding that the
24

relief is still necessary in light of the State’s now
years-long

efforts

to

improve

the

mental-health care in ADOC facilities.

provision

of

See, e.g., Defs.’

Pretrial Br. for the Phase 2A PLRA Evidentiary Hearing
(doc. no. 2908) at 35-38; Defs.’ Br. Regarding the Thomas
v. Bryant Opinion (doc. no. 2981) at 6-7.

Even apart

from the statutory mandates under which this litigation
operates, compliance with the PLRA does not displace the
court’s

duty

under

Eighth

Amendment

law

to

find

a

“substantial risk of serious injury” before entering
injunctive relief.

Thomas, 614 F.3d at 1320 (quoting

Farmer v. Brennan, 511 U.S. 825, 845 (1994)).
Both parties’ experts have said that site visits are
necessary to determine the reality of conditions in ADOC
facilities.

See Tr. of Sept. 30, 2020, Hr’g on Pls.’

Motion for In-Person Site Visits (doc. no. 3019) at 17-18
(plaintiffs’

expert

Dr.

Burns);

id.

at

182-83

(defendants’ expert Dr. Keldie); id. at 229-30, 250-51
(judge noting the agreement of the experts, and defense
counsel concurring that the major issue is conducting the
25

visits as safely and expeditiously as possible).

In

United States v. Alabama, which addressed conditions at
ADOC’s Tutwiler facility, the monitor, who was appointed
pursuant to a settlement of the case, see United States
v. Alabama,

No. 2:15cv368-MHT, 2015 WL 3796526 (M.D.

Ala. June 18, 2015) (Thompson, J.) (opinion adopting
settlement agreement), and who is a neutral third party,
expressed

the

same

to

the

court

during

a

status

conference in that case at which defense counsel in this
suit was present.

See Tr. of Sept. 29, 2020, Status

Conference (doc. no. 3049) at 27-28.
However, as the court has said before, it is deeply
concerned about the COVID-19 risks associated with site
visits.

The parties should make every possible effort

to develop the necessary evidence of current conditions
without on-site inspections.

But the court cannot at

this time rule out the reasonable possibility that site
visits will be necessary, as both parties’ experts and
the Tutwiler monitor have said that site visits are
critical to understanding current conditions in prison
26

facilities.

If site visits are necessary at some point

in this process, the court is hopeful that increasing
COVID-19 vaccinations may help such visits become safer
in the coming months.
The court has reluctantly ordered site visits before
in response to the defendants’ now-withdrawn motion to
terminate.

The process by which the court intends to

move forward on finalizing the remedial orders, as set
forth below, is both slower and more deliberative than
was possible in the expedited time frame required by the
PLRA

for

reviewing

motions

to

terminate.

For

this

reason, if any site visits ultimately must happen, they
could be done in ways that mitigate some of the most
acute safety concerns the defendants expressed when the
court considered this issue before, such as minimizing
the

number

of

hours

on-site

per

day

and

avoiding

successive visits to multiple facilities within a short
period of time.

27

B.

The Court’s Plan

The court largely adopts the defendants’ plan for
moving

forward,

albeit

with

some

modifications

to

preserve the flexibility of the process and to ensure
that

the

relief

entered

is

appropriate

in

light

of

current conditions.
First,

the

plaintiffs

will

propose

an

omnibus

remedial order that addresses at least the defendants’
concerns

about

modification

of

the

need

various

for

clarification

stipulations

as

and

outdated,

duplicative, overly intrusive, or otherwise incompatible
with the PLRA, as well as the outstanding issues related
to inpatient treatment and segregation-like conditions.
The proposed order should also take into account the
impact of COVID-19.

Because the order is meant to last

for the duration of the monitoring of this case, the
plaintiffs’

proposal

should

separately

indicate

what

remedies will apply after the COVID-19 pandemic ends, how
these remedies should be modified during the pendency of
the pandemic, and how and when to transition from the
28

modified relief to the permanent order as the pandemic
winds down.

The purpose of separating out these stages

of relief is so that the parties do not have to return
to the court for modifications as the pandemic begins to
abate.
After the plaintiffs have submitted their proposed
order, the defendants will submit their own proposed
omnibus remedial order, responding to the plaintiffs’
proposals and addressing the same issues described above.
This approach will have the practical benefit of yielding
proposals by both parties that encompass the entire scope
of relief at issue, which is the shortest path toward
concluding this phase of the litigation and providing the
EMT a single, coherent remedial structure to monitor.
Both
discovery

parties
while

remedial orders.

will

have

developing

the

opportunity

their

proposed

to

seek

omnibus

As explained above, the omnibus orders

they propose should be tailored to the actual needs of
people in ADOC custody today, and the parties will be
able to propound the discovery necessary to construct
29

such orders.

While the court considered ordering the

parties to propose these orders prior to discovery, the
court ultimately believes that the parties already have
sufficient information to be able to tailor discovery
adequately, based on the litigation of the defendants’
motion to terminate, the liability trial, and the current
remedial orders.

Furthermore, the court is concerned

that if the parties were to propose omnibus orders prior
to discovery, their proposals would add little to what
was already discussed during the termination proceedings
and would simply insert an unhelpful extra step into the
process of shaping the remedial scheme.
The court will therefore order the parties to develop
a joint discovery plan that will allow them to gather the
evidence they need to prepare their proposed omnibus
remedial

orders.

The

court

anticipates

discovery may take two or three months.

that

this

In light of the

current pandemic, the discovery will initially be limited
to

methods

that

avoid

document production.

on-site

inspections,

such

as

If either party or the court comes
30

to believe that site visits are necessary to obtain the
requisite information about current conditions or proper
remedies, the court will consider arguments from both
parties

about

the

risks

and

value

of

such

visits.

Finally, if any site visits are warranted, they will be
limited

in

duration

and

scope

and

will

be

narrowly

targeted to gathering essential information.
After the parties have filed their proposed orders,
the court will hold a single evidentiary hearing to
consider these proposals and will then create a final
omnibus remedial order resolving all of the outstanding
issues discussed in this opinion.

Both parties will be

able to present evidence and testimony at this hearing
in

support

of

their

proposals,

including

expert

testimony, and the court may also consult an infectious
disease specialist to assist with its consideration of
the effects of COVID-19.

The court will also consult

with the EMT about how to formulate the omnibus remedial
order, though exactly how the EMT will participate in the
hearing will be resolved as the process moves forward.
31

Involving the EMT will allow the team members to begin
to familiarize themselves with the case and will help
inform the court about what proposed remedial provisions
might function better as performance metrics or audit
tools rather than court orders.

This will also give the

EMT the opportunity to begin developing these metrics
during the course of the hearing.
The goal of the hearing will be to assemble an
omnibus remedial order that is not overly intrusive, both
provision-by-provision and when considered as a whole.
This

order

will

also

account

for

any

necessary during the COVID-19 pandemic.

adjustments

It will be made

with the particularized ‘need-narrowness-intrusiveness’
findings required by the PLRA, and it will replace all
of

the

currently

operational

remedial

stipulations.

Developing this omnibus order will be a difficult and
complex process.

But the court has an obligation to

proceed deliberately and carefully in developing a final
remedy

that

addresses

the

32

serious

constitutional

violations it has found and that will be a durable
solution for the monitors to help ADOC implement.

* * *

Accordingly, it is ORDERED that:
(1) By 5:00 p.m. on January 15, 2021, the parties
should file a joint discovery plan tailored to developing
their proposals for the omnibus remedial order described
above.

This discovery should include evidence of current

conditions in ADOC facilities, including the effects of
COVID-19.

The plan should initially limit discovery to

methods that avoid on-site inspections, but it should
provide a process for the parties to request that the
court order site visits during the course of discovery
if such visits become necessary.
(2) By 5:00 p.m. on April 21, 2021, the plaintiffs
should file their proposed omnibus remedial order, as
described above.

33

(3) By 5:00 p.m. on May 5, 2021, the defendants
should file in response their proposed omnibus remedial
order.

The plaintiffs will have until 5:00 p.m. on May

12, 2021, to reply to the defendants’ proposed order.
(4) The court will hold a pretrial conference with
the parties regarding their proposed omnibus remedial
orders

at

10:00

a.m.

on

May

17,

2021,

by

videoconferencing.
(5) An evidentiary hearing on the parties’ proposed
omnibus remedial orders will begin at 10:00 a.m. on May
24, 2021.

The court will determine later whether the

hearing will be in person, by videoconferencing, or a
combination of both.
DONE, this the 29th day of December, 2020.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

34