Dunn et al v. Thomas et al

Filing 3504

ORDER: it is ORDERED that the 3489 motion to stay is to be briefed as follows: the plfs are to file a response by February 3, 2022, at 5:00 p.m.; the dfts are to file a reply by February 7, at 5:00 p.m.; and the court shall resolve the motion by February 14; further ORDERED that the deadlines in the 3464 omnibus remedial order that fall between now and February 14, 2022, are suspended pending resolution of the stay motion; In their filings, the parties should address how the court should reset those deadlines, as well as any other deadlines that may need to be reset. Signed by Honorable Judge Myron H. Thompson on 1/27/2022. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
EDWARD BRAGGS, et al.,
Plaintiffs,
v.
JOHN HAMM, 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)

ORDER
On December 27 and 28, 2021, the court entered the
Phase 2A Omnibus Remedial Opinion and Order.

Almost a

month later, late in the day on January 24, 2022 (that
is, at 5:00 p.m.), the defendants filed, along with a
notice

of

appeal,

a

motion

to

stay,

and

requested

resolution of the stay motion by January 27 at 5:00 p.m.
For the reasons given below, the court rejects this
rushed resolution and, instead, will allow for a more
considered and orderly, but prompt, resolution of the
motion that offers a fair opportunity for all parties and

the court to address the issues raised in the motion.
The court will order that the plaintiffs shall have until
February 3, 2022, to file a response; that the defendants
shall have until February 7 to file a reply; and that the
court shall resolve the motion by February 14.

The court

is mindful of the deadlines set by the omnibus remedial
order and will take appropriate measures to ensure that
no

party

is

unfairly

prejudiced

by

this

resolution

process.

I. Most Recent Procedural History
On December 27 and 28, 2021, after a series of
lengthy hearings stretching from May 29 through July 9,
2021, the court entered the Phase 2A Omnibus Remedial
Opinion

and

Order.

See

Braggs

v.

Dunn,

No.

2:14cv601-MHT, 2021 WL 6112444 (M.D. Ala. Dec. 27, 2021)
(Thompson, J.) (“Phase 2A Omnibus Remedial Opinion Part
I”); Braggs v. Dunn, No. 2:14cv601-MHT, 2021 WL 6117939
(M.D. Ala. Dec. 27, 2021) (Thompson, J.) (“Phase 2A
Omnibus Remedial Opinion Part II”); Braggs v. Dunn, No.
2:14cv601-MHT, 2021 WL 6116913 (M.D. Ala. Dec. 27, 2021)
2

(Thompson, J.) (“Phase 2A Omnibus Remedial Opinion Part
III”); Braggs v. Dunn, No. 2:14cv601-MHT, 2021 WL 6125044
(M.D. Ala. Dec. 27, 2021) (Thompson, J.) (“Phase 2A
Omnibus Remedial Opinion Part III Supplement”); Braggs
v. Dunn, No. 2:14cv601-MHT, 2021 WL 6128418 (M.D. Ala.
Dec. 27, 2021) (Thompson, J.) (“Phase 2A Omnibus Remedial
Order”).
On

January

7,

2022,

the

court

held

a

status

conference to discuss implementation of the Remedial
Order, at which the parties informed the court that they
were in negotiations, mediated by Magistrate Judge John
Ott,

regarding

certain

steps

to

be

taken

towards

implementing the order, and that they were simultaneously
considering

whether

modification.

to

appeal

the

order

or

request

The defendants’ progress in this latter

regard was somewhat delayed, through no fault of their
own,

by

the

fact

that

the

Alabama

Department

of

Corrections had recently received a new Commissioner, who
needed to be brought up to speed on the history of the
litigation and the contents of the court’s opinion and
order.

The defendants did inform the court, however,
3

that they did not expect to be able to comply with the
provision of the order requiring cells in the restrictive
housing units to be suicide-resistant, because it would
require them to demolish and rebuild a substantial number
of cells in a short period of time, at great expense.
The

court

willing

informed

to

particularly

the

reconsider
because

defendants
that

it

had

that

it

would

provision

of

not

presented

been

its

be

order,
with

evidence regarding the number of cells that would need
to be demolished and rebuilt.

The court also explained

that, given the complexity of the order, it expected that
both parties might request clarification or modification
of certain provisions.

It therefore requested that the

defendants present the court with a full list of the
provisions that they wished it to reconsider, so that the
plaintiffs might have an opportunity to respond.
On

January

conference.

21,

the

court

held

a

second

status

The parties informed the court that they

were still negotiating, but were making progress toward
establishing

an

external

monitoring

implementation of the order.
4

team

to

oversee

The court indicated that

it wished to take up, at a later date, the issue of
whether

to

modify

certain

reporting

requirements

regarding inmates housed in the restrictive housing units
under exceptional circumstances.
On January 24 at 5:00 p.m. (despite the court’s
observation at the January 7 status conference that,
given the complexity of the order, it expected that both
parties might request clarification or modification of
certain provisions), the defendants filed their notice
of appeal, accompanied by a motion to stay, and requested
resolution of the January 24 stay motion by January 27
at 5:00 p.m.

The following day, the plaintiffs filed

their notice of appeal.
On

January

25,

the

court

held

a

third

status

conference to discuss the defendants’ request that the
court resolve their motion by January 27.

The court

asked the defendants why they had waited so late to file
their

motion,

given

effective date.
the

parties

preceding

had

three

the

remedial

order’s

February

7

The defendants informed the court that
negotiated
weeks

over

regarding
5

the

course

alternatives

of
to

the
an

appeal, but had been unable to resolve their differences.
The defendants asserted that the negotiations had stalled
due to the plaintiffs’ dilatory tactics.

The court

reiterated to the parties that it would be willing to
reconsider the provisions of its order implicated in the
defendants’ notice of appeal and motion for a stay.

The

court suggested that the parties turn their negotiation
efforts to coming up with a fair, orderly process for
prompt resolution of the stay motion, and informed the
parties that it would be willing to extend any dates of
the order, including the February 7 effective date, to
facilitate those negotiations.
On

January

26,

the

court

held

a

fourth

status

conference, at which the parties informed the court that
they had engaged in extensive negotiations during the
preceding day and night before Judge Ott, but had reached
no agreement regarding how to proceed on the defendants’
motion for a stay, with the result that the motion would
need to be resolved today, if the defendants’ deadline
were to be met.

6

II. Discussion
The court believes that the process it adopts for
the resolution of the stay is best for a number of
reasons.
First, as is obvious, this case is exceptionally
complicated.

The court’s omnibus remedial order covers

a number of complex issues and represents the culmination
of

over

seven

years

evidentiary hearings.

of

litigation

and

extensive

Second, the stay motion presents

a number of complicated issues, some of which the court
had indicated, before the filing of the motion, it was
willing to revisit and, after the filing of the motion,
it might now be willing to put on hold, and others of
which will need to be clarified before the court may
decide how to proceed.
Among the foremost issues that the court needs to
address

before

it

can

rule

on

the

motion

is

the

defendants’ objection to the provisions of the omnibus
remedial order requiring suicide watch, stabilization
unit (SU), and restrictive housing unit (RHU) cells to
comply

with

the

Lindsay

M.
7

Hayes

Checklist

for

the

“Suicide-Resistant”
(Doc. 3206-5).1

Design

of

Correctional

Facilities

See Phase 2A Omnibus Remedial Order,

2021 WL 6128418, at §§ 2.1.7.2, 3.1.3.

At the January 7

status conference, the defendants raised their concerns
with respect to RHU cells specifically; their motion to
stay extends this objection to suicide watch and SU
cells.

The defendants object to the breadth of this

requirement, particularly as applied to ADOC’s over 800
RHU cells, emphasizing the cost of bringing cells into
compliance with these conditions and the impossibility
of meeting the deadline set by the order.

The defendants

complain that this burden of compliance is unwarranted
in light of the state of Alabama’s construction of two
new prison facilities.
During the January 7 status conference, the court
explained that it was willing to reconsider or clarify

1. This checklist identifies structural features
that increase the risk that inmates may be able to attempt
and complete suicides in celled environments--most
notably, protrusions that can be used as anchoring
devices
for
attempted
suicides
by
hanging
and
obstructions of visibility into cells--and sets forth
architectural design elements that mitigate this risk.
8

the requirement for RHU cells, taking into consideration
the issues raised by the defendants.
2022, R.D. Tr. at 11-12.2
do so.

See January 7,

The court remains prepared to

With respect to the issue of suicide watch and

SU cells subsequently raised by the defendants, the court
would benefit from clarification as to which requirements
of the Hayes checklist ADOC’s suicide watch and SU cells
currently do and do not meet.

While the defendants

represent that the court’s order would “require ADOC to
almost totally reconstruct all 952 of its suicide watch,
SU, and RHU cells across the State,” Defs.’ Mem. in
Support of Mot. to Stay (Doc. 3490) at 21, previously in
this litigation, the defendants represented that ADOC had
“effectively

retrofitted

all

SU

cells

to

ensure

suicide-resistance,” Defs.’ Resp. to Phase 2A Order on
Inpatient Treatment (Doc. 2880) at 4, and entered into
suicide-prevention stipulations requiring suicide watch

2. During that status conference, the court drew a
distinction between the “breadth of the requirement,”
which it would consider, and the “cost factor,” which it
would not.
Id. at 12.
The court unwisely drew that
distinction between the cost and the breadth of the
requirement on the spot.
9

cells to comply with the Hayes checklist, see Suicide
Prevention Measures (Doc. 2606-1) at 6; ADA Transition
Plan (Doc. 2635-1) at 41-45.
Nevertheless,
reconsideration,

rather
as

than

suggested

by

asking
the

court,

for
the

defendants appealed and filed a motion to stay, along
with declarations presenting additional evidence to the
court.

The court must now consider how to proceed on its

concerns in light of the appeal and the presentation of
more evidence, to which the plaintiffs have not yet had
an opportunity to respond.
The

defendants’

stay

motion

also

implicates

the

provisions of the remedial order requiring the defendants
to supply mental-health staff consistent with certain
staffing ratios by the time of the effective date, and
to work towards supplying mental-health staff consistent
with a certain staffing matrix by 2025.

See Phase 2A

Omnibus Remedial Order, 2021 WL 6128418, at §§ 2.2.1,
2.2.3.

The defendants contend that these deadlines are

unrealistic because “[t]he staffing ratios ... require a
higher level of staffing than the staffing matrix ... yet
10

the Order requires compliance with the ratios by the
Effective Date, and compliance with the matrix by ...
2025.”

Defs.’ Mot. to Stay (Doc. 3489) at 5.

To be

candid, the court is confused by the nature of this
objection.

It needs time for the parties to assist it

in even understanding the objection, before deciding
whether a stay is appropriate or not as to this issue.3

3. The court is puzzled by the defendants’ contention
that the staffing ratios require a greater number of
staff than the staffing matrix.
The staffing ratios
indicate the number of mental-health staff needed to
treat ADOC’s current inmate population. By contrast, the
staffing matrix indicates the number of mental-health
staff needed to treat ADOC’s average inmate population,
as estimated by the parties prior to the COVID-19
pandemic.
Because intake from local jails has slowed
since the COVID-19 pandemic began, ADOC’s inmate
population has fallen below the levels that the parties
estimated when making the staffing matrix. The staffing
matrix therefore sets forth the number of staff needed
to treat an inmate population that is larger than ADOC’s
current population.
The court is also puzzled by the defendants’
contention that the staffing matrix “permits associate
licensed counselors to work as and count toward the
mental-health professional requirement, and substitutes
MHPs for psychologists,” while the ratios do not. See
Defs.’ Mem. in Support of Mot. to Stay (Doc. 3490) at 16.
As the court explained in its opinion, “[i]n reviewing
ADOC’s compliance with the staffing ratios, ... the EMT
may allow ADOC to substitute qualified mental-health
professionals for psychologists, and associate licensed
counselors for qualified mental-health professionals.”
11

The court also notes that the defendants have filed new
evidentiary submissions regarding this issue, to which
the plaintiffs, in fairness, should be given time to
respond.
The defendants also object to the provisions of the
omnibus remedial order requiring them to “supply enough
[inpatient]
mental-health
date.”

beds

to

caseload

accommodate
at

the

time

10 %
of

of

[ADOC’s]

the

effective

Phase 2A Omnibus Remedial Order, 2021 WL 6128418,

at § 11.2.

They take issue, in particular, with the

court’s decision to exclude beds in the Structured Living
Units and the beds for which ADOC contracts at Citizens
Baptist Medical Center from the beds counted as inpatient

Phase 2A Omnibus Remedial Opinion Part III, 2021 WL
6116913, at *8.
Finally, to the extent that the defendants contend
that the staffing matrix “contains different shift relief
factors,” they do not explain how the difference in shift
relief factors renders the staffing ratios more onerous
than the staffing matrix. Nor did they bring this concern
to the court’s attention during the omnibus remedial
proceedings.
In fact, it was the plaintiffs who
requested that the court modify the shift relief factors
contained in the staffing ratios.
See Pls.’ Updated
Proposed
Omnibus
Remedial
Order
(Doc.
3342)
at
§§ 2.2.3.2.1-2.2.3.2.2.
12

beds.

Excluding those beds, the defendants maintain,

would require ADOC to engage in substantial construction
on its existing facilities, which “would be particularly
unreasonable
Legislature

in

light

passed,

of

and

the

fact

Governor

that
Kay

the

Alabama

Ivey

signed,

legislation authorizing and setting aside funding for the
construction of two (2) new male facilities, to begin
later this year.”

Defs.’ Mot. To Stay (Doc. 3489) at 5.

The court has some concerns regarding its decision
to exclude the beds for which ADOC contracts at Citizens
Baptist Medical Center from those counted as inpatient
beds,

and

would

benefit

regarding on the issue.

from

input

by

both

parties

As for the defendants’ request

that the court consider the construction of new prisons,
this development was not before the court during the
omnibus remedial proceedings, and the court will need
assistance from the parties on how to consider it, if it
can,

in

ruling

on

the

stay

motion.4

Moreover,

the

4. The court notes that the omnibus remedial order
does not exclude inpatient beds in newly constructed
facilities from those beds counted towards the 10 %
requirement. If the defendants’ contention is that they
13

defendants have, again, filed new evidentiary submissions
regarding the issue of inpatient beds, to which the
plaintiffs should have an opportunity to respond.
The

defendants

also

ask

the

court

to

stay

the

provision of the omnibus remedial order requiring that
“[a]n inmate placed in a RHU for safety or security issues
for 72 hours or longer will be offered at least three
hours of out-of-cell time per day.”

Phase 2A Omnibus

Remedial Order, 2021 WL 6128418, at § 3.1.2.

Based on a

comment

21

by

the

court

during

conference,

the

defendants

the

January

believe

this

status

requirement

extends to all inmates, and contend that it is therefore
overbroad.
The court believes that the defendants may have
simply misunderstood the scope of this provision.
the

omnibus

remedial

order

states

that

“[a]n

While
inmate

placed in a RHU for safety or security issues for 72

would have to engage in additional construction in order
to comply with the February 7 deadline for meeting the
10 % requirement, and that such construction may be
unduly burdensome in light of the construction currently
planned, the court will need to engage with the parties
on how to consider this contention.
14

hours or longer will be offered at least three hours of
out-of-cell time per day,” id., that requirement applies
only to inmates who have been placed in restrictive
housing

under

so-called

“exceptional

circumstances.”

Exceptional circumstances must exist if an inmate with a
serious

mental

illness,

or

an

inmate

who

has

been

determined to be contraindicated for segregation, is to
be placed in restrictive housing.
3.2.2-3.2.3.

The

requirement

in

See id. §§ 3.1.1,
question

therefore

applies only to inmates with serious mental illnesses and
inmates

who

are

contraindicated

for

placement

in

restrictive housing.
The court did not mean to suggest otherwise during
the January 21 status conference.

Rather, the court was

concerned that a previous reporting requirement, which
required

the

defendants

to

report

on

the

number

of

inmates with serious mental illnesses kept in restrictive
housing for longer than 72 hours, may need to be modified
to include inmates that are contraindicated for placement
in restrictive housing and yet have been kept there for
longer than 72 hours.

In light of the confusion that was
15

caused by its earlier comments, the court believes that
more time is necessary to engage the parties on this
issue, which may be one of simple misunderstanding.
The defendants’ motion also presents the question of
how to handle the issue of monitoring.

The defendants

request “that the Court stay the [omnibus remedial order]
(and

any

other

remedial

order

or

opinion

the

Court

considers applicable after entry of the Order, including
but not limited to the Phase 2A Opinion and Order on
Monitoring of Eighth Amendment Remedy (doc. no. 2915)).”
Defs.’ Mot. to Stay (Doc. 3489) at 3.

If the defendants’

motion is granted in whole or in part, it raises the
complicated matter of what to do with the monitoring
team, which is waiting in the wings.

The monitoring team

has already been appointed, and the parties are already
in the process of negotiating contracts with the members,
negotiations which the court ordered to begin in November
2020.

The court is concerned about injecting further

delays into the process of finalizing these contracts.
During the January 7 and January 21 status conferences,
the defendants indicated that, even without a stay, the
16

earliest date by which contracts with the monitoring team
could be finalized would be in mid-April.

The parties

had no projected date by which the monitoring team could
be

finalized.

Further

delays

in

finalizing

the

monitoring team increase the very serious risk of losing
members and erasing much of the progress that the parties
have made in selecting members of the team and bringing
them up to speed on this complicated case.
The defendants’ motion also raises serious questions
as to the effect of their request on relief regarding
correctional staffing.

It is unclear whether the motion

even addresses this issue.

If it does so implicitly, see

Defs.’ Mot. to Stay (Doc. 3489) at 3 (requesting that the
court stay the omnibus remedial order “and any other
remedial order or opinion the Court considers applicable
after entry of the Order”), then not only does that issue
need to be made explicit, but the defendants need to
explain why such a central and critical issue to this
litigation was not explicit in the motion and why the
defendants did not make it explicit at the January 21
status

conference

when

the
17

court

and

the

parties

discussed the stay motion and its reach.

If the motion

does not include correctional staffing, then the parties
and the court need to address what impact the motion will
have on correctional staffing in light of the centrality
of correctional staffing to this case, ADOC’s egregious
failures to comply with ordered relief in this area, and
the harms that these failures cause.
In its 2017 liability opinion, the court found that
“persistent and severe shortages of mental-health staff
and

correctional

staff”

permeated

all

factors

contributing to ADOC’s inadequate mental-health care.
Braggs v. Dunn, 257 F. Supp. 3d 1171, 1268 (M.D. Ala.
2017) (Thompson, J.).

In light of the significance of

severe and chronic understaffing to the entirety of this
case, in February 2018, the court entered an opinion
(with PLRA findings) and order requiring the defendants
to have “fully implemented” the correctional staffing
recommendations of their own experts by February 20,
2022.

Braggs

v.

Dunn,

No.

2:14cv601-MHT,

2018

WL

7106346, at *1 (M.D. Ala. Feb. 20, 2018) (Thompson, J.)
(“Phase

2A

Understaffing

Remedial
18

Order”);

see

also

Braggs v. Dunn, No. 2:14cv601-MHT, 2018 WL 985759 (M.D.
Ala.

Feb.

20,

2018)

(Thompson,

J.)

(“Phase

2A

Understaffing Remedial Opinion”). The defendants did not
appeal from that opinion and order.
At the omnibus remedial hearings in May, June, and
July of 2021, the evidence reflected that, between 2018
and

those

staffing

hearings,

numbers

ADOC’s

“barely

system-wide

moved.”

Phase

correctional
2A

Omnibus

Remedial Opinion Part III, 2021 WL 6116913, at *4. ADOC’s
“continued dearth of correctional staff” remains “the
fault at the heart of ADOC’s system of mental-health
care.”

Id.

at

*89.

Nonetheless,

despite

the

“catastrophic” consequences of ADOC’s ongoing, extreme
understaffing, id. at *4, the omnibus remedial order
extended the deadline for ADOC to fill all mandatory and
essential posts to July 1, 2025.

See Phase 2A Omnibus

Remedial Order, 2021 WL 6128418, at § 2.1.4.

If the

defendants are seeking a stay of the December 2021 relief
(including a stay of the extension from February 2022 to
July 2025 given to ADOC) but not a stay of the relief
ordered in 2018, they need to explain what the court and
19

the parties are to do now that the February 2022 deadline
is upon us and noncompliance is essentially undisputed;
if

the

defendants

correctional

are

staffing

seeking
order

a

too,

stay
then

of
they

the

2018

need

to

explain how their appeal is timely in 2022 and why a stay
of relief is appropriate.
The court also notes that the defendants object to
the court’s decision to rely its previous finding of
deliberate indifference, as opposed to requiring the
plaintiffs to prove deliberate indifference anew, and its
decision to enter relief on a system-wide basis.

While

the court understands that the defendants seek appellate
review of these issues, it believes that the Court of
Appeals would be in a better position to resolve the
appeal if all issues have been clarified as outlined
above.
Finally, there is the issue of deadlines.

While the

order’s effective date of February 7 is just around the
corner, the court does not hold the fact that defendants
filed their motion for a stay so soon before the effective
date against either party.
20

As explained above, the

parties engaged in extensive negotiations over the past
few weeks in an attempt to forestall an appeal.

The

court was not involved in those negotiations, and cannot
assign blame to either party for the fact that they were
not successful.

The court is therefore now suspending

the February 7 effective date as well as any other
deadlines that will pass between now and the expected
resolution of the stay motion on February 14.

In

addition,

an

the

court

will

afford

the

parties

opportunity to identify any other deadlines beyond that
time period that may need to be extended.
In conclusion, the court finds, for the reasons given
above, that it and the parties should be given the
opportunity for a considered and orderly, but prompt,
resolution of the stay motion.

The complexity of the

case and the varied nature of the issues raised in the
stay motion demand careful consideration.

The motion is

also not an all-or-nothing matter; the court may find a
stay warranted with respect to some of the issue raised
by the defendants, but not others.

It will therefore

need time to parse the issues, and to consider how they
21

interrelate.
clarification.

The

motion

is

also

in

need

of

much

It is unclear whether the motion reaches

back beyond the December 2021 opinion and order, and, if
so, how far back, to what orders and opinions, and why
and on what basis.

The defendants have also presented

new evidence to the court on a number of issues; this
evidence includes apparently that the State is now to
build new prisons.

Not only must the plaintiffs, in

fairness, be given an opportunity to respond to this
evidence, but the court needs assistance from the parties
in how to consider this evidence, if it can consider it.
By affording itself and the parties the opportunity to
consider the stay motion in a deliberate manner, the
court also intends to ensure that the appellate court may
have an adequate and accurate basis on which to review
any stay motion that may be presented to it, as well as
an adequate and accurate basis on which to consider the
appeal itself.
***
Accordingly, it is ORDERED that the motion to stay
(Doc. 3489) is to be briefed as follows:
22

the plaintiffs

are to file a response by February 3, 2022, at 5:00 p.m.;
the defendants are to file a reply by February 7, at 5:00
p.m.; and the court shall resolve the motion by February
14.
It is further ORDERED that the deadlines in the
omnibus remedial order (Doc. 3464) that fall between now
and February 14, 2022, are suspended pending resolution
of the stay motion.

In their filings, the parties should

address how the court should reset those deadlines, as
well as any other deadlines that may need to be reset.
DONE, this the 27th day of January, 2022.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

23