Dunn et al v. Thomas et al

Filing 3526

OPINION AND ORDER ON STAY MOTION: it is the ORDER, JUDGMENT, and DECREE of the court that: (1) The dfts' 3489 motion to stay the Phase 2A omnibus remedial order pending their interlocutory appeal is granted to the extent that the court stay s 2.1.7.1-2.1.7.2 and 3.1.3 of the 3464 Phase 2A Omnibus Remedial Order insofar as that those provisions require RHU cells to comply with the Hayes checklist and be checked for compliance with the Hayes checklist. The court grants this stay with th e hope that it will have the opportunity to take up the issue of relief regarding dangerous conditions in ADOC's RHU cells due to chronic understaffing with the urgency that said issue compels; (2) Said motion is denied in all other respects. Signed by Honorable Judge Myron H. Thompson on 2/14/2022. (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.

)
)
)
)
)
)
)
)
)
)
)
)
)

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

OPINION AND ORDER ON STAY MOTION
This longstanding case is before the court on the
defendants’ motion to stay the Phase 2A omnibus remedial
order pending their interlocutory appeal.1

For reasons

1.
The
apparent
bases
for
the
defendants’
interlocutory appeal are discussed in this opinion. The
plaintiffs have filed an interlocutory cross-appeal. See
Pls.’ Notice of Interlocutory Appeal (Doc. 3491). Based
on representations at oral argument, the apparent basis
for the plaintiffs’ interlocutory cross-appeal is the
plaintiffs’ argument that they previously had received
through negotiated stipulations--and now are entitled
to--more relief than the court ordered in the December
2021 omnibus remedial order.
See Feb. 9, 2022, R.D.
Hearing Tr. at 48.

that follow, the motion will be granted in part and denied
in part.
In an omnibus remedial opinion entered on December
27 and 28, 2021, the court set forth the history of this
litigation

through

approximately
COVID-19

two

those

years

pandemic.

dates,

of

disruption

See

Braggs

which

included

caused
v.

by

Dunn,

the
No.

2:14cv601-MHT, 2021 WL 6112444, at *2-7 (M.D. Ala. Dec.
27, 2021) (Thompson, J.) (“Phase 2A Omnibus Remedial
Opinion Part I”).

And, on January 27, 2022, the court

set forth the more recent history leading up to the stay
motion.

See Braggs v. Dunn, No. 2:14cv601-MHT, 2022 WL

264873, at *1-2 (M.D. Ala. Jan. 27, 2022) (Thompson, J.).
The court will assume the reader is familiar with those
two opinions and will not repeat what is in them, insofar
as the background history is concerned.
Against this historical background, as well as other
past opinions and orders that the court will reference,
the court will, after setting forth the standard for

2

relief, take up the arguments made in the defendants’
stay motion.

I.

Legal Standard

A stay pending appeal pursuant to Federal Rule of
Civil Procedure 62(d) “is not a matter of right, even if
irreparable injury might otherwise result.”

Nken v.

Holder, 556 U.S. 418, 433 (2009) (quoting Virginian Ry.
Co. v. United States, 272 U.S. 658, 672 (1926)).

Rather,

the issuance of a stay is “an exercise of judicial
discretion,”

based

particular case.”
U.S. at 672-73).

upon

“the

circumstances

of

the

Id. (quoting Virginian Ry. Co., 556
In exercising this discretion, a court

must consider “(1) whether the stay applicant has made a
strong showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.”

Id.

at 425-26 (2009) (quoting Hilton v. Braunskill, 481 U.S.
3

770, 776 (1987)).

The party requesting a stay bears the

burden to demonstrate that the particular circumstances
justify it; “[i]t is not enough that the chance of success
on the merits be ‘better than negligible’” or that there
is “some ‘possibility of irreparable injury.’”

Id. at

434 (citations omitted).
In evaluating the motion to stay, the court declines
to

adopt

the

all-or-nothing

approach

urged

by

defendants in their filings and during oral argument.

the
As

a matter of law, it is perfectly permissible for the
court to take up areas of relief individually.

Indeed,

the former Fifth Circuit Court of Appeals followed this
approach in at least two cases arising in the context of
state prison operations.

See generally Ruiz v. Estelle,

650 F.2d 555 (5th Cir. Unit A June 1981) (granting in
part and denying in part defendants’ motion to stay
injunctive relief);2 see also Williams v. Edwards, 547

2. In Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc), the Eleventh Circuit Court
of Appeals adopted as binding precedent all of the
decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
4

F.2d

1206,

1208

(5th

Cir.

1977)

(noting

that

the

appellate court granted a partial stay of one area of
injunctive relief pending appeal).

And as a practical

matter, the various areas of relief addressed in the
omnibus remedial order come before the court in different
postures and present different issues as to the four
factors the court must consider in its evaluation of the
defendants’ motion.

Even the two arguments on the merits

that the defendants raise against the entire omnibus
remedial

order--that

the

court

erroneously

did

not

re-find deliberate indifference in the December 2021
omnibus remedial opinion, and that the evidence did not
support the court’s determination that most relief needed
to be systemwide--present different questions as applied
to different areas of relief.

These distinctions are

even more pronounced with respect to the equities and the
parties’ arguments as to the harms that will fall upon
the defendants if certain provisions are not stayed or
upon the plaintiffs if they are.

5

II. Correctional Staffing
The correctional staffing provisions of the December
2021 omnibus remedial order that the defendants appeal
and seek to stay perhaps epitomize the need for the court
to consider the propriety of a stay as to individual
areas of relief.

Although the defendants’ motion to stay

is silent on correctional staffing, despite requesting a
stay of all relief, see Defs.’ Mot. to Stay (Doc. 3489)
at 3, the court found, and again finds, that correctional
staffing is too sizeable and central a problem in this
litigation not to be addressed specifically.
2022 Order, 2022 WL 264873, at *5.

See January

Additionally, as the

court and the parties recognized at the outset of the
2021 omnibus remedial hearings, the posture of this issue
differs from that of most other areas covered by the
omnibus remedial order.

The court entered injunctive

relief as to correctional and mental-health understaffing
in February 2018.

See Braggs v. Dunn, No. 2:14cv601-MHT,

2018 WL 985759 (M.D. Ala. Feb. 20, 2018) (Thompson, J.)
(“Phase 2A Understaffing Remedial Opinion”); Braggs v.
6

Dunn, No. 2:14cv601-MHT, 2018 WL 7106346 (M.D. Ala. Feb.
20,

2018)

(Thompson,

Remedial Order”).

J.)

(“Phase

2A

Understaffing

To the extent that relief was modified

in the December 2021 omnibus remedial order, it was to
extend deadlines for the defendants’ compliance, making
the existing relief less onerous for the defendants.
The court is left with some uncertainty as to the
precise contours of the defendants’ motion to stay.3

The

3. The defendants have been less than clear as to
which of the court’s orders they seek to stay and appeal,
and on what basis they seek to do so. In their motion
to stay, they seem to suggest that they seek a stay of
any and all opinions and orders entered in the course of
Phase 2A of this multiyear litigation. See Defs.’ Mot.
to Stay (Doc. 3489) at 3 (requesting that the court stay
the December 2021 omnibus remedial order “and any other
remedial order or opinion the Court considers applicable
after entry of the Order”). Their notice of appeal is
similarly broad.
See Defs.’ Notice of Interlocutory
Appeal (Doc. 3488) at 1 (noticing appeal from the
December 2021 omnibus remedial opinion and order, the
June 2017 liability opinion and order, “all underlying
orders and opinions,” and “any other Phase 2A liability
opinion or order”).
The apparent breadth of the
defendants’
motion
to
stay
makes
the
practical
implications of their motion difficult to ascertain.
Further complicating matters, the defendants asserted
during a status conference that they do not seek a stay
of the court’s February 2018 understaffing remedial order
because they consider that order voided by the December
2021 omnibus remedial order, see Feb. 9, 2022, Status
7

defendants request a stay of all remedial obligations but
disavow any need to stay the February 2018 understaffing
remedial order.

They justify this request, it appears,

by recasting the court’s December 2021 extension of prior
deadlines at the defendants’ request as brand-new relief
for the plaintiffs, related to the court’s February 2018
understaffing remedial order only to the extent that it
renders the previous relief a legal nullity that cannot
be “revive[d].”

Defs.’ Reply in Support of Mot. to Stay

(Doc.

7-8;

3514)

at

see

also

Feb.

9,

2022,

Status

Conference R.D. Tr. at 23 (confirming the court’s reading
of the defendants’ motion to stay).

Because the court

finds that this is a mischaracterization of the December
2021 omnibus remedial order and because the defendants
have not met their burden to show that the circumstances
justify a stay, the court will deny the defendants’
motion as to correctional staffing.

Conference R.D. Tr. at 23-24, though this purported oral
clarification of what is not sought to be stayed is not
in their written filings.
8

Roughly eight months after the court found that the
defendants were violating the Eighth Amendment rights of
the plaintiffs and that “persistent and severe shortages
of mental-health staff and correctional staff” permeated
the problems with ADOC’s provision of mental-health care,
Braggs v. Dunn, 257 F. Supp. 3d 1171, 1268 (M.D. Ala.
2017) (Thompson, J.) (“Phase 2A Liability Opinion”), the
court entered its Phase 2A understaffing remedial opinion
and

order.

Therein,

the

court

adopted,

with

some

modifications, the defendants’ proposed remedial plan on
correctional

and

mental-health

understaffing

declined to order the plaintiffs’ proposal.

and

See February

2018 Phase 2A Understaffing Remedial Opinion, 2018 WL
985759,

at

*8.

With

respect

to

correctional

understaffing, the court ordered, among other provisions,
that by May 1, 2018, the defendants’ staffing experts
“shall complete the staffing analyses for each of ADOC’s
15 major facilities ... and shall submit their final
staffing analyses and recommendations to ADOC,” and by
February

20,

2022,

“the

defendants
9

shall

have

fully

implemented

[the

experts’]

correctional

staffing

recommendations, as modified by any agreements between
the parties or orders of this court.”

February 2018

Phase 2A Understaffing Remedial Order, 2018 WL 7106346,
at *1.

In largely deferring to the defendants, the court

cautioned

that

“the

defendants

are

not

to

delay

implementation until the last minute, but are to begin
immediately

and

recommendations.”

swiftly

upon

receiving

the

relevant

February 2018 Phase 2A Understaffing

Remedial Opinion, 2018 WL 985759, at *8.

The court found

that the ordered relief and the corresponding deadlines
complied with the Prison Litigation Reform Act (PLRA).
See id. at *8-9.
The

The defendants did not appeal.

defendants’

experts

timely

completed

their

staffing analyses and recommendations and submitted them
to the court in May 2018.

See Correctional Staffing

Analysis Report (Doc. 1813-1).

The experts recommended

that ADOC maintain a total of 3,826 full-time equivalent
correctional officer positions between what they termed
“mandatory” and “essential” posts. “Essential” posts are
10

those that are “needed for normal operations but may be
temporarily interrupted without significant impact.” Id.
at 106.

“Mandatory” posts, which comprised the bulk of

the 3,826 positions, are those that “cannot be left
unfilled without jeopardizing safety and security.”

Id.

The experts also recommended that ADOC “create an agency
staffing

unit

that

will

be

responsible

for

the

implementation and enforcement of any staffing changes
resulting from this analysis.”

Id. at 20.

By the time of the 2021 omnibus remedial hearings,
however, ADOC had taken no steps to create the agency
staffing

unit

experts’

other

staffing

that

was

recommended

recommendations

analyses.

See

and

Braggs

to

implement

to

update

v.

Dunn,

the

their
No.

2:14cv601-MHT, 2021 WL 6117939, at *18 (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,

at

*2

(M.D.

Ala.

Dec.

27,

2021)

(Thompson, J.) (“Phase 2A Omnibus Remedial Opinion Part
III”). Nor were minimally adequate correctional staffing
11

levels within reach; based on the experts’ determinations
of the number of mandatory and essential staff posts at
each facility, ADOC was “on track to achieve sufficient
staffing to safely conduct normal operations sometime in
mid-2037.”

December

2021

Phase

2A

Omnibus

Remedial

Opinion Part II, 2021 WL 6117939, at *17.
Accordingly, the question before the court during
the 2021 omnibus remedial proceedings was not whether to
enter new relief, but “whether and how the existing
remedy

should

be

modified

circumstances--such

as

the

in

light

effects

of

of

changed

the

COVID-19

pandemic--and in recognition of the existing [February
2022]

deadline’s

implausibility

at

this

juncture.”

December 2021 Phase 2A Omnibus Remedial Opinion Part I,
2021 WL 6112444, at *6.

Although the court rejected the

defendants’

approach

preferred

to

find

no

relief

necessary and extinguish all staffing obligations, the
court granted the defendants’ alternative request to
extend

the

compliance

then-looming
to

July

February

2025.

See
12

2022

Braggs

deadline
v.

Dunn,

for
No.

2:14cv601-MHT, 2021 WL 6128418, at § 2.1.4 (M.D. Ala.
Dec. 27, 2021) (Thompson, J.) (“Phase 2A Omnibus Remedial
Order”); December 2021 Phase 2A Omnibus Remedial Opinion
Part

III,

2021

WL

6116913,

at

*2

(noting

that

the

defendants proposed “two modified deadlines for fixing
[ADOC’s]

correctional

staffing

deficiencies”

and

explaining that the court would “extend to July 1, 2025,
the deadline for filling all mandatory and essential
posts prescribed in the most recent staffing analysis in
effect at that time”).

As the court made explicit with

respect to the requirement that ADOC create an agency
staffing unit as recommended by the defendants’ experts
in May 2018, the correctional staffing provisions of the
December

2021

omnibus

remedial

order

were

“[i]n

accordance with” the February 2018 understaffing remedial
order.

December 2021 Phase 2A Omnibus Remedial Order,

2021 WL 6128418, at § 2.1.1.4

To the extent the court

4. To whatever extent the December 2021 omnibus
remedial opinion and order were unclear that the omnibus
remedial order granted an extension of the defendants’
obligations under the February 2018 understaffing order,
the court emphasizes that this was its intent.
It
13

also adopted the plaintiffs’ proposal to require the
defendants to develop intermediate benchmarks, the court
emphasized that these benchmarks were “not requirements,
but merely reference points to facilitate the defendants’
compliance with” the extended deadline.

December 2021

Phase 2A Omnibus Remedial Opinion Part III, 2021 WL
6116913, at *3.
The court finds that the defendants have not made a
sufficient showing that they are likely to succeed on the
merits of a challenge to the provisions of the December
2021

omnibus

staffing.

remedial

order

regarding

correctional

As a threshold matter, the court finds that

the defendants are unlikely to succeed in any challenge
to

injunctive

relief

that

the

court

entered

in

the

February 2018 understaffing remedial order that was not
appealed and that was modified by the December 2021
omnibus remedial order to the extent that the court
extended the deadline by which the defendants needed to

certainly did not intend to vacate the February 2018
understaffing order sub silentio.
14

achieve compliance.

See 28 U.S.C. § 2107(a) (“Except as

otherwise provided in this section, no appeal shall bring
any judgment, order or decree in an action, suit or
proceeding of a civil nature before a court of appeals
for review unless notice of appeal is filed, within
thirty days after the entry of such judgment, order or
decree.”).

And to the extent that the defendants’ motion

to stay is limited to the December 2021 omnibus remedial
order, the court doubts that the defendants seek a stay
of the extension, the effect of which would be to stick
the defendants with the original February 2022 deadline
that they have not met.
Even if the court sets aside this apparent timeliness
problem,

the

considerable

court

is

request

to

left
stay

with
all

correctional staffing in this case.

the

relief

defendants’
related

to

On the merits, the

defendants’ silence as to this area of relief leaves the
court to consider only the defendants’ global arguments
that the court failed to re-find deliberate indifference
in the December 2021 omnibus remedial opinion and order
15

and that the evidence fails to support systemwide relief.
As to the second argument, the court found that its
liability

findings

amply

supported

the

need

for

systemwide relief in the February 2018 understaffing
remedial order, which the defendants did not appeal, see
February 2018 Phase 2A Understaffing Remedial Opinion,
2018 WL 985759, at *3 n.2.
2021

omnibus

remedial

earlier findings.

The findings in the December

opinion

only

reinforced

those

For instance, according to the most

recent quarterly staffing report completed prior to the
omnibus remedial hearings, only two ADOC major facilities
had vacancy rates for mandatory posts of less than 40 %.
See December 2021 Phase 2A Omnibus Remedial Opinion Part
II, 2021 WL 6117939, at *18.5
The court also finds that the defendants are unlikely
to succeed on the merits of their deliberate-indifference
argument.

To the extent that the defendants raise this

5. Per stipulation, the court did not subject these
two facilities to monitoring of the correctional staffing
provisions. See December 2021 Phase 2A Omnibus Remedial
Opinion Part III, 2021 WL 6116913, at *2 n.2.
16

argument

with

respect

to

the

December

2021

omnibus

remedial order--an order that extended previously imposed
deadlines at the defendants’ suggestion, and which the
defendants did not appeal--the defendants would seem to
suggest an absurdity:
entered

relief,

that a court that has already

supported

by

PLRA

findings

and

not

appealed, must find deliberate indifference again before
it may relax that relief to the defendants’ benefit.

To

the extent that the defendants raise this argument with
respect
order,

to
the

the

February

court

2018

emphasizes

understaffing
that

it

had

remedial

found

the

defendants deliberately indifferent a mere eight months
before

entering

that

order,

in

its

2017

liability

opinion, and that its 2018 order adopted relief that the
defendants themselves had suggested.

See June 2017 Phase

2A Liability Opinion, 257 F. Supp. 3d at 1250-62 (finding
deliberate

indifference);

February

2018

Phase

2A

Understaffing Remedial Opinion, 2018 WL 985759, at *7 n.4
(reiterating that “[t]his case is likely sui generis in
the extent to which the top ADOC officials had personal
17

knowledge of the substantial risks of serious harm posed
by its deficient care and has not responded reasonably
to those risks”); id. at *8 (explaining that the court
would adopt the understaffing remedy proposed by the
defendants and reject the plaintiffs’ proposals).
The court further finds that the defendants will not
be irreparably injured absent a stay of this relief.

The

defendants’ comparison to Swain v. Junior, 958 F.3d 1081
(11th Cir. 2020), for the proposition that this relief
overly intrudes on ADOC’s discretion to administer its
prisons is misplaced.

The December 2021 omnibus remedial

order is essentially an extension of the deadline to
comply with the February 2018 understaffing remedial
order, which largely reflected the defendants’ proposal.
Under

this

remedial

plan,

the

defendants

significant discretion in implementation.

retain

The December

2021 omnibus remedial order requires ADOC, in conjunction
with the defendants’ own experts, to conduct an updated
staffing analysis as to the correctional staffing needs
of each facility.

See December 2021 Phase 2A Omnibus
18

Remedial

Order,

2021

WL

612418,

at

§§ 2.1.1-2.1.3.

Although it sets a date by which all mandatory and
essential posts contained in the most recent staffing
analysis must be filled, it leaves to the defendants the
determination of how to fill those posts and which posts
to prioritize.6

And to the extent the December 2021

omnibus remedial order goes beyond the February 2018
understaffing remedial order to impose benchmarks for
ADOC’s progress, the court entrusts the development of
these nonbinding benchmarks to the defendants and their
experts.

See December 2021 Phase 2A Omnibus Remedial

Order, 2021 WL 612418, at § 2.1.5.

These provisions do

not intrude on the defendants’ discretion any more than
is necessary to prevent the defendants from “throw[ing]
up [their] hands and declar[ing] the staffing challenges
too insurmountable for minimally adequate mental-health

6. To the extent the December 2021 omnibus remedial
order imposes two limitations on who may fill certain
posts, see id. at §§ 2.1.8.1-2.1.8.2, these mild
constraints are rooted in the analysis conducted by the
defendants’ experts, see December 2021 Phase 2A Omnibus
Remedial Opinion Part III, 2021 WL 6116913, at *3.
19

care to be possible.”

December 2021 Phase 2A Omnibus

Remedial Opinion Part III, 2021 WL 6116913, at *6.
certainly

do

not

rise

to

the

level

of

They

imposing

irreparable harm.
By contrast, the plaintiffs stand to suffer grievous
injuries if the court stays relief as to correctional
staffing, for which the plaintiffs have waited years and
for which, even absent a stay, they are virtually certain
to wait years more.

Extensive evidence at the 2021

omnibus remedial hearings demonstrated the effects of a
dearth of correctional staff.

See, e.g., December 2021

Phase 2A Omnibus Remedial Opinion Part III, 2021 WL
6116913, at *4-6.

It prevents inmates from receiving

necessary mental-health interventions, as when Charles
Braggs hanged himself in his segregation cell an hour
after a nurse asked correctional officers to escort him
to

the

infirmary.

environments

It

vulnerable

leaves
to

inmates

violence,

as

in

dormitory

when

Tommy

McConathy was raped in a residential treatment unit that
sometimes operated with no officers on the dormitory
20

floor.

And it leads to regular gaps in security checks

of inmates in segregation, leaving Casey Murphree to hang
in his cell for hours of missed checks until his body was
discovered only after rigor mortis had begun.

Even where

understaffing resulted in less visible harms than these,
the evidence compelled the court’s conclusion that “[s]o
long as ADOC’s current staffing levels persist, people
with

serious

mental-health

needs

are

not

safe

in

Alabama’s prisons, but are at daily serious risk of
deprivation, decompensation, and death.”
short,

the

evidence

wholly

belies

Id. at *89.

defense

In

counsel’s

contention that the dangers the plaintiffs fear amount
to “rank speculation.”
R.D. Tr. at 27.

Feb. 9, 2022, Status Conference

The balance of the equities weighs

overwhelmingly against a stay.
Essentially, the defendants are asking to be relieved
of compliance with the requirements of the February 2018
understaffing

remedial

order,

as

modified

to

their

benefit by the December 2021 omnibus remedial order.
This request arrives before the court without any showing
21

that

the

defendants

have

reasonably

met

their

2018

obligations and, in fact, in the face of considerable
affirmative evidence that they have not.

See, e.g.,

December 2021 Phase 2A Omnibus Remedial Opinion Part III,
2021

WL

6116913,

at

*2

(observing

that

ADOC’s

correctional staffing levels “barely increased in three
years” and that this failure to meet one of the three
recommendations

of

the

defendants’

experts

must

be

understood in light of the fact that, at the time of the
omnibus remedial proceedings, the defendants had “taken
no steps whatsoever toward complying” with the other two
recommendations).

All fairness dictates that further

delay not be allowed.7

7. In the event that the defendants move for a stay
before the appellate court and the appellate court grants
a stay, in whole or in part, this court respectfully
requests that the appellate court be specific as to which
orders are stayed--the 2018 understaffing order, the
December 2021 omnibus remedial order, or both--so that
this court will be able to comply fully with that court’s
decision without uncertainty as to its scope.
22

III. Mental-Health Staffing
The defendants move to stay the provisions of the
December 2021 Phase 2A omnibus remedial order requiring
them

to

supply

mental-health

staff

consistent

with

certain staffing ratios, and to work towards supplying
mental-health staff consistent with a certain staffing
matrix by 2025.

See December 2021 Phase 2A Omnibus

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

provisions,

staffing,

stand

like

in

a

those

regarding

different

correctional

posture

provisions that the defendants now appeal.

than

other

The court had

entered relief regarding mental-health staffing prior to
the December 2021 order, and so the question before the
court during the omnibus remedial proceedings was not
whether to enter new relief, but “whether to modify or
lift

the

staffing.”

current

relief

December

related

2021

Phase

2A

Opinion Part I, 2021 WL 6112444, at *7.

to

mental-health

Omnibus

Remedial

Despite the fact

that the defendants had not complied with the court’s
previous staffing order--which was based largely on the
23

defendants’

own

suggestions,

and

which

they

did

not

appeal--the court, in an abundance of caution, decided
to modify its previously entered relief to make it less
burdensome for the defendants.
The defendants now suggest, as they did with regard
to correctional staffing, that the court’s December 2021
omnibus

remedial

order

extinguished

the

obligations

imposed by its 2018 understaffing remedial order, and
that a stay of the December 2021 order would therefore
result

in

obligations.
(Doc.

3514)

a

stay

of

all

staffing

Defs.’ Reply in Support of Mot. to Stay
at

7-8;

see

Conference R.D. Tr. at 23.
defendants’

mental-health

contention

also

Feb.

9,

2022,

Status

The court disagrees with the

that

the

December

2021

order

extinguished, rather than extended, the deadlines imposed
the 2018 understaffing remedial order, and therefore
doubts that a stay of the December 2021 omnibus remedial
order--if that is all that the defendants seek--would
benefit

the

defendants

defendants.
seek

a

stay

In
of
24

any
all

case,

even

relief

if

the

regarding

mental-health staffing, the court finds that they have
not made a sufficient showing that they are likely to
succeed on the merits of their appeal. The court further
finds that they would not be irreparably harmed in the
absence of a stay, and that a stay would work great harm
on the plaintiffs.

The court will therefore deny the

defendants’ motion as to mental-health staffing.
In its 2017 liability opinion, the court surveyed
levels of mental-health staffing across ADOC disciplines
and facilities and found them “chronically insufficient.”
June 2017 Phase 2A Liability Opinion, 257 F. Supp. 3d at
1194.

The court solicited proposals from the parties as

to an appropriate remedy, and the defendants proposed to
employ
develop

a

team
ratios

of

three
for

mental-health
determining

consultants

the

number

to
of

mental-health staff of various types needed per inmate.
The defendants further proposed to use those ratios to
develop a “staffing matrix” setting forth the number of
mental-health staff of various disciplines needed at each
ADOC facility, based on an estimate of what ADOC’s inmate
25

population would be in the coming years.
Phase

2A

Omnibus

Remedial

Opinion

December 2021

Part

II,

2021

WL

6117939, at *20–22.
The

court

“minimally

found

the

adequate”

defendants’

to

remedy

proposed

the

plan

constitutional

violations identified in its 2017 liability opinion, and
ordered its adoption, with slight modifications.

See

February 2018 Phase 2A Understaffing Remedial Order, 2018
WL 7106346, at *1-2. The court set a deadline of February
15, 2020, for the defendants to supply mental-health
staff consistent with the staffing matrix, see id. at *2,
and supported its order with PLRA findings, see Phase 2A
Understaffing Remedial Opinion, 2018 WL 985759, at *8-9.
The

defendants

consultants,

who

proceeded

developed

to

hire

recommended

a

team

of

mental-health

staffing ratios, according to the defendants’ proposed
plan, in February 2019.

See Recommended Staffing Ratios

for Mental Health Services (Doc. 2385-1).

The parties

then estimated ADOC’s inmate population for the coming
years

and

applied

the

staffing
26

ratios

to

develop

a

staffing matrix setting forth the number of mental-health
staff of various types needed to treat that population.
See Mental-Health Staffing Matrix (Doc. 2618-1); December
2021 Phase 2A Omnibus Remedial Opinion Part II, 2021 WL
6117939, at *21-22.
matrix

in

December

The court approved the staffing
2019.

See

Phase

2A

Order

and

Injunction on Mental-Health Staffing Remedy (Doc. 2688).
At the time of the omnibus remedial proceedings, in
May, June, and July of 2021, the defendants had failed
to meet the February 2020 deadline for complying with the
staffing

matrix.

According

to

the

staffing

ratios,

however, they had hired the requisite number of staff per
inmate

in

five

of

their

15

facilities.

That

the

defendants were able to comply with the staffing ratios
in certain facilities while simultaneously failing to
comply with the staffing matrix was due to the COVID-19
pandemic.

The pandemic had slowed intake from local

jails, causing ADOC’s inmate population to fall below the
levels

that

the

staffing matrix.

parties

estimated

when

making

the

The matrix, therefore, indicated the
27

number of staff necessary to treat an inmate population
that turned out to be larger than ADOC’s actual inmate
population.
In light of their progress in hiring mental-health
staff, and the fact that they had enough staff, according
to the staffing ratios, to treat the unusually low inmate
populations

in

certain

facilities,

the

defendants

proposed during the omnibus remedial proceedings that no
relief

with

necessary.
62-63.

regard

to

mental-health

staffing

was

See Defs.’ Post-Trial Brief (Doc. 3367) at

In the alternative, they proposed that “ADOC’s

mental-health vendor will fill the mental-health staffing
positions at each ADOC facility, by program, consistent
with the mental-health staffing ratios.”

Id. at 60.

The

plaintiffs, meanwhile, proposed that the defendants be
required

at

all

times

to

maintain

staffing

levels

consistent with or greater than those called for by the
staffing

ratios,

see

Pls.’

Updated

Proposed

Omnibus

Remedial Order (Doc. 3342) at § 2.2.3.2, subject to the
condition that staffing levels should never be less than
28

those set forth in the staffing matrix, see id. at
§ 2.2.2.
The

court

adopted

the

defendants’

alternative

proposal and ordered them to supply mental-health staff
consistent with the mental-health staffing ratios.

See

December 2021 Phase 2A Omnibus Remedial Order, 2021 WL
6128418, at § 2.2.1.

Because the evidence indicated that

ADOC’s inmate population was likely to increase in the
near future as intake from local jails resumed, and
because ADOC’s lack of correctional staff rendered its
mental-health staff less efficient than the creators of
the staffing ratios had assumed, the court also ordered
the defendants to work towards supplying mental-health
staff

consistent

with

the

staffing

matrix,

extended the deadline for doing so to 2025.

but

it

See id. at

§ 2.2.3; December 2021 Phase 2A Omnibus Remedial Opinion
Part III, 2021 WL 6116913, at *9.
The defendants now move to stay these provisions of
the court’s order on three grounds:

(1) the court failed

to find deliberate indifference again before entering
29

relief; (2) the court should have ordered relief with
respect

to

mental-health

staffing

on

a

facility-by-facility basis; and (3) “the ratios require
a higher level of staffing than the matrix, yet the Order
appears to require compliance with the ratios by the
Effective Date, but allows ADOC until ... 2025 to comply
with the matrix.”

Defs.’ Mem. in Support of Mot. to Stay

(Doc. 3490) at 16-17.

In support of this last point, the

defendants contend that the ratios are more onerous than
the matrix because the matrix “contains different shift
relief factors, 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.

Id. at 16.

The court notes, initially, that the defendants are
unlikely

to

succeed

in

appealing

the

court’s

2018

understaffing order almost four years after its issuance,
if that is in fact their intent. See 28 U.S.C. § 2107(a).
Even if the defendants could appeal all relief regarding

30

mental-health staffing, however, the court would still
reject their arguments in favor of a stay.
With

respect

to

the

defendants’

deliberate-indifference argument, the court notes that,
as in the context of correctional staffing, the argument
is complicated by the fact that the December 2021 omnibus
remedial order merely relaxed obligations that the court
had

previously

imposed

on

the

defendants.

If

the

defendants suggest that the court was required to find
deliberate

indifference

before

modifying

previously

entered relief to their benefit, they offer no argument
in support of that highly implausible proposition.
As for the defendants’ second argument, the court
reiterates that its liability findings amply supported
the

need

for

systemic

relief.

Indeed,

the

court

explained as much in its 2018 understaffing remedial
opinion,

see

February

2018

Phase

2A

Understaffing

Remedial Opinion, 2018 WL 985759, at *3 n.2, which the
defendants did not appeal.

The court’s findings in its

December 2021 omnibus remedial opinion reaffirmed that
31

need. Although the defendants had provided mental-health
staffing at the levels called for by the ratios in five
of their 15 facilities, the court found that more staff
were needed in all facilities in light of the fact that
ADOC’s inmate population was likely to increase in the
near future, and because its lack of correctional staff
prevented its mental-health staff from treating inmates
as efficiently as the creators of the staffing ratios had
assumed.

See December 2021 Phase 2A Omnibus Remedial

Opinion Part III, 2021 WL 6116913, at *9.
As for their third argument, the defendants are
incorrect that the staffing ratios require more staff
than the staffing matrix.

To repeat, the staffing ratios

indicate the number of mental-health staff of various
types needed per inmate.

The number of staff that the

defendants must hire to comply with the staffing ratios
will

therefore

population.

depend

on

the

size

of

ADOC’s

inmate

When ADOC has a relatively small inmate

population, as it does now, compliance with the staffing
ratios will require fewer staff than when it has a
32

relatively large inmate population. The staffing matrix,
by contrast, sets forth a fixed number of mental-health
staff.

That number happens to be larger than the number

needed to treat ADOC’s current, abnormally low population
according to the staffing ratios.

Compliance with the

staffing ratios therefore requires fewer mental-health
staff than compliance with the staffing matrix.

Indeed,

counsel for the defendants attested to the relative ease
of complying with the staffing ratios, as opposed to the
matrix, during a recent on-the-record status conference,
where counsel explained that, at Holman Correctional
Facility, “if you took the current population which is
relatively low--currently close to I think a hundred or
just slightly north of a hundred--those ratios would
result

in

a

much,

much,

much

smaller

mental

compliment than was proposed in the matrix.”

health
Feb. 9,

2022, Status Conference R.D. Tr. at 33.8

8. The court also notes that the defendants
themselves proposed that they be required to abide by the
staffing ratios, rather than the matrix.
See Defs.’
Post-Trial Brief (Doc. 3367) at 60 (“ADOC’s mental-health
vendor will fill the mental-health staffing positions at
33

That the ratios require fewer staff than the matrix
is made no less true by the fact that the matrix permits
associate

licensed

counselors

to

count

toward

the

mental-health professional requirement, and MHPs to be
substituted for psychologists.

As the court explained

in

remedial

its

December

2021

omnibus

staffing ratios permit the same.

opinion,

the

See December 2021 Phase

2A Omnibus Remedial Opinion Part III, 2021 WL 6116913,
at *8 (“In 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.”).
Finally, to the extent that the defendants contend
that the staffing ratios contain different shift relief
factors than the staffing matrix, they do not explain how
the

difference

in

shift

relief

factors

renders

the

staffing ratios more onerous than the staffing matrix.

each ADOC facility, by program,
mental-health staffing ratios.”).
34

consistent

with

the

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

ratios.

factors

contained

in

the

staffing

See Pls.’ Updated Proposed Omnibus Remedial

Order (Doc. 3342) at §§ 2.2.3.2.1-2.2.3.2.2.
The court further finds that the defendants will not
be irreparably injured absent a stay.

The court’s 2018

understaffing order was based on the defendants’ own
proposals and was narrowly tailored so as to require no
more

staff

than

necessary

to

correct

the

identified in the 2017 liability opinion.

violations

Moreover, the

court has since relaxed the requirements imposed by its
2018

understaffing

order--again,

at

the

defendants’

suggestion--and has made every effort to ensure that the
defendants are afforded flexibility in the pace of their
hiring.

Indeed,

in

light

of

the

defendants’

past

progress with regard to mental-health staffing, the court
did not even impose the minimal requirement that the
defendants devise nonbinding benchmarks, as it did with
35

regard to correctional staffing.

And as it indicated in

the December 2021 omnibus remedial opinion, it is open
to

the

possibility

of

the

defendants

modifying

the

staffing levels set in the matrix should they prove
unnecessarily high.

See December 2021 Phase 2A Omnibus

Remedial Opinion Part III, 2021 WL 6116913, at *9.
The plaintiffs, however, would be seriously injured
by

a

stay

staffing.

of

the

provisions

regarding

mental-health

Again, the evidence indicates that even in the

five facilities where the defendants have made the most
progress, more staff are needed in light of the lack of
correctional staff, which renders mental-health staff
less efficient than the creators of the staffing ratios
assumed, and the impending increase in intake from local
jails.

See id.

The effects of ADOC’s lack of mental-health staff
were well documented during the 2021 omnibus remedial
hearings.

Inmates with serious mental illnesses will go

undiagnosed, like Gary Campbell, who had never received
a psychiatric evaluation during the over two years that
36

he spent in restrictive housing, and who was not on the
mental-health caseload or flagged as having a serious
mental illness at the time of his suicide.

See December

2021 Phase 2A Omnibus Remedial Opinion Part II, 2021 WL
6117939,

at

*14.

Inmates

who

require

mental-health

referrals will not receive them, like Charles Braggs, who
was never referred to or evaluated by a mental-health
provider during the time he spent in the St. Clair
Correctional

Facility,

hallucinations
disheveled

and

despite

exhibiting

appearance,”

and

who

reporting
“blunted
had

been

auditory

affect
asking

and
for

mental-health services, to no avail, for two weeks before
he killed himself.

Id. at *13.

And inmates who are

referred for follow-up care will go unseen, like Laramie
Avery, who was referred for mental-health care twice, but
never seen, before he hanged himself in his cell.
id. at *8.

See

In light of the deaths of Campbell, Braggs,

and Avery, among others, all of which occurred since the
court’s liability opinion, and all of which were due in
part to ADOC’s lack of mental-health staff, the court
37

finds that the equities weigh overwhelmingly against a
stay.

IV. Suicide-Resistant Cells
The defendants specifically challenge and seek to
stay provisions of the December 2021 omnibus remedial
order requiring suicide watch, stabilization unit (SU),
and restrictive housing unit (RHU) cells to comply with
Lindsay M. Hayes’s “Checklist for the ‘Suicide-Resistant’
Design of Correctional Facilities.”

See December 2021

Phase 2A Omnibus Remedial Order, 2021 WL 6128418, at
§§ 2.1.7.1,
checklist

2.1.7.2,

identifies

3.1.3,9

10.3.1,

“architectural

10.3.1.1.
and

This

environmental

issues” that increase the risk that inmates may be able
to attempt and complete suicides in “cells utilized to
house

potentially

suicidal

inmates”--most

notably

protrusions that can be used as anchoring devices for

9. Due to a numbering error, § 3.1 repeats in the
December 2021 omnibus remedial order. As used in this
section,
§ 3.1.3
refers
to
the
provision
under
“Restrictive Housing Cells.”
38

attempted

suicides

by

hanging

and

obstructions

of

visibility into cells--and identifies design elements
that mitigate this risk.

ADA Transition Plan (Doc.

2635-1) at 42-45 (reproducing the Hayes checklist).

In

support of their motion to stay, the defendants argue
that the application of these requirements to all suicide
watch, SU, and RHU cells fails to comport with the PLRA.
With regard to suicide watch and SU cells, the defendants
argue that relief is unnecessary and that the Hayes
checklist

reflects

best

constitutional minimum.

practices

rather

than

a

With regard to RHU cells, they

contend that the requirements of the Hayes checklist are
inapposite and unduly burdensome.
arguments,

the

defendants

In support of these

present

declarations

containing some evidence that was before the court at the
omnibus

remedial

hearings

and

some

that

was

not,

including estimates of the costs of compliance with the
ordered provisions and statements of ADOC’s intent to
build new men’s prison facilities.

39

Between

the

issuance

of

the

Phase

2A

liability

opinion in June 2017 and the start of the omnibus remedial
hearings in May 2021, at least 27 inmates committed
suicide while in ADOC’s custody.

See December 2021 Phase

2A Omnibus Remedial Opinion Part I, 2021 WL 6112444, at
*2.

Seventeen hanged themselves in their segregation

cells.

These

deaths

are

far

from

the

only

harms

associated with the failure to provide minimally adequate
mental-health
outcomes.

care,

but

they

do

represent

the

worst

While the defendants correctly note that not

every suicide reflects a failure to provide minimally
adequate care, evidence of the circumstances of many of
these suicides brought into sharp relief failures across
multiple

areas

treatment:

of

ADOC’s

of

mental-health

warnings that went unheeded and protection

that went unprovided.
factors,

provision

ADOC

has

As to some of these contributing

made

meaningful

progress,

as

the

December 2021 omnibus remedial opinion notes and, indeed,
as the provisions of the omnibus remedial order reflect.
As to others--above all, ADOC’s severe and persistent
40

shortage of correctional staff--the constitutional floor
tragically appears to be years out of reach.

These

failures expose the plaintiffs to “a substantial risk of
serious harm,” even where they have not always culminated
in suicide.

June 2017 Phase 2A Liability Opinion, 257

F. Supp. 3d at 1192 (citing Helling v. McKinney, 509 U.S.
25, 33-34 (1993), for the proposition that “a remedy for
unsafe conditions need not await a tragic event”); see
also December 2021 Phase 2A Omnibus Remedial Opinion Part
II, 2021 WL 6117939, at *1 (“Luck can be the difference
between a suicide attempt and a completed suicide.
would

be

a

morbid

kind

of

reactivity

to

find

It
that

inadequacies in the ADOC’s mental-health care system
require

a

remedy

only

when

they

have

resulted

in

death.”). ADOC’s progress, and lack thereof, necessarily
informs the measures that are needed to protect inmates
with serious mental-health needs:

both those inmates

whose needs have been identified and those whose have
not.

See December 2021 Phase 2A Omnibus Remedial Opinion

Part III, 2021 WL 6116913, at *5 n.5.
41

On consideration

of these issues and the arguments in support of the
defendants’ motion, the court will stay the provisions
of the omnibus remedial order requiring RHU cells to
comply with the Hayes checklist, but it will not stay the
provisions as to suicide watch or SU.
At the onset of the liability trial in 2017, the
inadequacy of ADOC’s measures to protect inmates with
serious mental-health needs became almost immediately
apparent when Jamie Wallace, the plaintiffs’ opening
witness, committed suicide by hanging in his SU cell ten
days

after

his

testimony

and

after

the

court

had

expressed extreme concerns about the fragility of his
mental health.

See June 2017 Phase 2A Liability Opinion,

257 F. Supp. 3d at 1184. Prison visits by the plaintiffs’
experts reflected that tie-off points for ligatures were
“easily accessible” even in cells specifically used to
house inmates on suicide watch, despite years of evidence
that

mental-health

staff

had

repeatedly

concerns about the safety of these cells.
1227.

expressed
See id. at

Cell doors provided minimal visibility into these
42

cells, impairing observation of suicidal inmates and
further subjecting these inmates to the danger that any
suicide attempts would go unnoticed until too late.

See

id. at 1227-28.
In

September

2019,

the

parties

entered

into

an

agreement that included a plan to make all suicide watch
cells

suicide-resistant

and

to

inspect

them

on

quarterly basis to ensure that they remain so.

a
See

Suicide Prevention Measures (Doc. 2606-1) at §§ 7.5, 7.7,
7.9.

Per

considered
§ III(B)

of

this

agreement,

suicide

suicide-resistant
the

parties’

if

ADA

watch

they

cells

were

complied

with

Transition

Plan,

which

provided that “[a]ll crisis cells ... are to comply with
the

checklist

developed

by

Lindsay

Transition Plan (Doc. 2635-1) at 41.
these

stipulations

as

an

order

M.

Hayes.”

ADA

The court entered
subject

to

latter

consideration of whether they complied with the PLRA.
See Phase 2A Order Approving Suicide-Prevention Agreement
(Doc. 2699).

43

Subsequently,

in

May

2020,

the

court

credited

uncontradicted testimony to find that SU cells, which are
“intended to house patients ‘who are suffering from acute
mental-health problems--such as acute psychosis or other
conditions causing an acute risk of self-harm--and have
not been stabilized through other interventions,’” also
must be suicide-resistant “[t]o address the obvious and
substantial risk of serious harm to these patients.”
Braggs v. Dunn, No. 2:14cv601-MHT, 2020 WL 2789880, at
*13 (M.D. Ala. May 29, 2020) (Thompson, J.) (“Phase 2A
Inpatient Treatment Remedial Opinion and Order”) (quoting
June 2017 Phase 2A Liability Opinion, 257 F. Supp. 3d at
1183).

The court ordered that SU cells were considered

suicide-resistant if they met the requirements to which
the parties had previously agreed, citing to both the
suicide-prevention stipulations and the Hayes checklist
contained within the parties’ ADA transition plan.
id. at *13 & n.9.
PLRA findings.

See

The court supported this order with

See id. at *13.

In the alternative,

however, the court invited the defendants to propose
44

“other

equally

effective

suicide-resistant.”

measures

to

make

SU

cells

Id.

In response to this order, 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.

They

elaborated:
“For a cell to qualify as ‘suicide resistant,’
the cells must satisfy the terms of the Suicide
Prevention Stipulations, which requires removal
of all tie-off points and windows on the cell
doors measuring 24 by 18 inches.
(Doc. No.
2606-1).
ADOC
satisfied
these
exact
requirements,
mooting
the
issue.
ADOC
retrofitted all thirty-eight (38) SU cells ...
by removing tie-off points and installing at
least one (1) large window on all cell doors.”
Id. at 4-5 (footnote omitted).
Roughly

seven

months

after

this

representation,

Tommy McConathy hanged himself from the ventilation grate
above the sink in his SU cell.

See December 2021 Phase

2A Omnibus Remedial Opinion Part III, 2021 WL 6116913,
at

*60.

defendants’

At

the

expert

omnibus
testified,

remedial
based

hearings,
on

the

information

reported to him by an ADOC official, that the grate had
45

been suicide-resistant but for the fact that it was
broken, creating a tie-off point.

However, he could not

state how long the grate may have presented such a tie-off
point prior to McConathy’s death.
During

the

omnibus

See id.

remedial

proceedings,

the

plaintiffs proposed provisions requiring that suicide
watch and SU cells must be suicide-resistant and that
suicide watch cells must be checked on a quarterly basis
to verify that they remain suicide-resistant.

See Pls.’

Updated Proposed Omnibus Remedial Order (Doc. 3342) at
§§ 9.7.1, 9.7.3, 10.4.
checklist

would

be

Cells that satisfy the Hayes
deemed

suicide-resistance requirement.

to
See id.

satisfy

the

With respect

to RHU cells, the plaintiffs proposed that ADOC must
retain a consultant to evaluate these cells and make
recommendations to correct “the existence of tie-off
points, inadequate visibility, and any other unreasonably
dangerous

condition

assessment”

and

identified

that

ADOC

46

in

must

the
then

course
correct

of

the

these

conditions. Id. at §§ 12.8.2, 12.8.2.1. As to all cells,
the defendants argued that no relief was necessary.
Incorporating the Hayes checklist, as the parties
had in their previous stipulations regarding suicide
watch cells and as the court had in its prior order
regarding SU cells, the court ordered that suicide watch,
SU, and RHU cells must be suicide-resistant and that ADOC
must verify that the cells remain suicide-resistant on a
quarterly basis and when the cells receive new occupants.
See December 2021 Phase 2A Omnibus Remedial Order, 2021
WL

6128418,

10.3.1.1.

at

§§ 2.1.7.1,

2.1.7.2,

3.1.3,

10.3.1,

With respect to RHU cells in particular, the

court ordered that, “[w]ithin six months of the effective
date,

all

cells

in

the

RHUs

must

comply

with

conditions set forth in” the Hayes checklist.

the

Id. at

§ 3.1.3.
Looking first to the requirements that suicide watch
and SU cells be suicide-resistant, the court will not
stay

these

provisions

remedial order.

of

the

December

2021

omnibus

For the reasons explained below, the
47

court does not find that the defendants are likely to
succeed in their overarching challenges to the omnibus
remedial order.

Likewise, the court does not find that

the defendants have made a sufficient showing that they
are likely to succeed in arguing that these provisions
do not comply with the PLRA.

Evidence presented at the

liability trial, the hearings on inpatient treatment, and
the omnibus remedial hearings strongly supports the need
for suicide watch and SU cells to be suicide-resistant
in order to address the substantial risk of death or
serious harm to inmates with acute mental-health needs
who are housed in those cells.
2A

Inpatient

Treatment

See, e.g., May 2020 Phase

Opinion

and

Order,

2020

WL

2789880, at *13; December 2021 Phase 2A Omnibus Remedial
Opinion Part III, 2021 WL 6116913, at *60.

Against the

backdrop of the court’s liability findings regarding the
dangerous condition of ADOC’s crisis cells, the evidence
supported relief not only to make suicide watch and SU
cells suicide-resistant, but to ensure that they remain
so.

As the testimony by the plaintiffs’ experts and the
48

death of McConathy reflected, “suicide-resistance is not
a

one-time

task.”

December

2021

Phase

2A

Omnibus

Remedial Opinion Part III, 2021 WL 6116913, at *60-61.
The same evidence also illustrates the danger that the
plaintiffs would be substantially injured by a stay of
these

provisions:

placing

inmates

known

to

be

experiencing acute mental-health needs into suicide watch
and SU cells without knowledge as to whether those cells
remain suicide-resistant subjects them to “a substantial
risk of serious harm.”

June 2017 Liability Opinion, 257

F. Supp. 3d at 1192; see also December 2021 Phase 2A
Omnibus Remedial Opinion Part II, 2021 WL 6117939, at *15
(noting

that

the

defendants’

information

could

not

determine how long a tie-off point may have been present
in the SU cell where McConathy committed suicide).
Turning to RHU cells, the court reiterates a finding
that pervaded its December 2021 omnibus remedial opinion:
the

need

for

change

in

ADOC’s

RHUs

is

stark.

As

previously noted, a majority of the suicides in ADOC
major facilities since the court’s 2017 liability opinion
49

were hangings within individual segregation cells.

Many

of these suicides were closely intertwined with ADOC’s
grievous understaffing, as discussed above.

The harms

that this understaffing inflicts within RHUs are only
compounded by the great extent to which inmates are
regularly placed and kept in RHUs without consideration
of

their

serious

mental-health

needs.

See,

e.g.,

December 2021 Phase 2A Omnibus Remedial Opinion Part II,
2021 WL 6117939, at *23 (finding that ADOC “continues to
lack a functioning process for diverting individuals from
segregation who are contraindicated for placement there
due to suicide risk, serious mental illness, or other
significant mental-health issues”); id. at *24 (observing
that

periodic

mental-health

assessments

to

identify

inmates who may be decompensating in segregation remain
“sporadic[]”); id. at *34 (agreeing with the assessment
of one provider at Ventress that inmates are discharged
from

suicide

course”).

watch

to

segregation

as

“a

matter

of

To the extent the defendants seek to draw a

categorical distinction between ADOC’s RHU cells and its
50

suicide watch and SU cells on the basis that only the
latter house “potentially suicidal inmates,” Defs.’ Mem.
in Support of Mot. to Stay (Doc. 3490) at 14 (quoting
Hayes Checklist (Doc. 3206-5) at 2), the current state
of ADOC’s system of mental-health care does not permit
such a clear-cut division.
Upon further reflection, however, the court finds
that it needs to revisit the provisions that it entered
requiring RHU cells to comply with the Hayes checklist
within

six

months.

The

plaintiffs’

proposed

relief

outlined a process that would involve the defendants in
the design of a solution to dangerous conditions in
ADOC’s RHUs.

The court adopted a similar approach where

it required the parties to “submit proposals that will
allow

ADOC’s

correctional

RHUs ...
staff

to

that

function
ADOC

safely

currently

with

the

employs.”

December 2021 Phase 2A Omnibus Remedial Order, 2021 WL
6128418, at §§ 2.1.7.3, 2.1.7.3.1-2.1.7.3.4.

The court

finds that it was inappropriate to forgo this approach
in applying the Hayes checklist to all RHU cells and,
51

furthermore, that the six-month deadline that it set for
compliance was unrealistic.

The defendants should have

an opportunity to participate in fashioning what relief
is appropriate with respect to the physical condition of
ADOC’s RHU cells in light of ADOC’s ongoing understaffing
problem and the threat that it poses to inmates with
serious mental-health needs in segregation.

They should

further have an opportunity to address the reasonableness
of any timeframe for such relief.

And, of course, the

plaintiffs should have an opportunity to respond.
Accordingly, the court will stay compliance with the
provisions of the December 2021 omnibus remedial order
requiring RHU cells to comply with the Hayes checklist.
But while the court stays this relief, it does so with
recognition that the need remains urgent; inmates in
ADOC’s RHUs remain at “an unacceptably high risk of
decompensation, self-harm, and suicide.”

December 2021

Phase 2A Omnibus Remedial Opinion Part III, 2021 WL
6116913, at *10.

The court adds, as it explained to the

parties during the January 7, 2022, status conference
52

shortly after the omnibus remedial order was entered,
that

it

remains

ready

and

willing

to

revisit

or

reconsider the plaintiffs’ proposed relief and arguments
by the defendants that such relief is unwarranted or that
less burdensome relief will suffice, together with any
new evidence that is properly brought before the court
as evidence of a changed circumstance.

See Jan. 7, 2022,

Status Conference R.D. Tr. at 11-12; see also January
2022 Order, 2022 WL 264873, at *3.

The court has no

occasion to do so at this juncture, but an urgent need
persists.

It is the court’s belief that a remand to this

court

address

to

this

issue

prior

to

the

appellate

court’s full review on the merits would both allow the
parties to address this need and facilitate the most
efficient resolution of this case.

V.

Monitoring

The defendants move to stay the court’s 2020 opinion
and order on monitoring.

The court declines to stay its

monitoring order because the defendants have presented
53

no compelling reason to do so, and because, not only
would the plaintiffs suffer irreparable harm, but a stay
at this time would disrupt the orderly progress of this
litigation

toward

an

end,

to

the

detriment

of

all

parties.
In September 2020, the court issued an opinion and
order, supported by PLRA findings, establishing a plan
for monitoring compliance with court’s remedial orders.
See Braggs v. Dunn, 483 F. Supp. 3d 1136 (M.D. Ala. 2020)
(Thompson, J.) (“Phase 2A Monitoring Opinion”).

The

plan,

the

which

was

largely

based

on

proposals

defendants, consisted of three phases.

by

During the first

phase, an external monitoring team would monitor the
defendants’ compliance with the remedial orders; during
the second phase, the external monitoring team would
train an internal monitoring team housed within ADOC to
take

on

this

monitoring

role;

in

the

third

phase,

monitoring duties would transfer entirely to the internal
monitoring team.

See id. at 1141.

approach

“help

was

to

ADOC
54

The object of this

develop

internal

buy-in,

resulting

in

compliance,”

more
and

to

active

cooperation

create

“a

more

and

timely

effective,

less

intrusive process and avoid an indeterminate period of
external monitoring.”

Id.

The defendants filed a motion to alter or amend the
court’s September 2022 order, which the court denied.
See Braggs v. Dunn, No. 2:14cv601-MHT, 2020 WL 6152367
(M.D. Ala. Oct. 20, 2020) (Thompson, J.).

The defendants

did not appeal.
The
external

parties

proceeded

monitoring

team

to
in

magistrate judge John Ott.

select
a

members

process

of

mediated

the
by

By November 2020, they had

chosen a team, and the court ordered the defendants to
begin negotiating contracts for the team members. See
November

6,

2020,

Order

(Doc.

3054).

During

an

on-the-record status conference on January 7, 2022, the
parties

represented

that,

even

without

a

stay,

the

earliest date by which contracts with the monitoring team
could be finalized would be in mid-April.
2022, Status Conference R.D. Tr. at 9.
55

See Jan. 7,

The

defendants

opinion and order.

now

move

to

stay

the

monitoring

See Defs.’ Mot. to Stay (Doc. 3489)

at 3 (“[T]he State ... respectfully requests that the
Court stay the [December 2021 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)).”
In support of this aspect of their motion, the defendants
argue that “as a practical matter, if the Court stays the
Order, there will, during the stay, exist nothing to
‘monitor,’” Defs.’ Reply in Support of Mot. to Stay (Doc.
3514) at 8-9.
Because

the

court

refuses

to

stay

the

omnibus

remedial order in its entirety, it need not address the
defendants’ argument that a stay of the monitoring order
would be necessitated by a stay of the omnibus remedial
order.

Furthermore, the court suspects that were it to

grant a stay of the monitoring order, much of the progress
that the parties have already made would dissolve.
56

The

monitoring team members have already exhibited admirable
patience, but they cannot be expected to wait in the
wings forever.
A

collapse

of

the

monitoring

team

would

be

detrimental to the plaintiffs.

As the court detailed in

its

the

2020

monitoring

extensive

history

provision

of

of

opinion,
failing

mental-health

defendants

to

care

monitor
and

have

their

an
own

compliance

with

remedial measures, even after court intervention.

See

September 2020 Phase 2A Monitoring Opinion, 483 F. Supp.
3d

at

1168-73.

In

light

of

that

history,

and

the

defendants’ own admission that they could not effectively
self-correct their deficient provision of mental-health
care without assistance from outside experts, the court
found the monitoring team necessary to remedy the Eighth
Amendment violations identified in the 2017 liability
opinion.

See id. at 1169.

That conclusion still stands

today, and is indeed bolstered by the defendants’ failure
to document treatment for inmates and required trainings
for staff since the entrance of the monitoring order.
57

See,

e.g.,

December

2021

Phase

2A

Omnibus

Remedial

Opinion Part II, 2021 WL 6117939, at *33, 39.

Absent

external monitoring, the defendants are highly unlikely
to implement any of the relief the court has already
ordered, or that it might order in the future, and the
constitutional violations that the court identified in
the 2017 liability opinion will almost certainly continue
unabated.
Finally, the collapse of the monitoring process would
be detrimental to the ADOC.
“The

defendants’

open

The court has explained:

admission

that

some

degree

of

external and internal monitoring is necessary further
supports the court’s [monitoring] order. As Commissioner
Dunn testified, ‘we all want to get at some point in the
future to a place where the department has the capacity
to self-correct and to address these issues in a way that
not

only

is

satisfactory

to

the

Court,

but,

importantly, is just simply what we should do.’
Nov. 26, 2018, Trial Tr. (doc. no. 2250) at 22.

more
Dunn

At the

same time, the defendants acknowledge that ADOC currently
58

does not ‘possess the internal resources to fulfill the
significant

oversight

functions

mandated’

by

their

proposed monitoring plan, and ‘necessarily requires the
initial assistance of a team of mental health experts’
to develop ADOC's capacities. Defs.’ Proposed Monitoring
Plan (doc. no. 2115) at 2; see also Dunn Nov. 26, 2018,
Trial Tr. (doc. no. 2250) at 35.”

September 2020 Phase

2A Monitoring Opinion, 483 F. Supp. 3d at 1171.

The

court not only set up a three-phase process to do this,
but also included a timeframe.
(adopting

defendants’

monitoring

team

will

monitoring

team

after

See, e.g., id. at 1162

proposal
begin
one

that

training

year;

the

external

the

internal

ordering

that

the

internal monitoring team will take over when the court
determines, after a hearing, that it is sufficiently
competent).
The endgame of the monitoring scheme is to end court
supervision.

Id. at 1173 (“It is clear that the court

and the parties share the same goal for monitoring in
this case: that ADOC acquire the tools, resources, and
59

capacity

to

provide

constitutionally

adequate

mental-health care to those in its custody without court
supervision....”) (emphasis in original).

The team of

experts agreed upon by the parties is in place and poised
to carry out this endgame.

Now is not the time to

interrupt and jettison, by putting on indefinite hold,
all that has been accomplished toward achieving this
goal.

A stay is not warranted as to this issue.

V. Out-of-Cell Time
In its omnibus remedial order, the court ordered that
“[a]n inmate placed in a RHU for safety or security issues
[under exceptional circumstances] for 72 hours or longer
will be offered at least three hours of out-of-cell time
per day.”

December 2021 Phase 2A Omnibus Remedial Order,

2021 WL 6128418, at § 3.1.2. “Exceptional circumstances”
refer

to

circumstances

that

justify

segregation

for

inmates with serious mental illnesses, or inmates who
have

been

segregation.

determined

to

be

contraindicated

See id. §§ 3.1.1, 3.2.2-3.2.3.
60

for

The defendants move to stay this provision, arguing
that it is overbroad because it applies to all inmates,
whether class members or not.

The defendants base their

belief that the provision applies to all inmates on a
comment

by

the

court

during

a

January

21

status

conference.
The court denies this request for a stay, because it
believes that the defendants have simply misunderstood
the scope of the provision.

While the omnibus remedial

order states 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,” that
requirement applies to only inmates who have been placed
in

restrictive

circumstances.”

housing
Id.

under

so-called

“exceptional

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.
id. §§ 3.1.1, 3.2.2-3.2.3.

See

The requirement in question

therefore applies to only inmates with serious mental
61

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

merely intended to clarify that the provision of the
December

2021

omnibus

remedial

order

requiring

the

defendants to submit weekly reports on inmates kept in
segregation for longer than 72 hours under exceptional
circumstances referred to inmates who are contraindicated
for placement in restrictive housing but still placed
there, as well as inmates with serious mental illnesses.
See id. § 3.1.4. The court may have said this inartfully,
but it did not mean to modify substantively the omnibus
remedial order--assuming that it could even do so orally
during a conference call.

A stay is not warranted as to

this issue.

VI. Inpatient Beds
In its December 2021 omnibus remedial order, the
court

ordered

the

defendants
62

to

“supply

enough

[inpatient]

beds

mental-health
date.”
2021

to

caseload

accommodate
at

the

time

10 %
of

of

[ADOC’s]

the

effective

December 2021 Phase 2A Omnibus Remedial Order,

WL

6128418,

at

§ 11.2.

In

the

accompanying

opinion--but not in the order--the court noted that the
14 beds that ADOC currently reserves at Citizens Hospital
should

not

count

towards

its

inpatient

beds.

See

December 2021 Phase 2A Omnibus Remedial Opinion Part III,
2021 WL 6116913, at *74 n.14.

It also clarified that

ADOC may not double-count beds in its Structured Living
Units as both inpatient and outpatient beds, see id. at
*75 n.15.
The defendants now move to stay the provision of the
omnibus remedial order requiring them to supply enough
beds to accommodate 10 % of their mental-health caseload,
arguing that they are likely to prevail in appealing this
provision because the court erred in excluding the beds
at Citizens Hospital and in the SLUs from the total number
of inpatient beds.

63

After conferring with the parties, the court agrees
with the defendants that it erred in indicating to the
EMT that the beds at Citizens Hospital should be excluded
from the total number of inpatient beds.

Those beds are

used to provide an inpatient level of care, and should
be counted as such.

The court will therefore modify its

opinion to indicate to the EMT that it may count the 14
beds at Citizens Hospital towards the total number of
inpatient beds.

Because the court’s erroneous comment

regarding the beds at Citizens Hospital was not part of
the order, however, the court finds that it need not stay
any part of the order to grant the defendants the relief
they seek.

The order stands as is, and the court simply

retracts its earlier comment.
The court does not find, however, that it erred with
regard to the SLU beds.

Rather, it believes that the

defendants have misconstrued its instruction regarding
those beds.

The court never meant to indicate that the

defendants may not count the beds in the SLUs towards the
total number of inpatient beds.
64

Indeed, they may.

What

they may not do, however, is double-count those beds as
both inpatient and outpatient beds.
prohibition

on

the

testimony

of

The court based this
the

defendants’

own

expert, Dr. Metzner, who explained during the omnibus
remedial hearings that the defendants could use the SLUs
to house inmates requiring inpatient care if they wanted
to--in which case the beds in the SLUs would count as
inpatient beds--but that if they did that they would have
to find another place to house the current occupants of
the SLUs, who do not require inpatient care.

See July

1, 2021, R.D. Trial Tr. at 132-33. That is all that the
court meant to convey.

If the defendants wish to count

the beds in the SLUs as inpatient beds, they have to
actually

make

inpatient

them

care

occupants--who

available

by
do

not

somewhere else to go.

ensuring
require

for

inmates

that

requiring

their

inpatient

current

care--have

A stay is not warranted as to

this issue.

65

VII. Effective Date
In support of various aspects of their motion to
stay, the defendants raise the specter of being held in
contempt should they not complete all of the requirements
of the omnibus remedial order by the effective date,
which was originally set for February 7, 2022, but has
since

been

motion.

suspended

pending

resolution

of

the

stay

See January 2022 Order, 2022 WL 264873, at *6.

The court believes that the defendants’ concern is based
on

a

misunderstanding

of

the

meaning

of

the

term

“effective date,” which does not refer to the date by
which the defendants must bring themselves into full
compliance with the terms of the remedial order, but
rather to the date on which the order takes effect and
the defendants must begin to make good faith efforts to
comply with its terms in order to avoid being held in
contempt.

See

Black’s

Law

Dictionary,

8th

ed.

(“effective date” means “[t]he date on which [an order]
becomes enforceable or otherwise takes effect”); Howard
Johnson Co., Inc. v. Khimani, 892 F.2d 1512, 1516 (11th
66

Cir. 1990) (a party who makes a good faith effort to
comply with an enforceable court order may avoid civil
contempt).
effective

So long as the defendants begin on the
date

to

take

good

faith

efforts

to

bring

themselves into compliance with the remedial order, they
will not be held in contempt.

The effective date is not

the date on which the defendants must be instantly in
full compliance with obligations tied to that date under
the

order,

without

consideration

of

a

common-sense

reasonable period of time to obtain compliance.

A stay

is not warranted as to this contention.

VIII. Deliberate Indifference
The defendants argue that they are likely to succeed
on the merits of each of their challenges to the court’s
December 2021 omnibus remedial order because “the Court
erred

in

determining

that

it

need

not

find

current

deliberate indifference to order relief,” and therefore
could

not

find

a

current

and

ongoing

constitutional

violation, as the defendants contend it must have before
67

entering relief.
3-4.

Defs.’ Mot. to Stay (Doc. 3489) at

The court rejects this basis for a stay for several

reasons.
First, the defendants’ argument is foreclosed by
Eleventh Circuit precedent.

As the court has previously

explained, the Eleventh Circuit, in Thomas v. Bryant, 614
F.3d 1288 (11th Cir. 2010), considered and rejected the
argument that a court is required to find a current and
ongoing constitutional violation before entering relief
under the PLRA.

See December 2021 Phase 2A Omnibus

Remedial Opinion Part I, 2021 WL 6112444, at *9; see also
Braggs v. Dunn, No. 2:14cv601-MHT, 2020 WL 7711366, at
*6 (M.D. Ala. Dec. 29, 2020) (Thompson, J.) (“Opinion and
Order on a Process for Finalizing the Phase 2A Remedial
Orders”).
the

The “current and ongoing violation” standard,

Circuit

explained,

comes

into

play

in

only

termination proceedings, and not when the court initially
orders relief.
Second,
circumstances

Thomas, 614 F.3d at 1320.

even

absent

the

presented

in
68

holding
this

in
case

Thomas,

the

belie

the

defendants’ contention that the court needed to re-find
deliberate

indifference

for

all

the

remedial

relief

contained in the December 2021 omnibus remedial order.
As the court explained with regard to correctional and
mental-health staffing, it seems highly implausible that
it

was

required

to

find

deliberate

indifference

to

support those provisions of its December 2021 order that
extended and relaxed the requirements it had entered in
2018.

The

regarding
posture,

provisions

suicide
as

they

of

prevention
were

the

December

also

largely

stand

based

2021
in

on

a

order
unique

provisions

contained in the court’s 2019 suicide prevention opinion,
in which the court explicitly found ongoing deliberate
indifference by the defendants, and which the defendants
did not appeal.

See Braggs v. Dunn, No. 2:14cv601-MHT,

383 F. Supp. 3d 1218, 1242 (M.D. Ala. 2019) (Thompson,
J.) (“Phase 2A Suicide Prevention Opinion”).
Third, set against the history of this litigation,
the defendants’ broad contention that a court, after
making a finding of deliberate indifference, as this
69

court did in its liability opinion in 2017, needs to
re-find deliberate indifference when it addresses the
issue of remedy raises the important question of when and
how often it might need to do so.

Not only when it

initially fashions a remedy but each and every time it
tinkers

with

that

remedy,

such

that,

in

much

institutional prison litigation, the parties would need
to redo and redo the liability phase?

For practical

reasons this surely cannot be the case.

The defendants

do not answer that question.10
Fourth, Congress has already addressed the concern
just mentioned.

In the PLRA, it carefully crafted an

orderly and detailed scheme governing when a court, after
finding

liability

and

fashioning

a

remedy,

needs

to

10. If the appellate court were to find that this
court was required to find deliberate indifference to
support the provisions of its December 2021 omnibus
remedial order regarding staffing, this court would
benefit from some clarification as to when it is required
to find deliberate indifference when modifying relief in
the future, and how long its deliberate findings (with
respect to modifications or newly entered relief) can
stand before they must be updated. In short, this court
respectfully asks for an answer to the question of when
and how often it must find deliberate indifference.
70

revisit the issue of deliberate indifference.

The PLRA

places the “current and ongoing violation” requirement
in the provision applicable to proceedings on a motion
to terminate, but excludes it from the provision that
governs the entry of prospective relief.
§ 3626(a)(1)(A), (b)(3).
aware of this.

See 18 U.S.C.

(The defendants should be well

In 2020, shortly before the start of the

omnibus remedial hearings, they moved to terminate all
outstanding

remedial

plaintiffs’

burden

to

orders,

thereby

demonstrate

triggering

ongoing

the

deliberate

indifference. See December 2021 Omnibus Remedial Opinion
Part I, 2021 WL 6112444 at *4-5.

The defendants withdrew

their motion shortly thereafter, but they are free to
move to terminate again.)

The court sees no need to

layer onto the PLRA’s intricate statutory structure the
additional obligation to find deliberate indifference
that the plaintiffs now propose.

Indeed, the absence of

the “current and ongoing” language from § 3626(a)(1)(A),
which otherwise duplicates the standard of § 3626(b)(3),
is

conspicuous

and

must
71

be

given

interpretive

significance.

To

interpret

the

need-narrowness-intrusiveness requirement to subsume the
“current

and

ongoing

violation”

standard,

as

the

defendants propose, would make the latter language in
§ 3626(b)(3) redundant.
Finally, in support of their contention that the
court

must

re-find

deliberate

indifference,

the

defendants rely on Farmer v. Brennan, 511 U.S. 825,
845-46 (1994).

The court is also aware of the case of

Dockery v. Cain, 7 F.4th 375 (5th Cir. 2021).
cases,

however,

address

the

need

for

a

Those

finding

of

deliberate indifference to establish liability, and do
not confront the question presented here of whether, and
perhaps how often, a court needs to re-find deliberate
indifference in the course of fashioning and modifying a
remedy

for

an

already

established

violation.

72

constitutional

IX. Systemwide Relief
The defendants also contend that the court erred by
entering relief on a systemwide basis.

Time and again

throughout this litigation, the court has rejected the
notion that the effects of the defendants’ constitutional
violations are anything less than systemic, and it will
now reiterate only briefly what it has said before.
In its liability opinion, the court found ADOC’s
provision

of

mental-health

inadequate” on a systemwide basis.

care

“horrendously

See June 2017 Phase

2A Liability Opinion, 257 F. Supp. 3d at 1267-68; see
also Defs.’ Resp. to Court’s February 2, 2018 Order (Doc.
1595) at 1 (“The State is not aware of any section of the
Court’s liability opinion in which the Court indicated
an intent to limit its liability findings to [particular
facilities].”).

The court then reaffirmed in its 2018

understaffing opinion and in its 2019 suicide-prevention
opinion, neither of which the defendants appealed, that
ADOC’s provision of mental-health care falls below the
constitutional floor across all of its facilities.
73

See

February 2018 Phase 2A Understaffing Remedial Opinion,
2018

WL

985759,

at

*3

n.2

(explaining

that

ADOC

maintained insufficient correctional and mental-health
staffing across all facilities, and that “it would make
little

sense

to

order

increased

staffing

at

one

understaffed prison if the staffing were to be filled by
merely transferring staff from another, slightly less
understaffed

facility”);

May

2019

Phase

2A

Suicide

Prevention Opinion, 383 F. Supp. 3d at 1241 (identifying
“substantial

and

pervasive”

deficiencies

in

ADOC’s

suicide-prevention measures). After hearing the evidence
in the omnibus remedial proceedings, the court again
found ADOC’s provision of mental-health care inadequate
on a systemwide basis, even in those areas where the
defendants had made the most progress.
Phase

2A

Omnibus

Remedial

Opinion

See December 2021
Part

I,

2021

WL

6112444, at *10-12.
In

short,

the

court

previously

found

systemic

violations, and those findings served as the bases of
orders that the defendants did not appeal.
74

Far from

indicating

that

out-of-date,
remedial

the

the

court’s

evidence

hearings

showed

previous

presented
that

exist[ed] at every major facility.”

findings
in

“serious

the

were

omnibus

violations

Id. at *10-12.

In

light of this history, the court continues to stand by
its decision to enter relief on a systemwide basis.11
***
Accordingly, for the above reasons, it is the ORDER,
JUDGMENT, and DECREE of the court that:
(1) The defendants’ motion to stay the Phase 2A
omnibus remedial order pending their interlocutory appeal
(Doc. 3489) is granted to the extent that the court stays
§§ 2.1.7.1-2.1.7.2 and 3.1.3 of the Phase 2A Omnibus
Remedial

Order

(Doc.

3464)

insofar

as

that

those

11. During oral argument on the stay motion, defense
counsel complained that some of the standards the court
set in its omnibus remedial order were too strict and
therefore interfered with ADOC’s discretion. However,
counsel had also previously argued that the standards
should not be so lax as to provide no guidance for
determining when there has been compliance. The court
has
had
to
wrestle
with
this
coming-and-going
argument. See December 2021 Phase 2A Omnibus Remedial
Opinion Part II, 2021 WL 6117939, at *42 (discussing why
the court adopted certain timeframes).
75

provisions require RHU cells to comply with the Hayes
checklist and be checked for compliance with the Hayes
checklist.

The court grants this stay with the hope that

it will have the opportunity to take up the issue of
relief regarding dangerous conditions in ADOC’s RHU cells
due to chronic understaffing with the urgency that said
issue compels.
(2) Said motion is denied in all other respects.
DONE, this the 14th day of February, 2022.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

76