Dunn et al v. Thomas et al

Filing 3795

REVISED REMEDY SCHEDULING ORDER ON PHASE 1 AND PHASE 2A ADA CLAIMS AND PHASE 2A EIGHTH AMENDMENT CLAIM: it is ORDERED that the court adopts the parties' proposals (Doc. 3791 & Doc. 3794 ) and that the deadlines and dates for the Phases 1 and 2A remedy scheduling order for the ADA and Eighth Amendment claims remain and are revised as set forth below, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 9/8/2022. (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)

REVISED REMEDY SCHEDULING ORDER
ON PHASE 1 AND PHASE 2A ADA CLAIMS
AND PHASE 2A EIGHTH AMENDMENT CLAIM
Now before the court are the parties’ submissions
regarding the safe functioning of RHUs and redressing
correctional-staffing levels (Doc. 3791 & Doc. 3794),
which

submissions

include

their

desire

to

continue

mediation subject to further reporting obligations every
21 days. Accordingly, it is ORDERED that the court adopts
the parties’ proposals (Doc. 3791 & Doc. 3794) and that
the deadlines and dates for the Phases 1 and 2A remedy

scheduling order for the ADA and Eighth Amendment claims
remain and are revised as set forth below.

2

OLD DATES
I. GENERAL
The effective date of the Phase
2A Omnibus Remedial Order. (Doc.
3464) at § 1.3.
Troy Connell’s motion to
intervene (Doc. 3633 & Doc.
3634-1). Oral argument held on
8/15/2022.
Troy Connell’s requests for
judicial notice (Doc. 3655 & Doc.
3659). Oral argument held on
8/15/2022.

II. PHASE 1 AND
PHASE 2A ADA CLAIMS
The court granted an extension of
the Phase 2A ADA consent decree
as to Adaptive Behavior/Life
Skills Training and associated
Beta III/IV testing, with an
updated date of termination as to
those provisions. Order (Doc.
3787).
Status conference: Discussion of
the parties’ joint status report
on their mediation efforts before
Judge Ott concerning the Phase 1
and Phase 2A ADA Consent Decrees
(Doc. 3778). (Doc. 728 & Doc.
1291). (Doc. 3762).

III. PHASE 2A EIGHTH AMENDMENT
CLAIM
MONITORING
The parties filed a joint report
updating the court on their
progress with respect to Karen
Rea’s replacing Catherine Knox as
the EMT’s nurse. (Doc. 3792).
At a status conference, the
parties should be prepared to
address orally their progress
with respect to executing
contracts with all EMT members.
(Doc. 3769).

3/9/2022
Under submission

Under submission

10/1/2023

9/22/2022 at 9:00
a.m.

Under submission

9/22/2022 at 9:00
a.m.

3

NEW DATES

CORRECTIONAL STAFFING
The defendants must submit
correctional staffing reports to
the court and the EMT. (Doc.
3464) at § 2.1.6. By agreement
of the parties, the defendants
are to submit these reports on
the dates set forth in the Phase
2A Understaffing Remedial Order
(Doc. 1657) at § 4, namely, March
1, June 1, September 1, and
December 1 of each year.
The parties submitted a joint
filing concerning a proposal for
the mediation and development of
a concrete plan to address ADOC’s
still grossly inadequate
correctional staffing levels and
a method
to assess and reassess over time
the effectiveness of the
steps taken pursuant to that
plan. (Doc. 3791). The court
adopted the parties’ proposal and
ordered joint reports on the same
to be filed every 21 days.
At a status conference, the
parties should be prepared to
address orally their efforts as
to mediation of the correctional
staffing issues above. (Doc.
3764).
The formatting for the
correctional staffing reports
shall be further revised, if
necessary, based on input from
the EMT. See Phase 2A Omnibus
Remedial Order (Doc. 3464) at
§ 2.1.6.
The defendants proposed that they
begin developing ADOC’s policy
related to correctional staffing
analysis by March 28, 2022. See
Defs.’ Proposal Regarding ADOC’s
Staffing Unit (Doc. 3546). On
April 20, 2022, the defendants
filed a notice that they had
“initiated the creation of a
policy to provide instruction on
developing and maintaining a

On March 1, June
1, September 1,
and December 1 of
each year

Status report
due 9/27/22 and
every 21 days
thereafter

9/22/2022 at 9:00
a.m.

To be determined

Done

4

correctional staffing analysis.”
Defs.’ Notice (Doc. 3558) at 2.
See below the process as to how
to keep the court and the EMT
abreast of the defendants’
continued progress in updating
the correctional staffing
analysis.
The defendants proposed that they
begin collecting information from
ADOC’s major facilities for
updating the Savages’ 2018
staffing analysis by April 1,
2022.
See Defs.’ Proposal
Regarding ADOC’s Staffing Unit
(Doc. 3546). On April 20, 2022,
the defendants filed a notice
that they had “initiated the
collection of necessary documents
from ADOC’s major facilities to
facilitate updating the Savages’
2018 staffing analysis.” Defs.’
Notice (Doc. 3558) at 2. See
below for the process for keeping
the court and the EMT abreast of
the defendants’ continued
progress in updating the
correctional staffing analysis.
The defendants proposed that they
begin visiting ADOC’s major
facilities to gather information
for updating the Savages’ 2018
staffing analysis by May 1, 2022.
See Defs.’ Proposal Regarding
ADOC’s Staffing Unit (Doc. 3546).
On May 3, 2022, the defendants
filed a notice that they had
“coordinated with Russ and Meg
Savage ... to conduct tours of
two (2) major facilities ... on
May 4-6, 2022.” Defs.’ Notice
(Doc. 3565) at 2. See below the
process as to how to keep the
court and the EMT abreast of the
defendants’ continued progress in
updating the correctional
staffing analysis.
Coordinator Cheryl Price and
other members of the agency
staffing unit, or “resource
planning unit,” are to

Done

Done

9/16/2022 at 5:00
p.m.

5

participate in the training
program on correctional staffing
analysis taught by the National
Institute of Corrections (NIC).
In light of the defendants’
representation that ADOC was not
yet selected to participate in
the NIC’s training programs, see
Defs.’ Status Reports (Doc. 3563,
Doc. 3663 & Doc. 3702), and
pursuant to the court’s order
requiring defendants to continue
to pursue such training (Doc.
3756), the defendants shall file
a report on the status of their
efforts.
At a status conference, the
parties should be prepared to
address orally the issue of
ADOC’s participation in the
training program on correctional
staffing analysis taught by the
NIC. (Doc. 3756).
The parties are to file a joint
status report updating the court
as to their progress to develop a
plan for the plaintiffs to
discuss with Russ and Meg Savage
their role in updating the
correctional staffing analysis.
The parties may mediate the issue
with Judge Ott if necessary.
(Doc. 3756).
At a status conference, the
parties should be prepared to
address orally the issue of the
development of a plan for the
plaintiffs to discuss with Russ
and Meg Savage their role in
updating the correctional
staffing analysis. (Doc. 3756).
Pursuant to the court’s order
requiring the defendants to keep
the court, the EMT, and the
plaintiffs abreast of the
defendants’ continued progress in
updating the correctional
staffing analysis (Doc. 3757),
the defendants shall file reports
on their progress in updating

9/22/2022 at 9:00
a.m.

9/16/2022 at 5:00
p.m.

9/22/2022 at 9:00
a.m.

First
non-court-holiday
business day of
each month,
beginning
September 2022

6

their correctional staffing
analysis.
The defendants report that they
have obtained information from
more than half of ADOC’s major
facilities for updating the
Savages’ 2018 staffing analysis.
(Doc. 3663). Per the defendants’
proposal, the defendants are to
complete the information as to
the remaining facilities by
August 31, 2022. See Defs.’
Notice (Doc. 3663) at 3-4. The
defendants shall file a notice
with the court confirming that
they have met this deadline.
The defendants are to complete
the update to the Savages’ 2018
staffing analysis. The
defendants shall file a notice
with the court confirming that
they have met this deadline.
The defendants must develop with
the Savages, and submit to the
court, realistic benchmarks for
the level of correctional
staffing ADOC will attain by
December 31 of 2022, 2023, and
2024 respectively to put ADOC on
track to fill all mandatory and
essential posts by July 1, 2025.
(Doc. 3464) at § 2.1.5.
Deadline by which ADOC must fill
all mandatory and essential posts
at the level indicated in the
most recent staffing analysis at
that time. (Doc. 3464) at
§ 2.1.4.
MENTAL-HEALTH STAFFING
The defendants must submit
mental-health staffing reports to
the court and the EMT. (Doc.
3464) at § 2.2.4.
By agreement
of the parties, the defendants
are to submit these reports on
the dates set forth in the Phase
2A Understaffing Remedial Order
(Doc. 1657) at § 4, namely, March
1, June 1, September 1, and
December 1 of each year.

9/9/2022 at 5:00
p.m.

11/1/2022 at 5:00
p.m.

12/1/2022 at 5:00
p.m.

7/1/2025

On March 1, June
1, September 1,
and December 1 of
each year

7

The parties filed reports on what
the most recent quarterly
mental-health staffing reports to
the court reflect. (Doc. 3709 &
Doc. 3749). At the status
conference on August 15, 2022,
the court decided to take no
action. Instead, it decided to
revisit the issue later. (Doc.
3766). Accordingly, the
plaintiffs are to file a report
with an update on what the most
recent quarterly mental-health
staffing reports to the court
reflect. In doing so, the
plaintiffs should also address
what the court identified as an
apparent disagreement on the
appropriate method for
comparison of ADOC’s
mental-health staffing levels
against the levels set forth by
the mental-health
staffing ratios and mental-health
staffing matrix
incorporated in Sections 2.2.1
and 2.2.3 of the Phase 2A Omnibus
Remedial Order (Doc. 3464),
including what efforts, if any,
they have made at mediation with
Judge Ott if the parties continue
to disagree. (Doc. 3766).
The defendants are to file a
response to the plaintiffs’
report regarding the quarterly
mental-health staffing reports,
including the disagreement noted
above. (Doc. 3766). They should
also note what efforts, if any,
they have made at mediation with
Judge Ott if the parties continue
to disagree.
At a status conference, the
parties should be prepared to
address orally what the most
recent updates on the quarterly
mental-health staffing reports to
the court reflect. They should
also be prepared to address any
efforts at mediation with Judge

10/28/2022 at
5:00 p.m.

11/4/2022 at 5:00
p.m.

11/10/2022 at
9:00 a.m.

8

Ott regarding the disagreement
noted above.
The formatting for the
mental-health staffing reports
shall be revised, if necessary,
based on input from the EMT. See
Phase 2A Omnibus Remedial Order
(Doc. 3464) at § 2.2.4.
The EMT shall review ADOC’s
mental-health staffing ratios
and, if necessary, make
recommendations for revising
them. (Doc. 3464) at § 2.2.2.
Deadline by which ADOC must
achieve the staffing levels set
forth in the staffing matrix
previously approved by the court
in the Phase 2A Order and
Injunction on Mental-Health
Staffing Remedy (Doc. 2688),
subject to any subsequent
modifications. (Doc. 3464) at
§ 2.2.3.
RESTRICTIVE HOUSING
The defendants must file with the
court and the EMT reports on each
inmate who has been in
restrictive housing for longer
than 72 hours under exceptional
circumstances during that week.
(Doc. 3464) at § 3.1.4, (Doc.
3557), and (Doc. 3771).
The parties submitted a joint
proposal on revising the format
of the weekly SMI reports in
light of the Phase 2A Omnibus
Remedial Order (Doc. 3464) at
§ 3.1.4; see also order (Doc.
3557). (Doc. 3706). The court
has adopted the proposal with two
modifications. (Doc. 3771). The
defendants are to begin using the
revised format as of this date.
(Doc. 3771).
The court required the parties to
file reports on what the most
recent weekly SMI reports to the
court reflect (trends, etc., if
any). While the reports raised
serious concerns, the court

To be determined

Beginning one
year from the
initiation of
monitoring
7/1/2025

On a weekly basis

9/27/2022

11/4/2022 at 5:00
p.m.

9

decided at the August 15, 2022,
status conference not take any
immediate action, albeit with the
understanding that the EMT will
examine the concerns closely in
the very near future and that,
otherwise, the court will
reconsider looking into the issue
itself. (Doc. 3768). According,
the parties are to file a joint
report on whether the EMT is now
looking into the concerns and
whether the court should
reconsider looking into the
concerns itself.
At a status conference, the
parties should be prepared to
address orally the issue of
whether the EMT is addressing the
court’s concerns about what the
weekly SMI reports to the court
reflect and whether the court
should reconsider looking into
the
concerns itself. (Doc. 3768).
The parties submitted a joint
filing concerning a proposal for
the mediation and development of
plan that will allow ADOC’s RHUs
(with the exception of the RHU at
Tutwiler) to function safely with
the correctional staff that ADOC
currently employs. (Doc. 3794).
The court adopted the parties’
proposal and ordered joint
reports on the same to be filed
every 21 days.
At a status conference, the
parties are to update the court
on their efforts with regard to
mediation of the RHU issue above.
(Doc. 3763).
The Phase 2A omnibus remedial
order provided that all RHU cells
must be cleaned by June 8, 2022.
(Doc. 3464) at § 3.1.1. The
defendants filed a notice with
the court confirming that they
have met this deadline. (Doc.
3698). Based on the
representations made at the

11/10/2022 at
9:00 a.m.

Status report
due 9/27/22 and
every 21 days
thereafter

9/22/2022 at 9:00
a.m.

11/4/2022 at 5:00
p.m.

10

status conference on August 15,
the court stated that it will not
take any immediate action with
respect to the continued
cleanliness
of RHU cells, albeit with the
expectation that the EMT will
monitor the issue as soon as it
is fully operational. (Doc.
3770). The court stated that it
would revisit the issue later in
light of the status of the EMT at
that time. (Doc. 3770).
Accordingly, the parties are to
file a joint report on whether
the EMT is monitoring the issue
of the continued cleanliness
of RHU cells and, if not, whether
the court itself needs to take
further action. (Doc. 3770).
At a status conference, the
parties should be prepared to
address orally the issue of the
continued cleanliness
of RHU cells. (Doc. 3770).
Deadline by which all RHU cells
must comply with the conditions
set forth in Lindsay M. Hayes’s
Checklist for the
“Suicide-Resistant” Design of
Correctional Facilities (Doc.
3206-5). (Doc. 3464) at § 3.1.3.
Stayed pursuant to opinion and
order on motion to stay. (Doc.
3526) at 75-76.
SUICIDE PREVENTION
ADOC must conduct inspections of
all suicide watch, SU, and RHU
cells to verify that they meet
the conditions set forth Lindsay
M. Hayes’s Checklist for the
“Suicide-Resistant” Design of
Correctional Facilities (Doc.
3206-5). (Doc. 3464) at
§ 2.1.7.2. Stayed as to RHU cells
pursuant to opinion and order on
motion to stay. (Doc. 3526) at
75-76.

11/10/2022 at
9:00 a.m.

Stayed

Stayed as to RHU
cells only;
otherwise, on a
quarterly basis

HIGHER LEVELS OF CARE

11

In collaboration with the EMT,
ADOC must reassess (1) the number
of inmates on its mental-health
caseload and (2) whether the
current estimate of the
percentage of the mental-health
caseload requiring inpatient
treatment is accurate. (Doc.
3464) at § 11.2.2.
The parties have submitted to the
court their views on the issue of
whether serious risks are posed
by high temperatures in the
mental-health units, (Doc. 3464)
at § 11.3, including the adequacy
of Administrative Regulation 619
as a means of addressing the risk
in light of the court’s previous
discussion of its concerns as to
that regulation, see Phase 2A
Inpatient Treatment Remedial
Opinion and Order, Braggs v.
Dunn, 2020 WL 2789880, *14-15
(M.D. Ala. 2020) (Thompson, J.)
(discussing Administrative
Regulation 619); see also Phase
2A Omnibus Remedial Order (Doc.
3464) at § 11.3, and the question
of whether ADOC employees are
trained to follow the regulation.
Based on the parties’ written
filings and representations on
August 15, 2022, the court is
requiring that the parties pursue
mediation of these concerns with
Judge Ott. (Doc. 3767). The
parties are to file a joint
report of their mediation
efforts.
At a status conference, the
parties should be prepared to
discuss the results of their
mediation efforts on the issue of
the risk of high temperatures in
the mental-health units, as
described above. (Doc. 3464) at
§ 11.3. (Doc. 3767)

On an annual
basis

9/16/2022 at 5:00
p.m.

9/22/2022 at 9:00
a.m.

IV. MISCELLANEOUS
STATUS CONFERENCES

12

Triannual status conference, with
the parties to submit reports 10
business days before the status
conference (Doc. 3467 and Doc.
3480).
Triannual status conference, with
the parties to submit reports 10
business days before the status
conference (Doc. 3467 and Doc.
3480).
Triannual status conference, with
the parties to submit reports 10
business days before the status
conference (Doc. 3467 and Doc.
3480).
Triannual status conference, with
the parties to submit reports 10
business days before the status
conference (Doc. 3467 and Doc.
3480).
Triannual status conference, with
the parties to submit reports 10
business days before the status
conference (Doc. 3467 and Doc.
3480).
Triannual status conference, with
the parties to submit reports 10
business days before the status
conference (Doc. 3467 and Doc.
3480).
Triannual status conference, with
the parties to submit reports 10
business days before the status
conference (Doc. 3467 and Doc.
3480).
Triannual status conference, with
the parties to submit reports 10
business days before the status
conference (Doc. 3467 and Doc.
3480).

11/10/2022 at
9:00 a.m.

2/10/2023 at 9:00
a.m.

7/7/2023 at 9:00
a.m.

11/17/2023 at
9:00 a.m.

2/9/2024 at 9:00
a.m.

7/12/2024 at 9:00
a.m.

11/22/2024 at
9:00 a.m.

2/7/2025 at 9:00
a.m.

STANDING ORDERS FOR HEARINGS AND
STATUS CONFERENCES
All hearings and evidentiary
hearings shall be in accordance
with the order entered on
1/15/2020 (Doc. 2727), unless
otherwise specified.
All hearings, evidentiary
hearings, and status conferences

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are to be by videoconferencing
unless otherwise specified.

DONE, this the 8th day of September, 2022.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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