Dunn et al v. Thomas et al

Filing 3822

REVISED REMEDY SCHEDULING ORDER ON PHASE 1 AND PHASE 2A ADA CLAIMS AND PHASE 2A EIGHTH AMENDMENT CLAIM: it is ORDERED 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 10/11/2022. (Furnished: Calendar, AG, & Video)(am, )

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
Based on the discussions had at the status conference
held on September 22, 2022, it is ORDERED 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.

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
Phase 2A ADA: Consent decree as
to Adaptive Behavior/Life Skills
Training and associated Beta
III/IV testing will terminate.
(Doc. 3787).
Phase 2A ADA: Deadline for
termination of monitoring. (Doc.
3801).
Phase 1: Deadline for
alterations to Birmingham
Community Based
Facility/Community Work Center
and Frank Lee Community Based
Facility/Community Work Center
(Doc. 3801).
Phase 1: Deadline for
alterations to William E.
Donaldson (Doc. 3801).
Phase 1: Deadline for completion
of alterations for the second and
third phases regarding the
removal, remediation, or
construction of new facilities.
(Doc. 3801).
Phase 1: Deadline for
termination of monitoring. (Doc.
3801).
Status conference: Parties should
be prepared to discuss mediation
efforts before Judge Ott
concerning the Phase 1 and Phase
2A ADA Consent Decrees, including

NEW DATES

3/9/2022
Under submission

Under submission

10/1/2023

10/1/2023
1/1/2023

5/31/2023
11/1/2027

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9:00 a.m.

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how often mediation is occurring
and whether they will be able to
complete mediation within six
months of September 22, 2022, as
they represented at the September
22 status conference. (Doc. 3778,
Doc. 728, Doc. 1291, & Doc.
3762).
III. PHASE 2A EIGHTH AMENDMENT
CLAIM
MONITORING
The parties are to file a joint
report on the operating status of
the EMT (including whether it is
up and running and fully
functional); whether contracts
for all EMT members have been
finalized and executed, and, if
not, why not; whether Dr.
Elizabeth Falcon now serves as
administrative head; and whether
a point of contact within the
ADOC has been designated for the
purposes of assisting the EMT
with any issues that might arise,
and, if so, who that point person
is.
Status conference: The parties
should be prepared to address the
EMT issues identified in the
preceding paragraph.
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

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

Status report due
9/27/2022 and
every 21 days
thereafter

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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. (Doc.
3795).
Status conference: The parties
should be prepared to address
their efforts as to mediation of
the correctional staffing issues
as reflected in their 21-day
reports. (Doc. 3791 & Doc. 3795).
The parties should be prepared to
discuss firm deadlines for the
development and implementation of
the plan.
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
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

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To be determined

Done

Done

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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.
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 filed their report,
reflecting efforts were completed
on September 16, 2022. (Doc.
3796).
Pursuant to the court’s order
requiring the defendants to keep
the court, the EMT, and the

Done

Done

First
non-court-holiday
business day of

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plaintiffs abreast of the
defendants’ continued progress in
updating the correctional
staffing analysis, the defendants
shall file reports on their
progress in updating their
correctional staffing analysis.
(Doc. 3757).
Status conference: The parties
should be prepared to address
what the above first-of-the month
reports on staffing analysis
progress reflect.
Coordinator Cheryl Price and
other members of the agency
staffing unit, or “resource
planning unit,” are to
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, Doc. 3790);
and pursuant to the court’s order
requiring defendants to continue
to pursue such training (Doc.
3756); plaintiffs and defendants
are to file reports on their
court-ordered efforts to look
into why NIC has rejected ADOC’s
applications and what, if
anything, ADOC can do to boost
the likelihood of its success in
getting NIC training in early
2023 (Doc. 3821).
Status conference: The parties
should be prepared to address
their reports on their
court-ordered efforts to look
into why NIC has rejected ADOC’s
applications, etc. (Doc. 3821).
Plaintiffs’ counsel to meet with
Russ and Meg Savage (Doc. 3820).
Parties to file joint report on
whether further mediation and/or
court action is necessary on the

each month,
beginning
September 2022

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issue of plaintiffs’ meeting with
the Savages (Doc. 3820).
Status conference: The parties
should be prepared to address
whether further mediation and/or
court action is necessary on the
issue of plaintiffs’ meeting with
the Savages (Doc. 3820).
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.
Status conference: The parties
should be prepared to address the
defendants’ notice of the
completion of the above update to
the 2018 staffing analysis.
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.
The parties filed reports on what
the most recent quarterly
mental-health staffing reports to

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11/1/2022 at 5:00
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12/1/2022 at 5:00
p.m.

7/1/2025

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

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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.
Status conference: The parties
should be prepared to address
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 Ott
regarding the disagreement noted
above.
The formatting for the
mental-health staffing reports

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p.m.

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To be determined

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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 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
decided at the August 15, 2022,
status conference not to take any
immediate action, 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).
Accordingly, 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 issue itself (id.).

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

On a weekly basis

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

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Status conference: The parties
should be prepared to address the
issue of whether the EMT is
addressing the court’s concerns
about what the weekly SMI reports
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. (Doc. 3795).
Status conference: The parties
should be prepared to address
their efforts as to mediation of
the RHU issues as reflected in
their 21-day reports. (Doc. 3791
& Doc. 3795).
The parties
should be prepared to discuss
firm deadlines for the
development and implementation of
the plan.
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
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

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Status report due
9/27/2022 and
every 21 days
thereafter

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9:00 a.m.

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

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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).
Status conference: The parties
should be prepared to address 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.
HIGHER LEVELS OF CARE
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

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Stayed

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

On an annual
basis

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5:00 p.m.

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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 and September 22, 2022,
the court is requiring that the
parties pursue mediation of these
concerns with Judge Ott. (Doc.
3767). The parties filed one
report on their efforts on
September 16, 2022 (Doc. 3797).
The court will require that they
file another joint report of
their mediation efforts.
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)

IV. MISCELLANEOUS
STATUS CONFERENCES
Triannual status conference, with
the parties to submit reports 10
business days before the status
conference (Doc. 3467 and Doc.
3480). It is reset due to a
conflict. However, the reports
are still due on 10/27/2022.

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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).

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.

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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
are to be by videoconferencing
unless otherwise specified.

DONE, this the 11th day of October, 2022.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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