Dunn et al v. Thomas et al

Filing 3869

REVISED REMEDY SCHEDULING ORDER ON PHASE 1 AND PHASE 2A ADA CLAIMS AND PHASE 2A EIGHTH AMENDMENT CLAIM: It is ORDERED that the dfts' and plfs' motions for extension of time (Doc. 3857 & Doc. 3867 ) are granted, and that based on the m otions and the representations made at the triannual status conference on 11/7/2022, 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 11/28/2022. (furn: calendar, ag, Video Conference) (Converted Oral Argument to Status Conference for 12/14/2022 and 2/10/2023) (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
It is ORDERED that the defendants’ and plaintiffs’ motions for
extension of time (Doc. 3857 & Doc. 3867) are granted, and that based
on the motions and the representations made at the triannual status
conference on November 7, 2022, 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

NEW DATES

I. GENERAL
The effective date of the Phase
3/9/2022
2A Omnibus Remedial Order.
(Doc. 3464) at § 1.3.
II. PHASE 1 AND PHASE 2A ADA CLAIMS
Phase 1: Deadline for
11/1/2028
termination of monitoring. (Doc.
3801).
Phase 1: Deadline for
1/1/2023
alterations to Birmingham
Community Based
Facility/Community Work Center
and Frank Lee Community Based
Facility/Community Work Center
(Doc. 3801).
Parties to file joint report
1/27/2023 at
regarding alterations identified
5:00 p.m.
in preceding cell.
Status conference: Parties
2/10/2023 at
should be prepared to discuss
9:00 a.m.
alterations identified in
preceding cell.
Phase 1: Deadline for
5/31/2023
alterations to William E.
Donaldson (Doc. 3801).
Phase 1: Deadline for
11/1/2027
completion of alterations for
the second and third phases
regarding the removal,
remediation, or construction of
new facilities. (Doc. 3801).
Phase 1: Parties to file joint
1/27/2023 at
report regarding status of the
5:00 p.m.
building of the new prisons and
their impact on the meeting the
Phase 1 deadlines.
Phase 1: Status conference:
2/10/2023 at
Parties should be prepared to
9:00 a.m.
discuss matter identified in
preceding cell.
Phase 2A ADA: Consent decree as
10/1/2023
to Adaptive Behavior/Life Skills
Training and associated Beta
III/IV testing will terminate,
including monitoring. (Doc. 3787
and Doc. 3801).

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Phases 1 and 2A ADA: Parties
should file joint report on
mediation efforts before Judge
Ott concerning the Phase 1 and
Phase 2A ADA Consent Decrees,
including 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 and November 7,
2022, status conferences, and,
in particular, with regard to
the remaining Phase 2A ADA issue
in light of the looming October
1, 2023, termination deadline.
(Doc. 3778, Doc. 728, Doc. 1291,
& Doc. 3762), (Doc. 3866).
Phases 1 and 2A ADA: Status
conference: Parties should be
prepared to discuss the Phase 1
and Phase 2A ADA Consent Decrees
issues outlined in the preceding
cell. (Doc. 3866).

1/27/2023 at 5:00
p.m.

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

III. PHASE 2A EIGHTH AMENDMENT CLAIM
MONITORING
The parties are to file another
joint report on the status of
the EMT. (Doc. 3863).
Status conference: The parties
should be prepared to discuss
the preceding report.(Doc.
3863).
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

12/9/2022 at 5:00
p.m.
12/14/2022 at 9:00
a.m.

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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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.
(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. Parties should submit
joint report on how to proceed
on this issue.
Status conference: Parties
should be prepared to discuss
correctional staffing formatting
issue.
Members of the agency staffing
unit, or “resource planning
unit,” were to participate in
the training program on
correctional staffing analysis
taught by the National Institute
of Corrections (NIC). The court
understands that the training
should be complete by early
January 2023. The court would
like for defendants file a
report on how meaningful the
training was.
Status conference: The parties
should be prepared to address
the NIC training report.
Parties to file another joint
report on the issue of

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9:00 a.m.

12/9/2022 at
5:00 p.m.

12/14/2022 at
9:00 a.m.
1/27/2023 at
5:00 p.m.

2/10/2023 at
9:00 a.m.
12/9/2022 at 5:00
p.m.

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plaintiffs’ meeting with the
Savages (Doc. 3820) (Doc. 3864).
Status conference: The parties
should be prepared to address
the above report on the Savages
(Doc. 3820) (Doc. 3864).
The defendants filed 2022
Correctional Staffing Analysis
Report on November 1, 2022.
(Doc. 3849)
Plaintiffs to file response to
the adequacy of the 2022
Correctional Staffing Analysis
Report. (Doc. 3849). The
response should address both the
development and the contents of
the 2022 analysis, and how the
parties and the court should
proceed on it. (Doc. 3859).
Defendants to file a reply to
plaintiffs’ response to 2022
analysis. (Doc. 3859).
Status conference: The parties
should be prepared to address
the 2022 Correctional Staffing
Analysis Report and the filings
on it. (Doc. 3859).
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 (though this
date is passed), 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. (Doc.
3857).
The plaintiffs should file a
response to the proposed
benchmarks and suggest how the
parties and the court should
proceed on them.
The defendants may file a reply
regarding the proposed
benchmarks.
Status conference: The parties
should be prepared to discuss
the proposed benchmarks and
reports on them.

12/14/2022 at 9:00
a.m.
Done

11/28/2022 at 5:00 12/5/2022 at
p.m.
5:00 p.m.

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

12/9/2022 at
5:00 p.m.

12/14/2022 at 9:00
a.m.

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

1/20/2023 at
5:00 p.m.

1/27/2023 at
5:00 p.m.

2/3/2023 at
5:00 p.m.
2/10/2023 at
9:00 a.m.

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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 the court reflect. (Doc.
3709 & Doc. 3749). The
plaintiffs were 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) & (Doc.
3854). The defendants filed a
response to the plaintiffs’
report. (Doc. 3856). In light of
these reports, the court would
like to the parties to file a

7/1/2025

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

12/9/2022 at
5:00 p.m.

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joint report specifically
identifying their areas of
“agreement” and their areas of
“disagreement,” and their
suggestions of how the court
should proceed.
Status conference: The parties
should be prepared to discuss
the preceding joint report.
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.
Parties should submit joint
report on how to proceed on this
issue.
Parties should be prepared to
discuss mental-health staffing
formatting issue.
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

12/14/2022 at
9:00 a.m.
12/9/2022 at
5:00 p.m.

12/14/2022 at
9:00 a.m.
Beginning one year
from the
initiation of
monitoring
7/1/2025

On a weekly basis

12/9/2022 at 5:00
p.m.

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serious concerns, the court
decided at the August 15 and
November 7, 2022, status
conferences 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).
However, the parties are to file
another joint report on whether
the EMT is now looking into
these concerns, etc. (Doc.
3865).
Status conference: The parties
should be prepared to address
the preceding SMI report. (Doc.
3768). (Doc. 3865).
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. (Doc. 3868).
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

12/14/2022 at 9:00
a.m.
Status report due
9/27/2022 and
every 21 days
thereafter

12/14/2022 at 9:00
a.m.

12/9/2022 at 5:00
p.m.

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representations made at several
status conferences, 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. The court
stated that it would revisit the
issue later in light of the
status of the EMT at that time.
(Doc. 3770). The parties have
now filed a report on the issue.
(Doc. 3850). The court would
like another report. (Doc.
3862).
Status conference: The parties
should be prepared to address
the issue of the continued
cleanliness of RHU cells. (Doc.
3770) (Doc. 3862).
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.

12/14/2022 at 9:00
a.m.

Stayed

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

HIGHER LEVELS OF CARE
In collaboration with the EMT,
ADOC must reassess, on an annual
basis, (1) the number of

1/27/2023 at
5:00 p.m.

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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
are to submit a joint report on
how to proceed on this issue.
Status conference: The parties
should be prepared to discuss
the preceding joint report.
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 and
September 22, 2022, the court is
requiring that the parties
pursue mediation of these
concerns with Judge Ott. (Doc.
3767). The parties filed
reports on their efforts. (Doc.
3797 & Doc. 3839). The court
will require that they file
another joint report on their
mediation efforts. (Doc. 3860).
Status conference: The parties
should be prepared to discuss
the results of their mediation
efforts on the issue of the risk

2/10/2023 at
9:00 a.m.
12/9/2022 at 5:00
p.m.

12/14/2022 at 9:00
a.m.

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of high temperatures in the
mental-health units, as
described above in preceding
cell. (Doc. 3860).

IV. MISCELLANEOUS
STATUS CONFERENCES
Triannual status conference,
2/10/2023 at 9:00
with the parties to submit
a.m.
reports 10 business days before
the status conference (Doc. 3467
and Doc. 3480).
Triannual status conference,
7/7/2023 at 9:00
with the parties to submit
a.m.
reports 10 business days before
the status conference (Doc. 3467
and Doc. 3480).
Triannual status conference,
11/17/2023 at 9:00
with the parties to submit
a.m.
reports 10 business days before
the status conference (Doc. 3467
and Doc. 3480).
Triannual status conference,
2/9/2024 at 9:00
with the parties to submit
a.m.
reports 10 business days before
the status conference (Doc. 3467
and Doc. 3480).
Triannual status conference,
7/12/2024 at 9:00
with the parties to submit
a.m.
reports 10 business days before
the status conference (Doc. 3467
and Doc. 3480).
Triannual status conference,
11/22/2024 at 9:00
with the parties to submit
a.m.
reports 10 business days before
the status conference (Doc. 3467
and Doc. 3480).
Triannual status conference,
2/7/2025 at 9:00
with the parties to submit
a.m.
reports 10 business days before
the status conference (Doc. 3467
and Doc. 3480).
STANDING ORDERS FOR HEARINGS AND
STATUS CONFERENCES
All hearings and evidentiary
hearings shall be in accordance
with the order entered on

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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 28th day of November, 2022.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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