Dunn et al v. Thomas et al

Filing 3989

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 7/13/2023. (Furnished: Calendar, AG, & LW)(am, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
EDWARD BRAGGS, et al.,

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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)

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.
Note that the format of the scheduling order has slightly changed.
Now, each section is designated with a cell-block number so that it may
be more easily referenced.

For example, Section III deals with the

“PHASE 2A EIGHTH AMENDMENT CLAIM.”
to “CORRECTIONAL STAFFING.”

Subpart B of that section pertains

So the second cell in that subpart, which

sets a status conference topic of discussion, is referred to as cell
III.B.2.
III.B.2.

The court’s citation for this cell is (Doc. X) at 4, cell

Cell
I.A

II.A
1
2

3
4

5
6

7

8

OLD DATES
I. GENERAL
The effective date of the Phase
2A Omnibus Remedial Order. (Doc.
3464) at § 1.3.

II. PHASE 1 AND PHASE 2A
PHASE 1 and 2A ADA
Phase 1: 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).
Parties to file joint report
regarding alterations identified
in preceding cell.
Status conference: Parties
should be prepared to discuss
alterations identified in
preceding cell.
Phase 1: Deadline for
alterations to William E.
Donaldson (Doc. 3801).
Status conference: Parties
should be prepared to discuss
alterations identified in
preceding cell.
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: Parties to file joint
report regarding status of the
building of the new prisons and
their impact on the meeting the
Phase 1 deadlines. The parties
filed that report (Doc. 3908);
moreover, their respective
triannual reports (Doc. 3979 &
Doc. 3981) also addressed this
issue. In their joint status
report, (Doc. 3908) at 7, and at

2

NEW DATES

3/9/2022

ADA CLAIMS
11/1/2028
1/1/2023

1/27/2023 at
5:00 p.m.
7/14/2023 at
9:00 a.m.
5/31/2023
7/14/2023 at
9:00 a.m.
11/1/2027

5/19/2023

9

10

11

12

13

III.A

the February 10, 2023 conference,
the parties represented that they
would complete mediation before
Judge Ott as to this issue by May
19, 2023.
Status conference: Parties
should be prepared to discuss
matter identified in preceding
cell.
Phase 2A ADA: Consent decree as
to Adaptive Behavior/Life Skills
Training and associated Beta
III/IV testing will terminate,
including monitoring. (Doc. 3787
and Doc. 3801).
Status conference: Parties
should be prepared to discuss
matter identified in preceding
cell.
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). The parties
filed that report (Doc. 3908);
moreover, their respective
triannual reports (Doc. 3979 &
Doc. 3981) also addressed these
issues.
Status conference: Parties should
be prepared to discuss the Phase
1 and Phase 2A ADA Consent
Decrees issues outlined in the
preceding cell.

7/14/2023 at
9:00 a.m.
10/1/2023

7/14/2023 at
9:00 a.m.
1/27/2023 at
5:00 p.m.

III. PHASE 2A EIGHTH AMENDMENT CLAIM
MONITORING

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7/14/2023 at
9:00 a.m.

1
2

3

4

III.B
1

2

3

Status conference: The parties
should be prepared to discuss the
status of the EMT. (Doc. 3988).
Parties to file a joint report on
the status of the EMT’s premonitoring phase timeline.
(Doc. 3988).
Parties to file a joint report on
the status of the EMT’s premonitoring phase timeline.
(Doc. 3988).
Parties to file a joint report on
the status of the EMT’s premonitoring phase timeline.
(Doc. 3988).
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.
Status conference: The parties
should be prepared to discuss
what the quarterly correctionalstaffing reports reflect,
including what retrospective
trends the reports reflect and
what prognosis the reports
indicate. As discussed at the
February 10, 2023, conference,
the court is concerned the
numbers appear to be getting
worse.
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

4

7/14/2023 at
9:00 a.m.
8/3/2023 by
5:00 p.m.
10/3/2023 by
5:00 p.m.
11/3/2023 by
5:00 p.m.

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

7/14/2023 at
9:00 a.m.

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

4

5

6

7

8

9

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 submitted a
joint report on how to proceed on
this issue on December 28, 2022.
(Doc. 3889).
Status conference: The parties
should be prepared to discuss
correctional staffing report
formatting issues, including how
the formatting will account for
new staffing analyses, the
ongoing issue of how “overtime”
factors into measuring staffing,
and what the EMT’s status is
regarding its evaluation of the
correctional staffing reports.
The defendants filed 2022
Correctional Staffing Analysis
Report on November 1, 2022. (Doc.
3849)
The defendants filed the Updated
2022 Correctional Staffing
Analysis (Doc. 3928) on February
24, 2023, which resolved the
parties’ disputes as to the
adequacy of the 2022 Correctional
Staffing Analysis (Doc. 3927).
Status conference: The parties
should be prepared to address the
Updated 2022 Correctional
Staffing Analysis Report.
(Doc. 3928).

5

7/14/2023 at
9:00 a.m.

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

7/14/2023 at
9:00 a.m.

Done

Done

7/14/2023 at
9:00 a.m.

10

11

12

13

III.C
1

Status conference: The parties
should be prepared to discuss how
the court can keep track of the
defendants’ ongoing process to
update the staffing analysis,
including how the Resource
Planning Unit (RPU) is
performing, given the finalized
status of the Updated 2022
Correctional Staffing Analysis
and the completion of the RPU's
work with the Savages and
training on correctional staffing
analysis taught the National
Institute of Corrections (NIC).
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 defendants filed
their proposed benchmarks on
January 20, 2023 (Doc. 3901), the
plaintiffs filed a response (Doc.
3906), to which defendants
replied (Doc. 3917).
Status conference: The parties
should be prepared to discuss the
proposed benchmarks and reports
on them (Docs. 3901, 3906, 3917),
including how the contested issue
of “overtime” relates to
benchmarks.
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

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7/14/2023 at
9:00 a.m.

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

7/14/2023 at
9:00 a.m.

7/1/2025

On March 1,
June 1,
September 1,
and December

2

3

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.
Status conference: The parties
should be prepared to discuss
what the quarterly mental-health
staffing reports reflect,
including what retrospective
trends the reports reflect and
what prognosis the reports
indicate, including how the
change of vendor is expected to
impact mental-health staffing.
The plaintiff’s triannual report
(Doc. 3981) indicates the mentalhealth staffing rates are in a
“dire” situation, even when
viewed under the defendants’
measuring mechanisms.
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

7

1 of each
year

7/14/2023 at
9:00 a.m.

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

4
5

6
7

8

III.D
1

2

these reports, the court ordered
the parties to file a joint
report specifically identifying
their areas of “agreement” and
their areas of “disagreement,”
and their suggestions of how the
court should proceed. The
parties filed that report on
December 28, 2022. (Doc. 3892).
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
submitted a joint report on how
to proceed on this issue on
December 28, 2022. (Doc. 3889).
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

8

7/14/2023 at
9:00 a.m.
12/28/2022 by
5:00 p.m.

7/14/2023 at
9:00 a.m.
Beginning one
year from the
initiation of
monitoring
7/1/2025

On a weekly
basis

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

3

4

5

6

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 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
matters discussed in the cell
above, as well as what the recent
SMI reports reflect.
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

9

7/14/2023 at
9:00 a.m.

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

7/14/2023 at
9:00 a.m.

12/28/2022 by
5:00 p.m.

7

8

have met this deadline. (Doc.
3698). Based on the
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.
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.

III.E
1

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.

III.F
1

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

10

7/14/2023 at
9:00 a.m.
Stayed

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

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

2
3

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 submitted joint reports
on how to proceed on this issue
on January 27, 2023 (Doc. 3905)
and February 9, 2023 (Doc. 3918).
Status conference: The parties
should be prepared to discuss the
matter in the preceding cell.
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 required
that they file another joint
report on their mediation
efforts. (Doc. 3860). On July 7,
2023, the parties filed a joint
plan regarding high temperatures
in mental health units, which
included an amended AR 619.
(Doc. 3986).

11

7/14/2023 at
9:00 a.m.
12/28/2022 at
5:00 p.m.

4

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 in the preceding cell, and
what action, if any, the court
needs to take on this issue.

7/14/2023 at
9:00 a.m.

IV. MISCELLANEOUS
IV.A
1

2

3

4

5

6

IV.B
1

STATUS CONFERENCES
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).

7/14/2023 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.

12

2

All hearings, evidentiary
hearings, and status conferences
are to be by videoconferencing
unless otherwise specified.
DONE, this the 13th day of July, 2023.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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