Dunn et al v. Thomas et al

Filing 4016

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 a re revised as set forth below; Status Conference set for 8/29/2023 is RESET for 8/31/2023, at 8:30 AM, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 8/28/2023. (Furnished: Calendar, AG, & LW) (Terminated: Status Conference for 8/29/2023)(amf, )

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
Magistrate Judge John Ott having orally suggested to the court that
the status conference set for August 29, 2023, should be postponed two
days, 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 formatting of the scheduling order is as follows.
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.”
“CORRECTIONAL STAFFING.”
to as cell III.B.2.
4, cell III.B.2.

Subpart B of that section pertains to

So the second cell in that subpart is referred

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

Cell
I.A

II.A
1
2

3

4

5

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

3/9/2022

II. PHASE 1 AND PHASE 2A ADA CLAIMS
PHASE 1 and 2A ADA
Phase 1: Deadline for
11/1/2028
termination of monitoring. (Doc.
3801).
Phase 1: The deadline for
9/15/2023
alterations to Birmingham
Community Based
Facility/Community Work Center
lapsed on January 1, 2023. (Doc.
3801). The parties should
complete mediation and file a
status report as to how they
plan to proceed on this issue.
(Doc. 3992).
Status conference: Parties
9/20/2023 at
should be prepared to discuss
9:00 a.m.
matter in preceding cell.
(Doc. 3992).
Phase 1: The deadline for
9/15/2023 at
alterations to Frank Lee
5:00 p.m.
Community Based
Facility/Community Work Center
lapsed on January 1, 2023.
(Doc. 3801). The court
understands that these
alterations are “folded into”
the efforts to “update the
transition plan” given that the
Frank Lee Center is set to close
upon completion of the new
Elmore Facility. In light of
this, plaintiffs are to file a
report as to whether the inmates
with disabilities at the Frank
Lee Center are receiving, and
will continue to receive, the
appropriate ADA accommodations
until the facility closes.
(Doc. 3992).
Status conference: Parties
9/20/2023 at
should be prepared to discuss
9:00 a.m.

2

NEW DATES

6

7

8

9

10

11

12

matter identified in preceding
cell. (Doc. 3992).
Phase 1: The deadline for
alterations to William E.
Donaldson lapsed on May 31,
2023. (Doc. 3801). The parties
should complete mediation and
file a status report on
September 15, 2023, as to how
they plan to proceed on this
issue. (Doc. 3992).
Status conference: Parties
should be prepared to discuss
matter identified in preceding
cell. (Doc. 3992).
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 should file
joint status report regarding
their efforts to resolve, with
the help of Gina Hilberry, the
overarching Phase 1 ADA
transition plan issue in light
of the construction of one or
more new facilities, including
an anticipated deadline for the
completion of an updated
transition plan with any new
compliance deadlines.
(Doc. 3990).
Status conference: Parties
should be prepared to discuss
the matter outlined in the
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).
Phase 2A ADA: Parties are to
file a joint report reflecting
the progress of the provision of
the Adaptive Behavior/Life
Skills training course to the
approximately 700 inmates,
including how many have begun

3

9/15/2023

9/20/2023 at
9:00 a.m.
11/1/2027

7/21/2023 at
5:00 p.m.

9/20/2023 at
9:00 a.m.
10/1/2023

8/15/2023 by
5:00 p.m.

13

14

III.A
1
2

3

4

the course at that time, whether
they anticipate compliance with
the October 1 deadline, and what
would be the next steps taken in
the event that the October 1
deadline was not met.
(Doc. 3991).
Phase 2A ADA: Parties are to
file another joint report as
outlined in the cell above. (Doc
3391).
Status conference: Parties
should be prepared to discuss
matter identified in preceding
cell. (Doc. 3991).

9/15/2023 by
5:00 p.m.
9/20/2023 at
9:00 a.m.

III. PHASE 2A EIGHTH AMENDMENT CLAIM
MONITORING
Status conference: The parties
9/20/2023 at
should be prepared to discuss
9:00 a.m.
the status of the EMT.
Parties to file a joint report
8/17/2023 at
on the status of the EMT’s pre5:00 p.m.
monitoring phase timeline.
(Doc. 3988).
At the triannual conference on
8/29/2023 at
July 14, 2023, it became
8:30 a.m.
apparent that the EMT’s
“performance measures,” which
were to be submitted to the
parties on July 1, 2023, per the
EMT’s pre-monitoring phase
timeline (Doc. 3988), are
arguably critical to many
aspects of this case. The
parties should be prepared to
discuss these “performance
measures,” including whether
they have been received and
finalized, what they exactly
are, and what all areas of the
case that they may impact. In
the August 3, 2023, report
(ordered in the above cell), the
parties are to address in detail
the status of the EMT’s
“performance measures.”
Parties to file a joint report
10/3/2023 by
on the status of the EMT’s pre5:00 p.m.

4

8/31/2023 at
8:30 a.m.

5

III.B
1

2

3

4

monitoring 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.
The parties must submit a joint
correctional-staffing “trends”
report to the court within seven
days of the filing of each
quarterly correctional staffing
report. The “trends” reports
should include the five items
outlined in the court’s July 17,
2023, order. (Doc. 3994.)
Status conference: The parties
should be prepared to discuss
what the quarterly
correctional-staffing reports
reflect, as outlined in their
most recent
correctional-staffing trends
report.
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.
(Doc. 3795).

5

11/3/2023 by
5:00 p.m.

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

Within seven
days of the
filing of
each
quarterly
correctional
staffing
report.
9/20/2023 at
9:00 a.m.

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

5

6

7

8

9

10

11

12

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 parties are to
file a joint status report as to
the adequacy of the correctional
staffing reports, including the
EMT’s progress on evaluating the
adequacy of the reports and
whether the EMT’s performance
measures touch on this issue.
(Doc. 3994.)
Status conference: The parties
should be prepared to discuss
the matter outlined in the cell
above. (Doc. 3994.)
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).
The parties should file a joint
report on the defendants’
ongoing process to further
update the staffing analysis.
Status conference: The parties
should be prepared to discuss
the matter outlined in the cell
above.
The defendants must develop with
the Savages, and submit to the

6

9/20/2023 at
9:00 a.m.

8/17/2023 at
5:00 p.m.

8/29/2023 at
8:30 a.m.
Done

Done

9/15/2023 at
5:00 p.m.
9/20/2023 at
9:00 a.m.
On hold
pending

8/31/2023 at
8:30 a.m.

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III.C
1

2

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). The State’s
proposed benchmarks do not
reflect the operative Updated
2022 Correctional Staffing
Analysis (Doc. 3928) and they
employ a 33% overtime rate,
which is a contested issue.
Accordingly, the court does not
accept the proposed benchmarks
at this time and will revisit
the issue of benchmarks once
other issues pertaining to the
quarterly correctional staffing
reports, overtime calculation,
and updated staffing analyses
are resolved.
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 must submit a joint
mental-health-staffing “trends”

7

consideration
of other
matters as
indicated.

7/1/2025

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

Within seven
days of the

3

4

report to the court within seven
days of the filing of each
quarterly mental-health-staffing
report. The “trends” reports
should include the five items
outlined in the court’s July 19,
2023, order. (Doc. 3998).
Status conference: The parties
should be prepared to discuss
what the quarterly
mental-health-staffing reports
reflect, as outlined in their
most recent
mental-health-staffing trends
report.
There is an ongoing 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). Plaintiffs filed
reports as to this issue (Doc.
3766 & Doc. 3854) and the
defendants filed a response to
the plaintiffs’ report. (Doc.
3856). In light of 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).
At the triannual status
conference on July 14, 2023, the
parties agreed that the court
should wait to see if the EMT’s
performance measures touch on
this issue. Nonetheless, the
parties are to file a joint
status report as to the EMT’s
progress on evaluating the
quarterly mental-health staffing
reports and whether the EMT’s

8

filing of
each
quarterly
correctional
staffing
report.
9/20/2023 at
9:00 a.m.

8/17/2023 at
5:00 p.m.

5
6

7

III.D
1

2

performance measures touch on
this issue.
Status conference: The parties
should be prepared to discuss
the preceding joint report.
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. Note: The Omnibus
Remedial Order originally set
June 1, 2025, as the compliance
deadline. (Doc. 3464) at
§ 2.2.3. As reflected in the
parties’ July 26, 2023, joint
filing (Doc. 4004) at 2–3, that
date was reset to July 1, 2025
(Doc. 3486) at 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 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

9

8/29/2023 at
8:30 a.m.
Beginning one
year from the
initiation of
monitoring
7/1/2025

On a weekly
basis

8/17/2023 at
5:00 p.m.

8/31/2023 at
8:30 a.m.

3

4

5

6

reconsider looking into the
issue itself (Doc. 3768 and Doc.
3865).
At the triannual status
conference on July 14, 2023, the
parties agreed that the court
should wait to see if the EMT’s
performance measures touch on
this issue. The parties are to
file a joint status report as to
the EMT’s progress on reviewing
the SMI reports and whether the
EMT’s performance measures touch
on this issue.
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 have met this deadline.
(Doc. 3698). Based on the
representations made at several
status conferences, the court

10

8/29/2023 at
8:30 a.m.

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

9/20/2023 at
9:00 a.m.

8/17/2023 at
5:00 p.m.

8/31/2023 at
8:30 a.m.

7

8

III.E
1

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 and Doc. 3862).
At
the triannual status conference
on July 14, 2023, the parties
agreed that the court should
wait to see if the EMT’s
performance measures touch on
this issue. The parties are to
file a joint status report as to
the EMT’s progress on the
continued cleanliness of RHU
cells and whether the EMT’s
performance measures touch on
this issue.
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.
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

8/29/2023 at
8:30 a.m.
Stayed

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

8/31/2023 at
8:30 a.m.

III.F
1

2

IV.A
1

2

3

HIGHER LEVELS OF CARE
In collaboration with the EMT,
ADOC must reassess, on an annual
basis, (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 submitted
joint reports on how to proceed
on this issue on January 27,
2023 (Doc. 3905) and February 9,
2023 (Doc. 3918). At the
triannual status conference on
July 14, 2023, the parties
agreed that the court should
wait to see if the EMT’s
performance measures touch on
this issue. The parties are to
file a joint status report as to
the EMT’s progress as to
assessing the mental-health
caseload and whether the EMT’s
performance measures touch on
this issue.
Status conference: The parties
should be prepared to discuss
the matter in the preceding
cell.

8/17/2023 at
5:00 p.m.

8/29/2023 at
8:30 a.m.

IV. MISCELLANEOUS
STATUS CONFERENCES
Triannual status conference,
11/17/2023 at
with the parties to submit
9:00 a.m.
reports 10 business days before
the status conference (Doc. 3467
and Doc. 3480).
Triannual status conference,
2/9/2024 at
with the parties to submit
9:00 a.m.
reports 10 business days before
the status conference (Doc. 3467
and Doc. 3480).
Triannual status conference,
7/12/2024 at
with the parties to submit
9:00 a.m.
reports 10 business days before

12

8/31/2023 at
8:30 a.m.

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).

4

5

IV.B
1

2

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
are to be by videoconferencing
unless otherwise specified.

DONE, this the 28th day of August, 2023.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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