Dunn et al v. Thomas et al

Filing 4029

OPINION AND ORDER ON MONITORING: it is ORDERED that: 1) The parties shall, by 5:00 p.m. on 11/17/2023, jointly file the EMT's finalized proposed versions of the performance measures and audit tools; The parties should docket a pdf version in the record and submit a Word version to the court's proposed order box; 2) If the plaintiffs have any unresolved objections to the performance measures/audit tools, the plaintiffs shall, by 5:00 p.m. on 11/17/2023, file line-by-line redlined ver sions of the EMT's finalized proposed performance measures and audit tools; The redlines should include all proposed modifications to the EMT's proposed finalized versions of the performance measures and audit tools; 3) If the defendants ha ve any unresolved objections to the performance measures/audit tools, the defendants shall, by 5:00 p.m. on 11/17/2023, file line-by line redlined versions of the EMT's finalized proposed performance measures and audit tools; The redlines should include all proposed modifications to the EMT's proposed finalized versions of the performance measures and audit tools; 4) The parties' redlined versions of the EMT's proposed finalized versions of the performance measures and audit tools should be formatted the same, that is, the redlining system used by the parties should be consistent so that all parties can clearly compare the versions and understand the exact areas of disagreement; 5) The parties shall file, by 5:00 p.m. on 9/28/2023, their proposal or proposals as to what the court's resolution procedure should look like concerning disagreements about the performance measures/audit tools, including the issues outlined in this opinion; 6) The parties shall file, b y 5:00 p.m. on 9/28/2023, their list of monitoring-related issues that the court can take up, and potentially resolve, before 11/17, as well as a proposal or proposals on how to resolve those issues before 11/17; 7) A status conference, by Zoom, is s et on 10/2/2023, at 9:00 a.m. to discuss the status of the pre-monitoring phase; how to proceed on any unresolved objections to the performance measures and/or audit tools; and what monitoring-related issues the court may be able to take up, and pote ntially resolve, before 11/17; 8) Because the pre-monitoring phase is now operating under a new timeline, the parties are no longer required to file the remaining joint reports outlined by the court's previous order (Doc. 3988 ). Signed by Honorable Judge Myron H. Thompson on 9/14/2023. (Furnished: Calendar, AG, & LW) (amf, )

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)

OPINION AND ORDER ON MONITORING
For the past several months, the External Monitoring
Team (EMT) has been in what it calls the “pre-monitoring
phase,”

during

which

it

is

gearing

up

to

begin

“monitoring” ADOC’s compliance with the court’s remedial
orders.

Order on the Status of the EMT and the EMT’s

Pre-Monitoring

Phase

Timeline

(Doc.

3988).

The

pre-monitoring phase involves, among other things, the
development and finalization of (1) performance measures
and (2) audit tools.

Generally, the court understands

that the performance measures are “what” the EMT is

measuring,

while

the

audit

tools

are

“how”

the

EMT

assesses the measures.1

A.
In February 2023, the EMT proposed the following
nonbinding timeline to the court:
• By

July

1,

2023:

the

EMT

provides

performance

measures to the parties.
• By August 1, 2023: the parties finalize performance
measures.
• By October 1, 2023: the EMT provides audit tools to
the parties.
• By November 1, 2023: the parties finalize the audit
tools.

1. The 2020 Phase 2A Opinion and Order on Monitoring
of Eighth Amendment Remedy explained that: First,
“[p]erformance measures are the metrics by which the
monitors are to evaluate whether the defendants are
complying with the court’s remedial orders.” Braggs v.
Dunn, 483 F. Supp. 3d 1136, 1148 (M.D. Ala. 2020)
(Thompson, J.). Second, “[w]hile the term ‘audit tool’
has not been precisely defined by either party, it
essentially refers to the method or procedure by which
the EMT members assess compliance with the performance
measures.” Id. at 1151–52.
2

See Supplemental Joint Report (Doc. 3918) at 2.
On August 28 and 29, 2023, the parties met with the
EMT regarding the draft performance measures and audit
tools.

See Joint Status Report (Doc. 4019).

On August

30, as a result of that meeting, the parties and the EMT
developed and submitted to the court a new pre-monitoring
phase timeline, anchored to new dates for “completion of
the performance measures and audit tool.”

Id.

That new

timeline is as follows:
• September 12, 2023: the EMT will provide a revised
draft of the performance measures to the parties.
• September 29, 2023: the EMT will provide the draft
audit tools to the parties.
• October

13,

2023:

the

parties

will

submit

any

objections to the performance measures and audit
tools to the EMT.
• November

3,

2023:

the

EMT

will

respond

parties’ objections, if any.
See Joint Status Report (Doc. 4019) at 1–2.

3

to

the

The parties further represented that, by November
17,

2023,

“[b]ased

on

the

above

schedule,

...

any

unresolved objections to the performance measures and
audit tool will be submitted to the Court for final
resolution in accordance with the Phase 2A Opinion and
Order on Monitoring of Eighth Amendment Remedy.”

Id.

(citing the 2020 Phase 2A Opinion and Order on Monitoring
of

Eighth

Amendment

Remedy

(Doc.

2915)

at

36–37,

published at Braggs v. Dunn, 483 F. Supp. 3d 1136, 1148–
49 (M.D. Ala. 2020) (Thompson, J.)).

And that the EMT

envisioned the monitoring phase to begin in January 2024.
See id.
This new pre-monitoring timeline was discussed on
the record at a hearing held on August 31, 2023.

While

it is disheartening that monitoring may not begin in
earnest until 2024 (two months longer than initially
envisioned

by

the

pre-monitoring

timeline,

see

Supplemental Joint Report (Doc. 3918) at 2 (anticipating
monitoring
original

to

begin

timeline)),

by
the

November
court
4

1,

2023,

understands

under

the

that

the

original timeline did not provide the cleanest procedure
for

evaluating,

objecting

to,

and

performance measures and audit tools.

finalizing

the

As the parties

represented at the August 31 hearing, the new timeline
provides for a more streamlined and practical approach.
Nonetheless, as the development and evaluation of
the performance measures and audit tools advances under
this new timeline, the court finds it necessary to have
a clear vision as to how the measures and tools will be
finalized.
As discussed at the August 31 hearing, under the new
timeline

the

essentially

court

understands

uninvolved

in

the

that

it

will

evaluation

remain
of

the

performance measures and audit tools until November 17,
2023.

Rather, the parties are to submit objections to

the EMT by October 13 and the EMT is to respond by
November 3.

In response to the court’s concern that the

parties may not complete mediation before Magistrate
Judge John Ott by November 17 if they do not begin until
November 3 (and experience in this litigation is the best
5

proof of this concern), the parties indicated that the
process would be more fluid and that they will not wait
until November 3 to begin mediation but rather that
mediation

would

be

an

ongoing

and

informal

process

spanning from as early as September 12 and formally
ending on November 17.
dates,

for

example,

measure progress.

The October 13 and November 3

are

more

informal

milestones

to

Between September 12 and November 17,

various objections and proposals will be exchanged back
and

forth

under

the

mediator in this case.

supervision

of

Judge

Ott,

the

Judge Ott orally confirmed to the

court that the process would work like this and that he
believed it was the most efficient.

He also assured the

court, as had the parties at the August 31 hearing, that
the November 17 date was not in jeopardy, and that all
objections (though hopefully there are none) would be
ready for resolution by the court on that date.

Thus,

if mediation fails in whole or in part, the parties will
submit on November 17 any unresolved objections to the
court

for

“final

resolution.”
6

Joint

Status

Report

(Doc. 4019) at 2.

While this approach is a departure

from the three-step process provided by the Phase 2A
Opinion

and

Order

on

Remedy (Doc. 2915),2

Monitoring

of

Eighth

Amendment

the court finds it appropriate to

allow for the utmost flexibility and collaboration in
working through and mediating areas of disagreement in
anticipation of November 17, when the court will enter
the equation.

B.
What

is

unclear

is

how,

in

the

event

that

the

parties’ discussions with the EMT and mediation before
Judge Ott fail in whole or in part, the court should
resolve the remaining areas of disagreement as to the
performance measures and audit tools.

The court brought

up two concerns at the August 31 hearing: (1) how the

2. “Once the performance measures are established
but before monitoring begins, the parties will be given
an opportunity to raise objections to any of the proposed
measures through a standard dispute resolution process:
the objection must be raised first with the EMT, then via
mediation, and finally with the court if still
unresolved.” Braggs, 483 F. Supp. 3d at 1149.
7

parties should present unresolved objections, and (2) how
the court should proceed in resolving those objections.
As to the first issue, the court finds it necessary
that the parties should present any unresolved objections
by filing, on November 17, 2023, three versions of the
performance measures/audit tools.

First, the parties

should file the EMT’s finalized proposed performance
measures and audit tools in their entirety.

This version

should be, post discussion and mediation, what the EMT
thinks

is

the

best

measures/audit tools.

version

of

the

performance

Moreover, it should be the entire

measures/tools. The court does not see how it is feasible
or practicable to resolve any discrete issues related to
the measures/tools without having a holistic view of the
measures/tools.

Indeed, even if there are no objections

for the court to resolve come November 17, the court will
require the submission of the EMT’s finalized proposed
performance

measures/audit

tools

official record in this case.
should

file

edited

versions
8

to

be

part

of

the

Second, the plaintiffs
of

the

EMT’s

finalized

proposed performance measures/audit tools that contain
redlined changes that reflect the plaintiffs’ proposed
modifications.

Third, the defendants should file edited

versions of the EMT’s finalized proposed performance
measures/audit tools that contain redlined changes that
reflect the defendants’ proposed modifications.
redlined

changes

in

the

plaintiffs’

and

The

defendants’

versions should be formatted consistently for ease of
comparison.
As to the second issue, that is, what the court’s
resolution procedure should look like, the court finds
it appropriate for the parties first to meet with Judge
Ott and then to come up with a proposal or proposals.
The court has not even seen what a performance measure
or an audit tool looks like; Judge Ott has.

And other

than informally, the court has not met the EMT and
discussed with the members any concerns they have; Judge
Ott has.
knowledge
proposal

Judge Ott thus has useful, firsthand, intimate
that
or

could

proposals

facilitate
on
9

how

the
to

formation
proceed

on

of

a

any

objections.

The court will therefore require, as stated,

that the parties, with input from the EMT where necessary
and appropriate, mediate with Judge Ott a proposal or
proposals on how to proceed on any objections and then
to present to the court their proposal or proposals:

In

mediating the issue of the proposal or proposals, the
parties should consider, among other things: a briefing
scheduling, before and/or after any hearing; whether the
court needs to hold a hearing and take evidence, and, if
so, how long the hearing should last; how the EMT members,
together

or

singularly,

should

participate

in

any

hearing; how the experts should participate; what experts
will be called; whether there will be expert reports,
and, if so, when filed; and whether the hearing should
be by Zoom or in person, in whole or in part.
concern

is

that

the

parties

should

assure

A critical
that

the

resolution process places the least burden possible on
the individual members of the EMT and their schedules.
The court understands that the EMT members have busy
schedules.

The parties, after mediating with Judge Ott
10

and with input from the EMT as needed, should submit
their proposal or proposals by no later than September
28, 2023, at 5:00 p.m.

The court will then discuss the

proposal or proposals at the status conference on October
2, 2023, at 9:00 a.m.

C.
Finally, the court understands that there may be
monitoring-related

issues

that

can

be

taken

up,

and

perhaps even resolved, by the court before November 17,
2023.

That is, monitoring issues that may be related to

the performance measures/audit tools, but that are ripe
for court resolution at present--and that, indeed, whose
resolution may even facilitate the resolution of disputes
over the performance measures/audit tools.

The court

will therefore require that the parties, with input from
the EMT where necessary and appropriate, mediate with
Judge Ott and prepare a list of monitoring-related issues
that the court can take up before November 17, including
a proposal or proposals on how to resolve those issues
11

before November 17.

The list and proposal(s) should be

filed no later than September 28, 2023, at 5:00 p.m.

The

parties should be prepared to discuss this issue at the
October 2 status conference.
For now, regarding the development and finalization
of

performance

measures

and

audit

tools,

the

court

understands that the parties will collaboratively work
with the EMT and productively mediate before Judge Ott
to

find

areas

of

agreement

and

to

narrow

areas

of

disagreement.
Accordingly, it is ORDERED that:
(1) The parties shall, by 5:00 p.m. on November 17,
2023, jointly file the EMT’s finalized proposed
versions of the performance measures and audit
tools.

The parties should docket a pdf version

in the record and submit a Word version to the
court’s proposed order box.
(2) If the plaintiffs have any unresolved objections
to the performance measures/audit tools, the
plaintiffs shall, by 5:00 p.m. on November 17,
12

2023, file line-by-line redlined versions of the
EMT’s finalized proposed performance measures
and audit tools.

The redlines should include

all proposed modifications to the EMT’s proposed
finalized versions of the performance measures
and audit tools.
(3) If the defendants have any unresolved objections
to the performance measures/audit tools, the
defendants shall, by 5:00 p.m. on November 17,
2023, file line-by-line redlined versions of the
EMT’s finalized proposed performance measures
and audit tools.

The redlines should include

all proposed modifications to the EMT’s proposed
finalized versions of the performance measures
and audit tools.
(4) The

parties’

redlined

versions

of

the

EMT’s

proposed finalized versions of the performance
measures and audit tools should be formatted the
same, that is, the redlining system used by the
parties should be consistent so that all parties
13

can clearly compare the versions and understand
the exact areas of disagreement.
(5) The parties shall file, by 5:00 p.m. on September
28, 2023, their proposal or proposals as to what
the court’s resolution procedure should look
like

concerning

disagreements

about

the

performance measures/audit tools, including the
issues outlined in this opinion.
(6) The parties shall file, by 5:00 p.m. on September
28,

2023,

issues

their

that

the

list
court

of

monitoring-related
can

take

up,

and

potentially resolve, before November 17, as well
as a proposal or proposals on how to resolve
those issues before November 17.
(7) A status conference, by Zoom, is set on October
2, 2023, at 9:00 a.m. to discuss the status of
the pre-monitoring phase; how to proceed on any
unresolved
measures

objections
and/or

audit

to

the
tools;

performance
and

what

monitoring-related issues the court may be able
14

to

take

up,

and

potentially

resolve,

before

November 17.
(8) Because

the

pre-monitoring

phase

is

now

operating under a new timeline, the parties are
no longer required to file the remaining joint
reports outlined by the court’s previous order
(Doc. 3988). See also Revised Remedy Scheduling
Order (Doc. 4016) at 4–5, cells III.A.4-5.
DONE, this the 14th day of September, 2023.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

15