Dunn et al v. Thomas et al

Filing 4041

REVISED REMEDY SCHEDULING ORDER ON PHASE 1 AND PHASE 2A ADA CLAIMS AND PHASE 2A EIGHTH AMENDMENT CLAIM: Upon consideration of the parties' 4030 joint motion for extension of time to submit joint status report on Phase 1 ADA Consent Decree a nd their oral motion made on the record during the status conference held on 9/20/2023, to continue the 10/2/2023, status conference, it is ORDERED that both motions are granted and the deadlines and dates for the Phases 1 and 2A remedy scheduling or der for the ADA and Eighth Amendment claims remain and are revised as set forth below; Status Conference previously set for 10/2/2023 is RESET for 10/11/2023, at 9:00 AM, before Honorable Judge Myron H. Thompson, as further set out in order. (Furnished: Calendar, AG, & LW) (Terminated: Status Conference for 10/2/2023)(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)

REVISED REMEDY SCHEDULING ORDER
ON PHASE 1 AND PHASE 2A ADA CLAIMS
AND PHASE 2A EIGHTH AMENDMENT CLAIM
Upon consideration of the parties’ joint motion for extension of
time to submit joint status report on Phase 1 ADA Consent Decree
(Doc. 4030) and their oral motion made on the record during the status
conference held on September 20, 2023, to continue the October 2, 2023,
status conference, it is ORDERED that both motions are granted and 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

6

OLD DATES
I. GENERAL
The effective date of the
3/9/2022
Phase 2A Omnibus Remedial
Order. (Doc. 3464) at
§ 1.3.

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 9:00
should be prepared to
a.m.
discuss matter in preceding
cell. (Doc. 3992).
Phase 1: The deadline for
9/15/2023
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 9/20/2023 at 9:00
should be prepared to
a.m.
discuss matter identified
in preceding cell. (Doc.
3992).
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).

2

NEW DATES

10/13/23 at
5:00 p.m.

11/21/23 at
9:00 a.m.
10/13/23 at
5:00 p.m.

11/21/23 at
9:00 a.m.

7

8

III.A
1

2

3

4

Phase 1: Parties filed a
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. 4000).
The parties should file the
completed proposed revised
transition plan by January
26, 2024, as they
represented at the status
conference on September 20,
2023.
Status conference: Parties
should be prepared to
discuss the matter outlined
in the preceding cell.

III. PHASE 2A EIGHTH AMENDMENT CLAIM
MONITORING
Status conference: The
9/20/2023 at 9:00
parties should be prepared
a.m.
to discuss the status of
the EMT.
Parties to jointly file the 11/17/2023 at 5:00
EMT’s finalized proposed
p.m.
versions of the performance
measures and audit tools.
(Doc. 4029).
If the plaintiffs have any
11/17/2023 at 5:00
unresolved objections to
p.m.
the performance
measures/audit tools, the
plaintiffs shall file
line-by-line redlined
versions of the EMT’s
finalized proposed
performance measures and
audit tools. (Doc. 4029).
If the defendants have any
11/17/2023 at 5:00
unresolved objections to
p.m.

3

1/26/24 by
5:00 p.m.

2/9/24 at
9:00 a.m.

10/11/23 at
9:00 a.m.

5

6

7

8

9

III.B
1

the performance
measures/audit tools, the
defendants shall file
line-by-line redlined
versions of the EMT’s
finalized proposed
performance measures and
audit tools. (Doc. 4029).
Status conference: The
parties should be prepared
to discuss any objections
to the EMT’s finalized
proposed performance
measures/audit tools.
Parties are to file 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 the court’s
order, (Doc. 4029).
Status conference: The
parties should be prepared
to discuss the matter
identified in the preceding
cell. (Doc. 4029).
Parties are to file their
list of monitoring-related
issues that the court 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. (Doc. 4029).
Status conference: The
parties should be prepared
to discuss the matter
identified in the preceding
cell. (Doc. 4029).
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

4

11/21/2023 at 9:00
a.m.

9/28/23 at 5:00 p.m. 10/6/23 at
5:00 p.m.

10/2/23 at 2:00 p.m. 10/11/23 at
9:00 a.m.

9/28/23 at 5:00 p.m. 10/6/23 at
5:00 p.m.

10/2/23 at 2:00 p.m. 10/11/23 at
9:00 a.m.

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

2

3

4

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). At the status
conference on September 20,
2023, the parties indicated
that the 21-day structure
was no longer necessary, as

5

Within seven days of
the filing of each
quarterly
correctional
staffing report.

11/21/23 at
9:00 a.m.

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

10/27/23 by
5:00 p.m.

5

6

7

8

9

10

they were in the final
process of reviewing
recommendations from Mr.
Raemisch. Accordingly, the
parties should file their
completed proposal.
Status conference: The
parties should be prepared
to discuss the matter in
the preceding cell.
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.)
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 confirming the
RPU completed its annual
review and report of the
current staffing analysis,
as outlined in AR 238. See
Joint Report (Doc. 4033).
The parties should file a
joint report confirming
that the RPU is in the

6

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

11/21/23 at
9:00 a.m.

On hold pending
EMT’s evaluation.

Done

Done

9/15/2023 at 5:00
p.m.

12/1/23 by
5:00 p.m.

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

6/30/24 by
5:00 p.m.

11

12

process of updating the
staffing analysis as
outlined in AR 238. See
Joint Report (Doc. 4033).
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). 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.

7

On hold pending
consideration of
other matters as
indicated.

7/1/2025

III.C
1

2

3

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” 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).

8

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.

11/21/23 at
9:00 a.m.

On hold pending
EMT’s evaluation.

5

6

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 performance measures
touch on this 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. Note: The
Omnibus Remedial Order
originally set June 1,
2025, as the compliance

9

Beginning one year
from the initiation
of monitoring

7/1/2025

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.
III.D
1

2

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 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

10

On a weekly basis

On hold pending
EMT’s evaluation.

3

4

5

measures touch on this
issue.
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). At the status
conference on September 20,
2023, the parties indicated
that the 21-day structure
was no longer necessary, as
they were in the final
process of reviewing
recommendations from Mr.
Raemisch. Accordingly, the
parties should file their
completed proposal.
Status conference: The
parties should be prepared
to discuss the matter in
the preceding cell.
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 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

11

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

10/27/23 by
5:00 p.m.

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

11/21/23 at
9:00 a.m.

On hold pending
EMT’s evaluation.

6

III.E
1

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.
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

Stayed

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

III.F
1

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 mentalhealth caseload and whether
the EMT’s performance
measures touch on this
issue.

On hold pending
EMT’s evaluation.

IV. MISCELLANEOUS
IV.A
1

2

3

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

13

11/21/2023 at 9:00
a.m.

2/9/2024 at 9:00
a.m.

7/12/2024 at 9:00
a.m.

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).

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 22nd day of September, 2023.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

14