Dunn et al v. Thomas et al

Filing 4051

REVISED REMEDY SCHEDULING ORDER ON PHASE 1 AND PHASE 2A ADA CLAIMS AND PHASE 2A EIGHTH AMENDMENT CLAIM: Based on discussions had on-the-record during the status conference held on 10/11/2023, and in light of the court's granting of the joint motion to extend (Doc. 4047 ), 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; Status Conference previously set for 11/21/2023 is RESET for 12/8/2023, at 9:00 AM, before Honorable Judge Myron H. Thompson, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 10/11/2023. (Furnished: Calendar, AG, & LW) (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
Based on discussions had on-the-record during the status conference
held on October 11, 2023, and in light of the court’s granting of the
joint motion to extend (Doc. 4047), 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

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
PHASE 1 and 2A ADA
Phase 1: Deadline for
11/1/2028
termination of
monitoring. (Doc. 3801).
Phase 1: The deadline
10/13/23 at
for alterations to
p.m.
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:
11/21/23 at
Parties should be
a.m.
prepared to discuss
matter in preceding cell.
(Doc. 3992).
Phase 1: The deadline
10/13/23 at
for alterations to
p.m.
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:
11/21/23 at
Parties should be
a.m.
prepared to discuss
matter identified in
preceding cell. (Doc.
3992).
Phase 1: Deadline for
11/1/2027
completion of alterations
for the second and third

2

NEW DATES

CLAIMS

5:00

9:00

12/8/23 at 9:00
a.m.

5:00

9:00

12/8/23 at 9:00
a.m.

7

8

III.A
1

2

phases regarding the
removal, remediation, or
construction of new
facilities. (Doc. 3801).
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.

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

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

III. PHASE 2A EIGHTH AMENDMENT CLAIM
MONITORING
Status conference: The
10/11/2023 at
parties should be
9:00 a.m.
prepared to discuss the
status of the EMT.
Parties to jointly file
11/17/2023 at
the EMT’s finalized
5:00 p.m.
proposed versions of the
performance measures and
audit tools. (Doc. 4029).

3

12/8/2023 at
9:00 a.m.
12/5/2023 by
5:00 p.m. (The
related
informal
milestones, see
Order on
Monitoring
(Doc. 4029),
are adjusted as
follows:
• 10/30/23—
EMT

3

4

5

6

If the plaintiffs have
any unresolved objections
to 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 unresolved objections
to 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

11/17/2023 at
5:00 p.m.

provides
draft
audit
tools to
parties;
• 11/13/23—
Parties’
objections
given to
EMT;
• 11/20/23—
EMT gives
response
to
parties.)
12/5/2023 by
5:00 p.m.

11/17/2023 at
5:00 p.m.

12/5/2023 by
5:00 p.m.

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

12/8/2023 at
9:00 a.m.

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

The deadline
was continued,
and the court
will reset it a
later date.

4

7

8

9

III.B
1

2

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 monitoringrelated 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). Parties timely
filed the list and
submitted a briefing
schedule. (Doc. 4046).
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 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

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

The court will
reset the
hearing at a
later date.

Done.

The court will
decide later
whether to
adopt the
proposed
briefing
schedule.

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

The court will
reset the
hearing at a
later date.

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

Within seven days
of the filing of
each quarterly

5

3

4

5

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 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

correctional
staffing report.

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

12/8/23 at 9:00
a.m.

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

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

6

12/8/23 at 9:00
a.m.

6

7

8

9

10

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
process of updating the
staffing analysis as

On hold pending
EMT’s evaluation.

Done

Done

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

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

7

11

12

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.

On hold pending
consideration of
other matters as
indicated.

7/1/2025

8

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

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.

9

12/8/23 at 9:00
a.m.

5

6

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 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

Beginning one
year from the
initiation of
monitoring

7/1/2025

10

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.
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

On a weekly basis

On hold pending
EMT’s evaluation.

11

3

4

5

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.
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,

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

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

On hold pending
EMT’s evaluation.

12

12/8/23 at 9:00
a.m.

6

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 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

Stayed

13

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 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

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

On hold pending
EMT’s evaluation.

14

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

IV. MISCELLANEOUS
IV.A
1

2

3

4

5

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).

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

12/08/2023 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.

15

2

All hearings, evidentiary
hearings, and status
conferences are to be by
videoconferencing unless
otherwise specified.
DONE, this the 11th day of October, 2023.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

16