Dunn et al v. Thomas et al

Filing 4053

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, the court changed the upcoming triannual status confere nce--and the attendant topics of discussion--from 11/21/2023, to 12/8/2023. However, there are two matters the court finds it necessary to modify and expand in this revised scheduling order. First, as the old scheduling order reflects, the parties ar e to file, on 10/27/2023, two proposals as further set out in the order. Because time is of the essence for both of these matters, the court finds it unhelpful to wait until the December 8 triannual conference to take them up--rather, this order rese ts discussion on those topics to a Status Conference to be held on 11/3/2023 at 9:00 AM before Honorable Judge Myron H. Thompson. The November 3 status conference will focus solely on the correctional-staffing and RHU safe-functioning proposals that will be submitted on 10/27/2023. The December 8 status conference remains as scheduled as to all other matters. Second, the last scheduling order held in abeyance two interlocking monitoring-related issues as further set out in the order. See Statu s Report (Doc. [4046) at 3. By way of this order (formatted below), the court adopts that briefing schedule in whole and as further set out in the order. Accordingly, 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 out further in the order. Signed by Honorable Judge Myron H. Thompson on 10/12/2023. Furnished calendar, AG, LW. (dmn, )

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, the court changed the upcoming triannual status
conference--and the attendant topics of discussion--from November 21,
2023, to December 8, 2023.

However, there are two matters the court

finds it necessary to modify and expand in this revised scheduling order.
First, as the old scheduling order reflects, the parties are to
file, on October 27, 2023, two proposals with the help of Mr. Rick
Raemisch: one for 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. 4051) at cell III.B.4, and another for the “development of
plan that will allow ADOC’s RHUs ... to function safely with the
correctional staff that ADOC currently employs,”

id. at cell III.D.3.

Because time is of the essence for both of these matters, the court finds
it unhelpful to wait until the December 8 triannual conference to take

them up--rather, this order resets discussion on those topics to a status
conference to be held on November 3, 2023.
conference

will

focus

solely

on

the

The November 3 status

correctional-staffing

and

RHU

safe-functioning proposals that will be submitted on October 27, 2023.
The December 8 status conference remains as scheduled as to all other
matters.
Second, the last scheduling order held in abeyance two interlocking
monitoring-related issues: (1) the filing of a “proposal or proposals
as to what the court’s resolution procedure should look like concerning
disagreements about the performance measures/audits tools,” id at cell
III.A.6, and (2) setting a discussion and briefing schedule for the list
of potentially resolvable monitoring-related issues outlined in the
parties’

recent

status

report,

id.

at

cell

III.A.8.

The

court

understands that the second matter, to some extent, controls the parties’
ability to address the first matter; that is, the development of a
resolution procedure may hinge on the answers to the parties’ list of
questions.

In their status report as to potentially resolvable issues,

the parties lay out a briefing schedule.
at 3.

See Status Report (Doc. 4046)

By way of this order (formalized below), the court adopts that

briefing schedule in whole.

However, the parties briefing on each of

the issues outlined in their report should include, in addition to their
substantive arguments, whether the issue is one that the court can or
should

answer

prior

to

any

evidentiary

hearing

and

resolution

of

objections to the measures/tools, and if so, why. The court is concerned
that some of the questions posed in the status report may be unnecessary,
unripe, or redundant to the final analysis and does not want to lose

2

precious time delving into issues that will not ultimately impact the
case.

Once the court has a better understanding of the issues, by way

of the briefing schedule, it will reset the hearing and any deadlines
for a proposal on a resolution procedure for any objections to the
performance measures/audit tools.
Accordingly, 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.

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

4, cell III.B.2.

3

Cell
I.A

II.A
1

2

3

4

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

II. PHASE 1
PHASE 1 and 2A ADA
Phase 1: Deadline
for termination of
monitoring. (Doc.
3801).
Phase 1: The
deadline for
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 should be
prepared to discuss
matter 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).

OLD DATES
I. GENERAL
3/9/2022

AND PHASE 2A ADA CLAIMS
11/1/28

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

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

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

4

NEW DATES

5

6

7

8

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
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

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

11/1/27

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

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

5

in the preceding
cell.

III.A
1

2

3

4

III. PHASE 2A EIGHTH AMENDMENT CLAIM
MONITORING
Status conference:
12/8/23 at 9:00 a.m.
The parties should
be prepared to
discuss the status
of the EMT.
Parties to jointly
12/5/23 by 5:00 p.m.
file the EMT’s
(The related informal
finalized proposed
milestones, see Order
versions of the
on Monitoring (Doc.
performance measures 4029), are adjusted
and audit tools.
as follows:
(Doc. 4029).
• 10/30/23—EMT
provides draft
audit tools to
parties;
• 11/13/23—
Parties’
objections given
to EMT;
• 11/20/23—EMT
gives response
to parties.)
If the plaintiffs
12/5/23 by 5:00 p.m.
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
12/5/23 by 5:00 p.m.
have any unresolved
objections to the
performance
measures/audit
tools, the
defendants shall
file line-by-line
redlined versions of

6

5

6

7

8

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

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

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

On hold pending
completion of
the briefing
schedule
outlined in the
below cell.
The court adopts
the parties’
briefing
schedule as to
the list of
issues outlined
in their report.
If a hearing is
necessary, the
court will set
it at a later
date postbriefing.

7

9

10

11
III.B
1

2

hearing is
necessary, the court
will set it at a
later date and the
parties should be
prepared to discuss.
Plaintiffs to file
initial briefs as to
the potentially
resolvable
monitoring-related
issues discussed in
the preceding cell.
Defendants to file
responsive briefing
to the plaintiffs’
brief above.
Plaintiffs to file
reply briefs.
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-staffin
g “trends” report to
the court within
seven days of the
filing of each
quarterly
correctional
staffing report.
The “trends” reports

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

11/3/23 by 5:00
p.m.
11/10/23 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.

8

3

4

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-staffin
g reports reflect,
as outlined in their
most recent
correctional-staffin
g 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.

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

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

9

5

6

7

8

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

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

On hold pending EMT’s
evaluation.

Done

Done

10

11/3/23 at 9:00
a.m.

9

10

11

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 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

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

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

On hold pending
consideration of
other matters as
indicated.

11

12

III.C
1

(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.

7/1/2025

MENTAL-HEALTH STAFFING
The defendants must
On March 1, June 1,
submit mental-health September 1, and
staffing reports to
December 1 of each
the court and the
year
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

12

2

3

4

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-staffi
ng “trends” report
to the court within
seven days of the
filing of each
quarterly
mental-health-staffi
ng 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-staffi
ng reports reflect,
as outlined in their
most recent
mental-health-staffi
ng 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).

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

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

On hold pending EMT’s
evaluation.

13

5

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 mentalhealth 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

Beginning one year
from the initiation
of monitoring

14

6

III.D
1

2

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

7/1/2025

On a weekly basis

On hold pending EMT’s
evaluation.

15

3

(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 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

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

16

4

5

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

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

On hold pending EMT’s
evaluation.

17

11/3/23 at 9:00
a.m.

6

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 motion

Stayed

18

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
On hold pending EMT’s
with the EMT, ADOC
evaluation.
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

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

19

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.

IV. MISCELLANEOUS
IV.A
1

2

3

4

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

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.

20

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).

5

IV.B
1

2

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 12th day of October, 2023.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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