Dunn et al v. Thomas et al

Filing 4085

REVISED REMEDY SCHEDULING ORDER ON PHASE 1 AND PHASE 2A ADA CLAIMS AND PHASE 2A EIGHTH AMENDMENT CLAIM: It is ORDERED that the joint motion for extension of time to file status report regarding alterations to Birmingham Work Release and Donaldson (Doc. 4074 ) is granted and that 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 and as further set out in the order. 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." Subpart B of that section pertains to "CORRECTIONAL STAFFING." So the second cell in that subpart is referred to as cell III.B.2. The court's citation for this cell is (Doc. X) at 4, cell III.B.2. Signed by Honorable Judge Myron H. Thompson on 11/22/2023. 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
It is ORDERED that the joint motion for extension of time to file
status report regarding alterations to Birmingham Work Release and
Donaldson (Doc. 4074) is granted and that 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

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

NEW DATES

AND PHASE 2A ADA CLAIMS
11/1/28

11/17/23 at 5:00 p.m.

11/28/23 at 5:00
p.m.

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

11/17/23 at 5:00 p.m.

2

11/28/23 at 5:00
p.m.

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.

3

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
Suspended pending
file the EMT’s
resolution of other
finalized proposed
matters.
versions of the
performance measures
and audit tools.
(Doc. 4029). The
court suspended
submission of the
full measures/tools
and all objections
to the tools pending
consideration of the
monitoring-related
issues. (Doc. 4081).
If the plaintiffs
Suspended pending
have any unresolved
resolution of other
objections to the
matters.
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
Suspended pending
have any unresolved
resolution of other
objections to the
matters.
performance
measures/audit
tools, the
defendants shall
file line-by-line
redlined versions of
the EMT’s finalized
proposed performance

4

5

6

7

8

9

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).
Parties are to file
an affirmative
statement as to
whether they approve
of conducting any
hearing on the
objections to the
performance
measures/audit tools
by Zoom.
(Doc. 4080).
Status conference:
The parties should
be prepared to
discuss the matter
identified in the
preceding cell.
(Doc. 4029).
Parties filed a list
of monitoringrelated issues that
the court could
potentially resolve
before the
submission of
objections to the

Suspended pending
resolution of other
matters.

Suspended pending
resolution of other
matters.

11/27/2023 by 5:00
p.m.

On hold pending
completion of the
briefing schedule
outlined in the below
cell.
11/28/2023 by 5:00
p.m.

5

measures/tools.
(Doc. 4046). Each
of those issues is
now fully briefed
(Doc. 4063; Doc.
4070, & Doc. 4076).
The parties are to
file a joint
statement that
includes
illustrative samples
of the measures and
tools as outlined in
Doc. 4081.
III.B
1

2

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
should include the
five items outlined
in the court’s July
17, 2023, order.
(Doc. 3994.)

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.

6

3

4

5

6

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.
On October 27, 2023,
defendants filed a
proposal for a
concrete plan to
address ADOC’s still
grossly inadequate
correctional
staffing levels.
See Joint Statement
on Correctional
Staffing Recruiting
and Retention (Doc.
4062).
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

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

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

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

On hold pending EMT’s
evaluation.

7

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

7

8

9

10

11

12

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).
Status conference:
The parties should
be prepared to
discuss the matter
in the preceding
cell.
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).
Status conference:
The parties should
be prepared to

Done

Done

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

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

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

7/12/24 at 9:00
a.m.

8

13

discuss the matter
in the preceding
cell.
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

On hold pending
consideration of
other matters as
indicated.

9

14

III.C
1

2

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
2A Understaffing
Remedial Order (Doc.
1657) at § 4,
namely, March 1,
June 1, September 1,
and December 1 of
each year.
The parties must
Within seven days of
submit a joint
the filing of each
mental-health-staffi quarterly
ng “trends” report
correctional staffing
to the court within
report.
seven days of the
filing of each
quarterly
mental-health-staffi
ng report. The
“trends” reports
should include the

10

3

4

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).
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

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

On hold pending EMT’s
evaluation.

11

5

6

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
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.

Beginning one year
from the initiation
of monitoring

7/1/2025

12

(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.

On a weekly basis

On hold pending EMT’s
evaluation.

13

3

4

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.
On October 27, 2023,
the parties filed a
joint statement
outlining the
defendants’ proposal
as to how ADOC will
allow its
restrictive housing
units (RHUs) to
function safely with
the correctional
staff that ADOC
currently employs.
(Doc. 4061). The
court informally
approved this plan
and, as proposed by
the parties, ordered
ongoing monthly
status reports
regarding
restrictive housing
operations. The
defendants are to
file monthly RHU
reports as outlined
in Doc. 4082.
Parties are to file
RHU “trends” report,
as outlined in Doc.
4082.

By 5:00 p.m. on the
15th day of the month
following the
conclusion of the
reporting month.

Within seven days of
the filing of each
monthly restrictive
housing report.

14

5

6

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 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

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

On hold pending EMT’s
evaluation.

15

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

7

III.E
1

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.

Stayed

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

16

III.F
1

IV.A
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
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
STATUS CONFERENCES
Triannual status
12/08/2023 at 9:00
conference, with the a.m.
parties to submit

17

2

3

4

5

IV.B
1

2

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).

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.
All hearings,
evidentiary
hearings, and status
conferences are to

18

be by
videoconferencing
unless otherwise
specified.
DONE, this the 22nd day of November, 2023.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

19