Dunn et al v. Thomas et al

Filing 4119

REVISED REMEDY SCHEDULING ORDER ON PHASE 1 ADA CLAIMS AND PHASE 2A EIGHTH AMENDMENT CLAIM: It is ORDERED that the joint motion for extension of time to file proposed revised ADA transition plan (Doc. 4117 ) is granted; and it is further ORDERED t hat, based on the representations made at the status conference on 12/8/2023, and in light of subsequent orders, and because the triannual status conference, now set for 2/9/2024, must be reset, 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 as further set out in order. Triannual Status Conference set for 2/9/2024 at 9:00 AM is reset to 3/1/2024 at 09:00 AM by ZOOM before Honorable Judge Myron H. Thompson. Signed by Honorable Judge Myron H. Thompson on 1/26/2024. Furnished calendar, AG, LW, VIDEO CONF. (Deadline terminated: Status Conference set for 2/9/2024)(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 ADA CLAIMS
AND PHASE 2A EIGHTH AMENDMENT CLAIM
It is ORDERED that the joint motion for extension of time to file
proposed revised ADA transition plan (Doc. 4117) is granted; and it is
further ORDERED that, based on the representations made at the status
conference on December 8, 2023, and in light of subsequent orders, and
because the triannual status conference, now set for February 9, 2024,
must be reset, 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

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

OLD DATES
I. GENERAL
3/9/2022

NEW DATES

II. PHASE 1 ADA CLAIMS
II.A
1

2

3

4

5

PHASE 1 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 are to file
a status report as
to how they plan to
proceed with regard
to this facility.
Status conference:
Parties should be
prepared to discuss
matter 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

11/1/28

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

2/7/24 at 5:00
p.m.

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

3/1/24 at 9:00
a.m.

11/1/27

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

2

2/26/24 by 5:00
p.m.

6

III.A

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 were to file
the completed
proposed revised
transition plan by
January 26, 2024, as
they represented at
the status
conference on
September 20, 2023,
but with this order
entered today that
date has been
extended to February
26, 2024.
Also,
based on
representations made
at the triannual
conference on
December 5, 2023,
the issue of how to
proceed on the
alterations to
Donaldson has been
folded into this
cell. (Doc. 4105).
Status conference:
Parties should be
prepared to discuss
the matter outlined
in the preceding
cell.

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

III. PHASE 2A EIGHTH AMENDMENT CLAIM
MONITORING

3

3/1/24 at 9:00
a.m.

1

2

3

4

5

Status conference:
The parties should
be prepared to
discuss the status
of the EMT.
Parties to jointly
file the EMT’s
finalized proposed
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
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

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

Suspended pending
resolution of other
matters.

Suspended pending
resolution of other
matters.

Suspended pending
resolution of other
matters.

Suspended pending
resolution of other
matters.

4

3/1/24 at 9:00
a.m.

6

7

8

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 filed a list
of monitoringrelated issues that
the court could
potentially resolve
before the
submission of
objections to the
measures/tools.
(Doc. 4046). Each
of those issues is
now fully briefed
(Doc. 4063; Doc.
4070, & Doc. 4076).
The parties
additionally filed
illustrative samples
of the measures and
tools as outlined in
Doc. 4090. The
monitoring-related
issues are under
submission. The
court hopes to have
these issues
resolved before the

Suspended pending
resolution of other
matters.

Suspended pending
resolution of other
matters.

Under submission

5

next status
conference, but the
court cannot promise
that this will be
so. The parties
indicated oral
argument may be
prudent. If the
court finds oral
argument necessary,
it will set that
date at a later
time.
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

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). Plaintiffs
stated that, even
with defendants’ new
staffing plan,
defendants are
“unlikely” to meet
the July 1, 2025,
staffing deadline
and that plaintiffs
fear that “ADOC’s
current progress and
trajectory will
undoubtedly result
in a ‘scramble’ or
request of a
significant
extension” of the
correctional
staffing deadline.
Id. at 21. At the
triannual conference
held on December 5,
2023, the court
voiced concerns
about the looming
July 1, 2025,
deadline, especially
in regard to what to

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

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

Under submission

7

5

6

7

8

do in the event that
it is not met. The
court is currently
considering how to
proactively approach
that deadline. The
court will set oral
argument on this
issue, if necessary,
at a later date.
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

Suspended
pending further
court
consideration.
On hold pending EMT’s
evaluation.

Done

Done

8

9

10

11

(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 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
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.

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

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

On hold pending
consideration of
other matters as
indicated.

9

12

III.C
1

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.

7/1/2025

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

10

2

3

4

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-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

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.

11

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

5

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 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

Beginning one year
from the initiation
of monitoring

12

6

III.D
1

2

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.
(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

7/1/2025

On a weekly basis

On hold pending EMT’s
evaluation.

13

3

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 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

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

14

4

5

6

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.
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

Within seven days of
the filing of each
monthly restrictive
housing report.
2/9/24 at 9:00 a.m.

On hold pending EMT’s
evaluation.

15

3/1/24 at 9:00
a.m.

7

III.E
1

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
to stay. (Doc. 3526)
at 75-76.
SUICIDE PREVENTION
ADOC must conduct
inspections of all

Stayed

Stayed as to RHU
cells only;

16

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

otherwise, on a
quarterly basis

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

17

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.A
1

2

3

4

IV.B

IV. MISCELLANEOUS
STATUS CONFERENCES
Triannual status
2/9/2024 at 9:00 a.m.
conference, with the
parties to submit
reports 10 business
days before the
status conference
(Doc. 3467 and Doc.
3480).
Triannual status
7/12/2024 at 9:00
conference, with the a.m.
parties to submit
reports 10 business
days before the
status conference
(Doc. 3467 and Doc.
3480).
Triannual status
11/22/2024 at 9:00
conference, with the a.m.
parties to submit
reports 10 business
days before the
status conference
(Doc. 3467 and Doc.
3480).
Triannual status
2/7/2025 at 9:00 a.m.
conference, with the
parties to submit
reports 10 business
days before the
status conference
(Doc. 3467 and Doc.
3480).

3/1/2024 at 9:00
a.m.

STANDING ORDERS FOR HEARINGS AND STATUS CONFERENCES

18

1

2

3

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.
Any hearing on
objections to the
performance measures
and audit tools will
be held virtually
and made available
to the public as
outlined in Doc.
4104.
DONE, this the 26th day of January, 2024.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

19