Dunn et al v. Thomas et al

Filing 4139

OPINION AND ORDER ON SEVEN MONITORING ISSUES RAISED BY PARTIES: The parties have presented to the court seven monitoring-related issues. See Joint Status Report on Potentially Resolvable Monitoring-Related Issues (Doc. 4046 ). This opinion respon ds to each as further set out in the opinion and order. This opinion does not break any new ground. The questions submitted by the parties are either answered by the court's previous opinions or are raised prematurely. Accordingly, it is ORDERED that the parties' unresolved objections, if any, to the EMT's performance measures and audit tools shall be submitted by a date to be determined at the triannual status conference on March 1, 2024. The EMT's finalized proposed version s of the performance measures and audit tools, and any objections thereto, shall be formatted and filed in a manner consistent with the court's previous Opinion and Order on Monitoring (Doc. 4029 ). Signed by Honorable Judge Myron H. Thompson on 2/29/2024. (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)

OPINION AND ORDER ON SEVEN
MONITORING ISSUES RAISED BY PARTIES
The

parties

have

presented

monitoring-related issues.
Potentially
(Doc. 4046).

Resolvable

to

the

court

seven

See Joint Status Report on
Monitoring-Related

Issues

This opinion responds to each.

I. BACKGROUND
Over the past seven years, the court has written to
this case many times.

Of these prior writings, three

major opinions interlock to create the guiding framework
for approaching the parties’ monitoring-related issues.

The relevant opinions, with accompanying orders, are the
2017 Liability Opinion,1 the 2020 Monitoring Opinion,2
and the 2021 Omnibus Remedial Order.3

A. The 2017 Liability Opinion
In 2017, after an extensive trial, this court entered
the Liability Opinion finding that the State of Alabama
provides inadequate mental-health care in its prisons in
violation of the Eighth Amendment’s prohibition against
cruel and unusual punishment.

See Braggs v. Dunn, 257

F. Supp. 3d 1171, 1267 (M.D. Ala. 2017) (Thompson, J.)
(“Simply put, ADOC’s mental-health care is horrendously
inadequate.”).

The court laid out seven specific factors

1. On the court docket as Liability Opinion and Order
as to Phase 2A Eighth Amendment Claim (Doc. 1285)),
published at Braggs v. Dunn, 257 F. Supp. 3d 1171 (M.D.
Ala. 2017) (Thompson, J.).
2. On the court docket as Phase 2A Opinion and Order
on Monitoring of Eighth Amendment Remedy (Doc. 2915),
published at Braggs v. Dunn, 483 F. Supp. 3d 1136 (M.D.
Ala. 2020) (Thompson, J.).
3. On the court docket as Phase 2A Omnibus Remedial
Opinions and Order (Doc. 3461, Doc. 3462, Doc. 3463, &
Doc. 3464), published at Braggs v. Dunn, 562 F. Supp. 3d
1178 (M.D. Ala. 2021) (Thompson, J.).
2

contributing to the Eighth Amendment violation, and found
that mental-health and correctional understaffing, in
conjunction with overcrowding, permeated each of the
contributing factors.

See id. at 1267-68.

Though the

court found the ADOC liable in this 2017 opinion, it did
not

issue

any

remedy

at

that

time.

Rather,

after

emphasizing the urgency for “immediate and long term”
prospective relief, the court ordered that the case enter
the remedial phase.

Id. at 1268.

B. The 2020 Monitoring Opinion
In September 2020, the court entered the Monitoring
Opinion, adopting a monitoring scheme to be implemented
as part of the remedy for the court’s finding that the
State of Alabama provides inadequate mental-health care
in its prisons in violation of the Eighth Amendment.

See

Braggs v. Dunn, 483 F. Supp. 3d 1136 (M.D. Ala. 2020)
(Thompson, J.).

At that time the court had already

issued, as described in the Monitoring Opinion, “remedial
opinions

and

orders

regarding,

among

other

understaffing, ..., and inpatient treatment....”
3

things,
Id. at

1140 (citations omitted).

The court had “also issued

several remedial orders temporarily adopting the parties’
stipulations regarding other contributing factors....”
Id. (citation omitted)
In considering the proper monitoring scheme, the
court received proposals from both sides.

Ultimately,

the court adopted the defendants’ plan in large part,
with some alterations.

“Most significantly, the court

... adopt[ed] the defendants’ overarching proposal that,
in light of their own admission that they lack the
capacity to self-monitor, outside experts will initially
monitor compliance and will draw on their expertise to
develop many of the details of the monitoring plan.”

Id.

Monitoring is to occur in roughly three phases:
first, monitoring by an external monitoring team (EMT);
second,

external

monitoring

alongside

internal

monitoring by ADOC; and, third, internal monitoring by
ADOC itself (with court oversight until monitoring is
generally terminated).

See id. at 1142.

Thus, the Monitoring Opinion authorized the creation
of

an

EMT

that

will

initially
4

monitor

the

ADOC’s

compliance with the court’s remedial orders until the EMT
can

hand

the

“reins

monitoring team.”
would

be

based

over

to

[the

Id. at 1153.
largely

on

measures” and “audit tools.”

ADOC’s]

internal

The EMT’s monitoring

the

EMT’s

“performance

Performance measures “are

the metrics by which the monitors are to evaluate whether
the defendants are complying with the court’s remedial
orders,” while the term audit tool “essentially refers
to the method or procedure by which the EMT members assess
compliance

with

the

performance

measures.”

Id.

at

1148-52.
The Monitoring Opinion also outlined two structural
features concerning the EMT’s authority and limitations.
First, the court adopted the defendants’ plan “to empower
the EMT to fill out the details of the [monitoring] plan
because of the EMT’s ‘expertise.’”

Id. at 1149.4

As

4. More specifically, the court adopted the
“defendants’ plan to give the EMT authority to modify the
259 initially proposed performance measures (including
by removing them, changing their language, or creating
entirely new performance measures”), using its unique
expertise to create measures necessary to evaluate the
defendants’ compliance with the court’s remedial orders.
Id.
5

ADOC

officials

testified,

the

EMT

should

“have

the

ability to create measures that” adequately address the
remedial orders and should be allowed to develop and
change

performance

they’re
(quoting

measures

reflective’

of

the

then-Commissioner

Commissioner Naglich).

as

needed,

remedial
Dunn

and

“’as

long

orders.”

as
Id.

then-Associate

In other words, the defendants

acknowledged that the EMT “must drive the process of
filling

in

the

open

monitoring scheme.

components”

and

details

of

the

Id.

Second, while it embraced the defendants’ request
that the EMT have the authority to create and modify
performance measures and audit tools, the Monitoring
Opinion

made

clear

that

the

EMT’s

authority

and

discretion to create measures and tools is cabined by the
remedial orders, and that the EMT lacks the authority to
monitor matters beyond the scope of those orders.

In

sum, the EMT’s ability to monitor extends only as far as
needed to evaluate the “defendants’ compliance with the
court’s remedial orders.”

Id.

6

In the monitoring opinion, the court also addressed
the Prison Litigation Reform Act (PLRA).

Under the

statute, “[p]rospective relief in any civil action with
respect to prison conditions shall extend no further than
necessary to correct the violation of the Federal right
of a particular plaintiff or plaintiffs.”
§ 3626(a)(1)(A).

18 U.S.C

The statute directs that a district

court “shall not grant or approve any prospective relief
unless the court finds that such relief is narrowly
drawn, extends no further than necessary to correct the
violation

of

the

Federal

right,

and

is

the

least

intrusive means necessary to correct the violation of the
Federal right.”
findings

are

Id. (emphasis added).
known

as

These three
the

need-narrowness-intrusiveness requirements.

PLRA’s
See United

States v. Sec'y, Fla. Dep't of Corr., 778 F.3d 1223, 1227
(11th

Cir.

2015).

“[E]ach

requirement

imposed”

as

prospective relief must be supported by “particularized
findings”

that

the

relief

satisfies

need-narrowness-intrusiveness requirements.

Id.

the
“It is

not enough to simply state in conclusory fashion that the
7

requirements of [the prospective relief] satisfy those
criteria.”

Id.

The PLRA itself, and the caselaw interpreting it,
leave unclear whether external monitoring qualifies as
prospective

relief

and

therefore

is

subject

need-narrowness-intrusiveness requirement.

to

the

See Braggs,

483 F. Supp. 3d at 1168 (surveying the arguments for and
against monitoring as prospective relief under the PLRA).
The court did not resolve this issue in the Monitoring
Opinion and does not do so now. Rather, in the Monitoring
Opinion,

the

court

made

extensive

need-narrowness-intrusiveness findings on monitoring in
case such findings should be later viewed as necessary.
See

id.

(“[T]o

the

extent

monitoring

must

meet

the

global

and

[PLRA’s] requirement[s], it does.”).
The

court’s

specific.
monitoring

PLRA

findings

were

both

The court found that that “each of the ...
provisions

need-narrowness-intrusiveness
individually and in concert.”

satisfies

the

requirement--both

Id. at 1173.

As to

performance measures and audit tools, the court found
8

that allowing the EMT to establish the measures and tools
necessary

to

monitor

compliance

meets

the

need-narrowness-intrusiveness requirement because they
“will be limited to the court’s remedial orders,” which

Id. at 1149-52.

must independently satisfy the PLRA.
Ultimately,

through

the

Monitoring

Opinion,

the

court adopted the defendants’ monitoring scheme in large
part, issued PLRA findings on the specific components of
that

scheme

as

well

as

the

scheme

as

a

whole,

and

explicitly determined that the EMT’s authority to create
measures

and

remedial

tools--as

limited

by

the

orders--meets

scope

the

need-narrowness-intrusiveness requirements.
The
aspects

Monitoring
of

Opinion

monitoring

also

relevant

addressed
here:

(1)

of

the

PLRA’s
Id.
two

other

the

EMT’s

authority to discontinue monitoring of certain provisions
or

facilities

and

(2)

the

EMT’s

definitions

of

compliance.
First, as set forth in the Monitoring Opinion, the
court vested the EMT experts with the “authority, without
a hearing, to stop evaluating a particular performance
9

measure at a particular facility, or stop evaluating a
facility altogether, based on their own determination of
sustained substantial compliance.”

Id. at 1166.

The

parties cannot force the EMT to decide whether sustained
substantial compliance has been met at any given time.
On the other hand, the parties are not prohibited from
asking the EMT to make its own determination of sustained
substantial compliance.

Thus, the EMT has the discretion

to monitor--or to discontinue monitoring based on its own
determination of sustained substantial compliance--any
non-terminated remedial provision.
Second, the Monitoring Opinion (with the agreement
of the parties) vested the EMT with “the authority to
define

substantial

compliance

for

each

performance

measure,” using both quantitative metrics and qualitative
assessments such as “consideration of whether policies
are

developed,

followed.”

staff

are

trained,

Id. at 1165–66.

and

the

policies

The court found that giving

the EMT authority to define compliance for its monitoring
purposes in this way satisfied the PLRA.

10

Id.

Therefore, the cornerstone of this monitoring scheme
is the EMT, which will draw on its members’ expertise to
determine many of the details of monitoring and to assist
in developing ADOC’s capacity for sustainable internal
monitoring and oversight.
As explained at length in the Monitoring Opinion:
“[E]xternal monitoring is necessary to address
ongoing constitutional violations. This is
because ADOC has failed to self-identify and
self-correct problems with its provision of
mental-health services to inmates, and because
this failure has continued since the liability
opinion, demonstrated by ADOC's ongoing failure
to self-monitor compliance with remedial orders
... Therefore, external monitoring will continue
to be necessary until the defendants have the
capacity to self-monitor; that is, until the
[ADOC] has built and demonstrated its competency
both to identify and correct deficiencies.”
Id. at 1162 (internal citations omitted).

C. The 2021 Omnibus Remedial Order
A year after issuing the Monitoring Opinion, the
court entered a comprehensive Omnibus Remedial Opinion
and Order.

See Braggs v. Dunn, 562 F. Supp. 3d 1178,

1259 (M.D. Ala. 2021) (Thompson, J.) (hereinafter the
“Omnibus Remedial Order”).

The order contains dozens of
11

remedial provisions.

These remedial provisions create

in large part the substantive framework that will be
monitored pursuant to the Monitoring Opinion.

In the

opinion (as supplemented by earlier opinions providing
for

remedial

relief

and

addressing

the

PLRA),

each

ordered remedy is supported by written, particularized
findings that the specific provision satisfies the PLRA’s
requirements.
During
Remedial

See id. at 1259–1359.

the

Order,

proceedings
the

leading

defendants

“related to monitoring.”

to

raised

the
two

Id. at 1204.

Omnibus
arguments

First, they

attempted to have the court adopt a different monitoring
scheme.

Second, fearing costs related to monitoring,

they sought to “impose a requirement that the [remedial]
provisions

themselves

monitoring regimes.”

expressly

prescribe

their

own

Id. at 1205.

The court squarely rejected both of these arguments,
first, because the court had “considered the concerns
raised by the defendants at the [monitoring phase of the
litigation], and it found that the monitoring scheme it
adopted complied with the need-narrowness-intrusiveness
12

mandate of the PLRA.”

Id.

Second, the court explained,

re-evaluating “how the provisions of the proposed omnibus
orders might be monitored or to impose a requirement that
the provisions themselves expressly prescribe their own
monitoring regimes,” would amount to “relitigation of an
issue

recently

adversarial
findings.”

decided

by

proceedings
Id.

the

and

court

with

after

extensive

particularized

PLRA

Summing up, the court reemphasized that

the “scope of the EMT’s authority was established by the
monitoring opinion and order. ...
at

which

to

raise

concerns

The appropriate point
about

the

potential

intrusiveness of monitoring was during the course of
litigation that preceded that opinion and order.”

Id.

D. Summary
Collectively, the three prior opinions clearly lay
out the following.
First, each remedial order in this case has been
supported by written, particularized findings as to the
PLRA’s need-narrowness-intrusiveness requirements. See
Braggs, 562 F. Supp. 3d at 1259-1359.
13

Second, though arguably unnecessary, the monitoring
scheme set forth in the Monitoring Opinion is supported
by written, particularized findings that the scheme’s
components, both individually and in concert, meet the
PLRA’s need-narrowness-intrusiveness requirements.

See

Braggs, 483 F. Supp. 3d at 1143.
Third,

and

more

specifically,

the

monitoring

scheme’s approach to the performance measures and audit
tools

used

to

PLRA-compliant

monitor
remedial

ADOC’s
orders

compliance
is

also

with

the

independently

supported by written, particularized findings as to the
PLRA’s need-narrowness-intrusiveness requirements.

Id.

at 1149-52.
Fourth, the Monitoring Opinion provides that the
performance measures and audit tools are to be created
by the EMT. But, while the EMT’s discretion and authority
to create and modify those measures and toolsare broad,
it

is

limited

to

creating

measures

and

tools

that

evaluate compliance with the court’s remedial orders.
The EMT, in its monitoring, cannot go beyond evaluating
compliance with the remedial orders.
14

Accordingly, the

EMT

cannot,

through

prospective relief.

monitoring,

create

any

new

Only the court can issue prospective

relief.
Fifth, the parties may object, after mediation, to
the EMT’s proposed performance measures and audit tools,
and the court will resolve those objections.

See id. at

1149, 1152.
And, sixth, in light of this framework, the court
has already rejected attempts by the parties to revisit
the scope of the EMT’s authority because that authority
was “established by the monitoring opinion,” and the
“appropriate point at which to raise concerns about the
potential intrusiveness of monitoring was during the
course

of

litigation

opinion and order.”

that

preceded

[the

monitoring]

Braggs, 562 F. Supp. 3d at 1204.

II. MONITORING ISSUES AND RESOLUTION
It took several years to form the EMT, which consists
of four members.
work.

In 2023, the EMT began its initial

Since then, it has been in what it calls the

“pre-monitoring phase,” wherein it has been gearing up
15

to begin monitoring ADOC’s compliance with the court’s
remedial orders.

That is, nearly four years after the

Monitoring Opinion, monitoring still has not begun--but
“pre-monitoring” has.

As stated above, imperative to

this pre-monitoring phase is the EMT’s development of the
performance measures and audit tools that it will use to
assess and monitor ADOC’s compliance with the court’s
remedial

orders.

(Doc. 3918)

at

activities”).
until

its

See
2

Supplemental

(outlining

all

Joint

Report

“pre-monitoring

The EMT cannot begin monitoring in earnest

performance

measures

and

audit

tools

are

finalized.
The EMT has been working hard to develop the measures
and tools that it will use to conduct such monitoring.
The Monitoring Opinion, however, provides that, before
monitoring

begins,

the

parties

will

be

given

an

opportunity to raise objections to any of the EMT’s
proposed measures and tools.

See Braggs, 483 F. Supp.

3d at 1149, 1152.
At this point, the EMT is near the end of its process
of establishing its measures and tools, and the parties
16

are deciding whether to object to any of them.

However,

the parties have asked the court--and the court has
agreed--to

take

up

several

monitoring-related

issues

before the submission of any such objections to the EMT’s
measures

and

tools.

See

Potentially

Resolvable

(Doc. 4046);

see

also

Joint

Status

Report

Monitoring-Related
Order

on

Monitoring

on

Issues
Matters

(Doc. 4081) (“The parties’ ultimate objections to the
measures and tools will not be due until after the court
makes

an

attempt

issues.”).

to

resolve

the

monitoring-related

Each of these issues has been fully briefed.

See Briefs on Monitoring Issues (Doc. 4063, Doc. 4070, &
Doc. 4076).
The seven issues are as follows:
• “Who holds the burden of proof concerning any
hearing on objections to the EMT’s performance
measures and audit tools?
• “Does the Prison Litigation Reform Act
(‘PLRA’) require the Court to conduct a
needs-narrowness-intrusiveness
analysis
of
the EMT’s performance measures and audit tools
generally or to the extent they differ from or
expand the Phase 2A Omnibus Remedial Order
(Doc. 3464, the ‘Remedial Order’)?

17

• “If and to the extent the PLRA requires a
needs-narrowness-intrusiveness analysis for
the EMT’s performance measures and audit
tools,
will
the
analysis
require
a
determination
topic-by-topic
(i.e.,
confidentiality,
coding,
etc.),
performance-measure-by-performance-measure,
or by each section of each performance
measure?
• “Does the EMT possess the authority to define
compliance (whether substantial or some other
measure), as full compliance at 100%?
• “Does the EMT possess the authority under the
Phase 2A Opinion and Order on Monitoring of
Eighth Amendment Remedy (Doc. 2915) to require
ongoing compliance (whether substantial or
some other measure), with all requirements at
all facilities rather than discontinuing
monitoring
of
‘a
particular
performance
measure at a particular facility, or stop
evaluating a facility altogether, based on
[the
EMT’s]
determination
of
sustained
substantial compliance’? (Doc. 2915 at 99).
• “Does the EMT possess the authority to create
performance measures for items not explicitly
required by the Remedial Order?
• “Should the EMT monitor completed provisions
of the Remedial Order, including Sections
2.1.1, 2.1.2, 2.1.3, 2.1.5, 2.1.7.3, 3.1.12,
3.1.3 and 11.3?”
Joint

Status

Report

on

Potentially

Monitoring-Related Issues (Doc. 4046) at 2-3.

18

Resolvable

The issues are relayed above in the order and way
the parties framed them in their Joint Status Report on
Potentially Resolvable Monitoring-Related Issues.
id.

See

However, the court will address them in the order

that seems more appropriate to the court.

Likewise, in

the

some

discussion

questions

below,

slightly

the

court

differently

frames

because

the

of

the

parties’

briefing at times frames the questions in ways that
depart from the initial framing provided above.5
Before delving into each issue, it is helpful to
explain

the

two

types

of

objections

the

defendants

5. Perhaps the most instructive framing of the
questions in the briefing comes from the defendants’
ultimate request for relief. In their response brief,
the defendants request an order that: (1) provides that
the plaintiffs’ bear the burden of proof on any
objections to the measures and tools; (2) restricts the
EMT from creating performance measures and audit tools
that expand beyond the remedial orders; (3) requires the
EMT to define compliance at less than 100 %; (4) requires
the EMT to create a mechanism by which the State can have
the EMT stop monitoring performance measures based on
sustained substantial compliance; and (5) instructs the
EMT not to monitor certain remedial provisions that the
State has completed but which have not been formally
terminated.
Def.’s Response to Pl.’s Brief Regarding
Potentially Resolvable Monitoring Issues (Doc. 4070) at
25 (hereafter “Def.’s Response”).
19

anticipate

bringing

against

the

EMT’s

proposed

performance measures and audit tools: (1) objections that
a

measure

or

tool

“purport[s]

to

impose

obligations

beyond those imposed by the Remedial Order;” and (2)
objections

that

the

EMT’s

definitions

compliance thresholds violates the PLRA.

of

certain

Id. at 7–8.

With this background in mind, as well as the three
earlier opinions summarized above, the court turns to the
issues presented by the parties.
i.

Does
the
PLRA
require
written
need-narrowness-intrusiveness findings for the
EMT’s performance measures and audit tools?

Under this heading the court responds to the second
and third bulleted questions presented in the parties’
Joint

Status

Report

on

Potentially

Resolvable

Monitoring-Related Issues.
As stated in the Monitoring Opinion, whether the
EMT’s performance measures and audit tools qualify as
“prospective

relief”

that

requires

need-narrowness-intrusiveness findings is an issue that
the court has not and need not resolve because the court
previously

found

that

the

EMT’s

20

authority

to

create

measures and tools satisfies the PLRA so long as those
measures and tools are within the scope of the remedial
orders.

See Braggs, 483 F. Supp. 3d at 1167–68. (“[T]o

the extent monitoring must meet [the need-narrownessintrusiveness] requirement, it does.”).
Any measures or tools that are outside the scope of
the remedial orders (that is, measures and tools that are
not targeted at evaluating, assessing, and monitoring
compliance with the remedial orders) are not permitted
by the Monitoring Opinion and are therefore not supported
by the court’s previous PLRA findings.
ii.

Does the EMT possess the authority to create
performance measures for items not explicitly
required by the court’s remedial orders?

The court is hesitant to answer this question in a
vacuum.

In broad terms, the EMT’s authority to monitor

ADOC’s compliance with the court’s remedial orders is
derivative

of

the

remedial

“monitor”

something

that

orders.
has

no

The

EMT

cannot

relationship

to

monitoring compliance with the court’s remedial orders.
The EMT’s authority to create performance measures and
audit tools extends only so far as needed to evaluate
21

ADOC’s

progress

and

compliance

remedies ordered in this case.”
at 1149.

regard

to

the

Braggs, 483 F. Supp. 3d

That said, the remedial orders provide for many

items of many different types.
precise

“with

while

some

are

more

Some orders are very
general.

Whether

a

performance measure or audit tool is within the scope of
monitoring a certain remedial order is context dependent.
However, the court reiterates that EMT’s authority to
create

measures

and

tools

is

limited

to

evaluating,

assessing, and monitoring compliance with the court’s
remedial orders.
iii.

Does the EMT possess the authority to define
compliance as full compliance at 100 %?

The

EMT,

in

exercise

of

its

unique

expertise,

possesses the broad authority to “create the performance
measures” and “define substantial compliance for each
performance measure.”
1162.

Braggs, 483 F. Supp. 3d at 1149,

Importantly though, the EMT possesses no binding

ability to determine compliance with any remedial order.
Only the court can determine ultimate compliance under
the remedial orders and the strictures of the PLRA.
22

The

EMT’s definition of compliance does not bind the court
in any way.

It is simply evidence, albeit “crucial”

evidence, that the court can use when it ultimately
evaluates

whether

external

monitoring

provision should be terminated.

or

a

remedial

Id. at 1165.

While substantial compliance and 100 % or complete
compliance are, by definition, not the same, the court
is concerned that there may be circumstances where, as a
practical matter, one is either in full compliance or
not, that is, where, by the nature of the thing being
assessed, there is no such thing as partial compliance.
The court does not possess the EMT’s varied expertise,
and it is reluctant to render some broad opinion on the
issue presented without input from the EMT and without a
concrete circumstance before it.

The court, therefore,

will not now blindly bind the EMT to a bright-line
quantitative range for all measures prior to the court
having seen the measure or heard from the EMT as to why
it defined substantial compliance at a given level for a
given measure.

23

iv.

Who bears the burden of proof on any objections
to the EMT’s performance measures and/or audit
tools?

This question presumes that evidence will have to be
presented
performance

to

resolve
measures

any
and

objections
audit

to

tools.

the

EMT’s

The

court

anticipates that the objections (if any) will target
whether a performance measure or audit tool exceeds the
bounds of monitoring compliance with the remedial orders
and the Monitoring Opinion.

Resolving such an objection

may not require any evidence, rather only interpretation
of the language of the remedial orders.

See Braggs, 483

F. Supp. at 1149 (“Because the performance measures will
be limited to the court's remedial orders, ... they will
be narrowly tailored to evaluate only ADOC's progress
with regard to the remedies ordered in this case.”); id.
at 1152 (“As with the performance measures, the audit
tools will be limited to assessing ADOC's progress as to
the court's limited remedial orders and its capacity to
self-monitor.”).

Until and if such time that evidence

is actually necessary to resolve an objection to the
EMT’s measures and tools, the court will not determine
24

who bears the burden of proof for that as-of-yet unseen
objection.
v.

Should
the
defendants
have
a
procedural
mechanism that allows them to force the EMT to
discontinue
monitoring
of
a
particular
measure/facility?

The parties do not have the power to compel, force,
or otherwise make the EMT discontinue its role as monitor
of the various remedial provisions.
As the Monitoring Opinion lays out, the EMT has
general authority to monitor ADOC’s compliance with the
court’s remedial orders.
1142–44.

See Braggs, 483 F. Supp. 3d at

The EMT also has the specific authority to

“stop evaluating a particular performance measure at a
particular

facility,

or

stop

evaluating

a

facility

altogether, based on their own determination of sustained
substantial compliance.”

Id. at 1166.

The authority to

discontinue external monitoring of a specific facility
or provision based on the EMT’s own determination of
sustained substantial compliance is soundly within the
discretion of the EMT.

25

However, that said, the Monitoring Opinion likewise
does not prohibit the defendants from simply requesting
that

the

EMT

discontinue

monitoring

a

particular

provision or facility based on sustained substantial
compliance.
request.

The EMT may very well choose to do so upon

If the defendants believe the EMT’s decision

not to discontinue monitoring a facility or provision is
not supported by what is before the EMT, there is nothing
to prevent the defendants from using the mechanism that
has historically governed resolution of disputes in this
litigation:

first seek mediation before Judge John Ott,

and, if that fails, then present the the specific matter
to the court for resolution.
vi.

Should the EMT monitor remedial provisions that
the defendants say have been completed?

The EMT should monitor to the best of its ability
and expertise all of the court’s ordered relief absent
court termination of monitoring or other prospective
relief,

or

the

EMT’s

own

determination

of

sustained

substantial compliance at a particular facility or with
a particular provision.
26

The

defendants

assert

that

several

remedial

provisions, many of which they label “one-time actions,”
have been completed.6

Def.’s Response (Doc. 4070) at 25.

They request that the court order the EMT to “disregard
these [provisions],” and not create performance measures
or audit tools concerning these provisions.

Id.

The court does not think it prudent to sideline the
EMT on the question of whether there has been substantial
compliance at a particular facility or with a particular
provision.

The EMT may very well agree with defendants

as to a facility or with a provision, and that will be
the end of that.

III. CONCLUSION AND ORDER
This opinion does not break any new ground.

The

questions submitted by the parties are either answered
by

the

court’s

previous

opinions

or

are

raised

6. In their briefing, the defendants say that they
have completed the following sections of the remedial
order: 2.1.1, 2.1.2, 2.1.3, 2.1.5, 2.1.7.3, 3.1.1, and
11.3. See Def.’s Response (Doc. 4070) at 22-23 (citing
Omnibus Remedial Order).
27

prematurely.

The

court

reminds

the

parties

of

the

monitoring scheme’s two fundamental, and agreed upon,
goals:

(1)

to

oversee

compliance

with

the

court's

remedial orders and (2) to build ADOC's capacity to
exercise sustainable internal oversight of mental-health
care--that is, to identify and correct problems.
Braggs, 483 F. Supp. 3d at 1142.
defendants

have

previously

external monitoring.

See

To do so, as the

acknowledged,

See id. at 1171.

requires

And, as the

defendants previously requested, it is the EMT that needs
to “determine many of the details of how to carry out
monitoring,

including

and audit tools.”
Accordingly,

fashioning

performance

measures

Id. at 1142.
it

is

ORDERED

that

the

parties’

unresolved objections, if any, to the EMT’s performance
measures and audit tools shall be submitted by a date to
be determined at the triannual status conference on March
1, 2024.

The EMT’s finalized proposed versions of the

performance measures and audit tools, and any objections
thereto,

shall

be

formatted

28

and

filed

in

a

manner

consistent with the court’s previous Opinion and Order
on Monitoring (Doc. 4029).
DONE, this the 29th day of February, 2024.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

29