Dunn et al v. Thomas et al

Filing 660

PHASE 1 ORDER REQUIRING ADDITIONAL STIPULATION directing that the parties are to submit to the court, by no later than 8/26/2016, a joint stipulation stating that they affirmatively agree that 18 USC 3626(f) is not applicable to the arbitrator to be appointed per the terms of their settlement agreement, that this arbitrator will not be a special master, and that they expressly waive the right to challenge his decisions or the consent decree on the basis of 3626(f), as further set out in order. Signed by Honorable Judge Myron H. Thompson on 8/18/16. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

JOSHUA DUNN, et al.,
Plaintiffs,
v.
JEFFERSON S. DUNN, 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)

PHASE 1 ORDER REQUIRING ADDITIONAL STIPULATION
The Prison Litigation Reform Act (PLRA), 18 U.S.C.
§ 3626(f),

imposes

requirements

on

district

appointing special masters in prison cases.

courts

In order

for such an appointment to be permissible during the
remedial phase of a case, the court must find that the
remedial phase will be “sufficiently complex to warrant
the appointment.”

§ 3626(f)(1)(B).

Additionally, the

statute prescribes a mechanism for selecting a special
master from lists submitted by the parties; it appears
that a special master to which both parties consent

would

satisfy

the

spirit,

though

perhaps

letter, of the provision.

See § 3626(f)(2).

court

appointment

not

“shall

review

the

of

the

Also, the

the

special

master every 6 months to determine whether the services
of the special master continue to be required ....”
§ 3626(f)(5).

Finally, there are certain limitations

imposed on the special master’s power, including that
he or she “(A) may be authorized by a court to conduct
hearings and prepare proposed findings of fact, which
shall be made on the record; (B) shall not make any
findings

or

communications

ex

parte;

(C)

may

be

authorized by the court to assist in the development of
remedial plans; and (D) may be removed at any time, but
shall

be

relieved

of

termination of relief.”
Furthermore,
master”

to

mean

the
“any

the

appointment

upon

the

§ 3626(f)(6).

PLRA

defines

person

the

appointed

term
by

“special
a

Federal

court pursuant to Rule 53 of the Federal Rules of Civil
Procedure

or

pursuant

to

any

inherent

power

of

the

court to exercise the powers of a master, regardless of

2

the

title

or

§ 3626(g)(8).

description

given

by

the

court.”

Pursuant to Rule 53, a special master

ordinarily makes recommended factual findings which a
district court reviews de novo upon objection; however,
parties to a case can stipulate that a special master
appointed upon their consent has the authority to make
final, unreviewable factual findings.

See Fed. R. Civ.

P. 53(f)(3)(B).
The

Phase

involves

the

1

settlement

appointment

of

agreement
an

States Magistrate Judge John Ott.

in

this

arbitrator,

case

United

Although neither the

parties nor the court has ever suggested that his role
would be that of a special master, the court is intent
on ensuring that this provision is not later subject to
confusion or challenge.
It is therefore ORDERED that the parties are to
submit to the court, by no later than August 26, 2016,
a

joint

stipulation

stating

that

they

affirmatively

agree that 18 U.S.C. § 3626(f) is not applicable to the
arbitrator

to

be

appointed

3

per

the

terms

of

their

settlement agreement, that this arbitrator will not be
a special master, and that they expressly waive the
right to challenge his decisions or the consent decree
on the basis of § 3626(f).
DONE, this the 18th day of August, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE