Dunn et al v. Thomas et al

Filing 800

PHASE 2 OPINION AND ORDER ON DEFENDANTS' MOTION TO STRIKE PLAINTIFFS' EXPERT REPORTS AND PLAINTIFFS' MOTION FOR LEAVE TO AMEND COMPLAINT: It is therefore ORDERED as follows: (1) Defendants' 599 Motion to Strike Plaintiffs' Experts' Reports is denied as further set out in the order. (2) Plaintiffs' 666 Motion for Leave to Amend Their Complaint is granted as further set out in the order. The Clerk of the Court is DIRECTED to docket plaintiffs' Fifth Amended Complaint. Signed by Honorable Judge Myron H. Thompson on 9/27/2016. (dmn, )

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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)
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)

CIVIL ACTION NO.
2:14cv601-MHT
(WO)

PHASE 2 OPINION AND ORDER ON
DEFENDANTS’ MOTION TO STRIKE PLAINTIFFS’ EXPERT REPORTS
AND PLAINTIFFS’ MOTION FOR LEAVE TO AMEND COMPLAINT
The

plaintiffs

in

this

putative

class-action

lawsuit are dozens of state prisoners and the Alabama
Disabilities Advocacy Program.
Alabama

Department

of

The defendants are the

Corrections,

its

Commissioner,

and its Associate Commissioner of Health Services.

In

Phase

is

2

of

concerned,

this

case,

plaintiffs

with

assert

constitutionally inadequate
treatment

in

Alabama

which
the

medical

prison

this

opinion

following
and

claims:

mental-health

facilities,

involuntary

medication

without

due

process,

and

discrimination

against prisoners with mental disabilities.
with

respect

to

these

claims

on

the

They rely
Eighth

and

Fourteenth Amendments (as enforced through 42 U.S.C.
§ 1983), the Americans with Disabilities Act (42 U.S.C.
§§ 12131-12134), and § 504 of the Rehabilitation Act of
1973 (29 U.S.C. § 794).

Jurisdiction is proper under

28 U.S.C. § 1331 (federal question) and § 1343 (civil
rights).
This

case

is

currently

before

the

court

on

(1) defendants’ motion to strike the portions of the
expert

reports

filed

by

two

of

plaintiffs’

experts

concerning the effects of overcrowding, understaffing
of custodial officers, and segregation on the provision
of

medical

and

mental-health

care

to

prisoners

in

Alabama, and (2) plaintiffs’ motion for leave to amend
their

complaint

defendants’

to

policies

clarify
or

that

practices

they
of

allege

that

overcrowding,

custodial understaffing, and segregation contribute to
constitutionally inadequate

2

medical and

mental-health

care and constitute violations of the Eighth Amendment.
For the reasons that follow, defendants’ motion will be
denied and plaintiffs’ motion will be granted.
At issue are the reports of Dr. Craig Haney, who is
a psychologist (and lawyer), and Eldon Vail, a former
correctional administrator.

Defendants object to the

significant portions of Dr. Haney’s report that address
“the adverse psychological effects of overcrowding on
prisons

and

prison

systems”

and

“the

psychological effects of segregation.”
(doc. no. 555-6) at 2-3.
significant

portions

of

harmful

Haney Report

They also object to the
Vail’s

report

opining

that

“Alabama prisons are severely overcrowded, resulting in
living

conditions

that

lead

to

increased

levels

of

violence and increased demands from healthcare,” and
“severely
environment

understaffed,
for

inmates

resulting
as

well

as

in
an

a

dangerous

inability

of

custody staff to successfully interact with and support

3

the healthcare objectives of the ADOC.”

Vail Report

(doc. no. 555-2) at 2. 1
In their motion to strike, defendants contend that
these

reports

represent

an

effort

by

plaintiffs

to

assert--through a back door--new claims, not properly
pleaded

in

their

complaint.

Plaintiffs,

for

their

part, argue that the contentions contained in these
reports merely use evidence obtained through discovery
to flesh out the same basic claims their complaint has
long raised, and that the complaint and the process of
discovery itself put defendants on notice that they
intended to present evidence showing that defendants’
policies or practices regarding overcrowding, custodial
understaffing, and segregation contribute to the harms
they have alleged.

1. The adequacy of only custodial staffing levels
is at issue in these motions. There is no dispute that
plaintiffs have clearly raised claims, and are entitled
to present evidence, that there are too few medical and
mental healthcare providers in the prisons operated by
defendants.
4

Some of these concerns are easily resolved.
preliminary
that

matter,

they

are

plaintiffs
not--as

suggest--bringing

make

As a

abundantly

defendants

clear
points

claims

freestanding

at

that

overcrowding, custodial understaffing, and segregation
violate the Eighth Amendment rights of prisoners in and
of themselves.
policies
cause

or

Instead, they challenge these alleged

practices

constitutionally

only

to

the

inadequate

extent

that

medical

or

they

mental

healthcare.
For
conditions

example,
have

prisoner-on-prisoner
traumatic

injury,

Vail
led

opines
to

violence
and

that

overcrowded

increased
and

thereby

rates

increased

increase

rates

demand

of
of
for

medical treatment--demand which the available supply of
healthcare resources is inadequate to meet.

For the

purpose of this case, plaintiffs do not claim that an
elevated risk of injury is a per se violation of the

5

Eighth Amendment. 2

Rather, they challenge defendants’

policy or practice of overcrowding because it is, they
allege,

one

factor

contributing

to

the

denial

of

constitutionally adequate healthcare.
Defendants also contend that the complaint fails to
allege

(as

inadequate

Dr.

Haney

mental-health

opines)

that

treatment

to

they

provide

prisoners

in

segregation, and that their use of segregation itself
exacerbates

these

Defendants’

position

counsel

for

hearing

on

prisoners’
is

defendants
the

motion

belied
himself
to

mental
by

the

illnesses.
record.

acknowledged

strike,

plaintiffs

As
at

a

have

“alleged specific instances of segregation where they
contest the level or extent of mental health treatment
provided to those individuals who are in segregation”;

2. This certainly would constitute a cognizable
Eighth Amendment claim.
See LaMarca v. Turner, 995
F.2d 1526, 1535 (11th Cir. 1993) (explaining that a
prisoner can prevail on an Eighth Amendment claim by
showing administrators’ deliberate indifference to
“unjustified constant and unreasonable exposure to
violence”). The court agrees with the parties, though,
that this claim is not presently before it.
6

counsel also “agree[d]” that plaintiffs had adequately
alleged

that

“segregation

mentally ill.”

can

cause

harm

to

the

Tr. of Aug. 15, 2016 Hr’g (doc. no.

668) at 88.
Whether

plaintiffs’

allegations

regarding

the

effects of overcrowding and custodial understaffing on
the

provision

of

healthcare

were

adequate

to

allow

their experts to opine on these subjects is a closer
question.

For example, although plaintiffs did allege

that defendants “have a policy and practice of allowing
correctional

officers

to

deny

or

delay

access

to

medical care,” they elaborated by discussing alleged
deficiencies in training, and the fact that officers
make

initial

rather

than

decisions
the

about

contention

what

that

care

there

is
are

officers to provide prompt access to care.
Compl. (doc. no. 611) at 65-66.

needed,
too

few

Fourth Am.

Although some of the

factual allegations regarding delays in or denials of
the named plaintiffs’ access to care may implicate the
unavailability of custodial staff who are stretched too

7

thin, the complaint did not make transparently clear
that plaintiffs sought to place at issue defendants’
alleged policy or practice of custodial understaffing.
As
motion

the

preceding

to

strike,

discussion

though

reveals,

framed

in

defendants’

terms

of

the

admissibility of expert evidence, really concerns the
scope

of

the

allegations

complaint--specifically,
improperly
complaint

attempting
by

whether

in

the

plaintiffs

to

effectively

introducing

additional

amend

were
their

theories

liability through the reports of their experts.

of
The

issues are, at heart: (1) whether plaintiffs need to
amend their complaint in order to properly raise and be
free

to

litigate

claims

regarding

overcrowding

and

custodial understaffing, and also (2), if so, whether
they should be granted leave to make such amendments.
In order to squarely evaluate whether plaintiffs
should be permitted to raise these claims--and in order
to

focus

the

court’s

attention

on

the

fairness

of

allowing plaintiffs’ claims regarding overcrowding and

8

custodial
...

on

understaffing
the

merits,”

to

proceed

rather

to

than

on

“determination
“a

technical

exercise in the fine points of pleading”--the court
instructed

the

should

granted

be

plaintiffs

to

parties
leave

maintain

amendment was necessary.

to

brief

to

whether

amend,

their

while

plaintiffs
permitting

contention

that

no

Dussouy v. Gulf Coast Inv.

Corp., 660 F.2d 594, 598 (5th Cir.

1981).

As the

deadline for the parties to amend their pleadings had
not

yet

passed,

the

liberal

standard was the appropriate one.

interests-of-justice
Fed. R. Civ. P.

15(a) (stating that leave to amend “shall be freely
given when justice so requires”). 3

3. Plaintiffs also argue that even if the deadline
for amendment had passed, they would be entitled to
amend under Rule 16’s “good cause” standard. See Oakes
v. United Home Life Ins. Co., 2015 WL 5234945, at *1
(M.D. Ala. Sept. 8, 2015) (Thompson, J.) (finding good
cause when defendants objected to the complaint and
plaintiffs “promptly sought to remedy the problem”);
Remington v. Newbridge Sec. Corp., 2014 WL 505153, at
*13 (S.D. Fla. Feb. 7, 2014) (finding good cause when
the proposed amendments “addresse[d] concerns expressed
by the Court in its Order Denying Motion for Class
Certification” and plaintiffs responded promptly to it
(continued...)
9

The amended complaint plaintiffs seek leave to file
adds five substantive sentences or clauses
paragraphs in nearly 150 pages. 4

to three

In each case, the

by seeking leave to amend). However, since the Rule 15
standard does apply here, the court need not reach this
argument.
4. In addition to these
complaint
added
boilerplate
putative dental subclass and a
for relief.
Neither amendment
are therefore permissible.

additions, the amended
language
regarding
a
few words to the prayer
is necessary, and both

With respect to the dental subclass, this case has,
indisputably,
long
involved
dental-care
claims.
Plaintiffs
have
not
added
any
new
substantive
allegations
regarding
dental
care;
having
sought
certification of a dental subclass, they simply intend
for the class definitions in their complaint to mirror
those in their motion. Because plaintiffs are free to
move for certification of a subclass without having
specified its bounds in their complaint, this amendment
has no effect.
(Indeed, it is not clear that
defendants even oppose this portion of the amendment.
They
remain
free,
of
course,
to
oppose
the
certification of a dental subclass in their response to
plaintiffs’ motion.)
As for the prayer for relief, plaintiffs have added
the
following
underlined
language,
about
which
defendants make considerable hay: “Staffing: Medical,
Mental Health, Dental and Correctional staffing shall
be sufficient to provide prisoner Plaintiffs and the
Plaintiff Class with timely access to qualified and
competent clinicians who can provide routine, urgent,
(continued...)
10

amendment

is

fairly

characterized

as

a

specific

clarification of a general allegation, rather than as a
wholly new claim or theory of liability.

See Edwards

v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)
(holding that the district court abused its discretion
in denying leave to amend, “even assuming arguendo that
[the

plaintiff]

delayed

in

filing

his

motions

to

amend,” because it was not clear that defendants would
suffer

prejudice

(despite

their

contention

to

this

effect), and “all of the allegations sought to be added
...

derived

from

evidence

obtained

during

discovery

regarding matters already contained in the complaint in

emergent, and specialty health care.” Fifth Am. Compl.
(doc. no. 666-2) at 141.
But because Federal Rule of
Civil Procedure 54(c) states that a final judgment
“should grant the relief to which each party is
entitled, even if the party has not demanded that
relief in its pleadings,” “the prayer for relief does
not determine what relief ultimately will be awarded,”
and
changes
to
prayers
for
relief
are
“empty
gesture[s].”
Wright & Miller, 10 Fed. Prac. & Proc.
Civ. § 2664 (3d ed.) (citation and internal quotation
marks omitted).
Instead, the “issues ... squarely
presented and litigated at trial” determine the scope
of relief.
Cioffe v. Morris, 676 F.2d 539, 541 (11th
Cir. 1982).
11

some form and ... merely sought to add specificity to
those

matters”).

introduce

new

Notably,
factual

none

of

the

allegations

amendments

specific

to

particular named plaintiffs.
In the first of these paragraphs, plaintiffs now
allege

not

only

that

defendants

lack

an

“effective

system for preventing or managing infectious diseases,”
but

also

ADOC

facilities

creates opportunities for rapid contagion.” 5

Fifth Am.

Compl.

that

(doc.

the

no.

“overcrowding

666-2)

at

of

60.

In

the

second,

plaintiffs elaborate that defendants allow correctional
officers to deny or delay access to care “whether by
individual
systemic

officers’
understaffing

affirmative
of

actions

custodial

staff

or

the

who

are

necessary to prisoners’ access to treatment.”
Am. Compl. (doc. no. 666-2) at 65.

Fifth

This paragraph now

also specifies that custodial understaffing “leads to

5. Indeed, this amendment seems superfluous, since
the previous complaint already alleged as follows:
“[T]he conditions in the prisons make the spread of
(continued...)
12

prisoners

missing

prisoners

in

treatment.”
paragraph,

off-site

medical

segregation
Id.

In

not

and

receiving

medical

third

and

amended

elaborate

on

the

plaintiffs

appointments

final
their

prior

allegation that defendants provide “almost no mental
health treatment other than medication to mentally ill
prisoners” by explaining one of the reasons that other
forms of care are allegedly denied: “Prisoners on the
mental

health

caseload

are

often

denied

access

to

mental health services because of defendants’ failure
to

adequately

Understaffing

of

provide
custody

correctional
officers

staff.

results

in

the

cancellation of mental health programming, denial of
access

to

mental

mental

health

segregation.”

health

monitoring

counseling,
of

and

individuals

inadequate
housed

in

Fifth Am. Compl. (doc. no. 666-2) at 81,

87.

disease nearly inevitable.
The prisons are grossly
overcrowded.” Fourth Am. Compl. (doc. no. 611) at 62.
13

After

considering

plaintiffs’

proposed

amendments--and their assertions that overcrowding and
custodial
they

understaffing

have

impact

learned

the

parties,

through

provision

Alabama--the

court

that

it

are

of

important
discovery,

healthcare

concluded,
could

factors

not

detrimentally

to

and

prisoners

explained

fairly

which,

and

to

in
the

efficiently

adjudicate the putative class claims raised in this
case without hearing evidence regarding these issues. 6
As the court put it, it simply “cannot ... try this
case

and

give

the

plaintiffs

considering”

these

issues,

“concomitant

obligation

to

a

fair

and
make

it

shake

without

also

has

sure

that

defendants can respond to those allegations.”

a
the

Tr. of

Aug. 29, 2016 Conf. (doc. no. 786) at 4.

6. Of course, it may in the end turn out that
class certification is not warranted, or that it is but
that plaintiffs’ evidence does not demonstrate a
violation of the Eighth Amendment stemming from
defendants’ policies or practices of overcrowding or
correctional understaffing.
14

To expand on this point: the parties, as well as
the court, have already invested tremendous amounts of
time and resources in litigating and adjudicating this
major

case,

which

constitutional
individuals.

potentially

rights
It

is

of

therefore

judicial

efficiency

as

interest

to

that,

ensure

tens

well

of
in

as

to

implicates

the

thousands

the

the

the

interest

broader

extent

of
of

public

reasonably

possible, this case presents squarely for the court’s
merits determination the full constellation of systemic
policies and practices by which defendants allegedly
deny the putative class members adequate healthcare.
The court is concerned that at multiple stages in the
litigation,

the

omission

of

evidence

regarding

allegedly significant factors could impede the fair and
efficient

adjudication

of

the

parties’

claims

and

defenses and might result in wasteful duplication of
the parties’ and the court’s efforts.
For

example,

at

trial,

both

plaintiffs

and

defendants will portray the provision of healthcare to

15

prisoners as complex and affected by numerous factors;
the

court

could

receive

a

misleadingly

incomplete

picture of this system if evidence about a significant
factor

affecting

its

functioning

is

omitted.

Additionally, were the court to find liability without
hearing

evidence

and

making

findings

regarding

important contributing factors, it could be hampered in
assessing
parties

the

adequacy

or,

if

of

remedies

necessary,

proposed

crafting

by

its

the
own.

Overcrowding and custodial understaffing may or may not
be causing or worsening an unconstitutional denial of
adequate healthcare by defendants.
the

exclusion

of

result

only

in

whether

in

this

evidence

about

unnecessarily
case

or

But if they are,
these

issues

protracted

another

one

will

litigation,

filed

in

the

future.
In light of this conclusion, the court asked the
parties to confer and propose an approach that would
ensure that the court could “hear [the] evidence,” and
simultaneously “make sure the defendants have had an

16

adequate opportunity to respond to it.”
29, 2016 Conf. (doc. no. 786) at 4.

Tr. of Aug.

Defense counsel

requested and plaintiffs agreed to proceed as follows:
plaintiffs would “identify those documents and identify
those

witnesses

or

persons

they

believe

[have]

knowledge relative to this claim,” and then “at that
point it [would] be incumbent upon [defense counsel] to
sit down and look at these and say, okay.
additional discovery that we need.”

Is there any

Id. at 14; see

also id. at 24 (“If they can identify the universe of
documents
support

that

their

they’re
claim,

relying

then

we

upon

would

currently
ask

that

to
they

provide those and then the defendants have a time to
evaluate the information that we’ve been provided and
determine

whether

we

need

additional

discovery

and

whether our experts need the opportunity to evaluate
that information and provide a rebuttal.”).

Defense

counsel also requested, and the court agreed to, an
extension of defendants’ dispositive-motion deadline.

17

The court referred the parties to United States
Magistrate Judge Ott, who has been appointed to mediate
the claims in this case, to flesh out deadlines for
this process.

Following their conversations with him,

the parties jointly proposed and the court adopted a
new schedule, including a deadline for plaintiffs to
make

the

supplemental

disclosures

requested

by

defendants, a deadline for defendants to respond or
object

to

defendants’
further

these

disclosures,

experts

address

to

the

supplement
issues

custodial understaffing.
inclusion
plaintiffs’

of

the

and

deadline

their

reports

overcrowding

for
to
and

Defendants objected to the

names

supplemental

of

a

of

five

disclosures,

individuals
but

did

in
not

otherwise object or request any additional discovery.
The court understands that their experts’ supplemental
reports are forthcoming.

18

Satisfied that any possible prejudice to defendants
stemming from this amendment has now been mitigated, 7
the

court

will

now

assume

without

deciding

that

amendment was necessary and formally grant plaintiffs’
motion for leave to amend; it will accordingly deny
defendants’ motion to strike.
Moreover, because the parties understood that leave
to

amend

was

forthcoming,

and

because

defendants

acknowledged in their motions for summary judgment that
they would apply to the amended complaint, the court
will
newly

construe
amended

these

motions

complaint. 8

as
Cf.

refiled

against

Meterlogic,

Inc.

the
v.

7. Plaintiffs’ pursuit of these issues cannot in
any event have come as a total surprise to defendants;
as plaintiffs point out, defendants’ own employees and
experts have testified in their depositions and opined
in their reports regarding these very issues.
The
court notes that defendants’ rebuttal experts did
already respond to Dr. Haney’s and Mr. Vail’s opinions
regarding overcrowding and custodial understaffing.
The additional time to respond defendants have now been
provided is certainly adequate to ensure that they have
not been prejudiced.
8. As defendants themselves explain, plaintiffs’
“allegations with respect to the medical and mental
(continued...)
19

Copier Sols., Inc., 185 F. Supp. 2d 1292, 1297 (S.D.
Fla. 2002) (Gold, J.) (explaining that the filing of an
amended

complaint

moots

dispositive

motions

filed

against the previously operative complaint).

* * *
It is therefore ORDERED as follows:
(1) Defendants’

motion

to

strike

plaintiffs’

experts’ reports (doc. no. 599) is denied.
(2) Plaintiffs’

motion

for

leave

to

amend

their

complaint (doc. no. 666) is granted.
The

clerk

of

the

court

is

DIRECTED

to

docket

plaintiffs’ fifth amended complaint (doc. no. 666-2).
DONE, this the 27th day of September, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

health
care
the
individual
Named
Plaintiffs
received”--which are the sole focus of defendants’
motion for summary judgment with respect to plaintiffs’
medical
and
mental
healthcare
claims--“remain
unchanged.”
Defs.’ Mem. of Law in Supp. of Mot. for
Summ. J. (doc. no. 769) at 21 n.3.