GUMM v. JACOBS et al
Filing
484
ORDER HOLDING DEFENDANTS IN CONTEMPT. The defendants are held in CONTEMPT for the reasons stated throughout this Order. The injunction and the terms of the underlying parties' agreements are EXTENDED and MODIFIED as set forth in this Order. Ordered by CHIEF DISTRICT JUDGE MARC T TREADWELL on 4/19/2024. (kat)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
RICARDO DAUGHTRY, et al.,
Plaintiffs,
v.
SHAWN EMMONS, TYRONE OLIVER,
AHMED HOLT, STAN
SHEPARD, JOE WILLIAMS, DENNIS
TURNER, and FLEMISTER WILEY,
Defendants.
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CIVIL ACTION NO. 5:15-CV-41 (MTT)
CONTEMPT ORDER
The inmates imprisoned in the Georgia Department of Corrections’ (“GDC”)
Special Management Unit (“SMU”) are, by definition, the worst inmates in Georgia’s
prison system. They are there because they require intense and close supervision. As
a group, they have done nothing to earn sympathy. They are, however, entitled to
certain minimal conditions of confinement. After this lawsuit was filed in 2015, the GDC
agreed that the SMU failed to meet that standard. Accordingly, the GDC settled the
lawsuit and contractually agreed to reform the SMU. On May 7, 2019, the Court
accepted that settlement and entered an injunction requiring the GDC to institute the
agreed-upon reforms. During the initial three-year term of the injunction, the defendants
violated every requirement of the Court’s injunction. Facing sanctions for their
contumacious conduct, the defendants asked the Court to extend the term for 18
months to give them a second chance. The Court agreed. Not much changed. The
defendants continued to ignore and violate the Court’s injunction. As the end of the
injunction’s term neared, it became clear to the Court that the defendants, in effect,
were running a four-corner offense and had no desire or intention to comply with the
Court’s injunction; they would stall until the injunction expired. The Court can no longer
tolerate the defendants’ misconduct and, for the reasons discussed below, holds the
defendants in contempt.
When the injunction was entered, the defendants were Tyrone Oliver, interim
GDC Commissioner; Ricky Myrick, GDC Assistant Commissioner of the Facilities
Division; Robert Toole, GDC Director of Field Operations; Benjamin Ford, Warden of
the Georgia Diagnostic and Classification State Prison (“GDCP”); Michael Cannon,
Superintendent of the SMU; and Joseph Polite, Deputy Warden of the SMU. Doc. 2561 at 5. Because some defendants have left their positions, their successors have been
substituted for them.1 Currently, the defendants are Commissioner Tyrone Oliver,
Assistant Commissioner of the Facilities Division Ahmed Holt, Director of Field
Operations Michael Stanton (“Stan”) Shepard, GDCP Warden Shawn Emmons, SMU
Warden Joe Williams, and SMU Deputy Wardens of Security Dennis Turner and
Flemister Wiley. Doc. 435. All defendants have been sued only in their official
capacities as GDC officials.
The parties have stipulated that the current defendants are the proper
defendants. Docs. 421 ¶¶ 1-9; 429 at 6:5-8:10. The parties agree that these
defendants in their official capacities are the parties responsible for implementing
Since the Court adopted the settlement agreement and entered the injunction, the Superintendent of the
SMU referenced in the original injunction is now the SMU Warden. Doc. 429 at 6:5-8:10.
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requirements imposed by the settlement agreement and ensuring compliance with the
Court’s injunction.
I. BACKGROUND
A. Filing of Complaint, Class Certification, and Initial Enforcement
1. Class Allegations
On February 12, 2015, Timothy Gumm, then an SMU inmate, filed this 42 U.S.C.
§ 1983 action to challenge alleged unconstitutional conditions and practices in the
SMU’s Tier III Program.2 Doc. 1. On October 27, 2016, the Court appointed the
Southern Center for Human Rights to represent Gumm. Docs. 69; 70. After
considerable discovery, Gumm sought injunctive relief on behalf of a putative class of all
inmates held in the SMU. Docs. 73; 97; 140. The third and final amended complaint
alleged that confinement in the SMU created a substantial risk of serious harm to which
the defendants were deliberately indifferent, and that all inmates were held in the SMU
for years without meaningful procedural safeguards, in violation of the Eighth
Amendment’s Cruel and Unusual Punishment Clause and the Fourteenth Amendment’s
Due Process Clause. See, e.g., Doc. 140 ¶¶ 1 (“This is an action to stop prison officials
from holding people in an extreme form of solitary confinement for years on end with no
meaningful review and no clear way of getting out.”), 11, 271.
“‘SMU’ refers to the facility where the plaintiffs are or were held, whereas ‘Tier III Program’ refers to the
policies governing conditions in the SMU on or after August 1, 2013.” Doc. 140 ¶ 3 n.1. The Standard
Operating Procedures (“SOP”) governing the “Special Management Unit – Tier III Program” is Policy No.
209.09. Doc. 432-76 (“SOP 209.09”). The Court uses the term SMU to refer to both the facility and the
policies governing conditions of confinement for inmates assigned to the Tier III program except where
necessary to distinguish between them. See Doc. 142 ¶ 28 n.2 (“The ‘Tier III Program’ apparently applies
only to SMU prisoners at this facility, and it applies to all of them.”).
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2. Settlement Agreement and Injunction
The parties reached an agreement in December 2018 to certify a class and settle
the class claims. Docs. 207; 207-1. In that agreement, the defendants agreed that:
the prospective relief set forth in this Agreement satisfies the requirements
of 18 U.S.C. § 3626(a)(1)(A) in that the relief is narrowly drawn, extends
no further than necessary to correct the alleged violations of those federal
rights as asserted by Plaintiffs in the Third Amended Complaint, and is the
least intrusive means necessary to correct the violations of federal rights.
The relief set forth in this Agreement will not have an adverse impact on
public safety or the operation of the criminal justice system, nor will it
require or permit government officials to exceed their authority under state
or local law, or otherwise violate state or local law.
Doc. 207-1 ¶ 7.
The Court issued its Final Order and Permanent Injunction on May 7, 2019,
which certified the settlement class,3 granted final approval of the settlement
agreement, and adopted the settlement agreement as the Order of the Court. Docs.
256; 256-1. In its review of the settlement agreement, the Court confirmed that the
prospective relief required by the settlement agreement was necessary to prevent
violations of the inmates’ constitutional rights, was narrowly tailored and extended no
further than necessary to correct those violations, and was the least intrusive means of
ensuring compliance with minimal constitutional requirements. Doc. 256 at 7.
Initially, the term of the settlement agreement was to end May 7, 2022—three
years from the date it went into effect. Doc. 256-1 ¶ 80. For reasons that will be
discussed, the term of the settlement agreement and injunction were extended several
times, most recently to April 19, 2024. Doc. 471 at 1.
The class includes: “All persons who are or in the future will be assigned to the facility currently known
as the Special Management Unit at Georgia Diagnostic & Classification Prison, or who are or in the future
will be assigned to the Tier III Program.” Doc. 256-1 ¶ 67.
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3. SMU Tier III Program
The SMU is Georgia’s most restrictive prison. According to the GDC, the SMU
houses inmates who have “commit[ted] violent, disruptive, predatory, or riotous actions,”
and who require “greater management of [their] interaction[s] with other persons [to]
ensure the safety, security, or orderly operation of [GDC] facilities.” Docs. 171-2 ¶ 6;
432-76 (SOP 209.09) at 2. Inmates spend every moment locked inside a small space
(a cell, cage, shower stall, or visitation booth), handcuffed to a table, or in cuffs and leg
irons as they are moved from space to space. See Docs. 142 ¶¶ 14, 23, 29-30, 37-38,
at 131; 338 ¶ 10; 432-76 (SOP 209.09) at 48. “The conditions, practices, and
procedures to which prisoners housed there are subjected constitute what is commonly
referred to in correctional practice and the scientific literature as ‘solitary confinement.’”
Doc. 142 ¶ 28.
The SMU is “its own individual, standalone facility.” 4 Docs. 340 at 68:13-18; 344
at 46:12-17. The SMU houses up to 192 inmates in six wings, designated A through F;
each wing consists of 32 single-man cells.5 Docs. 338 ¶¶ 14-15; 421 ¶¶ 10-11; 432-76
(SOP 209.09) at 13. Inmates are assigned to E-Wing first, and then progress to FWing, D-Wing, and on to C-Wing and B-Wing. Doc. 432-76 (SOP 209.09) at 4.
In theory, the Tier III Program is an incentive-based behavior modification
program in which inmates spend a minimum of 13 months and a maximum of 24
See Special Management Unit, GA. DEP’T CORR., https://gdc.georgia.gov/locations/specialmanagement-unit (last visited Apr. 17, 2024); see also Doc. 140 ¶ 54 (“The SMU consists of a
freestanding detention facility located in a separate compound immediately west of Georgia Diagnostic’s
main prison. The SMU facility has its own access-control point, perimeter fence, buildings, assigned staff,
and chain of command.”).
4
Although A-Wing is not now part of the Tier III Program, two A-Wing “observation” cells are used by the
SMU and have come to play a substantial role in these proceedings. See Docs. 338 ¶ 15; 421 ¶ 11.
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months. Docs. 256-1 ¶ 9; 432-76 (SOP 209.09) at 2, 4. The goal, at least on paper, “is
for the inmate to make the appropriate adjustments so he … may be returned to a
general population” setting. Docs. 256-1 ¶ 9; 432-76 (SOP 209.09) at 2. Inmates have
the opportunity to advance through five “phases,” each of which allows progressively
more privileges based on demonstrated appropriate behavior. Docs. 256-1 ¶ 9; 432-76
(SOP 209.09) at 2-4. “Offenders, if successful at each phase, shall spend sixty (60)
days in E-Wing, sixty (60) days in F-Wing, ninety (90) days in D-Wing, ninety (90) days
in C-Wing, and ninety (90) days in B-Wing.” Doc. 432-76 (SOP 209.09) at 4. The
privileges for each phase are outlined in the Tier III program privileges chart. Id. at 48.
Privileges, however, are based on phase—not wing. Id. at 4, 48. As conceived, the
Tier III Program seemingly contemplated that all inmates in a phase would be housed in
one wing. See id. at 48. However, because inmates are often kept in the SMU for
longer than 24 months, their phase and wing assignments may differ.
4. Conditions in the SMU Before the Settlement Agreement
Craig Haney, Ph.D., J.D.,6 is widely recognized as one of the foremost authorities
on solitary confinement. Doc. 142 ¶ 3. He evaluated the SMU in late 2017. Id. ¶ 14.
That evaluation involved the review of voluminous records and site visits, which
included interviews of inmates and staff. Id. ¶¶ 13-17. His findings drove the terms of
the parties’ settlement agreement, and a summary of those findings is appropriate.
Dr. Haney found that the SMU “is one of the harshest and most draconian
[solitary confinement] facilities [he had] seen in operation anywhere in the country.” Id.
¶ 19. Some of the inmates “were among the most psychologically traumatized” solitary
6
His curriculum vitae is found in Doc. 142 at 73-113.
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confinement inmates he had ever seen. Id. ¶ 21. He concluded that four exacerbating
features of the SMU were the cause of the unusually high level of trauma he saw. Id. ¶
22.
a. The conditions of confinement at the SMU were “unusually severe and more
isolating and ‘closed in.’” Id. ¶ 23.
Inmates at the lowest level of the SMU were allowed almost no personal
property, were allowed no phone calls or visitation, and were not allowed access to outof-cell exercise or recreation. Id. ¶ 28. Dr. Haney had never heard of or seen a facility
that imposed such conditions on solitary confinement inmates. Id. ¶¶ 28, 58 (“[T]he
atmosphere inside E Wing was bedlam-like, as chaotic and out-of-control as any such
unit I have seen in decades of conducting such evaluations. When I entered this
housing unit I was met with a cacophony of prisoner screams and cries for help. The
noise was deafening ….”). Even when SMU inmates were allowed some privileges,
they were still locked in their small cells for all or most of any given day. Id. ¶¶ 28-30.
Some SMU inmates were allowed five hours of outdoor exercise per week, although
that was frequently cancelled. Id. ¶¶ 23, 30. The outdoor exercise facility consisted of a
concrete-floored cage approximately the same size as the inmates’ cells. Id. ¶ 30.
Some inmates received three 15-minute out-of-cell showers per week. Id. ¶ 31. Others
had a shower spigot in their cell. Id. Further, and unlike typical solitary confinement
facilities, cell doors in the SMU were made of solid metal rather than steel bars, and the
small window on the cell door was covered by an outer metal shield. Id. ¶ 32. The cells
had small rear windows, but metal shields were placed on some of those windows as
well. Id. ¶ 33. In effect, as Dr. Haney put it, SMU inmates are “hermetically sealed” in
their cells. Id.
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b. The consequences of the conditions of confinement were “compounded by the
uncertainty and the sense of helplessness” that accompanied those conditions.
Id. ¶ 24.
Dr. Haney found that, in “theory,” SMU inmates were provided incentives to
encourage them to engage in behavior that would be rewarded with increased
privileges, with an ultimate goal of earning a transfer to a “mainline prison setting.” Id.
¶¶ 28 n.2, 39. In practice, Dr. Haney found that the incentive program had completely
broken down. Id. ¶¶ 39-40. Inmates reported they received no guidance about what
they needed to do to earn their release from the SMU. Id. ¶ 40.
c. The consequences of the severe conditions of confinement at the SMU were
exacerbated by the prolonged duration of confinement. Id. ¶ 25.
Dr. Haney found that many inmates could not progress through the system
because of a lack of bed space in less restrictive wings. Id. ¶ 39 n.6. Consequently,
inmates were being held in the SMU far longer than “recommended professional,
human rights, and correctional limits.” Id. ¶¶ 41-43. In the two years preceding his
review, 60 percent of releases were because inmates had served their prison
sentences. Id. ¶ 44. Seventy-three percent of inmates who were transferred from the
SMU to other prisons were placed not in “general population,” as the GDC calls it, but
rather were placed in “Tier II long-term administrative segregation,” the GDC’s term for
solitary confinement. Id. ¶ 45. In short, solitary confinement had become a final stop
rather than an interim rehabilitative stop.
d. “[A] shockingly high number of mentally ill prisoners are housed in the SMU.”
Id. ¶ 26.
Finally, Dr. Haney found that 70 of the SMU’s 180 inmates were designated as
mentally ill. Id. ¶ 47. In Dr. Haney’s opinion, it is “dangerous” to house mentally ill
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inmates in a solitary confinement setting. Id. There is no justification, he concluded, for
incarcerating such a high number of mentally ill inmates in the harsh conditions of the
SMU. Id.
5. Settlement Agreement Provisions
The settlement agreement requires remediation of the conditions described by
Dr. Haney. In general, the settlement agreement sets certain minimal requirements for
out-of-cell time, programming, nutrition, sanitation, and access to reading materials and
other resources to mitigate the traumatic effect of solitary confinement. The settlement
agreement also specifies the duration of confinement in the SMU and sets criteria for
assignment and periodic review. Doc. 256-1 ¶¶ 44-46. Finally, the settlement
agreement requires the defendants to staff the SMU properly, allows monitoring to
ensure compliance, and requires periodic reporting. Id. ¶¶ 57-60, 62. These oversight
provisions include onsite visits, monitoring meetings, meet and confer obligations, and
other required communications between counsel. Id. ¶¶ 57-61. Key provisions are
summarized in more detail below.
Conditions of Confinement. The defendants agreed to and were ordered to
provide inmates with certain minimum conditions of confinement. Docs. 256; 256-1 ¶¶
11-43.
Out-of-Cell Time (¶¶ 12, 16): Inmates shall receive at least four hours of out-ofcell time a day, Monday through Friday, including up to three hours in a common
area using restraint tables and at least one hour in outdoor recreation cages.
Out-of-cell time can be withheld only in the event of unanticipated security or
safety considerations. Inmates shall not be denied out-of-cell time as
punishment unless the inmate has committed a “great” or higher severity level
disciplinary offense during out-of-cell time; the denial of out-of-cell time shall not
exceed 14 consecutive days.
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Programming (¶¶ 22-23): Inmates shall receive weekly the opportunity to
participate in at least 120 minutes of out-of-cell programming or classes and shall
receive notice of programming opportunities.
GOAL Devices (¶ 20): Inmates shall be given operable computer tablets called a
“GOAL” device.7 These tablets are “[d]esigned to work in conjunction with [a]
JPay inmate kiosk.” Doc. 171-2 at 6. Inmates shall be allowed to recharge the
devices daily and access the kiosk at least twice per week.8
Privileges (¶¶ 19, 26): Inmates shall have access to mobile book carts on a
weekly basis and receive the opportunity to request materials from the GDCP
library. Inmates shall receive, at a minimum, the privileges required by SOP
209.09 (Doc. 432-76 at 48), which allows class members certain personal
property, visitation, telephone calls, access to commissary goods, showers three
times per week, and other conditions.
Cell Conditions and Sanitation (¶¶ 31, 33, 36): Inmates shall receive the
highest possible standards of cleanliness, sanitation, and safety. Inmates shall
be provided the opportunity to clean their cells on the same basis as inmates in
the general population. Cells must be equipped and furnished in a manner
consistent with cells in the general population.
Hygiene and Clothing (¶¶ 34-35, 37-38): Inmates shall be provided prescribed
medication, clothing, and basic personal items as set out in the privileges chart
attached to SOP 209.09, unless there is imminent danger that an inmate will
destroy an item or induce self-injury. Inmates shall be provided toiletries and
personal hygiene items—including toilet paper, soap, toothbrushes, toothpaste,
and similar items—on the same basis as inmates in the general population.
Each inmate must be provided the opportunity to shower and shave three times
per week. Inmates must be provided the same laundry and barbering services
and be issued and exchanged clothing on the same basis as inmates in general
population. Exceptions are permitted only when found necessary by the warden
or designee; any exception is recorded in the unit log and justified in writing.
Food and Nutrition (¶¶ 28-30): Inmates are entitled to (1) food of the same
quality and quantity as that provided to the general population, and (2) removal of
any signs discouraging inmates from discussing their nutritional needs with
medical staff.
GOAL stands for Georgia Offender Alternative Learning. Doc. 171-2 ¶ 10 n. 4. The “devices have
multiple functions, the most important of which for present purposes are educational materials, games,
books, and similar activities.” Doc. 256 at 12 (citing Doc. 171-2 ¶ 10, at 6-10 (informational materials
concerning GOAL devices)).
7
See Doc. 256 at 12-13 (“The Court finds that the provisions for GOAL devices, books, programming, …
and related conditions are necessary and narrowly tailored to preventing the serious psychological harm
allegedly caused by solitary confinement.”).
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The removal of Orwellian signage barring nutritional-needs discussion with
medical providers might seem relatively trivial. See Doc. 142 at 138. But the Court
pauses to note the issue because it is emblematic of the defendants’ broad refusal to
comply with the Court’s injunction, even when the fix is easy. Years after the entry of
the Court’s injunction, the signs had not been removed. See, e.g., Docs. 308-1 at 25;
308-5 ¶ 34.
Staffing and Training (¶¶ 18, 62): The defendants shall ensure that a sufficient
number of administrators, correctional officers, counselors, mental health
professionals, and other staff members are available to carry out the terms of the
settlement agreement. All GDC employees who are involved in the daily
operation of the Tier III Program will be trained on the SOP and any provisions
contained in the settlement agreement that apply to the daily management of
inmates housed in the Tier III Program.
Assignment, Periodic Review, and Duration of Confinement. The settlement
agreement addresses Dr. Haney’s finding that the harsh conditions of the SMU were
exacerbated by the lack of meaningful review of SMU assignments and the inability of
inmates to earn release from the SMU. See Doc. 256-1 ¶¶ 44-56.
Out-of-Cell Mental Health Evaluations (¶ 49): Before assignment to the SMU,
and in conjunction with every 60-day or 90-day review hearing, inmates shall
receive an out-of-cell mental health evaluation performed by a licensed mental
health provider.
Assignment (¶ 48): It is necessary to state in full, rather than summarize, the
injunction mandates regarding assignment to the SMU:
Prior to assignment to the SMU or Tier III Program, a formal hearing will
be convened to advise the person that he is being assigned to the
SMU/Tier III. The inmate must be given an opportunity to be present at
this hearing, and must be afforded the following rights in connection with
SMU/Tier III assignment or proposed assignment:
a) At least 48 hours prior to the hearing, the inmate must be
served with a notice informing the inmate that he is being
considered for the SMU/Tier III Program.
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b) The inmate has the right to attend the hearing. He may
forfeit this right if he is disruptive, and this disruption shall be
documented. Should he decline to attend, his waiver of the
right to attend shall be documented.
c) The inmate has the right to make a verbal statement, to
present documents, and to submit a written statement.
d) The inmate will be informed that he may submit written
objections to a recommendation that he be moved to the
SMU/Tier III Program. He may do so using an appeal form
to be submitted to the Director of Field Operations within 14
calendar days from receipt of the notice of assignment to the
SMU. If the Director of Field Operations approves the
recommendation, then the inmate’s written objections shall
be forwarded to the Assistant Commissioner of Facilities
who shall make the final decision about SMU placement.
e) Except in emergency situations, transfer of the inmate to
the SMU must not be made until after the time for the inmate
to submit objections expires.
The defendants take the position that subsection (e) permits them to cancel all
pre-assignment process if they deem a transfer to be an “emergency.” See, e.g., Docs.
340 at 86:5-13; 344 at 72:10-19; 384 at 32:5-33:11; 460 at 6. That construction is
flawed. Subsection (e) applies to the two-week objection period, not the mandate to
hold a pre-assignment hearing. If paragraph 48 granted an exception to all preassignment process, that exception would appear in its main body, not in a subpart that
references only the two-week objection period. (For example, “Except in emergency
situations, prior to assignment to the SMU ….”). In any event, as will be discussed, the
defendants are in violation of paragraph 48 even under their interpretation of subsection
(e). See Doc. 460 at 6 (“[T]he information shows that the requirement was not met in
some instances. There are inmates for whom a 48 hour hearing was either not received
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or not timely received, or for whom, if they did, the documentation does not exist to
demonstrate as much.”).
Offender Management Plan (¶ 53): Upon assignment to the Tier III Program,
each inmate shall be provided a detailed Offender management plan setting out
individualized goals and explaining the steps that the inmate must take to qualify
for a transfer from the SMU/Tier III Program.
Duration of Confinement (¶¶ 44, 56): Inmates shall not be held in the SMU for
more than 24 months unless they voluntarily request to remain or one of the
following six exceptions applies: “(1) the inmate committed a murder while
incarcerated; (2) the inmate escaped outside the secure fencing of a GDC
facility; (3) the inmate caused serious bodily injury to another inmate or a GDC
employee, contractor, or volunteer; (4) the inmate took another inmate or GDC
employee, contractor, or volunteer hostage; (5) the inmate’s crime was so
egregious that the person was placed in the Tier III Program immediately upon
being placed in GDC custody; or (6) the inmate, due to his unique position of
influence and authority over others, poses such an exceptional, credible, and
articulable risk to the safe operation of the prison system or to the public that no
facility other than the Tier III Program facility is sufficient to contain the risk.”
Inmates transferred from the SMU will be placed in either a Segregation
Transition Education Program (“STEP”) or Specialized Mental Health Treatment
Unit (“SMHTU”).
Periodic Review (¶ 54): The SMU’s periodic review procedures will involve a
multi-level process beginning with review by a classification committee and
ending with review by an assistant commissioner, as required by SOP 209.09.
As part of the review process, inmates shall receive the classification
committee’s recommendation at least 48 hours before the review hearing, shall
have the right to attend the hearing, and shall have the right to object to the
recommendation and appeal the decision.
60- and 90-Day Review (¶ 49): Each inmate shall be reviewed by a
classification committee every 60 or 90 days and receive an out-of-cell
mental health evaluation by a licensed mental health provider.9 The
committee shall determine whether the inmate should move to the next
phase, remain in the current phase, be reassigned to a previous phase, or
be released from the SMU.
24-Month Review (¶ 45): If an inmate is held in the SMU longer than 24
months, a panel of prison officials must determine on a quarterly basis
whether prolonged confinement is warranted. The panel shall provide, in
“All offenders in Phase 1 and 2 (or if housed in E and F Wings regardless of phase)” are reviewed once
every 60 days. Doc. 432-76 (SOP 209.09) at 18. “All offenders in D, C, and B Wings” are reviewed once
every 90 days. Id.
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writing, specific and detailed reasons for placing the inmate in the
SMU/Tier III and retaining them there. The criteria governing the panel’s
determination shall include: (a) length of time in current phase; (b)
perceived risk of release from the SMU; (c) number, type, and frequency
of disciplinary reports; (d) involvement in self-improvement activities; (e)
behavior while in the SMU; (f) the inmate’s 60- or 90-day mental health
evaluation; (g) progress on the inmate’s Offender management plan; and
(h) the total duration of the inmate’s confinement in the SMU. The
Commissioner or Assistant Commissioner shall personally approve any
decision to retain an inmate in the SMU Tier III Program beyond 24
months.
Mental Health. As noted, Dr. Haney found that “a shockingly high number of
mentally ill prisoners are housed in the SMU.” Doc. 142 ¶¶ 26, 57, 123. Thus, the
defendants agreed to and were ordered to monitor and appropriately address the
mental health status of SMU inmates.
Out-of-Cell Mental Health Evaluation (¶ 49): Before assignment to the SMU
and as part of every 60- or 90-day review hearing, inmates shall receive an outof-cell mental health evaluation by a licensed mental health provider. The
purpose of this evaluation is to determine whether the inmate’s mental condition
requires his removal from the SMU.
Training for Staff (¶ 52): All SMU officers and staff shall be trained to recognize
and respond to signs and symptoms of mental illness, including suicidal ideation
and acts.
Mental Health Designations (¶ 49): Inmates with a mental health designation of
Level III or above shall not be housed in the Tier III Program.
Transfer for Treatment (¶ 50): If an inmate is found to be decompensating or
precluded from continued placement in the Tier III Program due to mental illness
or disability, the inmate must be transferred to an appropriate treatment facility on
an expedited basis.
Recordkeeping. The defendants agreed to and were ordered to document their
compliance with the settlement agreement and provide that documentation to the
plaintiffs. See, e.g., Doc. 256-1 ¶¶ 13, 17, 22, 59-60. These provisions include:
Documentation of Out-of-Cell Time (¶¶ 13-14, 16-17): Out-of-cell time and/or
refusal to participate in out-of-cell time shall be documented contemporaneously
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on an inmate’s door sheet and made a part of his institutional file.10 If the
defendants “have reason to believe that out-of-cell time has been or will be
cancelled or shortened … for three or more consecutive days, for either an
individual dormitory or the entire SMU, the SMU [Warden] will promptly notify the
Regional Director in writing and will explain the circumstances resulting in the
cancellation, the steps taken to resolve the issue, … and an estimated timeline
for resuming compliance with Paragraph 12” of the settlement agreement. “A
mental health counselor will [also] visit any inmate on yard restriction daily,
excluding weekends and holidays, and the occurrence and substance of such
visit will be documented in the inmate’s mental health file.”
Documentation of Classes and Programs (¶¶ 22-24): Programming time
and/or refusal to participate in out-of-cell programming shall be
contemporaneously documented on an inmate’s door sheet. The defendants
shall provide inmates with notice of programming opportunities and schedules,
as well as written acknowledgement of programs, classes, and similar activities
completed while in the Tier III Program.
Documentation of Mental Health Evaluations (¶ 51): “For every [mental health]
evaluation, the licensed mental health provider shall document his/her
observations, findings, and recommendations [regarding] the inmate evaluated,”
and “log the date of the evaluation.” This would include, for instance, evaluations
performed in conjunction with 60- and 90-day reviews.
Documentation for Monitoring (¶¶ 57, 60): The parties shall conduct regular,
in-person meetings to discuss compliance with the settlement agreement. At
least fourteen days in advance of each monitoring meeting, the defendants must
provide specific documents to plaintiffs’ counsel, including: portions of the
institutional, medical, and mental health files for up to 20 inmates, SCRIBE 11
Door sheets are also referred to as “program checklists.” Doc. 432-76 at 36, 54; see Doc. 308-5 ¶ 23
(“The Tier III program policy provides for ‘Program Checklists’ that are supposed to ‘[c]ontain a record of
all activities such as out of cell time, bathing, recreation time, medical visits, program participation, and
religious visits.’ Program Checklists include spaces to document meals, recreation, table time,
programming, kiosk, haircut and shaves, showers, mail, visitation, supervisor, counselor, medical, mental
health rounds, and administrative review. Each checklist covers a one-week period.”) (alteration in
original).
10
SCRIBE is a computer-based note-taking program containing specific information for each inmate.
Doc. 429 at 195:6-19; see SOP 401.06 at 1, GA. DEP’T CORR. (May 27, 2020),
https://gdc.georgia.gov/organization/about-gdc/agency-activity/policies-and-procedures/executivedivision-policies/401 (“A specific CAPTIVA based software system module with restricted access that is
used to record and maintain the offender/detainee clothing record; staff clothing record; a facility’s
inventory of offender/detainee clothing, bedding and supplies; and a facility’s inventory of security
supplies and equipment.”).
11
“The Court may take judicial notice of government publications and website materials.” Coastal Wellness
Centers, Inc. v. Progressive Am. Ins. Co., 309 F. Supp. 3d 1216, 1220 n.4 (S.D. Fla. 2018); see also
R.S.B. Ventures, Inc. v. F.D.I.C., 514 F. App’x 853, 856 n.2 (11th Cir. 2013) (“As requested by [the
15
case notes, grievances, disciplinary reports, and mental health summaries. The
defendants shall also produce documentation of programming and the inmates
who participated in and completed each class.
6. Early Warning Signs of the Defendants’ Lack of Commitment
Before the settlement agreement was adopted by the Court, the plaintiffs wrote
the defendants on January 24, 2019 about apparent breaches of the settlement
agreement’s requirements that inmates receive out-of-cell time; that inmates receive
GOAL devices and twice-weekly kiosk access; that the defendants ensure staffing
sufficient to satisfy their obligations; and that inmates not be held in the SMU beyond 24
months. Doc. 305-10. The plaintiffs sent a second letter five days later noting
additional violations related to staffing, inadequate out-of-cell time, and lack of access to
kiosks and the library. Doc. 305-11.
During the settlement approval process, some class members also claimed that
the defendants were not meeting or were unable to meet their obligations in their
objections to the settlement agreement. See generally Docs. 218; 219; 220; 221; 222;
223; 224; 225; 226; 227; 229; 230; 231; 232; 233; 234; 235; 236; 238. According to the
defendants, “careful review of these filings reveal[ed] that they [were] not actually
objections to the fairness of the agreement itself rather they [were] expressions of
concern about Defendants’ ability to carry out the agreement or their failure to abide by
same.” Doc. 239 at 6. The plaintiffs’ counsel also characterized the objections “not [as]
dissatisfaction with the terms of the agreement itself, but rather dissatisfaction with the
Defendants’ alleged failure to comply thus far with the terms of the agreement.” Doc.
plaintiff], for purposes of this appeal we take judicial notice of the information found on the FDIC’s
website.”).
16
252 at 16:25-17:3. The Court agreed12 and noted that a “common thread” among all
objections was “allegations that staffing [was] inadequate” to implement the settlement
agreement. Id. at 15:14-19, 16:3-6, 17:4-5.
The Court addressed these concerns at the fairness hearing on April 30, 2019.
Docs. 250; 252. At that hearing, the Court made clear that “insufficient resources or
staffing or funding is not an excuse or reason for not complying with the agreement.”
Doc. 252 at 15:24-16:10. The defendants agreed. Id. at 16:2-10.
Based on the defendants’ assurances that they would soon be in full compliance,
the settlement agreement was adopted by the Court, and a permanent injunction was
entered on May 7, 2019. Docs. 256; 256-1.
Problems soon arose. On December 16, 2019, the plaintiffs wrote the
defendants about the same issues raised in their January 2019 letters. Doc. 305-12.
The plaintiffs documented “several violations of the Agreement that stemmed from
[alleged] chronic understaffing in the SMU, including lack of officer rounds, lack of
officer supervision while class members were using the restraint tables, and the [recent]
suicide of [a] class member.” Doc. 308-1 at 7-8 (citing Doc. 305-12). The plaintiffs also
claimed inmates “were not receiving four hours of out-of-cell time; lived in unsanitary
conditions exacerbated by inadequate opportunities for cell cleanout; and lacked access
to the book cart, GOAL devices, kiosk, programming, laundry, adequate clothing and
See, e.g., Doc. 252 at 16:16-17 (“THE COURT: … most of the objections address[ed] what [inmates]
s[aw] as inadequacies in the implementation.”); see also Doc. 237 at 1 (“Class members objected in
particular that Defendants have not yet fully implemented particular terms regarding out-of-cell time (and
the staffing required to facilitate it), certain conditions of confinement, and procedures for placement and
retention in the SMU.”).
12
17
personal hygiene items, and appropriate mental healthcare.”13 Id. at 8 (citing Doc. 30512 at 4-6, 8-11). Finally, the plaintiffs alleged that the defendants were violating “the
procedural safeguards built into the Agreement, including the failure to provide class
members with pre-assignment review hearings and Offender Management Plans.” Id.
(citing Doc. 305-12 at 8-9).
The Court pauses to note the defendants’ response to their failure to provide outof-cell programming. They represented that “televisions were then being installed,” and
“programming would soon begin ‘throughout the SMU.’” Docs. 305-1 at 40; 305-13 at 7
(“The televisions are in the final stages of installation and Defendants expect that
installation will be completed within the next several weeks.”). Of course, in-cell
television programming does not satisfy the defendants’ obligation to provide out-of-cell
programming, but the pertinent point here is the representation that inmates would have
television access “within the next several weeks.” Providing television access to eligible
inmates is an important element of the scheme to ameliorate the deleterious effects of
solitary confinement and to provide incentives for movement through phases, although
perhaps less critical than other injunction requirements. Doc. 256-1 ¶ 26. As will be
discussed, the defendants have repeatedly promised, and repeatedly broken their
promises, to provide eligible inmates access to television.
The plaintiffs’ December 16, 2019 letter raised a new issue: the misuse of “strip”
cells, including the routine placement of new SMU inmates in strip cells. See Doc. 30512 at 11-12 (“[W]e have heard reports that prisoners frequently are denied bedding and
The Court continued to receive letters from inmates claiming the conditions at the SMU had not
improved. See, e.g., Docs. 284; 290; 299.
13
18
other property, sometimes for weeks at a time, upon arrival at the SMU.”). Because of
the significance this issue will assume, a brief discussion of terminology is appropriate.
According to the GDC, a “strip” cell is a short-term (no more than eight hours)
non-disciplinary measure to isolate inmates who threaten themselves or others. Doc.
457-1 (SOP 209.05) at 1, 4 (“Stripped Cells and Temporary Confiscation of Personal
Property”). When placed in a strip cell status, inmates receive only a paper gown and
may or may not have some sort of suicide mattress; all other property is confiscated.
Docs. 429 at 31:8-14; 430 at 47:15-22; 457-1 at 1-2; see also Doc. 421 ¶ 23 (“Stripped
cells are cells lacking all personal property.”). An observation cell is supposedly only
used for mental health purposes and requires documentation by mental health
providers. Docs. 457-9 (SOP 508.28) at 7; 477 at 7. Inmates in both strip and
observation cells require monitoring every fifteen minutes which shall be documented in
writing. Docs. 457-1 (SOP 209.05) at 4; 457-9 (SOP 508.28) at 7. The defendants
attempt to distinguish a strip cell from a mental health observation cell, even though
they admit that the GDC’s policies related to those differences have not been followed.
See Docs. 429 at 80:4-82:22, 105:6-106:7; 430 at 45:1-13, 46:22-47:22; 432-16 at
104:20-105:4. However, as current Warden Williams acknowledged, there is in practice
no difference between the two. Doc. 432-16 at 108:24-109:8. In fact, the defendants
primarily use the same cells—A-107 and A-108—as strip and observation cells. For this
order, the bottom line is this—when an inmate is locked in a bare cell in violation of the
injunction, it makes no difference what label the defendants use. Certainly, the label
used makes no difference to the inmates in those cells. The Court uses the term
19
generally used by the parties and by inmates—strip cells—to refer to both strip and
observation cells.
Since first raising the issue of improper use of strip cells, the plaintiffs have
struggled to obtain evidence, other than inmates’ accounts, of strip cell abuse. Only in
the final stages of enforcement did the Court learn the truth.
After the plaintiffs’ December 16 letter, the parties “held a monitoring meeting to
discuss the[se] issues on February 26, 2020.” Doc. 305 at 4. But “[n]ot long thereafter,
the [Covid-19] pandemic brought a temporary halt to [the plaintiffs’] monitoring efforts as
the Department restricted all visitation and (for a period) telephone calls.” Doc. 305-14
at 3. Because “the Covid-19 pandemic created unforeseen challenges,” the plaintiffs
allowed the defendants “a reasonable amount of time … to adapt.” Doc. 308-1 at 8. On
January 28, 2021, the plaintiffs informed the defendants that in their view the
defendants had been afforded sufficient time “to implement new, pandemic-related
policies,” and thus “insist[ed] on compliance with the settlement terms that the
Department negotiated and agreed to follow” going forward. Doc. 305-14 at 2. The
January 28, 2021 letter reiterated concerns expressed in the January and December
2019 letters. The letter identified multiple alleged violations of the settlement
agreement—lack of out-of-cell time, lack of access to books and GOAL devices, lack of
proper sanitation and hygiene, lack of out-of-cell programming, inadequate review and
transfer procedures, understaffing, and inadequate responses to mental illness issues.
Id. at 3-7.
The parties met and conferred on March 3, 2021. Doc. 305 at 4. At that meeting,
the plaintiffs claimed that the defendants informed them “that all movement … including
20
movement for outdoor recreation, out-of-cell programming, and table time—had been
stopped for several months due to unspecified security concerns.” Docs. 308-1 at 15;
308-3 at 7-8. The defendants did not notify the plaintiffs of these cancellations—a clear
violation of the Court’s injunction. See Docs. 256-1 ¶¶ 14, 59; 305-1 at 7 (“We were not
notified of this directive until well after it had been issued, and we have never been
provided documents, on a monthly basis or otherwise, concerning denials of out-of-cell
time as a result of Holt’s directive.”).
Over the next few months, the plaintiffs continued to monitor compliance, looking,
futilely according to the plaintiffs, for signs that conditions had improved. Doc. 305 at 4.
On December 30, 2021, the plaintiffs formally moved for a status conference with the
Court to enforce the settlement agreement. Doc. 302. The plaintiffs reported they were
preparing to file a motion for an order directing the defendants to show cause why they
should not be held in contempt. Id. at 2. In response, the defendants claimed “that a
conference to address that … motion [was] premature and should be denied,”
suggesting that there had been no substantive communications between counsel. Doc.
303 at 2. Assuming that to be the case, the Court denied the plaintiffs’ motion and
ordered the parties to meet and confer. Doc. 304.
The plaintiffs immediately moved for reconsideration and documented the parties’
extensive substantive communications. Doc. 305. The parties had met in person on
December 14, 2021, and “conferred for several hours regarding the alleged violations”
that would be the subject of the plaintiffs’ motion for a show cause order. Id. at 3. “The
meeting was also attended by Georgia Department of Corrections (GDC) lawyers
Jennifer Ammons and Bryan Wilson, and by GDC Field Operations Director Robert
21
Toole.” Id. “On December 22, 2021, Plaintiffs’ counsel wrote an 8-page letter to
Defendants memorializing Defendants’ positions with respect to each unresolved matter
discussed at the conference.” Id. As mentioned above, the alleged violations were also
discussed during at least two monitoring meetings and raised by at least five separate
letters dated January 24, 2019; January 29, 2019; December 16, 2019; January 28,
2021; and November 5, 2021. Docs. 305-1; 305-10; 305-11; 305-12; 305-14.
B. 2022 Contempt Proceedings
Upon learning that the plaintiffs had pursued substantive discussion with the
defendants to address alleged longstanding violations of the injunction, and given the
looming May 7, 2022 expiration of the injunction, the Court convened a conference on
January 27, 2022, and ordered the parties to conduct limited discovery. Doc. 306 at 1.
On January 28, 2022, the plaintiffs moved for the entry of an order directing the
defendants to show cause why they should not be held in contempt for violating the
terms of the settlement agreement. Doc. 308. The plaintiffs alleged violations related to
out-of-cell time (¶¶ 11-14, 16, 18); library, book carts, and GOAL devices (¶¶ 19-21);
programming (¶¶ 22-23); sanitation, hygiene, and clothing (¶¶ 31, 34, 36-38);
assignment and periodic review (¶¶ 48-54, 56); access to records and data (¶ 60(a));
and interference with communications between class counsel and inmates (¶ 63).
Docs. 308 at 1; 308-1 at 5. Inmates claimed that they continued to be held in unsanitary
isolation cells for between 22 and 23 hours per day, had limited or no access to
programming, lacked necessities such as clean clothing, and were denied meaningful
review procedures both before and after they were placed in the SMU. See Doc. 308-1
at 4 (“[T]he present conditions in the Special Management Unit bear a dismaying
22
likeness to those described in the plaintiffs’ complaints (Doc. 73; Doc. 140) and motion
for preliminary injunction (Doc. 154; Doc. 154-1).”). The plaintiffs also claimed that
individuals with serious mental illness remained in the SMU even after the extreme
conditions of the Tier III program caused them to decompensate and engage in acts of
self-harm, citing the suicides of two SMU inmates. Id. at 4; Doc. 312-1 at 4-5, 7-8.
In response, the defendants essentially argued that the doctrines of laches and
unclean hands prevented findings of contempt. Doc. 325. First, the defendants argued
that they should not be held in contempt for violations described in the plaintiffs’
December 16, 2019, and January 28, 2021 letters because the plaintiffs did “not
diligently pursue[] relief” for those violations. Id. at 4. Then, citing the contractual
principle of good faith and fair dealing, the defendants argued inmates’ “affirmative
interference with [their] ability to carry out [their] duties under the Agreement preclude[d]
a finding that Defendants [] violated its terms.” Id. at 9.
1. Show Cause Hearing
On April 26, 2022, the Court convened a hearing on the plaintiffs’ motion for a
show cause order. Doc. 342. The evidence taken is summarized below.
Out-of-Cell Time. Through the testimony of Holt, Caitlin Childs,14 and various
video depositions of SMU inmates and staff, the plaintiffs presented overwhelming
evidence that inmates remained in their cells between 22 and 24 hours per day and
From June 18, 2018, to January 5, 2024, Childs was employed as a paralegal by the Southern Center
for Human Rights and served as the plaintiffs’ lead investigator. Docs. 308-5 ¶¶ 1-2; 344 at 4:17-18; 4461 ¶ 2. She regularly reviewed documentation produced by the defendants to determine whether the
defendants were complying with their obligations under the settlement agreement. Doc. 344 at 15:1116:4 (“I go to the prison, and I meet with class members, and then I review, digest, and summarize
records.”).
14
23
thus did not receive four hours of out-of-cell time as required by the settlement
agreement. See Docs. 256-1 ¶¶ 12-18; 344 at 7:18-8:2.
Table Time. Restraint tables are the primary means for providing inmates with
out-of-cell time. But by the time of the hearing, both inmates and staff testified that the
defendants had stopped or all but stopped table time. See, e.g., Docs. 340-11 at 92:1224, 93:8-11; 340-16 at 80:22-81:1. In fact, staff could not recall when the last time the
restraint tables were used. Docs. 340-11 at 92:21-24 (“Q: If there were evidence that
the restraint tables have not been used in say the last six months, would you have any
reason to dispute that? A: No.”), 93:8-11; 340-16 at 81:2-4. The defendants’ April 4,
2022 brief acknowledged that they stopped offering table time but claimed table time
presented a security issue, citing five alleged incidents involving restraint tables. See
Doc. 325 at 13-15. In the very same filing, however, the defendants cited then Warden
Joseph Polite’s February 24, 2022 deposition testimony that table time occurs and
attached an affidavit from Holt dated April 4, 2022, claiming “the restraint tables are
currently in use and access to them is offered to all the inmates housed in the SMU.” 15
Docs. 325-3 ¶ 10; 340-15 at 60:5-9 (“Q: So anybody who wants the three hours a day of
table time gets it? A: If they want it.”).
The Court made two points about the failure to provide table time. First, if there
were incidents that justified the broad suspension of table time, the defendants should
have produced the documentation that necessarily would have been generated had
Inmates testified that the defendants stopped offering table time sometime in 2020. See, e.g., Docs.
340-1 at 32:14-16 (“Q: Have you ever been offered table time? A: No, ma’am.”), 32:17-19 (“Q: Have you
ever asked to go to the tables? A: They said they don’t do that.”), 33:5-10; 340-2 at 33:11-34:5 (“I think
they stopped running table time like 2020, September or October, something like that. They stopped
running table time completely.”); 340-9 at 25:14-26:2; 340-19 at 16:25-17:2 (“Q: [T]hey don’t offer tables?
A: No, ma’am.”); 340-20 at 26:15-27:13; 340-21 at 15:13-23.
15
24
there been such incidents. Second, the defendants knew when they entered into the
settlement agreement that SMU inmates were difficult to manage. The defendants
made no further effort to prove their unclean hands defense.16
Cage Time. Heather Barber was employed as a correctional officer within the
SMU from May 16, 2019, until December 16, 2021, when she became an SMU
behavioral health counselor. Doc. 340-11 at 10:18-11:21. Barber testified that during
her time as an SMU correctional officer outdoor recreation was left to officers’ discretion
and that SMU policy was to offer inmates only one hour per day in the yard cages. Id.
at 86:15-87:1, 91:20-23. Another counselor testified that inmates typically spent 23
hours in their cells per day and were entitled to only one hour of out-of-cell time. Doc.
340-16 at 46:15-16, 75:10-13, 75:21-24. This was consistent with inmate testimony that
they regularly spent 23 to 24 hours per day in their cells.17 Although some inmates
testified that they were regularly offered outdoor time, these inmates testified that they
Since the settlement agreement took effect, the defendants claimed major incidents in the SMU had
tripled, asserting that there had been approximately 646 major incidents in the SMU from January 1,
2019, to early March 2022. Doc. 325 at 8. But the list of “major incidents” produced by the defendants
included numerous routine entries for “keys/tool,” “shakedown,” “institutional drills,” and “failure to execute
policy.” See Doc. 325-3 at 99. Some of these entries had the same incident number and refer to the
same event. According to the plaintiffs, “[t]here were 359 unique incident report numbers in the
approximately 34-month period from May 7, 2019, when the Agreement was adopted by the Court, and
February 28, 2022 (the last full month covered by Defendants’ records),” which is approximately half the
number of incidents the defendants represented to the Court. Doc. 329 at 4 (citing Doc. 325-3 at 35-99).
16
See, e.g., Docs. 308-4, N.H. Decl. at 7 ¶ 19 (“Officers let people in D-Wing go to the yard cages for
about an hour a day on weekdays. Officers do not announce when it’s yard time.”), C.J. Decl. at 22 ¶ 18
(“[F]or almost the entire month of June 2021, I received almost no out-of-cell time because officers were
not offering table time and I was not allowed to go out to the yard.”), K.M. Decl. at 28, 30 ¶¶ 8, 19 (“I did
not regularly receive 4 hours of out-of-cell time when I was at the SMU because I was never offered table
time …. I have only gone to yard one time since I got here. I spend all day locked up alone in my cell. I
only come out for showers three times per week.”); 340-1 at 6:16-19 (“Q: About how many hours do you
spend in your cell every day? A: Twenty-four hours.”); 340-19 at 16:9-24 (“Q: [H]ow many hours are you
inside your cell on a weekday? … A: I’ll be in my room 24 hours.”); 340-20 at 6:12-14 (“Q: In the SMU,
approximately how many hours a day do you spend in your cell? A: Possibly all day.”); 340-21 at 15:1-3
(“Q: [H]ow many hours are you spending inside … of your cell on a weekday? A: Twenty—about 23,
24.”).
17
25
were not offered four hours of out-of-cell time per day as required by the settlement
agreement.18
Out-of-Cell Time Generally. The defendants’ documentation, or lack thereof,
confirmed that they were not complying with the settlement agreement’s out-of-cell time
requirements. See Doc. 256-1 ¶¶ 12-18. Based on her review of documents produced
by the defendants, Childs testified that it was common for the defendants’
documentation of out-of-cell activities to be left blank for days or weeks at a time and
“that out-of-cell activities … were regularly cancelled.” Docs. 308-5 ¶¶ 9, 28; 344 at
18:4-20:9, 29:10-21, 30:3-8, 31:3-32:21, 33:1-24, 34:5-6 (“I found very few door sheets
that included time out and time in.”). “For instance, the east and west control logbooks
indicate[d] that outdoor recreation and table time were cancelled for the full week
beginning March 29, 2021.”19 Doc. 308-5 ¶ 9. “For this same week, the west-side
logbook [did] not contain any entries for outdoor recreation or table time” and “[o]n
Wednesday, March 31 of that week, the logbook state[d]: ‘No movement this week
except for showers.’” Id. ¶ 10. Individual inmate files suffered from the same flaws,
confirming that the defendants were not providing inmates with the minimal amount of
out-of-cell time required by the settlement agreement.20
See Docs. 340-1 at 6:16-19, 31:14-22; 340-2 at 32:3-24, 33:3-13, 45:13-23; 340-9 at 23:24-25, 55:2025; 340-19 at 15:22-23, 16:9-11, 29:15-17, 32:6-10; 340-20 at 25:7-12 (“We get like a hour. No more
than two hours.”); 340-21 at 14:3-15:15, 49:5-11.
18
“[T]he SMU is divided into two sides, the east side and the west side. The east side contains A-, B- and
C-Wings, the west side is D-, E-, and F-Wings.” Doc. 344 at 20:23-25.
19
Childs testified that for one inmate in particular, records produced in February 2021 showed that “table
time was cancelled for two consecutive weeks in March 2020; one full week that was undated; two full
weeks in April 2020; one full week in June 2020; one full week in July 2020; one full week in September
2020; two full weeks in November 2020, and four out of five days during the last week of November;
almost all of December 2020; and two weeks in January 2021.” Doc. 308-5 ¶ 28. “These same records
… show[ed] that yard call was cancelled for the week of October 25, 2020.” Id.
20
26
The defendants did not deny that they cancelled out-of-cell time; nor could they.
SMU staff, including then Warden Polite, testified that out-of-cell time was cancelled due
to understaffing—a clear violation of the settlement agreement. Doc. 340-15 at 43:1518 (“Q: Has there ever been an instance where they have not been provided out-of-cell
time because of understaffing? A: Yes.”); see also Docs. 340-11 at 100:24-101:1
(Barber testifying that the out-of-cell time was cancelled due to lack of staff); 340-16 at
77:9-23, 78:6-10 (Former SMU behavioral health counselor Kendra McBurnie testifying
that she was told there would be no yard call due to understaffing that day).
Holt testified that the tactical assistance (“TACT”) squad and Interdiction
Response Team (“IRT”) were sent to provide support to staff at the SMU and “ensure
that class members receive the four hours of out-of-cell time that they’re entitled to
under the agreement.” Docs. 340 at 108:11-22; 344 at 49:20-50:2. But on days the
TACT squad or IRT team was not present, out-of-cell time was sometimes cancelled.
See, e.g., Docs. 308-5 ¶ 9 (“On Thursday, April 1, 2021, the logbook states, ‘No
movement b/c Tact squad not working.’”); 340-11 at 40:13-19, 138:20-139:10; 340-16 at
80:7-14 (“Q: Do you know if yard time would be canceled if IRT or TAC couldn’t make
it? A: Sometimes. Not always.”). McBurnie testified that “there weren’t enough
correctional officers to” feed or transport inmates “for showers, yard call, [and/or] kiosk”
without their assistance. See Doc. 340-16 at 78:14-79:21. This was consistent with
inmate testimony.21
See Docs. 308-4, D.H. Decl. at 13 ¶ 12 (“Yard call is offered when the tactical squad is at the SMU on
Mondays, Wednesdays, and Fridays. But yard call is not usually offered on Tuesdays and Thursdays.”),
N.S. Decl. at 37 ¶ 14 (“While yard time is sometimes offered, officers routinely take away yard time with
no explanation. Sometimes they don’t have enough staff and have to use yard staff to run showers.”);
340-2 at 65:1-7 (“Like, if the TACT squad don’t come, we won’t get nothing. Because they’ll complain
about the shortage of staff and so – whatnot.”); 340-9 at 24:1-15.
21
27
The defendants also failed to notify the plaintiffs of out-of-cell time cancellations
lasting 72 hours or more in violation of paragraph 14 of the settlement agreement. Holt
admitted that he unilaterally issued a directive to stop all movement within the SMU for
a week or more on at least four occasions without notifying the plaintiffs. Docs. 340 at
116:5-117:4; 344 at 50:10-24, 90:12-91:25. Despite acknowledging the requirement to
report the cancellation of out-of-cell activities lasting 72 hours or more, Holt testified that
paragraph 14 did not apply to him and did not require him to notify the plaintiffs of his
decision to cancel out-of-cell time. Docs. 340 at 118:9-22; 344 at 90:11-20.
Programming. Inmates did not receive weekly at least 120 minutes of out-ofcell programming.
First, the defendants conducted out-of-cell programming in one classroom that
could accommodate only four to five inmates at a time and that served only one wing.
See Docs. 340-11 at 96:5-97:9; 340-16 at 84:20-25. Therefore, it was physically
impossible to offer each inmate 120 minutes of out-of-cell programming per week.
During an onsite inspection, “Plaintiffs’ counsel requested to inspect all the areas used
for out-of-cell programming in the SMU.” Doc. 308-5 ¶ 35. “GDC’s Deputy General
Counsel, Bryan Wilson, stated that there [wa]s only one classroom in the SMU …
located in B-Wing.” Id. “The classroom had [only] four cages along the back wall that
contained a writing surface and a seating surface.” Id. SMU Unit Manager Charles
Hargrove testified that the only out-of-cell programming offered over the past year was
an education class taught in this classroom. Doc. 340-3 at 124:6-7, 126:16-22.
Even if the defendants had offered out-of-cell programming at the restraint
tables, they did not have the staff to do so. Hargrove testified that “there was nobody
28
available to teach the OUT program” “between July and December” 2021. Id. at 76:314, 78:6-8. McBurnie testified that “there wasn’t enough adequate staff to pull the
offender out of the cell to do the class.” Doc. 340-16 at 11:14-22, 29:7-30:2, 86:14-15.
When she left the SMU in September 2021, she had never taught a class. Id. at 11:2022, 29:13-14.
Holt, with some understatement, admitted at the show cause hearing that “[t]here
were some challenges with staffing as it related to education.” Doc. 344 at 49:12-13.
But he claimed that the GDC “came up with a way to provide education via satellite” to
the SMU on a “weekly” basis. Id. at 49:14-18. Perhaps Holt was the source for this
representation in the defendants’ brief filed before the show cause hearing: “While there
have been occasions when there have not been instructors available to offer out-of-cell
programming, in-cell programming has continuously been offered to class members.”
Docs. 325 at 16. That representation was not true—the evidence established that there
was virtually no out-of-cell programming and that inmates in E- and F-Wings still did not
have television access. See Docs. 340-11 at 109:5-20, 110:1-7; 340-16 at 91:8-14; 344
at 34:7-19, 34:23-35:4. Yet, there was evidence that door sheets for inmates in those
wings falsely documented that programming was provided by television. Doc. 340-3 at
120:2-123:5.
Library, Book Cart, and GOAL Devices. The plaintiffs did not receive weekly
book cart access, library access, or a GOAL device as required by the settlement
agreement.
Barber testified that book carts were not used regularly within the SMU until late
2021, and, even then, not weekly as the injunction requires. See Docs. 340-11 at
29
117:7-18, 118:22-25, (“Q: Right now how often do you provide book carts to each wing?
A: It’s a 2-week period. Every other week.”), 119:5-23; see also Doc. 340-16 at 96:1122. This was confirmed by Childs’s declaration that the defendants’ documentation did
not contain any entries for book cart access. Doc. 308-5 ¶ 17 (“Of the logbooks I
reviewed, I did not see any entries documenting the book cart on the floor of either the
east-side or the west-side.”). Inmates testified that they had never seen a book cart and
did not know how to request books from the library.22
GOAL devices were not issued to inmates in violation of paragraphs 20 and 21 of
the settlement agreement, ostensibly because the provider no longer manufactured
them. See Docs. 340-11 at 111:6-9, 113:11-18, 113:22-24 (“Q: Tablets are not
available? A: Yes, sir.”); 344 at 68:8-69:10. However, Holt testified that the GDC had
secured a new provider and GOAL devices would be distributed in May 2022. Docs.
340 at 124:21-125:20; 344 at 68:12-19.
Sanitation, Clothing, and Hygiene. The plaintiffs presented substantial
evidence of violations related to cell sanitation, clothing, and hygiene. Doc. 256-1 ¶¶
31, 36-38.
The defendants’ logbooks documented unsanitary conditions, describing the
SMU as “not clean,” “filthy,” “disgusting,” “dirty,” and “trashed.” See Docs. 308-5 ¶ 12;
340-11 at 36:22-37:9 (explaining that logbook entry regarding “trash everywhere” in D-,
E-, and F-Wings meant that “the [previous] shift did not clean.”). This was consistent
See Docs. 308-4, N.H. Decl. at 8 ¶ 23 (“I have never seen a book cart in D-Wing, and I have never
been offered a book, and I do not know how to request one.”), D.H. Decl. at 14 ¶ 16 (“I have not seen a
book cart since returning to the SMU.”); 340-20 at 33:19-23 (“I ain’t seen no book cart.”).
22
30
with inmates’ testimony that the defendants were not providing them with regular
opportunities to clean their cells.23
The defendants also failed to provide basic necessities such as clean clothing.
The settlement agreement requires the defendants to provide inmates with “the same
laundry [] services” and “issue[] and exchange[] clothing on the same basis as inmates
in general population.” Doc. 256-1 ¶ 38. Counselors acknowledged in their depositions
that inmates complained about laundry services and lack of clothing. Docs. 340-11 at
134:7-10; 340-16 at 113:17-19 (“Q: Did people ever tell you that they didn’t have
enough clothing? A: Yes.”), 114:9-23. One counselor testified that the SMU did not
have enough clothing to provide inmates. Doc. 340-16 at 113:17-114:8 (“Q: So the
SMU didn’t have enough clothing? A: … The warehouse next door would not provide
enough or have enough.”). The plaintiffs’ counsel “encountered class members wearing
nothing but underwear during legal visits.” Doc. 308-1 at 24 (citing Doc. 305-1 at 9);
see also Doc. 308-4 at 23 ¶ 22 (“I did not have a jumpsuit or any other clothing to wear,
so I was just wearing boxer shorts and a t-shirt … I was able to change into the jumpsuit
before I met with my lawyer.”). Inmates also testified that they lacked sufficient clothing
items and that their requests for items like underwear went unanswered. 24
See, e.g., Docs. 340-20 at 35:3-7; 340-21 at 25:11-14 (“Q: How are you able to keep your cell clean?
A: I have to rip one of my towels and sweep the floor with a rag.”); Doc. 308-4, N.S. Decl. at 39 ¶ 21
(“Since I arrived at the SMU in February 2021, I have only been given two opportunities to do a cell
cleanout.”), N.H. Decl. at 8 ¶ 25 (“Cell cleanout does not occur regularly in D-Wing. The last time was in
mid-December.”).
23
See, e.g., Docs. 340-2 at 62:3-7 (C.J.) (“It’s hard to get clothes.”); 340-9 at 29:10-18 (“Q: What clothing
did you have when you were sent to the – when you got here at the SMU? A: What I had on.”); 340-21 at
10:1-3 (N.S.) (“Q: What clothing were you provided while you were in A-Wing during that week? A:
Nothing.”); 340-19 at 28:7-16 (L.W.); see also Doc. 308-4, D.H. Decl. at 14 ¶ 18, K.M. Decl. at 28 ¶ 10,
N.S. Decl. at 39 ¶ 23.
24
Personal hygiene services also seemed lacking. See Doc. 308-4, D.H. Decl. at 14 ¶ 14 (“I need a haircut
and a shave but have not received one since getting to the SMU.”), K.M. Decl. at 29 ¶ 13 (“I was not able
31
Assignment and Periodic Review. The defendants violated most of the
settlement agreement’s requirements regarding assignment to the SMU and periodic
review. Most notably, and of particular concern to the Court, the defendants ignored the
Court’s order that each inmate must have a detailed offender management plan setting
out individualized goals for the inmate and explaining the steps necessary to qualify for
a transfer from the SMU. Doc. 256-1 ¶ 53. Holt testified that a detailed individualized
offender management plan for each inmate was not necessary because “the
management plan was the same for every inmate at the SMU.” Doc. 344 at 69:19-20.
That cavalier attitude permeated the entire assignment and review process.
Childs’s review of inmate files produced by the defendants in February 2021 and
February 2022 confirmed that half were missing assignment paperwork. Id. at 27:2028:11. Inmates also confirmed that they did not receive assignment hearings before
their assignment to the SMU.25
The defendants claimed, without supporting documentation, that inmates were
not afforded assignment hearings because the assignments were “emergency
transfers.” Docs. 340 at 86:5-13 (“I know of no placements at the SMU that I have not
deemed an emergency transfer.”); 344 at 72:10-19. This bald, unsupported assertion
that most SMU assignments were “emergencies” was neither credible nor warranted by
the settlement agreement. As discussed, there is no “emergency exception” to the pre-
to shave or get a haircut on a regular basis in the SMU. I received about three to four shaves and
haircuts during my entire time there.”), N.S. Decl. at 39 ¶ 22 (“The prison has only provided me with the
opportunity to shave and have a haircut one time since I have been housed at the SMU.”); see also Docs.
340-2 at 42:5-6 (“I was lucky – lucky if I shave once a month.”); 340-19 at 26:24-25 (“It takes weeks to get
your laundry back.”); 340-21 at 27:16-17 (“Q: Has the SMU ever offered you a haircut? A: Yeah, once in
2021.”).
E.g., Docs. 308-4, D.H. Decl. at 13 ¶ 11, C.J. Decl. at 18 ¶ 3, K.M. Decl. at 27 ¶ 3, N.S. Decl. at 34 ¶ 4;
340-2 at 48:8-22; 340-9 at 44:21-45:14; 340-21 at 36:15-24.
25
32
assignment hearing requirement. A “disruptive” inmate may waive his right to attend his
pre-assignment hearing and after the hearing he may “in emergency situations, be
transferred before the time for the inmate to submit objections expires.” Doc. 256-1 ¶
48(b), (e). Even if there was a general emergency exception, there was no evidence
that every transfer was an emergency. Also, circumventing the pre-assignment process
required by the injunction undercuts a critical element of the settlement agreement—“an
out-of-cell mental health evaluation performed by a licensed mental health provider …
to determine whether the inmate is, by reason of mental illness or disability, precluded
from being placed” in the SMU. Id. ¶ 49.
The plaintiffs also adduced evidence that the defendants routinely failed to
conduct the 60- and 90-day review hearings required by paragraph 54. See, e.g., Docs.
340-2 at 20:9-11 (“Q: When you were at the SMU, did you ever hear of something
called periodic review hearings? A: No.”); 340-16 at 69:25-70:24 (testifying inmates
often complained about not receiving review hearings).26
Even worse, there was considerable evidence that the defendants were falsifying
documentation of review hearings. McBurnie testified that she refused to sign off on
review forms because she was asked to sign when inmates were not present. Doc.
340-16 at 69:11-16 (“Because the offenders were not there. So I don’t want to sign
something when they are not there.”). She stopped signing such review forms but
testified that it was common for other counselors to sign review forms for inmates on her
See also Doc. 308-4, N.H. Decl. at 5 ¶ 8 (class member still in the SMU despite not having a
disciplinary report in six or seven years), C.J. Decl. at 18 ¶¶ 5-11 (claiming review does not occur
regularly), K.M. Decl. at 27 ¶¶ 6-7 (claiming to have had only one review hearing during an entire year at
the SMU), N.S. Decl. at 34-35 ¶¶ 6-8 (claiming to have never had a formal hearing and simply told to sign
a form). By failing to conduct these reviews, the plaintiffs claim that inmates are left confused as to why
they remain in the Tier III program and what they must do to be transferred out.
26
33
caseload. Id. at 68:22-69:7. Inmates also testified that they were routinely instructed to
sign but not date review forms, apparently to allow backdating so it would appear that a
review hearing was timely held.27
As part of the 60- and 90-day review hearing process, inmates must receive a
mental health evaluation to determine whether the inmate is precluded from remaining
in the Tier III program. Doc. 256-1 ¶ 49. The defendants failed to conduct these
evaluations as required by the settlement agreement. In part, but only in part, this was
a consequence of the defendants’ failure to provide adequate staffing. Childs testified
that “[n]otations about staffing would frequently come up in individual records in relation
to the out-of-cell mental health evaluations being canceled or postponed due to a lack of
security escorts as well as individual counseling sessions being canceled for the same
reason.” Doc. 344 at 38:16-20. Childs also testified that these records often contained
entries about “mental health rounds that were not able to be conducted due to a lack of
staff.” Id. at 38:20-22. For one inmate, in particular, Childs testified that there were
“eight weeks of canceled mental health rounds and one canceled individual counseling
session” “due to security issues.” Id. at 39:2-10. When asked if cancellations appeared
in other inmates’ files, Childs testified that they did and that “[i]t was frequent.” Id. at
39:11-15. Dr. Gweneth Hayes, a psychologist who conducted mental health
evaluations of SMU inmates, confirmed this—she lodged complaints because
appointments were cancelled or had to be rescheduled because of staffing issues. Doc.
340-10 at 65:12-18, 98:5-23, 99:7-15, 99:22-100:2, 102:17-103:9. Dr. Hayes added that
E.g., Docs. 340-1 at 13:5-24, 54-57 (testifying that he was given two review hearing forms to sign at the
same time); 340-2 at 16:9-17:9, 18:5-19:5, 19:10-25, 20:4-11, 67:25-69:21 (testifying that he was asked
to sign two review hearing forms at the same time, and was instructed to not write in the date on forms);
340-19 at 11:15-17, 12:12-20, 13:24-14:1, 14:17-19 (testifying to lack of 60- and 90-day review hearings).
27
34
the issue improved in February 2022, after the plaintiffs moved for sanctions, when the
SMU provided additional “security officers.” Id. at 100:3-101:23, 102:7-9, 104:5-20.
Documentation, or lack thereof, confirmed the defendants’ failure to provide
mental health evaluations in connection with periodic review hearings. Childs testified
by declaration that “[r]ecords [did] not show that mental health evaluations [were]
consistently provided or properly documented in conjunction with 60- and 90-Day
Reviews.” Doc. 308-5 ¶ 30. She testified that “[f]or several class members, no
paperwork related to their mental health evaluations was provided.” Id. This was
consistent with inmates’ testimony that they did not regularly receive an out-of-cell
mental health evaluation in connection with their 60- to 90-day reviews. 28 Hargrove,
who also chaired the classification committee that conducted review hearings, testified
that the committee did not even look for a copy of the inmate’s mental health evaluation
before filling in the date of the last purported mental health evaluation on the inmate’s
review form. Doc. 340-3 at 105:3-11, 106:18-22, 108:17-109:20 (“Q: [S]o you said that
for the mental health review, that you don’t actually look at the evaluation? A: I don’t.”).
Hargrove testified that the committee simply looks at the last time the inmate was
scheduled for a mental health evaluation, which apparently is not always correct and
may not account for cancellations. Id. at 108:23-109:17; see also Doc. 308-5 ¶¶ 30-31
(“[O]ne man’s 90-Day review paperwork … indicated that a Mental Health Evaluation
had occurred on September 11, 2020 … the same man’s mental health records stated
E.g., Docs. 308-4, D.H. Decl. at 14 ¶ 17 (“I have not received an out-of-cell mental health evaluation
since returning to the SMU.”), C.J. Decl. at 22 ¶ 17 (“I did not consistently receive out-of-cell mental
health evaluations every 60 to 90 days. In total, I think I saw a psychiatrist about three times while I was
at the SMU, including the time I was placed on suicide watch.”), N.S. Decl. at 36 ¶ 10 (“I did not receive
an out-of-cell mental health evaluation in connection with my November 2021 review hearing.”).
28
35
that a September 11, 2020, appointment with a psychologist had not in fact occurred
due to ‘significant shortages of security staff.’”) (emphasis added).
The defendants routinely breached their obligations regarding transfers from the
SMU. The settlement agreement mandates that inmates transferred from the SMU
must be placed in a STEP program or an SMHTU. Doc. 256-1 ¶ 56. In violation of that
provision, the defendants transferred approximately 21 inmates to solitary confinement
units in other prisons. Doc. 325 at 23-24. The defendants took this action even though
the inmates’ 90-day reviews recommended transfer to a STEP program. Doc. 329 at 20
(citing Doc. 332-1). Holt made no effort to justify the defendants’ violation of this
provision; he simply maintained that the inmates could be “better managed at a Tier II
[solitary confinement] setting.” Doc. 344 at 73:1-16. As will be discussed, the
defendants later turned to another artifice to keep inmates in solitary confinement.
Absence of Documentation and False Documentation. The Court has noted
the defendants’ repeated failure to comply with the injunction’s documentation
requirements and their falsification of documents. Because of the role documentation—
and misrepresentations about documentation—have played in the Court’s conclusion
that the defendants must be sanctioned, the subject merits detailed discussion.
As discussed, the plaintiffs, more precisely Childs, painstakingly reviewed reams
of documents before the April 26, 2022 show cause hearing to determine whether the
defendants were complying with the injunction. By the time of that hearing, it was
evident to the Court that the defendants were figuratively thumbing their noses 29 at the
Court and its injunction requiring documentation. But GDC administration, including
29
An apt, if not legally based, expression of contempt or disrespect.
36
Holt, knew much earlier of the SMU’s contemptuous conduct because, fittingly enough,
GDC auditors were documenting the SMU’s failure to document.
On December 17 and 18, 2020, GDC auditors conducted an “Annual
Assessment” of the SMU. Doc. 483. Overall, the audit paints a depressing picture
suggesting that conditions in the SMU were even worse than the conditions Dr. Haney
documented in 2017.30 The relevant findings are:
Requirement
Walkthrough Inspection
Observation
B-Range: Trash was all over range. All offender cells were in need
of cell clean-up. Food trays and chemical bottles were left
unattended. There is what appears to be mold on the ceilings, in
several offender cells and in the shower area. The range floor was
sticky and black in color. Floors are in need of sweeping, mopping
and buffing, A4-Range: Shower on lower level runs continuously.
Prison officials advised that this has been an issue for three month.
Staff was advised to submit a work order as soon as possible. C-110There is what appears to a mold like substance on the wall. Vents
were black in color. Several cells plexi glass missing from the doors.
Several lights were out throughout the unit.
F2-Range: There was trash and debris all over the range. The floors
were sticky and dirty. There was a strong smoke in the unit. There is
what appears to be a mold like substance in the shower area. Floors
need to be swept, mopped and in need of waxing. Several cells need
to be painted and maintenance needs to fix holes in the walls. The
door in the kiosk area needs to be repaired.
Is a weekly and monthly written report of the
Safety/Sanitation inspections noting all deficiencies,
forwarded to the Warden or Superintendent for review
and action?
Is a daily Safety/Sanitation inspection report
forwarded to the Shift Supervisor for review and
action
Are inmates provided the opportunity to have three
complete sets of clean clothing per week?
• Does the facility provide this clean clothing in
several ways, including access to self-serve washer
facilities, central clothing exchange, or a combination
of the two?
• Are washbasins in cells or rooms not compliant?
Is there a written policy, procedure, and practice that
provides that hair care services that comply with
applicable health requirements are they available to
inmates?
There was no documentation provided for review. Training was
conducted with Officer Sanders.
The only documentation provided was dated December 12, 2020
from Central Control. The shifts are not completing and submitting
documentation as needed.
There was no documentation provided to show that laundry is being
offered and completed.
There was no documentation provided to show that health
requirements are available to inmates.
The auditors were not assessing compliance with the injunction, but the substance of their findings
match relevant Injunction requirements. Only the most relevant findings are listed.
30
37
Has the Regional Director approved or disapproved
the assignment request to Tier III within (7) calendar
days? (209.09) Special Management Unit- Tier III
Program, (VI.C.4)
King, Todd 1001401255 – No Newton, Cedric 1218943 – No Hiley,
Dorente 1155393 – No Cash, Dianco 1002093422 - No Hill,
Christopher 1001416503 - No
If the Regional Director approves the request for
assignment to the Tier III Program, is the offender
served with a copy of this action (Attachment 2), and
is that service documented? (209.09) Special
Management Unit- Tier III Program, (VI.C.5)
Are the offenders assigned to the Tier III program
reviewed by a Counselor as to their mental status
every (7) days for the Warden and are the results
entered into scribe case notes? (209.09) Special
Management Unit – Tier III Program
Are all offender cells equipped and furnished (running
water, hardened lockers, beds, ventilated, lighted,
heated, and maintained in a sanitary manner, beds that
are securely fastened to the wall or floor) according to
the Tier III Policy? (209.09) Special Management
Unit – Tier III Program (IV.E.1.b)
Are offenders provided the opportunity to shower (3)
times per week? (209.09) Special Management Unit –
Tier III Program (IV.E.1.e)
Compliance could not be verified. Attachment 2 has not been
consistently served to offenders after the Regional Director approves
the request. FY19 Finding.
Do offenders receive a minimum of one (1) hour of
recreation per day, Monday through Friday, unless
security or safety considerations dictate otherwise,
and is it documented? (209.09) Special Management
Unit – Tier III Program (IV.E.1.k)
Is the Tier III Program adequately staffed by
Correctional Officers specifically assigned to this unit
by the Warden or his designee? (209.09) Special
Management Unit – Tier III Program
Does the shift supervisor conduct at least (1) visit to
the Tier III Housing Unit during his/her shift?
(209.09) Special Management Unit – Tier III Program
(IV.Q.2.a)
A review of SCRIBE case notes revealed that status reviews are not
consistently conducted every (7) days. FY19 Finding.
There is no evidence that sanitation is maintained in the cells. Also,
offenders expressed concerns about there being no ventilation in the
cells and about the walls being moist. FY19 Finding.
Rounds conducted in B – C – E – and F Wings. Attachment 10,
Special Management Unit: Tier III Program Checklist was not
present at any of the cells. Showers are to be documented on the
checklist; however, the checklists were in the Control Room in a
folder and they were blank except for Breakfast logged on Tuesday
& Wednesday, December 15th and 16th.
Rounds conducted in B – C – E – and F Wings. Attachment 10,
Special Management Unit: Tier III Program Checklist was not
present at any of the cells. Recreation is to be documented on the
checklist; however, the checklists were in the Control Room in a
folder and they were blank except for Breakfast logged on Tuesday
& Wednesday, December 15th and 16th. FY19 Finding.
Documentation indicates that the Tier III program is not adequately
staffed. FY19 Finding.
Reviewed the Record of Staff Visits logbook for November 2020,
visits have not been consistently documented by the Shift
Supervisors.
Do Health Care Officials conduct an initial medical
review within 24-hours after initial placement in the
Tier III Housing Unit and then daily? (209.09) Special
Management Unit – Tier III Program (IV.Q.2.b)
Does the Mental Health Counselor personally
interviews and prepares a report in any offender
remaining in Tier III Program for more than 30 days?
(209.09) Special Management Unit – Tier III Program
(IV.Q.2.e)
Compliance could not be verified. Daily medical visits are to be
documented on Attachment 10, Special Management Unit: Tier III
Program Checklist; the checklists are not present at each cell door.
Does the Chief of Security conduct visits to the Tier
III housing unit at least (1) time daily, excluding
weekends and holidays? (209.09) Special
Management Unit – Tier III Program (IV.Q.2.g)
Does the Special Management Duty Officer visit the
Tier III housing unit daily? (209.09) Special
Management Unit – Tier III Program (IV.Q.2.i)
Reviewed the Record of Staff Visits logbook for November 2020,
visits have not been consistently documented by the Chief of
Security.
No documentation was provided to verify compliance.
Reviewed the Record of Staff Visits logbook for November 2020,
visits have not been consistently documented by the SMU Duty
Officer. FY19 Finding.
38
Does the Warden at the Special Management Unit
conduct daily visits to the Tier III Housing Unit daily
excluding weekends and holidays? (209.09) Special
Management Unit – Tier III Program (IV.Q.2.j)
When an offender is assigned to a cell in the Tier III
Administrative Housing Unit does the correctional
officer complete a Cell Check Form (Attachment 9)
before placement in and movement from the
offender’s assigned cell? (209.09) Special
Management Unit – Tier III Program (IV.R.1)
Does the assigned Correctional Officer of a Tier III
Administrative housing unit record his/her (30) or
(15) minute watch on attachment (10) in real-time and
not at the end of their shift? (209.09) Special
Management Unit – Tier III Program (IV.R.2)
When conducting rounds in Administration
Segregation are staff utilizing the Behavior Screen
Checklist?
•Are checklist collected weekly and placed offender’s
institutional file? (209.06) Administrative
Segregation, Attachment 13 (PIB 03/02/20)
Are individual records maintained on all activities for
each offender assigned to the Tier III Program?
(209.09) Special Management Unit – Tier III Program
(IV.R.4)
Are the staffs that visit a Tier III Administrative
Segregation housing unit documenting using the
Performance Recording Sheet Attachment 11?
(209.09) Special Management Unit – Tier III Program
(IV.R.4)
Does the housing unit officer maintain an
accountability log accurate to the minute, making it
possible to give an accountability of the whereabouts
of each offender assigned to that housing unit?
(209.09) Special Management Unit – Tier III Program
(IV.R.5)
Reviewed the Record of Staff Visits logbook for November 2020,
visits have not been consistently documented by the Warden.
Attachment 9 was not presented for review.
Attachment 10 is not used at SMU to record (30) or (15) minute
checks. SMU utilizes an electronic system; however, the checks are
not being conducted. Reviewed printouts that verified that checks are
consistently being missed for hours. FY19 Finding.
Attachment 13 is not present at any of the cell doors.
Note: When conducting rounds in Administration Segregation &
Tier II/III staff are to utilize the Behavior Screen Checklist.
Attachment 10 is not present at any of the cell doors.
Note: Individual records providing a listing of daily activities must
be maintained for each offender in the Tier III Program. (Attachment
10)
Attachment 11 is not present at any of the cell doors.
Note: The floor officers and staff must maintain a cumulative record
of all offender activities for the duration of an offender’s
confinement in the unit and must record any deviations from normal
along with the explanations and reasons on Attachment 11,
Performance Recording Sheet.
Reviewed accountability logs, the whereabouts of each offender
assigned to the units have not been documented. All the logs
reviewed were completely blank.
Id. In sum, the GDC’s internal audit largely confirmed the plaintiffs’ allegations that the
defendants violated the injunction.31
At the show cause hearing, Holt, eventually, “acknowledged even after three
years [the defendants were] still struggling with how to document compliance.” Doc.
344 at 76:25-77:8. Struggling puts it mildly. As the Court said, it is “greatly disturbing
Childs, for instance, testified by declaration that “[l]ogbooks provided under Paragraph 60 of the
Settlement Agreement indicate[d] either that certain tasks [were] not being completed or that officers
[were] not consistently recording those tasks.” Doc. 308-5 ¶ 7. For instance, she testified that “east-side
logbooks for February 28 to April 22, 2021, contained numerous lengthy gaps between entries” and that
“[i]t was not unusual for the logbooks to have gaps of several hours between entries.” Id. She testified
that “the east-side logbook had no entries between 1447 hours on Monday, March 22, 2021, and 1819
hours on Tuesday, March 23, 2021”; “[t]here were [also] no entries between 1444 hours on Tuesday,
October 26, 2021, and 0859 on Thursday, October 28, 2021.” Id.
31
39
that here we are, nearing what would be the end of the Settlement Agreement, that
somebody is finally telling the Court that the defendants, who are under an injunction,
cannot document compliance with this Settlement Agreement.” Id. at 92:8-24.
In their response brief, the defendants admitted, in a backhand way, their breach:
“Defendants have struggled with getting the officers assigned to the SMU to adhere to
the provision regarding completion of the paperwork.” Doc. 325 at 9. Perhaps, their
officers’ “struggles” could be attributed to the defendants’ failure to comply with the
injunction’s mandate that they train their “officers” on how to implement injunction
mandates. Doc. 483 at 2 (December 2020 GDC Audit) (“No documentation was
provided to show training for anyone.”); see also Docs. 340-11 at 135:6-136:5, 143:9-21
(Barber testifying that she had been provided with a copy of the settlement agreement
but could not recall instructions or training in it); 340-15 at 29:18-30:25 (Then Warden
Polite testifying that the training of officers consists of providing “post orders” that they
can use to “train themselves”); 340-16 at 117:5-120:2 (McBurnie testifying that
supervisor gave her a copy of the settlement agreement but “didn’t give [her] any
guidance,” and that she could not recall any meetings discussing the settlement
agreement); 340-22 at 55:11-56:14, 85:5-15, 87:9-88:25 (Toole testifying that he does
not know “for a fact” that staff members are trained in the settlement agreement; that he
did not know whether anyone at the GDC Central Office monitored day-to-day
compliance with the settlement agreement; and that he does not know whether anyone
at the GDC Central Office is responsible for overseeing or monitoring training at the
SMU).
40
Given this evidence, capped by Holt’s admissions, the Court was satisfied that
contempt citations for GDC Commissioner “Ward on down” were warranted. Doc. 344
at 92:25-93:2. Still, the Court wanted to know more. Accordingly, the Court ordered the
defendants “to immediately commence a review of all sources of information for each
class member to determine, for the 60 days preceding the date of th[e] order [February
25, 2022 – April 26, 2022], the extent to which the requirements of the Settlement
Agreement have been met … [and] report their findings for each class member.” Doc.
343 at 2. As an example, the Court said that “for each class member, the report shall
precisely summarize the nature and extent of a class member’s out of cell time.” Id.
Then Warden Polite was present when the Court ordered the audit. Polite had not
testified, but the Court had read his deposition and found, as the Court told Polite, that
his testimony “did not reflect a helpful attitude at all.” Doc. 344 at 93:25-94:10. Noting
that the defendants were facing “serious consequences,” the Court wanted Polite to
understand that the Court expected a thorough and honest audit. Id. at 94:6-20.
2. June 2022 Audit
On June 6, 2022, the defendants submitted that audit; it was not thorough or
honest. Docs. 352; 353; 482. The audit consisted of five facility audit checklists, one
for each wing, and offender audit checklists for each SMU inmate. See Doc. 482. The
defendants produced with the checklists over 1,000 pages of inmate records, logbook
records, and programming documents. Id. Neither the defendants nor their counsel
provided any analysis or summary of the documents. The Court assumed that the
produced documents contained the information upon which the auditors relied to
complete the checklists. However, the auditors’ overwhelmingly “yes” responses to
41
compliance checklist items were not helpful because rarely did they cite the basis for
their conclusions. See, e.g., Doc. 482-2 at 1. The plaintiffs, on the other hand, dug into
those documents. Doc. 357. Based on that review and a review of subpoenaed
records produced by the defendants on June 16, 2022,32 the plaintiffs filed their
response to the audit. Id. The following is the Court’s summary of the audit.
Programming. For programming, the offender audit checklist posed this
question: “Is the offender receiving access to programming?” See, e.g., Doc. 482-6 at
1. That question as phrased was a calculated dodge, albeit a feeble one, to divert
attention from the true issue—whether inmates were receiving a minimum of 120
minutes per week of out-of-cell programming. Doc. 256-1 ¶ 22. The reason for that
dodge is found in the auditors’ answers to that question. For inmates housed in B-, C-,
and D-Wings, the auditors gave identical answers for each inmate: “Programming is
being offered via Channel 32 which is an educational channel.” E.g., Doc. 482-6 at 1.
Because E- and F-Wings did not have televisions, and because there was no out-of-cell
programming, the auditors presumably concluded that they had no choice but to
acknowledge that inmates in those wings had no access to programming. Docs. 357-2
¶ 7; 482-6 at 268-407. In short, the audit confirmed that inmates did not have access to
out-of-cell programming.
Childs, however, reviewed the documents produced along with the audit. Doc.
357 at 1-13. In the offender files, she found program checklists for E-Wing inmates
documenting that programming was provided by Channel 32, thus confirming the
“These records included an electronic folder of documents called ‘OMS Schedules,’ which consists of
five folders, (B-Wing, C-Wing, D-Wing, E-Wing, and F-Wing)” and “two PDF files: one labeled ‘Morning
Minutes – SMU’ and another labeled ‘Shift Briefing Log - SMU.’” Doc. 357-2 ¶ 3.
32
42
defendants were falsifying records. Doc. 357-2 ¶¶ 11, 14. Childs also reviewed 146
OMS schedules produced by the defendants in response to the plaintiffs’ subpoena and
discovered that “only four individuals … were enrolled in programming or classes.” Id. ¶
18. Logbooks reviewed by Childs confirmed that virtually no out-of-cell programming
was offered. Id. ¶ 7. For C-, D-, E-, and F-Wings, the logbooks recorded no out-of-cell
programming. Id. Only in B-Wing—the wing that had a classroom—did the logbooks
reflect that a “few” class members left their cells for programming. Id.
Out-of-Cell Time. The Court had ordered that “for each class member, the
report shall precisely summarize the nature and extent of a class member’s out-of-cell
time.” Doc. 343 at 2. The defendants and their auditors completely ignored that direct
order. Childs, on the other hand, “reviewed every program checklist contained in the EWing Offender Files and out of 160 program checklists, [she] found only 29 entries (out
of 800 available entries) where a staff member recorded the time out and the time back
in for outdoor recreation” and “only 2 instances where a program checklist stated that a
class member received table time.” Doc. 357-2 ¶ 10. Otherwise, Childs testified that
“[n]early every entry under table time state[d] either ‘refused’ or ‘N/A.’” Id. Program
checklists from other wings suffered from the same flaws.33 Id. ¶¶ 13-15. Thus, the
audit did not address, much less refute, the testimony of staff and inmates that the
defendants failed to comply with the injunction’s out-of-cell time requirement.
Many of these inmates maintained that they were never offered table time, and therefore did not refuse
it. Docs. 357-3, C.B. Decl. ¶ 3; 357-4, W.D. Decl. ¶ 7; 357-6, D.H. Decl. ¶ 3; 357-8, A.P. Decl. ¶ 5; 357-9,
J.V. Decl. ¶ 4. The same inmates claimed that they had never refused kiosk or programming, but their
door sheets represented that they repeatedly refused to go to the kiosk and programming during the audit
period. Docs. 357-3, C.B. Decl. ¶ 5; 357-4, W.D. Decl. ¶¶ 8, 10; 357-6, D.H. Decl. ¶ 4; 357-7, N.H. Decl.
¶ 3; 357-8. A.P. Decl. ¶ 5; 357-9, J.V. Decl. ¶ 8.
33
43
Book Cart Access. The audit confirmed, though not directly, that the
defendants had not complied with the injunction mandate to offer inmates access to the
book cart weekly. Instead of reporting that failure to comply, auditors reported that
inmates received book cart access monthly. E.g., Doc. 482-2 at 2. Once a month,
though, was better than nothing. Unfortunately, the more truthful response was, in fact,
next to nothing. For the period of February 24, 2022 through May 11, 2022, the “East
Wing logbooks contain[ed] only one entry documenting book cart, and this occurred on
March 4, 2022 in B-Wing,” and from February 25, 2022 through May 13, 2022, the
“West Wing logbook [did] not have any entries documenting book cart.” Doc. 357-2 ¶¶
5, 8.
Sanitation, Hygiene, and Clothing. The facility audit checklist posed one
question to cover the injunction’s several mandates on sanitation: “Are offenders offered
cell cleanout?” E.g., Doc. 482-2 at 2. The auditors responded: “Yes. Current door
sheets and logbook entry revealed cell clean out is being offered.” Id. But records
showed otherwise. “The sanitation logbook” produced by the defendants consisted “of
only one page” with “handwritten entries for four dates in late March 2021, and then
skipp[ed] to entries for November 27, 2021.” Doc. 357-2 ¶ 9. “After that, the next entry
is from March 1, 2022,” and had “four additional entries from March 2022. The
remaining entries [were] from April 2022.” Id. According to the E-Wing program
checklists, “cell cleanout occurred during the following dates: March 1, 2022 (3 people);
March 9, 2022 (3 people); March 29, 2022 (5 people); April 6, 2022 (2 people); and an
unknown date during the week of May 1, 2022 (1 person).” Id. ¶ 12. “Ten people,”
however, “had no entries indicating they had received cell cleanout.” Id.
44
Mental Health. In response to the checklist question of whether inmates
received a mental health evaluation “at the time of their assignment” and in connection
with 60- and 90-day reviews, the auditors almost invariably answered with a simple
“yes.” E.g., Doc. 482-6 at 2, 8, 11, 13. Once again, the underlying documents
demonstrate the opposite. For instance, nine files for inmates housed in E-Wing “did
not contain a mental health evaluation or documented refusal, even though those class
members’ periodic review forms claimed that a mental health evaluation was offered or
took place on a specified date.” Docs. 357 at 8; 357-2 ¶ 16. Seven inmates “did not
have any mental evaluations or refusals referenced anywhere in their file.” Docs. 357 at
8; 357-2 ¶ 16. Yet, the offender audit checklists represented that these inmates
received or were offered mental health evaluations in conjunction with their periodic
reviews. See, e.g., Doc. 482-6 at 272, 274, 277, 303, 309, 313, 315, 318. Records for
inmates housed in B-, C-, D-, and F-Wings contained other “instances of missing mental
health evaluations or documented refusals.”34 Docs. 357 at 9; 357-2 ¶ 17. The auditors
still reported compliance for those inmates. See, e.g., Doc. 482-6 at 66, 119, 125, 139,
171, 222, 225, 343, 346.
Injunction Mandates Not Audited. The audit failed to address the injunction’s
mandate that the defendants maintain adequate staffing levels, but the documents
produced by the defendants confirmed that the SMU was understaffed. From February
24, 2022, to May 11, 2022, for instance, the “East Wing logbook contain[ed]
On B.M.’s offender audit checklist, for instance, auditors deemed the defendants were in compliance
with paragraph 49 of the settlement agreement and claimed that he received an evaluation on March 8,
2022. Doc. 482-6 at 243. “However, B.M.’s records do not contain any mental health evaluations, and
the periodic review form included with B.M.’s records states that his last mental health evaluation
occurred on January 12, 2022, which means that B.M. did not receive an evaluation in conjunction with
his most recent 60-day review hearing.” Doc. 357 at 9.
34
45
approximately 49 entries stating that there were no floor officers and/or control booth
officers present, that posts were empty, and that the control booth was shut down due
to understaffing during the audit period.” Doc. 357-2 ¶¶ 5, 6. From February 25, 2022
through May 13, 2022, the “West Wing logbook [also] contain[ed] approximately 15
similar entries related to understaffing.” Id.
The audit also failed to document whether the defendants complied with
requirements that inmates receive an operable GOAL device and twice weekly kiosk
access (id. ¶ 20); that inmates be provided laundry services and clothing on the same
basis as inmates in the general population (id. ¶ 38); that inmates be transferred to an
appropriate treatment facility if they are “decompensating” or “reasonably likely to
decompensate in the SMU environment” (id. ¶ 50); that inmates receive a detailed
Offender management plan (id. ¶ 53); that inmates receive four hours of out-of-cell time
per day (id. ¶ 12); that inmates receive at a minimum the privileges set out in the Tier III
program privileges chart (id. ¶ 26); that inmates receive written acknowledgement of
programs, classes, and similar activities completed while in the Tier III Program (id. ¶
24); that inmates receive cells equipped and furnished in a manner consistent with cells
in the general population (id. ¶ 33); that inmates receive “toiletries and personal hygiene
items—including toilet paper, soap, toothbrushes, toothpaste, and similar items—on the
same basis as inmates in the general population” (id. ¶ 35); and that inmates be placed
in either a STEP or SMHTU program when transferred from the SMU (id. ¶ 56), among
other things.
46
3. Show Cause Order and Addendum Agreement
Although the Court did not have the benefit of the plaintiffs’ analysis of the audit
until June 21, 2022, the Court’s initial review of the audit confirmed that clear and
convincing evidence established that the defendants violated and were continuing to
violate the Court’s injunction. Accordingly, on June 7, 2022, the Court ordered the
defendants to show cause why they should not be held in contempt at a hearing set for
June 22, 2022. Doc. 354.
The day before the show cause hearing, the parties jointly moved to modify the
settlement agreement and permanent injunction. Doc. 362. On June 24, 2022, the
Court entered its Order and Permanent Injunction adopting the settlement agreement as
modified by the addendum agreement. Docs. 364; 364-1; 364-2. The addendum
agreement incorporated and reaffirmed the original settlement agreement and
injunction. Doc. 364-2 ¶ 1. The parties also agreed to extend the settlement agreement
and injunction until January 6, 2024—18 months from the date that it was set to expire.
Id. ¶ 5.
To address the more egregious violations of the injunction, the addendum
agreement amplified key mandates. The defendants were ordered to (1) implement
modified recordkeeping procedures to document out-of-cell time, out-of-cell
programming, and other activities; (2) implement an Offender management plan that
identified “individualized goals and objectives for each class member”; (3) implement a
“training program to ensure that all individuals responsible for implementing the
Settlement Agreement and the Addendum Agreement understand the terms of the
47
Agreements”; (4) assign “one experienced corrections official35 to supervise and monitor
compliance” with the agreements; and (5) “file quarterly reports with the Court
identifying all provisions of the Settlement Agreement and Addendum Agreement with
which they have failed to achieve full compliance in the preceding quarter, all steps that
they have taken or intend to take to achieve full compliance, and the timeframe in which
they expect to achieve full compliance.” Id. ¶¶ 6-11. Finally, the addendum provides
that a status conference would be convened once every 90 days. Id. ¶ 13.
C. October 2022 Status Conference
On September 26, 2022, the defendants submitted their first quarterly
compliance report. Doc. 366-3 at 6. The six-page report was conclusory and largely
did not address whether the defendants were complying with the Court’s injunction. For
example, the defendants reported: “All offenders are being offered out-of-cell
programming opportunities.” Id. at 4. If the defendants were providing any out-of-cell
programming, that would have been an improvement, but the relevant question was
whether the defendants were providing 120 minutes of out-of-cell programming per
week.
The plaintiffs filed their quarterly compliance report, buttressed by 16 exhibits, on
October 3, 2022. Docs. 366; 369. Since the extension of the injunction, plaintiffs’
counsel interviewed inmates weekly, reviewed voluminous documents produced by the
defendants in August 2022, and held a monitoring meeting with the defendants on
August 25, 2022. Doc. 366 at 1-2. The plaintiffs acknowledged “very recent,” albeit
“inconsistent” compliance with some requirements of the injunction. Id. at 2. Otherwise,
The GDC’s Deputy General Counsel Bryan Wilson is the “experienced corrections official” the
defendants designated to supervise and monitor compliance. Doc. 452 at 29:6-7.
35
48
they reported that the defendants’ violation of most requirements “continued
unabated.”36 Id. Relying primarily on records produced by the defendants, the plaintiffs
documented violations of out-of-cell time, staffing, programming, book cart, GOAL
devices, sanitation and hygiene, privileges, assignment and periodic review, and
duration of confinement requirements. See Doc. 366 at 3-15. One stark example—the
programming records in the August 2022 production revealed “that only four class
members had attended out-of-cell programming.” Id. at 6.
Because the plaintiffs’ thorough quarterly compliance report and the defendants’
spare report raised “serious concerns about the defendants’ good faith effort to comply
with the Settlement Agreement,” the Court ordered the defendants to reply to the
plaintiffs’ report and to appear for a status conference on October 6, 2022. Doc. 370 at
2.
In their response and at the October 6 status conference, the defendants argued
they were being judged unfairly. Docs. 373; 452 at 13:2-23, 26:7-27:19.
Acknowledging that “the documents at that point in time didn’t support what we were
saying was occurring,” the defendants believed they were entitled to a “re-start or reboot” and should be judged only on their post-addendum performance. Doc. 452 at
13:13-18. That position was a little puzzling because the plaintiffs’ quarterly compliance
report was mostly based on documents produced in August 2022 and interviews
For instance, inmates reported they were told to sign blank offender management plans without
individualized goals or objectives. See Doc. 369-2, T.G. Decl. at 4 ¶ 3 (“I do not know what an Offender
Management Plan is, and I have not received an Offender Management Plan since my transfer to the
SMU in November 2020.”), L.H. Decl. at 13 ¶ 20 (“I was brought an Offender Management Plan to sign,
but the individual recommendation section was blank.”), E.H. Decl. at 15-16 ¶ 3 (“I received a blank
document titled ‘Offender Management Plan’ and Counselor Reynolds requested that I sign it.”), D.W.
Decl. at 25 ¶ 8 (“I received an [offender management plan] Counselor Smith asked me to sign it. The
individual recommendation section was blank.”).
36
49
conducted after the effective date of the addendum.37 Still, the defendants argued that
the purpose of the 18-month extension was to provide them an opportunity to remedy
deficiencies—“to put together a plan, to put together paperwork, to improve on all these
things, to give an opportunity to demonstrate that it can be done.” Id. at 27:14-19.
Essentially, the defendants argued they needed more time to comply, and they should
not be judged on what had happened, or not happened, during the short period since
the addendum.
But the defendants made one clear, substantive representation—GOAL devices
would “roll out” on November 14, 2022. Id. at 25:23-26:5.
The Court agreed that the defendants had made some effort to comply with the
Court’s injunction and further agreed, reluctantly, that the defendants should be allowed
a brief “ramping-up process” to achieve compliance. Id. at 35:24-36:21. However, the
Court warned, the ramp was short—by the time of the next status conference the Court
expected that the defendants would “be pretty close to the end of the ramp.” Id. at
36:10-11. After all, the defendants had had over three years to ramp up.
D. February 2023 Status Conference
The defendants filed their next quarterly compliance report on February 13, 2023.
Docs. 380; 381. This report also made conclusory assurances with few representations
of compliance. The defendants’ one-sentence report on out-of-cell programming was
the same as their previous report: “All offenders are being offered out-of-cell
programming opportunities.” Doc. 380 at 3. Other assurances were similar—
Mental health records, for instance, continued to show that counselors could not conduct mental health
rounds at various times throughout June and July due to staffing. Doc. 369-5 at 9, 13; see also Doc. 3694 at 2, 5-6, 9-10, 12-15 (logbooks stating only one or no officers present).
37
50
counselors were seeing inmates “on a regular basis”; a “marked improvement” in
documentation; inmates were “provided use of the book carts”; and “[i]t is the hope” that
inmates will have a GOAL device “in the near future.” Id. at 2-3 (emphasis added). The
one clear representation from the October 2022 compliance review—GOAL devices
would “roll out” on November 14, 2022—had suffered the same fate as other firm dates
for reaching compliance. See Docs. 344 at 68:12-19; 452 at 25:23-26:5. As for the
failure, since the entry of the injunction, to provide eligible inmates with television
access, the defendants had a new representation: the “GDC has recently obtained an
estimate for the installation of TVs.” Doc. 380 at 2.
The plaintiffs’ response, like their October quarterly report, told a much different
story. Since the October 6, 2022 status conference, the plaintiffs interviewed nearly 70
class members, reviewed records produced by the defendants and twice met with the
defendants to discuss alleged violations. Doc. 382 at 1-2. While the plaintiffs again
acknowledged “some improvement,” they reported that substantial violations continued.
Id. at 2. For example, numerous periodic review forms recorded denials of SMU
transfers because inmates failed to take certain classes. Doc. 381-2 at 16, 35, 50, 52,
86. Yet, those classes were not offered or were not available at the SMU. See Docs.
382 at 18; 384 at 5:2-14. Similarly, some offender management plans chided inmates
because they were not availing themselves of programming that was not available at
the SMU. Docs. 380-31 at 3, 17, 78, 123; 380-32 at 25, 27, 30, 32, 38, 40, 44, 71, 127.
Nor was it true, the plaintiffs insisted, that the defendants were “unaware of any current
issues with plaintiffs receiving out-of-cell time.” Id. at 3 (quoting Doc. 380 at 2). The
defendants’ documentation revealed numerous instances of broad cancellation of out-
51
of-cell time and logbook entries and door sheets confirmed that inmates did not receive
out-of-cell time. See, e.g., Docs. 382 at 3-4; 380-2 at 90; 380-3 at 7-8, 20, 117, 146;
380-6 at 20; 380-35 at 21; 380-37 at 28-29, 46; 380-38 at 123; 382-3. Further, the
defendants failed to report compliance with the requirement “that they hire and retain
sufficient staff ‘to carry out the terms of this agreement.’” Doc. 382 at 8 (quoting Doc.
256-1 ¶ 18). The plaintiffs raised this recurrent issue because the defendants’ records
demonstrated that they cancelled out-of-cell time to free staff to perform other routine
functions.38 Id. at 8-9. And once again, there was no evidence supporting the
representation that all inmates were offered out-of-cell programming much less 120
minutes per week of out-of-cell programming. Id. at 9.
Most significantly, the plaintiffs argued that the defendants were not complying
with assignment and periodic review requirements. The records the defendants
produced with their compliance report revealed that no inmate “received notice of his
Tier III assignment or a hearing prior to his placement in the SMU.” Doc. 382 at 16
(citing Doc. 380-30). The records also revealed that the plaintiffs were not receiving
out-of-cell mental health evaluations before their assignment to Tier III and in
conjunction with 60- and 90-day review hearings. Id. at 2, 18-19. The plaintiffs
identified 22 inmates who were overdue for their out-of-cell mental health evaluations.
Id. at 19. Finally, the defendants were increasingly holding inmates in the SMU for
more than 24 months even though those inmates “had completed the Tier III program
by maintaining Phase 5 status for three months or longer,” and, thus, should have been
See, e.g., Doc. 380-35 at 21 (only one officer present on floor), at 33 (“This shift is super short. I am
the only officer here on the east side booth. No one is on the floor unless I shut down the booth down
and go and relieve main control to conduct rounds.”), at 44 (“I … took over post inside east control. I did
not relieve anyone because no one was in the booth when I arrived.”).
38
52
eligible for transfer. Id. at 21. In the September compliance report, the defendants
reported 40 inmates in that category; by February the number had increased to 60. See
Docs. 366 at 14-15; 382 at 21-23.
At the February 22, 2023 status conference, there were two signs, which the
Court did not then fully appreciate, of even more serious problems. In defense of their
failure to provide the pre-assignment process required by the injunction, the defendants
again argued that all assignments in question were emergency assignments which they
contended were allowed by the settlement agreement.39 Doc. 384 at 32:5-33:11. As for
holding inmates beyond 24 months, the defendants referenced a “no pending charges”
criterion for release from the SMU that had been adopted by the defendants after the
entry of the injunction. Doc. 381-2 at 2, 52, 56, 68, 70, 76, 86. The plaintiffs suspected
serious misconduct in assignments to the SMU and the application of the “pending
charges” criterion. See Doc. 384 at 57:2-58:14. Their suspicions, it will be seen, were
well-founded.
As for staffing, the defendants flatly denied that staffing in any way played a role
in noncompliance. Doc. 384 at 23:11-15, 64:25-65:22. To be certain, the Court asked
Holt, “Are staffing issues preventing compliance or interfering or making compliance
difficult?” Id. at 23:12-14. “They are not,” Holt responded. Id. at 23:15.
39
Holt gave an example of an emergency that would warrant deprivation of pre-assignment process:
Your Honor, if I may, sometimes if we have a homicide that occurs at 2:00 o’clock in the
morning, and it’s between two particular gang offenders. So, if a Blood has killed a Crip,
there are any number of Crips inside of that dorm, and a lot of times it creates a situation
where a disturbance could occur if that offender remained at that facility.
Doc. 384 at 34:13-19. Even if the injunction permitted deprivation of all assignment rights in “emergency
situations,” the Court should have recognized then not every assignment could possibly have involved
facts as extreme as Holt’s example.
53
Based upon the defendants’ assurances, the Court concluded that the
defendants were still making sincere efforts to comply. Id. at 71:5-21. The Court was
wrong.
E. July 2023 Status Report
The parties filed their quarterly compliance reports on July 14, 2023. Docs. 390;
392. The defendants continued their conclusory representations: “All offenders are
being offered out of cell programming opportunities”; they were “unaware of any current
issues with Plaintiffs receiving out-of-cell time”; counselors were “seeing inmates on a
regular basis”; inmates were “provided use of the book carts”; they hoped that inmates
will have a GOAL device “in the near future”; and they “hope[d] to be in a position to
move forward [on television access] to resolve this issue within the next month or two.”
Doc. 392 at 2-4. The defendants acknowledged some deficiencies with cell sanitation
and “a significant number of [periodic] reviews … not signed by the offenders”; the
defendants claimed these “deficiencies” were discussed with the warden and upper
management without further elaboration. Id. at 3-4. The defendants acknowledged that
inmates complained about “linens and clothing” too, but “maintain[ed] that each offender
is provided with these items in accordance with” standard operating procedure. Id. at 2.
The defendants once again conceded that some inmates assigned to the SMU did not
receive timely pre-assignment hearings without offering a solution to fix the problem. Id.
at 4. Finally, the defendants claimed that there was “a marked improvement in the
records keeping of out-of-cell time, showers, haircuts, programming, and book cart use.”
Id. at 1.
54
The plaintiffs’ report again painted an altogether different picture. Since
February, the plaintiffs continued to routinely interview and correspond with inmates,
review records produced by the defendants, and met and conferred with the defendants’
counsel on June 21, 2023. Doc. 390 at 1-2. The plaintiffs reported numerous violations
of the settlement agreement. Id. at 2. Between March and April 2023, the defendants
cancelled all movement within the SMU to conduct “mental health evaluations,
classification hearings, shakedowns, or for no noted reason at all” on at least six
occasions. Id. at 5. And contrary to the defendants’ representations, “Plaintiffs ha[d]
seen a significant decline in Defendants’ documentation of out-of-cell time and the other
settlement provisions.” Id. at 2. The plaintiffs documented numerous instances where
inmates did not have any NoteActive entries for days at a time or indicated an inmate
was in two different places at the same time. Id. at 3-5. In response to the plaintiffs’
request for programming documentation showing what classes are offered, where they
occur, who teaches them, and which class members attend them, the defendants
produced documents that “seemingly show dozens of people scheduled to attend class
at the same time, in the same location, and taught by the same counselor, which would
seem to be impossible given the SMU’s physical layout and limited class space.” Id. at
9 (citing Doc. 395-12 at 26-27).
The plaintiffs continued to uncover evidence of strip cell abuse. Id. at 6-8. The
plaintiffs raised the misuse of strip cells on May 3 and May 31, 2023—identifying four
inmates placed in strip cells “where they [were] denied showers, clothing, mattresses
and bedding, out-of-cell time, cell sanitation, and programming and kiosk access.” Doc.
395-1 at 4-6, 21-23. Three inmates reported that they did not have running water, the
55
toilets did not flush and were filled with feces from prior occupants, and the floors were
covered with trash and human waste. Id. at 5.
The defendants did not deny these inmates were placed in strip cells but simply
claimed that there was no support for the allegations about the conditions inmates
allegedly endured.40 Id. at 13, 29-30. When asked to disclose the basis for this
conclusion, the defendants produced six affidavits they had claimed they procured from
inmates about the conditions in observation cells A-107 and A-108. Id. at 32-37. Two
of these inmates later claimed the affidavits were false and one of those inmates said
his signature was forged, leading the plaintiffs’ counsel to move for a protective order
barring coercive communications with class members. Docs. 408; 411 ¶¶ 4-5; 411-1 ¶¶
12-14.
Finally, inmates reported they were told, as the plaintiffs’ counsel had suspected,
that they were categorically ineligible for release from the SMU because they had
pending criminal charges. Doc. 390 at 14. Thus, there now were 61 inmates “who have
maintained Phase 5 status for more than three months, meaning that they cannot
progress further in the Tier III Program.” Id.
Given these longstanding violations, the plaintiffs announced that they intended
to move the Court to enforce the settlement agreement. Id. at 17.
II. STANDARD
“[C]onsent decrees, like all injunctions, are to be enforced through the trial court’s
civil contempt power.” Reynolds v. McInnes, 338 F.3d 1201, 1208 (11th Cir. 2003); In re
The defendants also claimed that these placements were consistent with GDC policy yet produced
documentation for only one inmate which showed anything but compliance with strip cell policy. See
Docs. 395-1 at 13, 22; 395-11.
40
56
Grand Jury Proceedings, 142 F.3d 1416, 1424 (11th Cir. 1998); Reynolds v. Roberts,
207 F.3d 1288, 1298 (11th Cir. 2000) (explaining procedural process). “[T]he petitioner
in a civil contempt proceeding must establish by clear and convincing evidence that the
alleged contemnor violated the court’s earlier order.” United States v. Roberts, 858 F.2d
698, 700 (11th Cir. 1988). “The clear and convincing evidence must establish that: (1)
the allegedly violated order was valid and lawful; (2) the order was clear and
unambiguous; and (3) the alleged violator had the ability to comply with the order.”
Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2022). “In determining
whether a party is in contempt of a court order, the order is subject to reasonable
interpretation, though it may not be expanded beyond the meaning of its terms absent
notice and an opportunity to be heard.” Id. Courts “apply the same rules that govern
contract interpretation when [they] interpret a consent decree.” McInnes, 338 F.3d at
1211. Here, it is undisputed that the Court’s injunction was valid and lawful, and that the
defendants had the ability to comply with it. Doc. 441 at 6 (“Defendants do not dispute
that the Court’s Order was valid and lawful.”). And with only two exceptions, discussed
below, the defendants do not dispute that the Court’s injunction was clear and
unambiguous.
“Once the petitioner makes a prima facie showing of a violation, the burden shifts
to the alleged contemnor to produce detailed evidence” showing compliance or an
inability to comply.41 Roberts, 858 F.2d at 701; Mercer v. Mitchell, 908 F.2d 763, 768
(11th Cir. 1990); Chairs v. Burgess, 143 F.3d 1432, 1436 (11th Cir. 1998); see United
States v. Rylander, 460 U.S. 752, 757 (1983) (“Where compliance is impossible, neither
41
However, the Court elects to keep the burden of proof on the plaintiffs.
57
the moving party nor the court has any reason to proceed with the civil contempt
action.”).
This “burden of production is not satisfied by a mere assertion of inability.”
Parker v. Scrap Metal Processors, Inc., 468 F.3d 733, 740 (11th Cir. 2006). Rather, “in
this circuit, a party subject to a court’s order demonstrates inability to comply only by
showing that he has made ‘in good faith all reasonable efforts to comply.’” Roberts, 858
F.2d at 701 (quoting United States v. Rizzo, 539 F.2d 458, 465 (5th Cir. 1976)). Indeed,
this requirement is construed “strictly.” Combs v. Ryan’s Coal Co., Inc., 785 F.2d 970,
984 (11th Cir. 1986); Parker v. Scrap Metal Processors, Inc., 468 F.3d 733, 740 (11th
Cir. 2006). Even if the alleged contemnor shows “substantial,” “diligent,” or “good faith”
efforts to comply, “the fact that he did not make ‘all reasonable efforts’ establishes that
[the contemnor] did not sufficiently rebut the prima facie showing of contempt.” Id.
(cleaned up). “Therefore, the focus of the court’s inquiry in civil contempt proceedings
is not on the subjective beliefs or intent of the alleged contemnors in complying with the
order, but whether in fact their conduct complied with the order at issue.” Howard
Johnson Co., Inc. v. Khimani, 892 F.2d 1512, 1516 (11th Cir. 1990).
“A court that invokes equity’s power to remedy a constitutional violation by an
injunction … has the continuing duty and responsibility to assess the efficacy and
consequences of its order.” Brown v. Plata, 563 U.S. 493, 542 (2011). “Federal courts
are not reduced to approving consent decrees and hoping for compliance.” Frew ex rel.
Frew v. Hawkins, 540 U.S. 431, 440 (2004).
58
III. FINDINGS AND CONCLUSIONS
On July 25, 2023, the plaintiffs moved the Court to order the defendants to show
cause why they should not be held in contempt. Doc. 400. The Court found that the
plaintiffs had satisfied their burden, and ordered the defendants to show cause why they
should not be held in contempt for violating the injunction, and set an evidentiary
hearing on the plaintiffs’ motion. Doc. 420. For the reasons discussed, the Court finds
the defendants have violated the Court’s injunction.
A. The Plaintiffs’ Show Cause Motion
In their show cause motion, the plaintiffs alleged that the defendants were
violating key provisions of the settlement agreement, which they divided into nine
categories:
The defendants violated the duration-of-confinement and periodic review
provisions in paragraphs 45 and 53-54, by failing to provide meaningful
review hearings and imposing categorical bars on certain class members’
eligibility for transfer;
The defendants used so-called strip cells punitively, depriving class
members of their out-of-cell time and other rights under paragraphs 12,
14, 16, 19-20, 22, 26-27, 33, 34-38, and 52;
The defendants routinely cancelled out-of-cell time and out-of-cell
movement for foreseeable reasons within the defendants’ control, in
violation of paragraphs 12, 14, and 18;
The defendants still do not consistently offer 120 minutes of out-of-cell
programming per week to all class members, inform class members about
available programs, or document program completion, in violation of
paragraphs 22-24;
The defendants do not provide class members the privileges associated
with their respective phases in the Tier III program, in violation of
paragraph 26;
59
The defendants do not provide GOAL devices to class members, in
violation of paragraphs 20 and 22;
The defendants do not consistently issue class members sufficient
clothing, in violation of paragraph 38;
The defendants do not consistently transfer class members to transitional
STEP units or SMHTU units, in violation of paragraph 56; and
The defendants do not consistently document compliance with the
settlement agreement’s provisions, in violation of paragraphs 12-13, 17,
22, and 59-60.
Docs. 400-1 at 13-14.42 The plaintiffs submitted over 115 pages of sworn testimony in
support of their allegations.43 See Docs. 403-1; 403-2.
The Court allowed the parties time to conduct discovery on these allegations.
Doc. 404 at 1. After that discovery, which included 22 depositions, the defendants
responded to the motion with a five-page affidavit from their “internal compliance
monitor,” LaTonya King. Docs. 419; 419-1; see also Doc. 423. King’s affidavit
acknowledged that all class members were deprived of outdoor recreation from mid-July
2023 to mid-September 2023 because it was hot; inmates in E- and F-Wings were
being denied privileges they were entitled to under the settlement agreement; some
class members had been held in the A-107 and A-108 strip cells upon arrival to the
The plaintiffs wrote the defendants about these violations in correspondence dated June 29, 2022; July
15, 2022; August 3, 2022; August 8, 2022; August 19, 2022; August 24, 2022; September 23, 2022;
October 21, 2022; November 9, 2022; November 23, 2022; December 20, 2022; January 20, 2023;
March 17, 2023; May 3, 2023; May 31, 2023; and June 30, 2023. Doc. 403. They were also discussed
by the parties at meetings on August 25, 2022; January 27, 2023; and June 21, 2023. Doc. 400-1 at 14.
42
See, e.g., Doc. 403-2, A.M. Decl. at 10 ¶¶ 10-14 (placed in strip cell for “two weeks” total, divided
between two cells), A.R. Decl. at 19-20 ¶¶ 19-22 (placed in strip cell for one week after engaging in selfharm), C.R. Decl. at 24-25 ¶¶ 3-10 (placed in strip cell for “seven days”), C.T. Decl. at 31 ¶ 15 (describing
inmates being placed in strip cells “for as long as a week or two weeks at a time”), D.J. Decl. at 43-44 ¶ 3
(placed in strip cell for “eight or nine days”), L.H. Decl. at 57-58 ¶¶ 7-8 (placed in strip cell for “ten days”),
R.D. Decl. at 72 ¶¶ 18-21 (placed in strip cell for “about two weeks”).
43
60
SMU; there was confusion about the proper use of a “Strip cell” but “remedial training”
was conducted; and out-of-cell time was and may be cancelled again in the future to
complete routine tasks required by the settlement agreement. Doc. 419-1 ¶¶ 5-6, 9, 12,
15.
In short, to the extent King addressed the alleged violations, she largely
confirmed that the defendants were and would continue to violate the injunction. 44
Accordingly, the Court found the plaintiffs had met their burden and ordered the
defendants to show cause why they should not be held in contempt. Doc. 420.
B. Show Cause Hearing
The show cause hearing was held on November 30, December 1, and December
8, 2023. Docs. 429; 430; 433.
At the hearing, the plaintiffs presented the testimony of ten inmates by video
deposition, the testimony of Childs, and excerpted deposition testimony of current
Director of Field Operations Shepard, former Director of Field Operations Toole, and
two SMU counselors. Docs. 429; 430; 433. The plaintiffs introduced numerous
exhibits. See, e.g., Docs. 424; 432.
Perhaps that was the reason the defendants did not put King on the stand. Somewhat more puzzling
though is that the defendants more or less claim she had nothing relevant to say. The parties seemingly
“agreed that the relevant records were those” in the plaintiffs’ possession when they moved for contempt
on July 25, 2023”; because “King was not employed as a Facility Monitor until a time at or near July
2023,” the parties agreed not to call her as a witness. Doc. 477 at 1. Why the defendants would attach
an affidavit in their response to the plaintiffs’ motion from someone without relevant information is
unknown to the Court. Logic suggests that the official responsible for supervising and monitoring
compliance with the Court’s injunction would be a necessary witness. Most notably, though, the
defendants declined to call on King just moments after the Court ordered the defendants to produce and
audit NoteActive and SCRIBE data for the month of November 2023. Doc. 429 at 209:10-211:13.
44
61
The defendants called Holt, current Warden Williams, and current SMU Unit
Manager Alexander Tillman. See Docs. 429; 430; 433. They identified but did not
introduce one exhibit. Doc. 429 at 200:6-201:5; Def. Ex. 2A.
Both parties, without objection, cited other matters in the record. Also, the Court
at the show cause hearing ordered the defendants to produce specific information.
Docs. 427 at 2-3; 428; 431 at 2. The parties addressed that information in their posthearing briefs. Docs. 438; 441; 445; 446; 450; 460; 461; 477; 478.
The Court finds that the plaintiffs have established by clear and convincing 45
evidence that the defendants have long violated and continue to violate numerous
mandates imposed by the Court’s injunction. The Court addresses those violations by
category.
1. The Court finds by clear and convincing evidence that the defendants are in
contempt for violating paragraphs 12, 13, 14, 16, and 17 (out-of-cell time);19
and 20 (library, book carts, and GOAL devices); 22, 23, and 24
(programming); 33, 34, 35, 36, 37, and 38 (cell conditions, hygiene, and
clothing); and 59 and 60 (access to records and data) of the settlement
agreement.
As discussed in detail above, the defendants, throughout the term of the
injunction, have not produced required documentary evidence of their compliance with
injunction mandates. See, e.g., Docs. 308-5; 344 at 92:8-24. Thus, because they
lacked documentation of out-of-cell time, programming, pre-assignment proceedings,
assignment and periodic review, mental health evaluations, and various other injunction
mandates, the defendants have never been able to refute the plaintiffs’ considerable
evidence that the defendants failed to comply with the injunction. Also, and again as
As noted, the Court elects to keep the burden of proving the defendants’ noncompliance on the
plaintiffs.
45
62
discussed above, the defendants, their staff, and their documentation repeatedly
admitted noncompliance with documentation requirements and substantive
requirements imposed by the injunction. See, e.g., 325 at 9; 344 at 76:25-77:8.
Eventually, the defendants promised that their new electronic recordkeeping program,
NoteActive, would solve these problems. See, e.g., Docs. 380 at 1; 392 at 2. The issue
of documentation came to a head at the show cause hearing.
Much of the testimony taken on the first day of the show cause hearing
addressed documentation and the absence of documentation. See, e.g., Doc. 429 at
136:10-137:16. Childs had reviewed NoteActive data produced by the defendants
before the hearing. Doc. 403-1. Childs testified that the data revealed “no class
member was offered recreation, table time, programming, kiosk, haircuts, showers,
shaves, sanitation, or book cart at the intervals required under the Settlement
Agreement.”46 Docs. 403-1 ¶ 20; 429 at 232:2-235:10; see also Docs. 432-37; 432-38;
432-39; 432-40; 432-41; 432-42; 432-43; 432-44; 432-45; 432-46. For days and
sometimes weeks, records were simply blank. See, e.g., Docs. 403-1 ¶¶ 5-22; 429 at
230:6-21.
In short, the NoteActive records established clearly and convincingly that the
defendants were still violating the injunction’s documentation mandates. NoteActive, far
from solving the problem, had revealed even more shortcomings. As the Court put it,
“here we are at the end of day one … [and] the documentation of the necessary
activities to comply with the Settlement Agreement, if anything, indicates … it’s worse –
For example, “the NoteActive records for class member A.R. showed—for the entire month of May—no
documentation of programming, book cart, shaves, or haircuts. There was only one entry documenting
kiosk time. And there were nine days without a single entry that was relevant to the Settlement
Agreement.” Doc. 446-1 ¶ 10; see also Docs. 432-21; 432-37; 432-38.
46
63
it was worse … than it was when Holt testified that [documentation] did not meet the
requirements of the agreement.” Doc. 429 at 260:4-12. This was a reference to Holt’s
testimony at the April 26, 2022 hearing which, in substantial part, led to the extension of
the injunction to allow the defendants an opportunity to demonstrate they could comply
with the injunction. See Doc. 344 at 92:19-93:2, 93:12-22.
The defendants claimed they had an explanation. They had produced to the
plaintiffs only NoteActive data for May 2023, and they claimed that since then officers
had received additional training on the use of NoteActive. Doc. 429 at 137:12-138:3,
209:4-21. This prompted the Court to question Warden Williams and Tillman:
THE COURT:
WILLIAMS:
THE COURT:
WILLIAMS:
THE COURT:
WILLIAMS:
THE COURT:
WILLIAMS:
THE COURT:
WILLIAMS:
Now, NoteActive, or the tablet that is used to document daily
activities, I believe you told us that you review that
documentation on a regular basis.
Yes.
How does it come to you? How do you get that?
I am able to get a tablet and review my notes, and also in my
office I can use my desktop.
In a previous hearing, we were told that – assuming a
connection – that there would be realtime access to
NoteActive documentation. Has that proved to be correct?
Yes, sir.
Now, do you have a particular routine that you follow
regarding reviewing your officers’ documentation on
NoteActive?
Yes, sir.
What is that routine?
As soon as I get to work, the first thing I do is I pull up my
cameras and I pull up NoteActive to make sure – because I
can see them moving guys to the showers or to the yard. So
I am just making sure they sign them out as they move them,
as they go. And then I come out, do my morning meeting,
we talk about things that will go on throughout the day. I go
on inspection. Once I go on inspection, I ask the officer to
give me a tablet. Once they give me a breakdown and I
review the movement then as well. Once I complete
inspection, I go back to my office. If I’m not in a meeting, I
review the cameras and the system again and continue to
watch the NoteActive.
64
THE COURT:
WILLIAMS:
THE COURT:
WILLIAMS:
THE COURT:
WILLIAMS:
THE COURT:
WILLIAMS:
THE COURT:
WILLIAMS:
THE COURT:
WILLIAMS:
THE COURT:
WILLIAMS:
THE COURT:
WILLIAMS:
THE COURT:
WILLIAMS:
THE COURT:
WILLIAMS:
THE COURT:
WILLIAMS:
THE COURT:
WILLIAMS:
Now, as I understand it, the documentation that is found on
NoteActive with regard to a particular inmate would tell us for
any given day whether there had been out-of-cell time.
Yes, sir.
Whether there had been programming.
Yes, sir.
Whether there had been showers.
Yes, sir.
Meals would be documented.
Yes, sir.
Do those – it sounds to me like the documentation includes
any activity the inmate would have outside of his cell.
Yes, sir.
Are you still reviewing it on a regular basis?
Yes, sir.
Has it reached the point where it is being done properly?
Yes, sir.
So, if we were to look at the documentation for the month of
November [2023], which ends today, it should record for
every inmate all the activities that are required by the
Settlement Agreement to be provided.
Yes, sir.
So, the various things that are required by the Settlement
Agreement regarding day-to-day activities of inmates in the
SMU would all be documented, if they occurred, in
NoteActive?
Yes, sir.
You recognized that after the roll-out – and I understand,
too, that it was in early May or maybe May 1st – that there
was the need for additional training?
Yes, sir.
And I think at least some of that training took place after your
deposition.
Yes, sir.
Now, after that training, has the documentation improved?
Yes, sir.
Doc. 429 at 145:16-148:11. In sum, Warden Williams swore that officers had now been
trained, that officers documented compliance with injunction mandates, and that he
reviewed the NoteActive data daily. Id. at 118:12-119:2, 134:6-16, 145:16-19.
Tillman gave similar assurances:
THE COURT:
Mr. Tillman?
65
TILLMAN:
THE COURT:
TILLMAN:
THE COURT:
TILLMAN:
THE COURT:
TILLMAN:
THE COURT:
TILLMAN:
THE COURT:
TILLMAN:
THE COURT:
TILLMAN:
THE COURT:
TILLMAN:
THE COURT:
TILLMAN:
Yes, sir.
SCRIBE, is that a computer-based program?
Yes, sir.
A note-taking program?
Yes, sir. It has all their information or a lot of their
information.
Used in medical-related practices.
It will have medical profiles, but it’s very limited on the
medical part due to HIPAA.
It’s, like, a computer chart.
Yes, sir.
And the things you have been talking about with regard to
the programming that your office does will be recorded in
SCRIBE?
Yes, sir.
And in addition to that, your office enters notes on the
NoteActive tablets.
Yes, sir.
So, just as I asked Warden Williams, if we were to look at
the NoteActive documentation for the month of November, it
would show that the programming that you had described on
the schedule that was posted was performed during that
month?
It should.
And, of course, the SCRIBE program would have the
offender’s specific information about programming?
Yes, sir.
Doc. 429 at 195:4-196:6.
The Court informed the parties that it was “relieved to hear that we’ve got sworn
testimony that at least for the month of November [2023], we can have documentation
that shows us that things are on track.” Id. at 260:19-21. Accordingly, the Court
ordered the defendants to produce November 2023 NoteActive and SCRIBE data so
the parties could determine whether Warden Williams and Tillman had truthfully testified
that not only were the injunction’s documentation mandates being followed but also that
the defendants were, in fact, in compliance with other injunction mandates. Docs. 429
at 260:22-25; 433 at 21:4-25; see also Docs. 427 at 2-3; 431 at 2.
66
That, though, was not the only issue regarding documentation. The injunction
requires the defendants to produce certain documentation at specified intervals—most
notably a roster of SMU inmates, required notices for failures to provide out-of-cell
times, and, for representative segments of the SMU population, SCRIBE data, mental
health records, assignment and review records, and logbooks. Doc. 364-1 ¶¶ 59, 60.
Childs testified that SMU rosters were incomplete and inaccurate and, thus, she often
cannot determine who is in the SMU. See, e.g., Docs. 403-1 ¶¶ 8-9; 430 at 10:3-13:14.
One inmate’s institutional file contained multiple assignment dates, showing he “was
assigned the SMU as early as December 29, 2020, yet [he] did not appear on Tier III
rosters until April 2021, when he was identified as being in Phase 5 of the Tier III
program.” Docs. 403-1 ¶ 8; 430 at 10:10-12:23; 432-75. At other times, Childs testified
rosters falsely indicate inmates are housed outside of the SMU further frustrating
plaintiffs’ efforts to monitor compliance and communicate with class counsel. 47 Doc.
430 at 8:21-9:2 (“I have learned that there are people who [are] listed as being housed
outside the SMU who are in fact in the SMU.”). Defendants did not rebut this
testimony.48
See Doc. 430 at 13:3-14 (“We rely on the rosters for much of the work we do on behalf of the class in
this case. We use the rosters to figure out who to request legal visits with. When we’re identifying the 20
individuals who we want to receive the individual institutional files for, we rely on the rosters to make
those determinations. We use the rosters to monitor the duration of confinement. And then we – also, we
send a lot of class-wide mailings to notify our clients about their rights under the settlement, update them
on the status of things such as this hearing. And I rely on the rosters when we send those mailings to
know who is a class member that should even receive that information.”).
47
Instead, the defendants’ counsel speculated that an inmate assigned to the SMU may be “out to court”
on the date a roster is produced. Doc. 430 at 26:17-27:23.
48
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a. Out-of-cell time generally and out-of-cell programming
Although the Court had sworn assurances that the November 2023 NoteActive
and SCRIBE data would demonstrate that the defendants were complying with out-ofcell time requirements, the plaintiffs presented evidence of specific violations of those
requirements.
The injunction allows cancellation of out-of-cell time for only two reasons: (1) an
inmate’s commission of a great or high-level disciplinary offense during out-of-cell time;
or (2) for “unanticipated safety or security considerations.” Doc. 364-1 ¶¶ 12, 16. At the
hearing, the defendants admitted they often cancelled out-of-cell time to conduct routine
tasks, including tasks required by the Court’s injunction, and for other anticipated
reasons. Doc. 429 at 18:6-20, 19:24-20:21. First, Shepard admitted that he unilaterally
cancelled all outdoor recreation from July 21, 2023, until September 18, 2023, due to
hot weather. Doc. 421 ¶ 16. Shepard testified that he checked the weather every day
and that for every day from July 21 until September 18 “extreme heat” required the
cancellation of recreation time. Doc. 432-13 at 71:13-76:13. He did not consider
“running yard call” during cooler parts of the day and he did not consider any
alternatives to cancelling yard time. Id. at 76:14-77:23.
Second, from January 2023 through September 2023, the defendants
stipulated49 that they cancelled out-of-cell activities at least 23 times, including three
days for depositions, four days for periodic reviews or classification hearings, and six
49
The parties entered into stipulations of fact before the hearing. Doc. 421.
68
days for mental health evaluations. Doc. 421 ¶ 18. Childs elaborated based on her
review of the defendants’ records. Childs testified that between November 2022 and
April 2023, “out-of-cell time was cancelled on at least 22 days: 12 days to conduct
mental health evaluations or periodic reviews, 2 days for shakedowns, 4 days for
unknown reasons … [and] 8 days because of a state holiday.”50 Doc. 403-1 ¶ 22.
“Because out-of-cell time is not offered on weekends, during this 181-day period, out-ofcell time was unavailable on 78 days, meaning that class members were locked in their
cells on 43 percent of the days in that period.” Id. This led the Court to inquire further.
The Court first questioned Holt:
THE COURT:
HOLT:
THE COURT:
HOLT:
THE COURT:
HOLT:
THE COURT:
HOLT:
THE COURT:
HOLT:
Well, let’s be sure that I know what we’re talking about. If I
understood what was going on, Mr. Holt, apparently until
recently out-of-cell time was canceled while mental health
evaluations were being done.
Correct.
And that, you say, was because of staffing issues.51
Well, not staffing issues but in order to – really, honestly, it
was to try to become more efficient in that process.
Of course, mental health evaluations are not unanticipated;
are they?
No.
Why would you cancel out-of-cell time for mental health
evaluations that you know you’re going to be doing?
Well, honestly, it was in order to make sure that they got all
of them done at the correct time.
…
Well, would you agree that canceling out-of-cell time
because of mental health evaluations is not in compliance
with the agreement?
I would not, um, simply because the agreement actually talks
about us notifying in the event that we do.
The defendants insist that they do not have to provide out-of-cell time on weekday holidays. They are
wrong. See Docs. 256-1 ¶ 12; 364-1 ¶ 12. That is another example of their cavalier attitude toward
injunction requirements.
50
The Court asked about “staffing issues” because Holt had just testified that the “practice” of cancelling
out-of-cell time to conduct mental health evaluations and periodic reviews “is no longer a practice that
they do now because of staffing.” Doc. 429 at 18:23-29:1.
51
69
Doc. 429:19:24-21:2.
Nothing in the settlement agreement or the Court’s injunction allows defendants
to cancel out-of-cell time for anticipated events, such as mental health evaluations.
Doc. 364-1 ¶¶ 12, 16. On the contrary, that “practice” is expressly prohibited. Id. To be
sure that the defendants understood that, the Court asked Wilson, the designated
monitor, to stand, had him placed under oath, and asked him the same question. Doc.
429 at 21:3-19. He stated: “I don’t believe it’s a violation as far as what we were trying
to do to fix the problems that were brought forth during the hearings here.” Id. at 22:2-4.
As best the Court could tell from that, the person charged with ensuring and
documenting compliance, did not consider a violation to be a violation if someone was
trying to fix the violation. Holt later was clearer on the subject:
Q:
A:
Q:
A:
And so, mental health evaluations and classification reviews, they are not
unanticipated security or safety considerations; correct?
No, they are not unanticipated.
…
They are not reasons to cancel out-of-cell time; correct?
Correct.
Doc. 429 at 94:2-10.
Apart from the concern that the defendants didn’t seem to grasp that cancelling
out-of-cell time for mental health evaluations was a violation of the injunction, the Court
was concerned that Holt blamed staffing issues for the improper cancellation of out-ofcell time. Recall the exchange with Holt at the February 2023 status conference:
THE COURT:
MR. HOLT:
Well, let’s just pose the question directly to Mr. Holt.… Are
staffing issues preventing compliance or interfering or
making compliance difficult?
They are not.
70
Doc. 384 at 23:11-15.52 When Holt gave the Court that assurance, the defendants, as
the Court had just learned, had a “practice” of cancelling out-of-cell time because of
staffing issues. The Court has long suspected that the defendants’, particularly Holts’,
assurances of adequate staff were based not on fact but on the knowledge that the
injunction mandates sufficient staffing and, thus, the admission that the SMU was shortstaffed was tantamount to an admission that the defendants were violating the
injunction.
One final note on the defendants’ “practice” of cancelling out-of-cell time for
anticipated events such as mental health evaluations. Holt’s testimony that the
“practice” had recently stopped led to an objection from the plaintiffs. Doc. 429 at 19:23. The defendants had refused to produce documentation of events occurring after the
plaintiffs filed their show cause motion because the defendants’ counsel claimed, “that
things happening after the filing of the motion are not relevant.” Id. at 19:2-9. The
defendants’ counsel confirmed taking that position. Id. at 19:20. That seemed
strange—why would the defendants object to current information?
Fortunately, though, the Court had sworn assurances that the November
NoteActive and SCRIBE data would establish that all is well. Doc. 429 at 145:16148:11, 195:4-196:6.
Next, the plaintiffs adduced evidence that the defendants cancelled out-of-cell
time for minor disciplinary infractions that did not occur during out-of-cell time. On May
3, 2023, the plaintiffs’ counsel notified the defendants that inmates reported being
Recall too that the defendants’ records and staff have repeatedly noted staffing problems. See, e.g.,
Docs. 369-4 at 2, 5-6, 9-10, 12-15; 369-5 at 9, 13, 16, 31-33, 57, 64.
52
71
denied out-of-cell time for not being “inspection ready.” Docs. 395 at 6; 438 at 4-5. The
defendants’ counsel responded on May 18:
Defendants have no knowledge of staff denying out of cell time based on
an offender’s failure to be cell inspection ready. Regardless, Defendants
have reminded the staff at the SMU that offenders are not to be denied
yard time and/or table time for any reason unless the offender commits an
offense of great or higher severity during yard/table time, or while being
escorted to/from same. Defendants agree that not being inspection ready
does not meet that criteria.
Doc. 395 at 14. Of course, “Defendants” include Warden Williams. Yet, Warden
Williams sent to all inmates on August 14, 2023, the following memorandum:
Effective immediately, all offenders are to be inspection ready every
Monday through Friday 8:45 a.m. – 4:00 p.m. This includes [individuals]
to be fully state dressed, beds made, neat locker box, and no paper over
windows or lights. No clothes lines are to be hanging. Failure to comply
will result in disciplinary action and not allowed out of cell time.
Doc. 421 ¶ 17 (emphasis added). The significance of this memorandum to the Court
cannot be understated. A named defendant, in blatant violation of the Court’s injunction
and after he, according to his lawyer, had informed SMU staff that inmates could not be
denied out-of-cell time because they were not “inspection ready,” told inmates out-ofcell time would be cancelled if they were not inspection ready. When confronted,
Warden Williams assured the Court there was no cause for concern—no one was
actually denied out-of-cell time as a result of his improper memorandum. Doc. 429 at
112:22-25. The Court later learned the defendants’ records show that on November 30,
2023, an inmate was “removed from yard due to room not being inspection ready.”
Doc. 457-31 at 1545. Inmate testimony confirmed that the defendants cancelled out-ofcell time for disciplinary reasons not permitted by the injunction. 53
E.g., Docs. 432-1 at 22:4-16 (testifying he was denied out-of-cell time for having paper in his window);
432-7 at 15:12-23 (testifying he was denied out-of-cell time for “not being inspection ready or having
53
72
At that point in the show cause hearing, the plaintiff had established by clear and
convincing evidence that the defendants had improperly cancelled out-of-cell time. The
question then was whether the November NoteActive and SCRIBE data would confirm,
for the first time since the entry of the Court’s injunction, that the defendants were
offering inmates four hours of out-of-cell time per weekday.
Since the entry of the injunction, the defendants have never provided evidence
that SMU inmates received or were offered 120 minutes of out-of-cell programming per
week. The plaintiffs, on the other hand, have again and again demonstrated that
inmates are not receiving the out-of-cell programming required by the injunction. See,
e.g., Docs. 357-2 ¶¶ 7, 11, 14, 18; 344 at 34:7-19
Going into the show cause hearing the defendants knew this was a critical
issue—their documented history of noncompliance and the plaintiffs’ show cause
motion made that clear. See Doc. 400-1 at 28-29. Yet, at the show cause hearing, the
defendants once again offered virtually no evidence that they were providing the
required out-of-cell programming. The programming witness the defendants called at
the hearing, Tillman, who is responsible for programming within the SMU, testified at
length but he never testified that inmates were receiving 120 minutes of out-of-cell
programming.54 See Doc. 429 at 151:2-197:15. In fact, Tillman testified on October 17,
2023, at his deposition that only 40-50 inmates were enrolled in out-of-cell
programming. Doc. 432-14 at 149:8-17. The defendants’ post-hearing brief, which also
something in [his] window.”); 432-9 at 8:1-14 (testifying inmates are denied out-of-cell time due to
something they had done the previous day).
Four inmates, though, testified that they either were never given the opportunity to take out-of-cell
classes or were not consistently allowed to leave their cells to participate in classes. See, e.g., Docs.
432-5 at 37:17-21; 432-7 at 17:11-18:5; 432-8 at 36:11-22; 432-9 at 13:18-14:21.
54
73
did not claim that the inmates were receiving the required programming, cited the
deposition testimony of two counselors. Doc. 441 at 16-17. Their testimony was mixed
at best. SMU counselor Shavari Reynolds testified that she was the only SMU
counselor for most of 2022 and, as a result, out-of-cell programming was offered only to
inmates in B- and C-Wings. Doc. 432-12 at 65:17-24, 68:9-24. Thus, inmates housed
in D-, E-, and F-Wings did not receive out-of-cell programming for most, if not all, of
2022. Id. at 68:4-24. However, both Reynolds and Counselor Jeannette Estrada
testified that more recently inmates began receiving some out-of-cell programming.
Docs. 432-11 at 30:19-31:21, 42:4-6, 211:15-21; 432-12 at 72:23-74:24, 76:24-77:9.
But neither testified that the defendants were complying with the injunction’s mandate
that inmates receive weekly 120 minutes of out-of-cell programming. Docs. 432-11 at
56:4-6; 432-12 at 65:17-24, 73:14-25.
But the Court had Tillman’s assurances that the NoteActive and SCRIBE data
would demonstrate compliance. Doc. 429 at 195:23-196:6.
b. November 2023 NoteActive and SCRIBE data
The Court’s repeated references to the defendants’ assurances about the
November 2023 NoteActive and SCRIBE data no doubt suggest some skepticism that
the data would deliver as promised—promised under oath. After all, the Court had
heard for over four years, promises, assurances, and representations that all would be
well, all of which proved to be hollow.
With some prodding from the Court, the defendants produced the November
NoteActive data and some SCRIBE activity rosters on December 7, 2023. 55 Docs. 446
The order to produce and audit the November 2023 NoteActive and SCRIBE data was discussed at the
hearing on all three days and memorialized in the minute sheets for December 1 and December 8. See,
55
74
at 4; 446-1 ¶¶ 4, 12; 477 at 6. The data did not deliver as promised. First, Tillman
testified that the SCRIBE data would “have the offender’s specific programming
information. Doc. 429 at 196:4-6. The SCRIBE data produced did not contain that
information. Rather, the data revealed the absence of entries documenting inmates’
access to outdoor recreation, table time, programming, kiosk, cell sanitation, showers,
haircuts, shaves, and weekly book cart(s). See Docs. 446 at 5-9; 446-1 ¶ 17 (Childs
Decl.) (“Of the November 2023 NoteActive records I reviewed where complete weeks of
data were available, there was not a single week where every Settlement Agreement
requirement was documented.”); 446-2 ¶ 13.
Second, Childs testified that “many of the deficiencies [she] documented in the
May NoteActive records—for instance, multiple consecutive weeks without entries for
programming, haircuts, shaves, and kiosk for certain class members—persist in the
November 2023 records.”56 Doc. 446-1 ¶ 18. For one inmate, NoteActive records “from
both May and November show no entries for programming, haircuts, and shaves, all
month long.” Docs. 432-45 at 2; 432-46 at 2; 446 at 9; 449-1 at 1-2. The defendants
continued to cancel out-of-cell time to conduct foreseeable tasks throughout November,
including those mandated by the injunction,57 and out-of-cell programming seemed to
e.g., Docs. 427; 431. Nevertheless, the Court had to order the parties to comply. Doc. 440. The Court
also had to order the defendants to produce SCRIBE data and then show cause when they failed to do
so. Docs. 433 at 21:22-25; 440; 451. The Court entered two additional orders directing the parties to
respond and address issues raised by the post hearing production of documents. Docs. 458; 466.
See Doc. 446-2 ¶ 6 (“The reports I reviewed do not show consistent documentation of Settlement
Agreement requirements. Instead, they show many days, and in some cases weeks, where Settlement
Agreement requirements are not documented at all.”).
56
See, e.g., Doc. 457-31 at 792, 825, 1559, 1568-69, 1981, 2060, 2066. “There were also many missing
entries for recreation time and table time … and at least two entries where a class member was marked
as being in his cell and out of his cell at the same time.” Doc. 446-2 ¶ 11.
57
75
be unavailable for the entire month in E-Wing, due to maintenance. See Docs. 446-2 ¶
20; 449-2 at 108-112; 457-31. The defendants made no mention of this “maintenance”
at the hearing. Otherwise, “programming records do not show how long the programs
lasted; whether the programs were completed in-cell or out-of-cell; or what programs
certain class members took.” Docs. 446-2 ¶ 21 (internal citation omitted); 449-2 at 102121. Many entries and documents are in direct conflict, indicating, for example, that
inmates both refused and participated in out-of-cell activity on the same day. 58 See,
e.g., Docs. 457-31 at 1387; 449-2 at 113, 119; 461-1 ¶¶ 23-25. As a whole, the
documentation is not only insufficient but also unreliable and does not show full
compliance—contrary to what the defendants testified to at the hearing.
Thus, the November 2023 data confirmed that the defendants have failed to
document compliance with the settlement agreement’s provisions and that they were
not providing mandated out-of-cell time and out-of-cell programming. For these
reasons, the Court finds by clear and convincing evidence that the defendants are in
contempt for violating paragraphs 12, 13, 14, 16, and 17 (out-of-cell time);19 and 20
(library, book carts, and GOAL devices); 22, 23, and 24 (programming); 33, 34, 35, 36,
37, and 38 (cell conditions, hygiene, and clothing); and 59 and 60 (access to records
and data) of the settlement agreement.
2. The Court finds by clear and convincing evidence that the defendants are in
contempt for violating paragraphs 12, 14, and 16 (out-of-cell time);19 and 20
(library, book carts, and GOAL devices); 22 (programming); 33, 34, 35, 36, 37,
and 38 (cell conditions, hygiene, and clothing) of the settlement agreement.
One inmate, for instance, was on yard restriction until November 20 according to the logbook, yet the
individualized inmate data indicates he refused out-of-cell time every single day for the entire month of
November. Compare Doc. 457-31 at 1537, row A43890 (“Offender on Yard Restriction until the 20th of
November.”) with Doc. 474 at 4, row 12.
58
76
Dr. Haney noted in his May 2, 2018 report that the practice at the SMU was to
completely deprive new inmates of “personal property,” “access to out-of-cell exercise
or recreation,” phone calls, and visitation. Doc. 142 ¶ 28. The settlement agreement
and the injunction put a stop to that, or so the Court thought.
As discussed, the plaintiffs have during earlier enforcement proceedings and in
quarterly reports adduced evidence and documentation of improper strip cell use. E.g.,
Docs. 305-12 at 11-12; 390 at 6-8. They have also voiced suspicions at various times
that the defendants routinely placed new SMU arrivals in strip cells. Docs. 369 at 24;
395 at 4-6. The defendants assured the plaintiffs that their suspicions were unfounded.
See, e.g., Docs. 395 at 13, 29-30; 419 at 11.
At the show cause hearing, the plaintiffs supported their suspicions with
evidence. They introduced the deposition testimony of six inmates who testified in
graphic detail about their confinement in strip cells, naked or nearly naked, for days in a
row.59 Four of six were new arrivals.60 All six testified about the horrific conditions they
endured, and they claimed they were denied virtually every right assured by the
injunction. A summary of the testimony of one inmate, A.Me., is illustrative:
A.Me. was placed in observation cell A-107 for 5 days when he first
arrived in the SMU in November 2022. A.Me. did not receive notice of his
SMU assignment or a hearing before being transferred. A.Me. was held in
a county jail for 7.5 years as a pre-trial detainee before entering GDC
custody and never received a disciplinary report before he was assigned
to the SMU. While in A-107, A.Me. did not receive showers, out-of-cell
time, programming, cell cleanout, kiosk or book cart access. The cell was
covered in trash, and the toilet was broken and filled to the brim with feces
and urine from prior occupants. Because he could not use the toilet, he
Docs. 432-1 at 14:2-18:24 (R.D.); 432-2 at 8:5-12:23 (D.G.); 432-4 at 8:2-16:4 (D.J.); 432-5 at 26:630:21 (A.Me.); 432-7 at 8:2-14:15 (C.R.); 432-8 at 27:6-32:18 (A.R.).
59
60
Docs. 432-2 at 8:10-15 (D.G.); 432-4 at 8:2-13(D.J.); 432-5 at 21:1-10 (A.Me); 432-7 at 8:9-15 (C.R.)
77
was forced to urinate in a cup and pour it in the sink or defecate on toilet
paper and dispose of it on his food tray to have it removed from his cell.
The cell was filthy and fly-infested. During his time in cell A-107, he did
not have a mattress or any clothing and described the temperature as
freezing. He was only provided a suicide blanket. After refusing to eat,
A.Me. was moved to cell A- 207, where he continued to be deprived of
out-of-cell recreation, programming, and opportunities to clean his cell.
Docs. 403-2 at 9-11, ¶¶ 4, 6-7, 10-13; 432-5 at 21:4-28:6. After each inmate’s
testimony was played, the Court asked the defendants’ counsel if she had any rebuttal;
she did not.61 See, e.g., Doc. 430 at 32:17-19.
The Court tried to learn more from the defendants themselves. Warden Williams
admitted that A.Me. upon his arrival had been put in an “observation cell … just to watch
his behavior.” Id. at 32:24-33:4. The Court asked Warden Williams if he knew why the
second inmate, C.R., “was placed in a strip cell” upon arrival; he did not. Id. at 38:8-10.
The Court asked if any representative from the department knew; there was no
response. Id. at 38:11-13. This led the Court to address Warden Williams:
THE COURT:
MR. WILLIAMS:
MR. WILLIAMS:
Do you agree that it’s protocol that people new to the
SMU were placed in the strip cell? A strip cell? Mr.
Williams?
It was brought to my attention one time, and Mr. Holt
addressed me about it, and I know temporary inmates
after that point in time have went to A-Wing in
entering SMU.
…
It was brought to my attention that guys were coming
in from other facilities, wherever they come from, they
was being placed in A-107/108. Mr. Holt and my
supervisors, they addressed me about it, and at that
time no other inmates have came in the SMU and
went straight to 107 and 108 unless they belong to AWing.
To the extent any rebuttal was offered, it did not undermine these inmates’ testimony about being
placed in strip cells or the conditions that they endured. See Doc. 430 at 38:5-13, 48:16-52:11, 56:358:22, 61:7-70:21.
61
78
Id. at 38:16-39:4. The Court then asked Holt if he had reason to doubt the inmate’s
testimony; he did not. Id. at 40:10-14. By the time the third inmate, D.G., finished
testifying, the Court had this to say:
THE COURT:
MR. HOLT:
Okay. Now, we have heard from three so far, we may
be hearing some more testimony of inmates who say
upon their arrival – one said he was told it was a
matter of protocol – that they were placed in the cell in
A-Wing, and it was what I think we all understand now
to be a strip cell, because at the very least they were
provided only a smock and a suicide mattress. They
say not even that. But – is that a situation – is that –
are those the situations that you said you had
addressed and made some changes?
Correct.
Id. at 53:10-20. The defendants produced no documentation from mental health
providers that would have been generated had inmates’ mental condition required
“observation.”
The detail and consistency of the inmates’ testimony, the absence of any
meaningful cross-examination or rebuttal,62 and the defendants’ vague explanations
again aroused the Court’s suspicions. Accordingly, the Court ordered the defendants to
produce the following information for every inmate placed in the SMU since July 1,
2021: “the cell to which the inmate was assigned”; “whether, at that time, that cell was
designated and/or used as either a security or observation cell”; if the inmate “was
assigned to either a security or observation cell, all the conditions of the inmate’s
confinement, i.e., whether the inmate was allowed clothing, bedding, and/or personal
effects.” Doc. 428.
62
See, e.g., Docs. 429 at 28:3-30:6, 33:6-13, 80:4-81:25, 174:2-5; 430 at 44:21-47:22, 53:4-24.
79
The defendants produced documents in response to the Court’s Order on
December 8, 2023. See Doc. 457. The plaintiffs produced factual analyses of the
documents, the accuracy of which the defendants do not dispute. Docs. 461; 461-1;
465-1; 465-2. First, the documents confirmed that the defendants routinely place new
SMU inmates in cells A107 or A108, the A-Wing strip/observation cells, and in other
cells used as strip/observation cells.63 Docs. 457-20; 457-27; 475. For example, 49
inmates were held in A-107 and A-108 upon their arrival at the SMU. 64 Doc. 475; see
also Doc. 460-1. The defendants’ documents failed to reveal whether the inmates were
“allowed clothing, bedding and/or personal effects,” as the Court’s order required.
Docs. 428; 458 at 4; 460 at 4-5. The most common reasons given for assignment to
those cells were “administrative” and “disciplinary.” Docs. 461-1 ¶ 11; 465-1. In their
post-hearing brief, the defendants, citing pages 106 through 109 of Warden Williams’s
deposition testimony, claimed that strip cells could be used for disciplinary purposes.
Doc. 460 at 4. First, Warden Williams gave no such testimony. See Doc. 432-16 at
106:4-109:24. Second, Holt made clear that GDC policy prohibits using strip cells for
disciplinary purposes. Docs. 429 at 29:17-30:2; 457-1. In that instance, he was telling
the truth. Yet the records revealed that inmates were repeatedly thrown in strip cells for
discipline. E.g., Doc. 457-27 at 1 (citing “disciplinary” as a “move reason”).
The documents indicated that inmates were housed in other cells designated as strip and/or
observation cells—including A-201, A-216, B-209, E-102, E-203, E-108, and E-211. See Docs. 457-25;
457-26; 457-27 at 1, 3. For instance, four inmates listed in an Excel sheet labeled “SMU Movement
Activity since 070121 - A-107 and A-108” involve other cells in A and E Wings. Doc. 457-27 at 1, 4.
63
The defendants produced only four inmate-specific documents that could conceivably justify these
placements; two of these documents refer to the same (now deceased) SMU inmate. Docs. 457-6; 45721; 457-23; 457-24.
64
80
In short, the documents produced by the defendants confirmed that they routinely
placed new arrivals to the SMU in strip cells. The conditions of confinement in those
strip cells violate multiple injunction mandates. Accordingly, the Court finds that the
plaintiffs have established by clear and convincing evidence that the defendants
improperly placed SMU inmates in strip cells in violation of paragraphs 12, 14, and 16
(out-of-cell time);19 and 20 (library, book carts, and GOAL devices); 22 (programming);
33, 34, 35, 36, 37, and 38 (cell conditions, hygiene, and clothing) of the settlement
agreement.
3. The Court finds by clear and convincing evidence that the defendants are in
contempt for violating paragraph 48 (assignment) of the settlement agreement.
The plaintiffs have long alleged that the defendants were not abiding by the preassignment process required by paragraph 48. See, e.g., Docs. 344 at 27:20-28:11;
384 at 8:11-17. At the show cause hearing, some inmates placed in strip cells also
testified that they did not receive assignment paperwork or a hearing before being
placed in the SMU.65 Thus, the Court ordered the defendants to produce
documentation showing compliance with paragraph 48 of the settlement agreement for
every inmate placed in the SMU since July 1, 2021. Doc. 428.
In response, the defendants produced assignment documents and a spreadsheet
that purported to summarize the documents. See Docs. 457-2; 457-3; 457-20; 475.
Since July 1, 2021, 132 inmates have been assigned to the SMU. Docs. 457-20; 460 at
2. The defendants produced assignment documents for only 125 inmates; seven
See, e.g., Docs. 403-2, A.M.2 Decl. at 10 ¶¶ 10-14, C.R. Decl. at 24 ¶¶ 3-10; 432-5 at 18:25-19:3,
32:21-24, 38:8-21; 432-7 at 7:9-8:13, 9:19-10:3.
65
81
inmates had no paperwork. Docs. 457-2; 457-3; 461-1 ¶ 19. “[O]f the 125 class
members whose assignment paperwork was produced: 100 class members likely had
no hearing prior to their transfer to the SMU; 64 class members were transferred to the
SMU on the same date as their assignment or assignment request; and only seven
class members’ records included documentation of an appeal.” Doc. 461-1 ¶ 17. In the
spreadsheet, the defendants labeled all but 13 transfers as emergencies and, thus, they
claim only 13 inmates were entitled to a pre-assignment hearing. Docs. 460 at 6; 475.
The spreadsheet does not state the source or basis for the 119 “emergency” labels. 66
The assignment documents reference an emergency transfer for only two inmates, yet
officials requested an emergency placement for neither. Docs. 461-1 ¶ 18; 457-3 at 6062, 96-97.
The assignment documents confirm that they routinely and systematically
deprive inmates of pre-assignment process in violation of paragraph 48. 67 Docs. 457-2;
457-3; 457-20; 475. First, for the reasons stated, the Court’s injunction does not permit
deprivation of all pre-assignment process for any reason, including “emergencies.”
Second, even if the defendants’ interpretation of paragraph 48 were correct, the Court
The Court intends to investigate the preparation of the spreadsheet. Specifically, the Court will compel
the defendants to disclose the source of the undocumented assertion that 119 transfers were
“emergencies.”
66
At the February 2023 status conference, plaintiffs’ counsel informed the Court of issues related to
A.Me.’s SMU assignment—specifically, he did not receive notice or a hearing before he was transferred,
nor did he receive the opportunity to appeal. Doc. 384 at 50:18-51:3. A.Me. submitted a declaration
claiming he had personally spoken with Holt about the issue. Doc. 403-2 at 9-10 ¶¶ 7-10. At the
February 2023 status conference, Holt assured the Court he was personally looking into the matter. Doc.
384 at 51:17-52:6. Months later, A.Me. still had not been given the opportunity to appeal. Doc. 390 at
15-16. When he finally received the process required by the injunction, he successfully appealed his
assignment illustrating that he never should have been assigned to the SMU. Id. A.Me committed a
serious crime and he will be punished. But depriving A.Me of his pre-assignment rights, putting him in a
strip cell for no reason, and improperly holding him in the SMU, all in direct violation of the Court’s
injunction, is a grave injustice.
67
82
does not find it credible that 119 of 132 inmates were transferred because of some
unspecified and unidentified emergency that is noted only on the spreadsheet but not in
the assignment documents upon which the spreadsheet is purportedly based. Third, of
the 13 inmates the defendants admit were entitled to pre-assignment process, only
three received a hearing prior to their transfer to the SMU. Docs. 460 at 6; 475 at 1, 3.
Accordingly, the Court finds the plaintiffs have established by clear and
convincing evidence that the defendants violated Paragraph 48 of the Settlement
Agreement. Doc. 364-1 ¶ 48.
4. The Court finds by clear and convincing evidence that the defendants are in
contempt for violating paragraphs 45 (24-month review); 53 (offender
management plan); and 54 (periodic review) of the settlement agreement.
The Court has noted that the plaintiffs suspected the defendants were improperly
using a “no pending charges” requirement to keep inmates in the SMU longer than 24
months. The settlement agreement, and hence the injunction, absolutely bars holding
inmates in the SMU for longer than 24 months unless one or more of six criteria are
met:
(1) The inmate committed a murder while incarcerated;
(2) The inmate escaped outside the secure fencing of a GDC facility;
(3) The inmate caused serious bodily injury to another inmate or a GDC
employee, contractor or volunteer;
(4) The inmate took another inmate or GDC employee, contractor, or
volunteer hostage;
(5) The inmate’s crime was so egregious that the person was placed in the
Tier III program immediately upon being placed in GDC custody;
(6) The inmate due to his unique position, influence and authority over
others, poses such an exceptional, credible, and articulable risk to the
83
safe operation of the prison system or to the public that no facility other
than the Tier III program facility is sufficient to contain the risk.
Doc. 364-1 ¶ 44; see also Doc. 429 at 47:6-11, 51:21-52:1.
Inmates held in the SMU beyond 24 months must be reviewed quarterly by a
panel of prison officials to determine whether the inmate should remain within the SMU.
Doc. 364-1 ¶ 45. “The criteria governing the panel’s determination shall include: (a)
length of time in current phase; (b) perceived risk of release from the SMU; (c) number,
type, and frequency of disciplinary reports; (d) involvement in self-improvement
activities; (e) behavior while in the SMU; (f) the person’s 60-day or 90-day mental health
evaluation; (g) progress on the person’s Offender Management Plan; and (h) the total
duration of the person’s confinement in the SMU.” Id. The panel must provide specific
and detailed reasons for retaining inmates in the SMU. Id. ¶ 53. For instance, the
defendants must provide each inmate with “a detailed [OMP] setting out individualized
goals” explaining the steps that the inmate must take to qualify for transfer from the
SMU. Id. These requirements ensure that assignment and duration of confinement in
the Tier III Program are subject to periodic review and that specific criteria govern the
decision-making process.68
In 2022, the defendants circumvented injunction mandates by adopting a rule
providing that an inmate is not eligible for transfer from the SMU if he had “any pending
charges related to [his] original assignment to the Tier III program and/or any pending
charges that resulted in a new assignment to the Tier III program.” Doc. 432-76 (SOP
Prior to the settlement agreement, plaintiffs claimed that “despite various iterations of a written policy,
the actual practice of Defendants [was] to keep prisoners in the SMU indefinitely due solely to past
misconduct … [without] meaningful review of prisoners’ placement, [and] only nominal hearings that [had]
little or no bearing on a prisoner’s release.” Doc. 346-4 at 2. Therefore, the settlement agreement
provisions were intended to guard against arbitrary retention in the SMU.
68
84
209.09) at 27-28. The defendants amended their offender management plan forms to
make this clear. Id. at 55. The mandate to provide each inmate with “individualized
goals” obviously contemplates that inmates will be provided goals that they can
accomplish, which is illustrated by the injunction’s requirement that “progress on the
person’s [OMP]” must be considered as a criterion during periodic reviews. Doc. 364-1
¶ 45.
The new policy clearly states that one fact—pending charges—renders an
inmate ineligible for transfer. Apart from violating the injunction, the obvious problem,
which the defendants and their counsel have admitted, with this absolute bar to a
transfer is that inmates have no control over the prosecutors who decide when to bring
inmates to trial. Doc. 384 at 30:25-31:6. As a practical matter, once an inmate is in the
prison system, particularly if he is in the SMU, there is little incentive for busy
prosecutors to clear such backlog cases.
At the show cause hearing, the defendants attempted to argue, through the
testimony of Holt, that pending charges would not alone preclude transfer from the
SMU. See Doc. 429 at 55:18-56:11, 77:24-78:12. If that was Holt’s point, his testimony
was false. First, it conflicts with the clear language of the new policy—an inmate is
ineligible for transfer if “one or more” of the stated criteria exists, including pending
charges. Docs. 429 at 258:1- 259:17; 432-76 (SOP 209.09) at 27-28, 55. Second, the
evidence adduced at the hearing established beyond doubt that the defendants
repeatedly used the “pending charges” criterion to block the transfer of inmates
otherwise eligible to leave the SMU.69 Docs. 429 at 243:19-21, 245:7-247:5; 432-49
See Docs. 430 at 71:4-7 (“[W]e see that the warden’s review recommended release to the StepDown,
and then Toole disagreed with that. The reason, quote, ‘Remain in Tier III program due to pending
69
85
(showing 46 of 69 inmates denied transfer because of pending charges); see, e.g., Doc.
432-51 at 5. This violates paragraphs 45, 53, and 54 of the settlement agreement
because it imposes a transfer requirement which the inmate cannot meet. It is an
absolute bar to transfer that negates the periodic review for transfer from the SMU. The
evidence was so clear that the Court ruled from the bench:
THE COURT:
MS. CROWDER:
First, for the reasons that we have discussed, the new
SOP setting the criteria for admission to the Tier III
STEP Program is clearly contrary to the Settlement
Agreement; specifically, it provides that offenders are
ineligible for admission to the Tier III STEP Program
solely because they have pending charges related to
their original assignment to the Tier III and/or any
pending charges that resulted in a new assignment to
the Tier III program. Mr. Holt’s testimony
notwithstanding, it is clear that inmates are being
denied the ability to move to the Tier III STEP
Program solely because they have pending charges.
We saw that time and time again. We may have
further discussions about how that came about and
what plaintiffs’ counsel’s role in that was, but that is a
glaringly obvious violation of the Settlement
Agreement and henceforth it will not be applied. Any
questions about that Ms. Crowder?
No, sir.
Doc. 430 at 79:23-80:15.
The Court reiterates that the plaintiffs have established by clear and convincing
evidence that the defendants have violated paragraphs 45, 53, and 54 of the settlement
agreement by adopting a requirement for transfer not permitted by the injunction to
confine inmates in the SMU longer than 24 months and negated the meaningful periodic
review required by the Court’s injunction. 70 See, e.g., Docs. 364-1 ¶¶ 45, 53-54; 429 at
charges.’); 433 at 11:4-18 (testimony from behavioral counselor Jeannette Estrada that pending charges
means an inmate “cannot be moved to next level”).
70 Even when inmates are being transferred out of the SMU, there is evidence that they are being
transferred improperly to solitary confinement units in other prisons in violation of paragraph 56 of the
86
245:7-247:5; 432-49; 432-51 at 5. Specifically, the defendants violated paragraph 45 by
adopting a requirement for transfer not permitted by the injunction and they used that
requirement to confine inmates in the SMU longer than 24 months. Docs. 364-1 ¶ 45;
429 at 243:19-21, 245:7-247:5; 432-49; 432-76 (SOP 209.09) at 27-28, 55. The
defendants have violated paragraphs 45 and 54 by failing to articulate specific and
detailed reasons for retaining inmates in the SMU.71 Doc. 364-1 ¶¶ 45, 54. They have
also violated the duration-of-confinement and periodic-review requirements under
paragraphs 45 and 53 by failing to articulate individualized goals and the “steps” that
these inmates “must take to qualify for a transfer.” Id. ¶¶ 45, 53.
Finally, the plaintiffs also claim that the defendants violated paragraph 53 by
listing programs on inmates’ offender management plans that are not offered at the
SMU. Docs. 364-1 ¶ 53; 429 at 254:11-254:19; 432-50; 438 at 18-22; see also Docs.
432 at 272:11-16, 276:17-277:6, 277:5-279:1; 432-12 at 139:17-140:21. Paragraph 53
requires that “each inmate will be provided a detailed [OMP] setting out individualized
goals for the inmate and explaining the steps that the inmate must take to qualify for a
transfer from the SMU/Tier III program.” Docs. 364-1 ¶ 53; 364-2 ¶ 7. Because an
inmate’s progress on his offender management plan must be considered by the
classification committee during periodic reviews, the plaintiffs contend the offender
management plans are meaningless because they set goals inmates cannot meet.
Doc. 438 at 18-21. The defendants deny that SMU counselors as a matter of course
settlement agreement. Docs. 356-1 ¶ 56; 403-2 at 35 ¶¶ 3-4; 429 at 58:5-61:19. There is apparently only
one STEP unit located at GDCP with room for only 15 inmates at a time. Doc. 429 at 60:11-19.
See, e.g. Docs. 432-51; 432-52; 432-53; 432-54; 432-55; 432-56; 432-57; 432-58; 432-59; 432-60;
432-61; 432-62; 432-63; 432-64; 432-65; 432-66; 432-67; 432-68; 432-69; 432-70; 432-71; 432-72.
71
87
set goals that inmates cannot complete. Doc. 441 at 9-10. Although they admit that
offender management plans may include classes not offered at the SMU because
offered programs may change. Docs. 429 at 158:8-23, 159:17-20 (SMU Unit Manager
Alexander Tillman) (“Q: Have you ever noticed that there are classes listed on the
offender management plan that are not currently offered in the SMU? A: Yes, ma’am.”),
185:14-21, 254:11-255:23; 432-50; 432-76 (SOP 209.09) at 27-28, 55. But they claim
this does not necessarily mean that inmates cannot leave the SMU. Docs. 429 at
188:12-20; 441 at 9-10.
The evidence does not allow the Court to find by clear and convincing evidence
that listing a class not offered at the SMU on offender management plans rises to the
level of a violation of paragraph 53. But now the problem has been identified, the Court
is confident that it will be fixed.
5. The Court finds by clear and convincing evidence that the defendants are in
contempt for violating paragraphs 20 (GOAL devices) and 26 (privileges) of
the settlement agreement.
Since May 7, 2019, the defendants have had “an unambiguous obligation” to
provide inmates with operable GOAL devices, an obligation that Holt conceded to at the
show cause hearing. Doc. 429 at 89:20-90:3. Five years later, the defendants have yet
to comply with this mandate—nor have they made any meaningful effort to explain their
failure. The Court has yet again been given only empty promises, unsubstantiated
assertions, and conclusory or vague assurances. The defendants produced no
documentary evidence confirming their vague excuses. In April 2022, Holt testified that
GOAL devices would “roll out” in May 2022. Doc. 344 at 68:12-19. In October 2022,
Wilson claimed the new completion date was November 14, 2022. Doc. 452 at 25:15-
88
26:5. By February 2023, Holt claimed the defendants were no longer “rolling out tablets
at any facility” due to “some security concerns,” which “other legal considerations”
prevented them from being more specific. Doc. 384 at 18:7-19:14. Both the plaintiffs
and the Court then heard for the very first time at the show cause hearing on November
30, 2023, that the defendants and their vendor agreed to mutually terminate their
contract for GOAL devices. Doc. 429 at 87:4-88:3. The defendants have never offered
any detail yet alone any documentary evidence to corroborate these claims. Even if
Holt were a credible witness, and he is not, his vague excuses, with no supporting
evidence, do not excuse the defendants’ failure to comply with the injunction.
The same holds for the defendants’ failure to provide television access for eligible
inmates. Paragraph 26 requires the defendants to provide inmates the privileges set
out in the Tier III privileges chart, which provides television access for inmates in phase
three and above. Docs. 364-1 ¶ 26; 432-76 (SOP 209.09) at 48. It is undisputed that
the defendants house eligible inmates in E- and F- Wings where they do not have
access to television. Doc. 429 at 92:12-24, 97:9-21. As discussed, the defendants
have repeatedly promised to provide television access and they have repeatedly broken
those promises.
Accordingly, the Court finds by clear and convincing evidence that the
defendants are in contempt for violating paragraphs 20 (GOAL devices) and 26
(privileges) of the settlement agreement.
C. Contempt Sanctions
Despite clear and unambiguous directives aimed at improving conditions and
procedural safeguards at the SMU, the defendants have failed to implement reforms
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that were agreed upon by the parties and ordered by the Court, thereby negating the
required relief. Failure to enforce the injunction would not only undermine the parties’
consensual resolution and the Court’s integrity, but would also jeopardize the
constitutional rights that the injunction seeks to protect. Accordingly, the Court finds it
necessary to impose the following sanctions: (1) an extension of the injunction, (2) the
appointment of an independent monitor, and (3) a daily fine to ensure compliance that
will be purged upon the defendants’ compliance. The Court also awards the plaintiffs
their attorney’s fees and costs.
The imposition of these sanctions must comply with the general rules governing
civil contempt, and the extension of the injunction and appointment of a monitor must
further comply with Federal Rule of Civil Procedure 60 and the Prison Litigation Reform
Act (“PLRA”). For the following reasons, the Court finds that they do.
1. General Rules of Contempt
Contempt sanctions are a critical tool that courts utilize to enforce compliance
with their orders. “District courts are afforded wide discretion in fashioning an equitable
remedy for civil contempt.” McGregor v. Chierico, 206 F.3d 1378, 1385 n.5 (11th Cir.
2000). “The measure of the court’s power in civil contempt proceedings is determined
by the requirements of full remedial relief.” McComb v. Jacksonville Paper Co., 336
U.S. 187, 193 (1949). “[S]anctions in civil contempt proceedings may be employed ‘for
either or both of two purposes: to coerce the defendant into compliance with the court’s
order, and to compensate the complainant for losses sustained.’” Local 28 of Sheet
Metal Workers’ Int’l Ass’n v. E.E.O.C., 478 U.S. 421, 443 (1986) (quoting United States
v. Mine Workers, 330 U.S. 258, 303-04 (1947)); Jove Eng’g, Inc. v. I.R.S., 92 F.3d
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1539, 1545 n.4 (11th Cir. 1996). The Eleventh Circuit has “repeatedly stressed that ‘the
district court’s discretion in imposing non-coercive sanctions is particularly broad and
only limited by the requirement that they be compensatory.’” F.T.C. v. Leshin, 719 F.3d
1227, 1231 (11th Cir. 2013) (quoting Howard Johnson Co. v. Khimani, 892 F.2d 1512,
1521 (11th Cir. 1990)). Coercive sanctions are more limited—“once a contemnor’s
contumacious conduct has ceased or the contempt has been purged, no further
sanctions are permissible.” Id. A court can award equitable remedies, legal remedies,
or both, “so long as it [does] not permit double recovery.” Id. at 1232.
As a preliminary matter, the Court notes that the defendants do not dispute that
the Court has broad discretion to impose civil contempt sanctions. Docs. 333 at 1-2;
441 at 22 (“This Court has broad discretion in imposing civil contempt sanctions,
including modification of the Agreement.”). In any event, the Court finds that the
“requirements of full remedial relief” necessitate these sanctions. They will not only
remedy the defendants’ longstanding noncompliance, but they will also discourage
future noncompliance and provide the plaintiffs with the relief initially intended by the
parties and ordered by the Court. The extension and the appointment of an
independent monitor also fall well within the Court's “particularly broad” discretion, and
the daily fines are properly limited because the defendants may purge the fines by
ending their contumacious conduct. The daily fines too are necessary to compel the
defendants’ compliance, and fines of this nature have been approved by the Supreme
Court. See Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 829
(1994) (“[P]er diem fine[s] imposed for each day a contemnor fails to comply with an
affirmative court order” are permitted because “such fines exert a constant coercive
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pressure, and once the jural command is obeyed, the future, indefinite, daily fines are
purged.”). Finally, no two of the three sanctions result in “double recovery.”
Accordingly, the Court finds that the imposition of these sanctions falls well within its
inherent authority.
2. Federal Rule of Civil Procedure 60
Because an extension and the appointment of an independent monitor modify
the injunction, the Court must comply with Federal Rule of Civil Procedure 60. “On
motion and just terms, the court may relieve a party or its legal representative from a
final judgment, order, or proceeding [if] … applying it prospectively is no longer
equitable.” F.R.C.P. 60(b)(5). Rule 60(b)(5) “provides a means by which a party can
ask a court to modify” its order. Horne v. Flores, 557 U.S. 433, 447 (2009). Indeed,
“Rule 60(b)(5) serves a particularly important function in what [the Supreme Court has]
termed ‘institutional reform litigation.’” Id. (quoting Rufo v. Inmates of Suffolk Cnty. Jail,
502 U.S. 367, 380 (1992)). “The power of a court of equity to modify a decree of
injunctive relief is long-established, broad, and flexible.” Plata, 563 U.S. at 542 (citation
omitted); see also Rufo, 502 U.S. at 381 (“The experience of the [district courts] in
implementing and modifying such decrees has demonstrated that a flexible approach is
often essential to achieving the goals of reform litigation.”). However, district courts
must “apply[] a flexible standard that seeks to return control to state and local officials
as soon as a violation of federal law has been remedied.” Horne, 557 U.S. at 450-51.
In Rufo, the Supreme Court established a two-part standard for modification of
consent decrees in institutional litigation. 502 U.S. at 383-93. First, “a party seeking
modification of a consent decree bears the burden of establishing that a significant
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change in circumstances warrants revision of the decree.” Id. at 383. That party “may
meet its initial burden by showing either a significant change either in factual conditions
or in law.” Id. at 384. If the moving party meets this burden, then “the district court
should determine whether the proposed modification is suitably tailored to the changed
circumstance.” Id. at 391. The district court should proceed with modification “when
enforcement of the decree without modification would be detrimental to the public
interest.” Id. at 384. The Eleventh Circuit has recognized “that an injunction may be
modified to impose more stringent requirements on the defendant when ‘the original
purposes of the injunction are not being fulfilled in any material respect.” Sizzler Family
Steak Houses v. W. Sizzlin Steak House, Inc., 793 F.2d 1529, 1540 (11th Cir. 1986)
(citing United States v. United Shoe Machinery Corp., 391 U.S. 244, 252 (1968)).
In determining whether the modifications are suitably tailored to the changed
circumstance, “three matters should be clear.” Rufo, 502 U.S. at 391. First, “a
modification must not create or perpetuate a constitutional violation.” Id. Second, “[a]
proposed modification should not strive to rewrite a consent decree so that it conforms
to the constitutional floor.” Id. And third, “[w]ithin these constraints, the public interest
and ‘[c]onsiderations based on the allocation of powers within our federal system’
require that the district court defer to local government administrators, who have the
‘primary responsibility for elucidating, assessing, and solving’ the problems of
institutional reform, to resolve the intricacies of implementing a decree modification.” Id.
at 392 (quoting Bd. of Educ. of Okla. Pub. Schs. v. Dowell, 498 U.S. 237, 248 (1991);
Brown v. Bd. of Educ., 349 U.S. 294, 299 (1955)). This deference is not “involved” in
the “threshold inquiry” of whether a modification is warranted. Id. at 392 n.14. Rather,
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“once a court has determined a modification is warranted, … principles of federalism
and simple common sense require the court to give significant weight to the views of the
local government officials who must implement any modification.” Id. Finally, a court
should not grant a modification “where a party relies upon events that actually were
anticipated at the time it entered into a decree.” 72 Id. at 385.
The plaintiffs have satisfied their burden of showing that modification of the
Court’s injunction is warranted given the significant change in factual conditions—the
defendants’ substantial noncompliance. See Kelly v. Wengler, 822 F.3d 1085, 1098
(9th Cir. 2016) (“Under well established law, substantial violation of a court order
constitutes a significant change in factual circumstances.”). 73 The purpose of the
injunction was to remediate the unusually harsh conditions and the lack of due process
protections within the SMU. To further that purpose, the Court's injunction mandates
constitutionally minimal conditions of confinement and due process protections for
assignment to and retention in the SMU. But, as explained, the defendants have
ignored these mandates. Thus, modification is not only proper under Rule 60, but it is
necessary to fulfill the original purposes of the Court’s injunction.
Moreover, the modifications are suitably tailored to the changed circumstance—
the defendants’ noncompliance. As noted, the extension and appointment of an
72This
is not at issue here. If the plaintiffs anticipated the defendants’ substantial noncompliance, they
would not have entered into the agreement with the defendants.
See also Chrysler Corp. v. United States, 316 U.S. 556, 563-64 (1942) (affirming extension of consent
decree); Thompson v. United States Dep’t of Hous. and Urb. Dev., 404 F.3d 821, 828-29 (4th Cir. 2005);
David C. v. Leavitt, 242 F.3d 1206, 1213 (10th Cir. 2001) (holding the district court did not abuse its
discretion in extending the parties’ consent decree under its modification power due to the state’s
“significant non-compliance”); Holland v. N.J. Dep’t of Corrs., 246 F.3d 267, 281-82 (3d Cir. 2001)
(holding the district court possesses the power to extend consent decrees based on a party’s
noncompliance).
73
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independent monitor are necessary to remedy the defendants’ past, present, and future
noncompliance, and no other less-restrictive sanctions would be adequate. Also, the
three “matters” cited in Rufo —the creation or perpetuation of a constitutional violation,
conforming to the constitutional floor, and deference to the local officials—are of no
concern here. 502 U.S. at 391-92. Quite the opposite. The primary purpose of the
sanctions is to force compliance with the injunction, which is in place to correct
constitutional violations. And the modifications leave the power to implement the
injunction completely in the hands of the defendants. Accordingly, the Court further
finds that the imposition of these sanctions comply with Rule 60.
3. The PLRA
Because this case involves a challenge to prison conditions, the Court must
comply with the PLRA. 18 U.S.C. § 3626. The PLRA’s limitations apply to consent
decrees and limit the grant of prospective relief. 18 U.S.C. § 3626(c)(1), (g)(7) (“[T]he
term ‘prospective relief’ means all relief other than compensatory monetary damages.”).
Under the PLRA,
Prospective 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. The 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 a Federal right, and is the least intrusive means necessary to correct
the violation of the Federal right. The court shall give substantial weight to
any adverse impact on public safety or the operation of a criminal justice
system caused by the relief.
18 U.S.C. § 3626(a)(1)(A). Together, these requirements are commonly referred to as
the “need-narrowness-intrusiveness” requirements. Cason v. Seckinger, 231 F.3d 777,
784 (11th Cir. 2000). “Narrow tailoring requires a ‘fit between the remedy’s ends and
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the means chosen to accomplish those ends.’” Plata, 563 U.S. at 531 (quoting Bd. of
Trs. Of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)). “This means only that the
scope of the order must be determined with reference to the constitutional violations
established by the specific plaintiffs before the court.” Id.
In Cason, the Eleventh Circuit established that district courts need not enter or
make particularized findings for facts not in dispute.74 231 F.3d at 785 n.8. A district
court may rely on the parties’ “concessions” and “stipulations” concerning those criteria,
just as it would any other undisputed facts. Id. Thus, when a defendant expressly
concedes that the PLRA’s need-narrowness-intrusiveness requirements are met, the
Court need not make the particularized findings that are otherwise required.
a. The extension meets the PLRA’s requirements.
The extension complies with the PLRA. The parties have twice stipulated that
the injunction is narrowly drawn, extends no further than necessary to correct the
violation of federal rights, and employs the least intrusive means to achieve this
correction, and thus satisfies the requirements of the PLRA. Docs. 256-1 ¶ 7; 364-1 ¶
7. When the parties originally entered into the settlement agreement and when the
parties supplemented and extended the settlement agreement with the addendum, the
defendants agreed that the SMU’s conditions presented a substantial risk of serious
harm to inmates in violation of the Eighth Amendment and that the procedures for
placing prisoners in the SMU were in violation of the Fourteenth Amendment’s Due
The Eleventh Circuit later held that Cason’s particularized-finding requirement applies not just to
termination but also to entry of prospective relief under 18 U.S.C. § 3626(a). See United States v. Sec’y,
Fla. Dep’t of Corr., 778 F.3d 1223, 1228 (11th Cir. 2015) (involving contested motion for preliminary
injunction sought by United States in case challenging Florida’s failure to provide kosher meals to
prisoners).
74
96
Process Clause. Docs. 207 at 11; 256-1 ¶ 7; 362 ¶ 7; 364-1 ¶ 7. The defendants do
not now dispute or challenge those stipulations. Nor do they argue in their post hearing
brief that the PLRA bars the extension of the injunction. In short, the defendants do not
contend that the extension of the term of the injunction contravenes the PLRA.
Although Cason permits reliance on the parties’ stipulations, the Court has again
independently reviewed the record and again finds that the settlement agreement aligns
with the PLRA’s need-narrowness-intrusiveness requirements for several reasons.
First, the agreement’s specific provisions pertaining to out-of-cell time, in-cell conditions,
and overall management of confinement directly address the constitutional issues
identified in this litigation. Second, the agreement does not compromise public safety or
the operation of the criminal justice system.
The Court further finds that extending the injunction is narrowly drawn, extends
no further than necessary, and is the least intrusive means necessary to remedy the
violations of the plaintiffs’ federal rights. An extension is necessary because the
plaintiffs have yet to receive what the parties agreed to: substantial compliance with the
Court’s injunction. The extension is also narrowly drawn and extends no further than
necessary because it is limited in time and may terminate earlier if the defendants
achieve substantial compliance. Moreover, the defendants themselves negotiated the
agreement and have largely incorporated the requirements of the agreement into their
standard operations procedures. Therefore, the Court finds that extending the
injunction complies with the PLRA.
b. The appointment of an independent monitor meets the PLRA’s requirements.
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The PLRA’s limitations on appointing a special master in prison cases are
inapplicable to neutral third-party monitors who do not exercise quasi-judicial authority
under Federal Rule of Civil Procedure 53 or the Court’s inherent authority. 75 See
Benjamin v. Fraser, 343 F.3d 35, 44-47 (2d Cir. 2003), overruled on other grounds by
Caiozzo v. Koreman, 581 F.3d 63, 70 (2d Cir. 2009). However, if the appointment
constitutes “prospective relief,” then it must satisfy the needs-narrowness-intrusiveness
inquiry. See Braggs v. Dunn, 383 F. Supp. 3d 1218, 1282 (M.D. Ala. 2019). For the
following reasons, the Court finds the appointment of the independent monitor satisfies
these requirements.
The independent monitor is necessary because the parties have agreed to, and
the Court has mandated, certain reforms within the SMU, but the defendants’ have
failed to comply with the injunction’s mandates. The appointment of an independent
monitor is narrowly drawn, extends no further than necessary, and is the least intrusive
means to ensure compliance with the injunction. The monitor will observe and report
the defendants’ efforts to comply with the injunction. The monitor will not have direct
involvement in or authority over SMU operations. The monitor will have no enforcement
power. Moreover, because the defendants have largely incorporated the injunction’s
The PLRA imposes requirements on a district court appointing a special master. 18 U.S.C. § 3626(f).
The PLRA defines a “special master” as “any person appointed by 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 the title or description given by the court.” 18 U.S.C. § 3626(g)(8).
Under Rule 53, a special master, inter alia, “hold[s] trial proceedings,” imposes non-contempt sanctions,
“conduct[s] evidentiary hearing[s],” and, with the parties’ consent, makes final factual findings. Thus,
special masters operate in a “quasi-judicial” capacity. See Laube v. Campbell, 333 F. Supp. 2d 1234,
1239-40 (M.D. Ala. 2004); Newman v. State of Ala., 559 F.2d 283, 290 (5th Cir. 1977) (recognizing
distinction between a monitor and a master), reversed in part by Alabama v. Pugh, 438 U.S. 781 (1978).
75
In this case, the independent monitor would exercise functions quite different from those of a special
master under Rule 53. Thus, the requirements for special masters under the PLRA are inapplicable.
98
requirements into their standard operating procedures, the monitor will, in effect, simply
observe compliance with the defendants’ policies. The need for a monitor is further
demonstrated by the fact that the defendants have failed to achieve compliance thus
far, notwithstanding the appointment of an experienced correctional officer to monitor
compliance and an internal onsite facility monitor. Docs. 419-1 ¶¶ 3-4; 452 at 29:4-11.
Clearly, internal monitoring efforts have proved insufficient. Accordingly, the Court finds
the appointment of an independent monitor is necessary, narrowly tailored, and the
least intrusive means to correct the violation of the federal rights by achieving
compliance with the Court’s injunction.
Finally, neither the extension of the injunction nor the appointment of an
independent monitor will have an adverse impact on public safety or the operation of the
criminal justice system. Rather, the intended effect is just the opposite. Accordingly,
the Court finds that the extension of the injunction and the appointment of an
independent monitor comply with the PLRA.
IV. CONCLUSION
The defendants are held in CONTEMPT for the reasons stated throughout this
Order. The injunction and the terms of the underlying parties’ agreements are
EXTENDED and MODIFIED as set forth in this Order.
Because of the defendants’ longstanding and flagrant violations of the Court’s
injunction, it is hereby ORDERED:
The Court will appoint an independent monitor, at the defendants’
expense, to assist the defendants in achieving compliance. The
defendants have made clear that they cannot monitor compliance
internally. The parties shall confer and propose by May 4, 2024, a
candidate to serve as independent monitor. The parties shall further
99
confer and propose procedures allowing the independent monitor access
to all information necessary to monitor compliance.
The term of the settlement agreement, the addendum agreement, and the
Court’s injunction are extended. That term shall expire six months after
the appointment of the independent monitor. However, any party may
move for the extension of the term.
Because of the defendants’ longstanding and flagrant violations of the
Court’s injunction, the Court finds that coercive sanctions are necessary to
compel compliance. The Court imposes a daily fine of $2,500.00. That
fine will be payable upon the termination of the Court’s injunction. The
defendants shall be purged of payment if they comply with the injunction.
Beginning May 20, 2024, and every thirty days thereafter, the defendants
shall deposit with the Clerk of Court the sum of $75,000.
The Court awards the plaintiffs reasonable attorney’s fees and expenses
incurred during the enforcement of the injunction. Plaintiffs’ counsel shall
submit their fee request with supporting evidence by May 4, 2024.
SO ORDERED, this 19th day of April, 2024.
S/ Marc T. Treadwell
MARC T. TREADWELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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