Braggs v. Hamm

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION EDWARD BRAGGS, et al., ) ) Plaintiffs, ) ) CIVIL ACTION NO. v. ) 2:14cv601-MHT ) (WO) JOHN HAMM, in his ) official capacity as ) Commissioner of ) the Alabama Department of ) Corrections, et al., ) ) Defendants. ) REVISED REMEDY SCHEDULING ORDER ON PHASE 1 AND PHASE 2A ADA CLAIMS AND PHASE 2A EIGHTH AMENDMENT CLAIM It is ORDERED that the defendants’ motion to reset (Doc. 3872) is granted, and that the deadlines and dates for the Phases 1 and 2A remedy scheduling order for the ADA and Eighth Amendment claims remain and are revised as set forth below.

OLD DATES NEW DATES I. GENERAL The effective date of the Phase 3/9/2022 2A Omnibus Remedial Order. (Doc. 3464) at § 1.3.

II. PHASE 1 AND PHASE 2A ADA CLAIMS Phase 1: Deadline for 11/1/2028 termination of monitoring. (Doc.

3801).

Phase 1: Deadline for 1/1/2023 alterations to Birmingham Community Based Facility/Community Work Center and Frank Lee Community Based Facility/Community Work Center (Doc. 3801).

Parties to file joint report 1/27/2023 at 5:00 regarding alterations identified p.m. in preceding cell.

Status conference: Parties 2/10/2023 at 9:00 should be prepared to discuss a.m. alterations identified in preceding cell.

Phase 1: Deadline for 5/31/2023 alterations to William E.

Donaldson (Doc. 3801).

Phase 1: Deadline for 11/1/2027 completion of alterations for the second and third phases regarding the removal, remediation, or construction of new facilities. (Doc. 3801).

Phase 1: Parties to file joint 1/27/2023 at 5:00 . report regarding status of the p.m. building of the new prisons and their impact on the meeting the Phase 1 deadlines.

Phase 1: Status conference: 2/10/2023 at 9:00 Parties should be prepared to a.m. discuss matter identified in preceding cell.

Phase 2A ADA: Consent decree as 10/1/2023 to Adaptive Behavior/Life Skills Training and associated Beta III/IV testing will terminate, including monitoring. (Doc. 3787 and Doc. 3801).

Phases 1 and 2A ADA: Parties 1/27/2023 at 5:00 should file joint report on p.m. mediation efforts before Judge Ott concerning the Phase 1 and Phase 2A ADA Consent Decrees, including how often mediation is occurring and whether they will be able to complete mediation within six months of September 22, 2022, as they represented at the September 22 and November 7, 2022, status conferences, and, in particular, with regard to the remaining Phase 2A ADA issue in light of the looming October 1, 2023, termination deadline. (Doc. 3778, Doc. 728, Doc. 1291, & Doc. 3762), (Doc. 3866).

Phases 1 and 2A ADA: Status 2/10/2023 at 9:00 conference: Parties should be a.m. prepared to discuss the Phase 1 and Phase 2A ADA Consent Decrees issues outlined in the preceding cell. (Doc. 3866).

III. PHASE 2A EIGHTH AMENDMENT CLAIM MONITORING The parties are to file another 12/9/2022 at 5:00 12/28/2022 at joint report on the status of p.m. 5:00 p.m. the EMT. (Doc. 3863).

Status conference: The parties 12/14/2022 at 9:00 1/4/2023 at should be prepared to discuss a.m. 8:00 a.m. the preceding report.(Doc.

3863).

CORRECTIONAL STAFFING The defendants must submit On March 1, June correctional staffing reports to 1, September 1, the court and the EMT. (Doc. and December 1 of 3464) at § 2.1.6. By agreement each year of the parties, the defendants are to submit these reports on the dates set forth in the Phase 2A Understaffing Remedial Order (Doc. 1657) at § 4, namely, March 1, June 1, September 1, and December 1 of each year.

The parties submitted a joint Status report due filing concerning a proposal for 9/27/2022 and the mediation and development of every 21 days a concrete plan to address thereafter ADOC’s still grossly inadequate correctional staffing levels and a method to assess and reassess over time the effectiveness of the steps taken pursuant to that plan. (Doc. 3791). The court adopted the parties’ proposal and ordered joint reports on the same to be filed every 21 days. (Doc. 3795).

Status conference: The parties 12/14/2022 at 9:00 1/4/2023 at should be prepared to address a.m. 8:00 a.m. their efforts as to mediation of the correctional staffing issues as reflected in their 21-day reports. (Doc. 3791 & Doc.

3795). The parties should be prepared to discuss firm deadlines for the development and implementation of the plan.

The formatting for the 12/9/2022 at 5:00 12/28/2022 at correctional staffing reports p.m. 5:00 p.m. shall be further revised, if necessary, based on input from the EMT. See Phase 2A Omnibus Remedial Order (Doc. 3464) at § 2.1.6. Parties should submit joint report on how to proceed on this issue.

Status conference: Parties 12/14/2022 at 9:00 1/4/2023 at should be prepared to discuss a.m. 8:00 a.m. correctional staffing formatting issue.

Members of the agency staffing 1/27/2023 at 5:00 unit, or “resource planning p.m. unit,” were to participate in the training program on correctional staffing analysis taught by the National Institute of Corrections (NIC). The court understands that the training should be complete by early January 2023. The court would like for defendants file a report on how meaningful the training was.

Status conference: The parties 2/10/2023 at 9:00 should be prepared to address a.m. the NIC training report.

Parties to file another joint 12/9/2022 at 5:00 12/28/2022 at report on the issue of p.m. 5:00 p.m. plaintiffs’ meeting with the Savages (Doc. 3820) (Doc. 3864).

Status conference: The parties 12/14/2022 at 9:00 1/4/2023 at should be prepared to address a.m. 8:00 a.m.. the above report on the Savages (Doc. 3820) (Doc. 3864).

The defendants filed 2022 Done Correctional Staffing Analysis Report on November 1, 2022. (Doc. 3849) Plaintiffs to file response to 12/5/2022 at 5:00 12/21/2022 at the adequacy of the 2022 p.m. 5:00 p.m.

Correctional Staffing Analysis Report. (Doc. 3849). The response should address both the development and the contents of the 2022 analysis, and how the parties and the court should proceed on it. (Doc. 3859).

Defendants to file a reply to 12/9/2022 at 5:00 12/28/2022 at plaintiffs’ response to 2022 p.m. 5:00 p.m. analysis. (Doc. 3859).

Status conference: The parties 12/14/2022 at 9:00 1/4/2023 at should be prepared to address a.m. 8:00 a.m. the 2022 Correctional Staffing Analysis Report and the filings on it. (Doc. 3859).

The defendants must develop with 1/20/2023 at 5:00 the Savages, and submit to the p.m. court, realistic benchmarks for the level of correctional staffing ADOC will attain by December 31 of 2022 (though this date is passed), 2023, and 2024 respectively to put ADOC on track to fill all mandatory and essential posts by July 1, 2025. (Doc. 3464) at § 2.1.5. (Doc.

3857).

The plaintiffs should file a 1/27/2023 at 5:00 response to the proposed p.m. benchmarks and suggest how the parties and the court should proceed on them.

The defendants may file a reply 2/3/2023 at 5:00 regarding the proposed p.m. benchmarks.

Status conference: The parties 2/10/2023 at 9:00 should be prepared to discuss a.m. the proposed benchmarks and reports on them.

Deadline by which ADOC must fill 7/1/2025 all mandatory and essential posts at the level indicated in the most recent staffing analysis at that time. (Doc.

3464) at § 2.1.4.

MENTAL-HEALTH STAFFING The defendants must submit On March 1, June mental-health staffing reports 1, September 1, to the court and the EMT. (Doc. and December 1 of 3464) at § 2.2.4. By agreement each year of the parties, the defendants are to submit these reports on the dates set forth in the Phase 2A Understaffing Remedial Order (Doc. 1657) at § 4, namely, March 1, June 1, September 1, and December 1 of each year.

The parties filed reports on 12/9/2022 at 5:00 12/28/2022 at what the most recent quarterly p.m. 5:00 p.m. mental-health staffing reports to the court reflect. (Doc.

3709 & Doc. 3749). The plaintiffs were to file a report with an update on what the most recent quarterly mental-health staffing reports to the court reflect. In doing so, the plaintiffs should also address what the court identified as an apparent disagreement on the appropriate method for comparison of ADOC’s mental-health staffing levels against the levels set forth by the mental-health staffing ratios and mental-health staffing matrix incorporated in Sections 2.2.1 and 2.2.3 of the Phase 2A Omnibus Remedial Order (Doc. 3464), including what efforts, if any, they have made at mediation with Judge Ott if the parties continue to disagree. (Doc. 3766) & (Doc.

3854). The defendants filed a response to the plaintiffs’ report. (Doc. 3856). In light of these reports, the court would like to the parties to file a joint report specifically identifying their areas of “agreement” and their areas of “disagreement,” and their suggestions of how the court should proceed.

Status conference: The parties 12/14/2022 at 9:00 1/4/2023 at should be prepared to discuss a.m. 8:00 a.m. the preceding joint report.

The formatting for the 12/9/2022 at 5:00 12/28/2022 at mental-health staffing reports p.m. 5:00 p.m. shall be revised, if necessary, based on input from the EMT.

See Phase 2A Omnibus Remedial Order (Doc. 3464) at § 2.2.4.

Parties should submit joint report on how to proceed on this issue.

Parties should be prepared to 12/14/2022 at 9:00 1/4/2023 at discuss mental-health staffing a.m. 8:00 a.m. formatting issue.

The EMT shall review ADOC’s Beginning one year mental-health staffing ratios from the and, if necessary, make initiation of recommendations for revising monitoring them. (Doc. 3464) at § 2.2.2.

Deadline by which ADOC must 7/1/2025 achieve the staffing levels set forth in the staffing matrix previously approved by the court in the Phase 2A Order and Injunction on Mental-Health Staffing Remedy (Doc. 2688), subject to any subsequent modifications. (Doc. 3464) at § 2.2.3.

RESTRICTIVE HOUSING The defendants must file with On a weekly basis the court and the EMT reports on each inmate who has been in restrictive housing for longer than 72 hours under exceptional circumstances during that week. (Doc. 3464) at § 3.1.4, (Doc.

3557), and (Doc. 3771).

The court required the parties 12/9/2022 at 5:00 12/28/2022 at to file reports on what the most p.m. 5:00 p.m. recent weekly SMI reports to the court reflect (trends, etc., if any). While the reports raised serious concerns, the court decided at the August 15 and November 7, 2022, status conferences not to take any immediate action, with the understanding that the EMT will examine the concerns closely in the very near future and that, otherwise, the court will reconsider looking into the issue itself (Doc. 3768).

However, the parties are to file another joint report on whether the EMT is now looking into these concerns, etc. (Doc.

3865).

Status conference: The parties 12/14/2022 at 9:00 1/4/2023 at should be prepared to address a.m. 8:00 a.m. the preceding SMI report. (Doc.

3768). (Doc. 3865).

The parties submitted a joint Status report due filing concerning a proposal for 9/27/2022 and the mediation and development of every 21 days plan that will allow ADOC’s RHUs thereafter (with the exception of the RHU at Tutwiler) to function safely with the correctional staff that ADOC currently employs. (Doc.

3794). The court adopted the parties’ proposal and ordered joint reports on the same to be filed every 21 days. (Doc.

3795).

Status conference: The parties 12/14/2022 at 9:00 1/4/2023 at should be prepared to address a.m. 8:00 a.m. their efforts as to mediation of the RHU issues as reflected in their 21-day reports. (Doc. 3791 & Doc. 3795). The parties should be prepared to discuss firm deadlines for the development and implementation of the plan. (Doc. 3868).

The Phase 2A omnibus remedial 12/9/2022 at 5:00 12/28/2022 at order provided that all RHU p.m. 5:00 p.m. cells must be cleaned by June 8, 2022. (Doc. 3464) at § 3.1.1.

The defendants filed a notice with the court confirming that they have met this deadline. (Doc. 3698). Based on the representations made at several status conferences, the court stated that it will not take any immediate action with respect to the continued cleanliness of RHU cells, albeit with the expectation that the EMT will monitor the issue as soon as it is fully operational. The court stated that it would revisit the issue later in light of the status of the EMT at that time. (Doc. 3770). The parties have now filed a report on the issue. (Doc. 3850). The court would like another report. (Doc.

3862).

Status conference: The parties 12/14/2022 at 9:00 1/4/2023 at should be prepared to address a.m. 8:00 a.m. the issue of the continued cleanliness of RHU cells. (Doc.

3770) (Doc. 3862).

Deadline by which all RHU cells Stayed must comply with the conditions set forth in Lindsay M. Hayes’s Checklist for the “Suicide-Resistant” Design of Correctional Facilities (Doc.

3206-5). (Doc. 3464) at § 3.1.3.

Stayed pursuant to opinion and order on motion to stay. (Doc.

3526) at 75-76.

SUICIDE PREVENTION ADOC must conduct inspections of Stayed as to RHU all suicide watch, SU, and RHU cells only; cells to verify that they meet otherwise, on a the conditions set forth Lindsay quarterly basis M. Hayes’s Checklist for the “Suicide-Resistant” Design of Correctional Facilities (Doc.

3206-5). (Doc. 3464) at § 2.1.7.2. Stayed as to RHU cells pursuant to opinion and order on motion to stay. (Doc.

3526) at 75-76.

HIGHER LEVELS OF CARE In collaboration with the EMT, 1/27/2023 at 5:00 ADOC must reassess, on an annual p.m. basis, (1) the number of inmates on its mental-health caseload and (2) whether the current estimate of the percentage of the mental-health caseload requiring inpatient treatment is accurate. (Doc.

3464) at § 11.2.2. The parties are to submit a joint report on how to proceed on this issue.

Status conference: The parties 2/10/2023 at 9:00 should be prepared to discuss a.m. the preceding joint report.

The parties have submitted to 12/9/2022 at 5:00 12/28/2022 at the court their views on the p.m. 5:00 p.m. issue of whether serious risks are posed by high temperatures in the mental-health units, (Doc. 3464) at § 11.3, including the adequacy of Administrative Regulation 619 as a means of addressing the risk in light of the court’s previous discussion of its concerns as to that regulation, see Phase 2A Inpatient Treatment Remedial Opinion and Order, Braggs v. Dunn, 2020 WL 2789880, *14-15 (M.D. Ala. 2020) (Thompson, J.) (discussing Administrative Regulation 619); see also Phase 2A Omnibus Remedial Order (Doc.

3464) at § 11.3, and the question of whether ADOC employees are trained to follow the regulation. Based on the parties’ written filings and representations on August 15 and September 22, 2022, the court is requiring that the parties pursue mediation of these concerns with Judge Ott. (Doc.

3767). The parties filed reports on their efforts. (Doc.

3797 & Doc. 3839). The court will require that they file another joint report on their mediation efforts. (Doc. 3860).

Status conference: The parties 12/14/2022 at 9:00 1/4/2023 at should be prepared to discuss a.m. 8:00 a.m. the results of their mediation efforts on the issue of the risk of high temperatures in the mental-health units, as described above in preceding cell. (Doc. 3860).

IV. MISCELLANEOUS STATUS CONFERENCES Triannual status conference, 2/10/2023 at 9:00 with the parties to submit a.m. reports 10 business days before the status conference (Doc. 3467 and Doc. 3480).

Triannual status conference, 7/7/2023 at 9:00 with the parties to submit a.m. reports 10 business days before the status conference (Doc. 3467 and Doc. 3480).

Triannual status conference, 11/17/2023 at 9:00 with the parties to submit a.m. reports 10 business days before the status conference (Doc. 3467 and Doc. 3480).

Triannual status conference, 2/9/2024 at 9:00 with the parties to submit a.m. reports 10 business days before the status conference (Doc. 3467 and Doc. 3480).

Triannual status conference, 7/12/2024 at 9:00 with the parties to submit a.m. reports 10 business days before the status conference (Doc. 3467 and Doc. 3480).

Triannual status conference, 11/22/2024 at 9:00 with the parties to submit a.m. reports 10 business days before the status conference (Doc. 3467 and Doc. 3480).

Triannual status conference, 2/7/2025 at 9:00 with the parties to submit a.m. reports 10 business days before the status conference (Doc. 3467 and Doc. 3480).

STANDING ORDERS FOR HEARINGS AND STATUS CONFERENCES All hearings and evidentiary hearings shall be in accordance with the order entered on 1/15/2020 (Doc. 2727), unless otherwise specified.

All hearings, evidentiary hearings, and status conferences are to be by videoconferencing unless otherwise specified.

DONE, this the 2nd day of December, 2022. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE