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 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.

Note that the format of the scheduling order has slightly changed.

Now, each section is designated with a cell-block number so that it may be more easily referenced. For example, Section III deals with the “PHASE 2A EIGHTH AMENDMENT CLAIM.” Subpart B of that section pertains to “CORRECTIONAL STAFFING.” So the second cell in that subpart, which sets a status conference topic of discussion, is referred to as cell III.B.2. The court’s citation for this cell is (Doc. X) at 4, cell III.B.2.

Cell OLD DATES NEW DATES I. GENERAL I.A 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 II.A PHASE 1 and 2A ADA Phase 1: Deadline for 11/1/2028 termination of monitoring. (Doc.

3801).

2 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).

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

4 Status conference: Parties 7/14/2023 at should be prepared to discuss 9:00 a.m. alterations identified in preceding cell.

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

Donaldson (Doc. 3801).

6 Status conference: Parties 7/14/2023 at should be prepared to discuss 9:00 a.m. alterations identified in preceding cell.

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

8 Phase 1: Parties to file joint 5/19/2023 report regarding status of the building of the new prisons and their impact on the meeting the Phase 1 deadlines. The parties filed that report (Doc. 3908); moreover, their respective triannual reports (Doc. 3979 & Doc. 3981) also addressed this issue. In their joint status report, (Doc. 3908) at 7, and at the February 10, 2023 conference, the parties represented that they would complete mediation before Judge Ott as to this issue by May 19, 2023.

9 Status conference: Parties 7/14/2023 at should be prepared to discuss 9:00 a.m. matter identified in preceding cell.

10 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).

11 Status conference: Parties 7/14/2023 at should be prepared to discuss 9:00 a.m. matter identified in preceding cell.

12 Phases 1 and 2A ADA: Parties 1/27/2023 at should file joint report on 5:00 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). The parties filed that report (Doc. 3908); moreover, their respective triannual reports (Doc. 3979 & Doc. 3981) also addressed these issues.

13 Status conference: Parties should 7/14/2023 at be prepared to discuss the Phase 9:00 a.m.

1 and Phase 2A ADA Consent Decrees issues outlined in the preceding cell.

III. PHASE 2A EIGHTH AMENDMENT CLAIM III.A MONITORING Status conference: The parties 7/14/2023 at should be prepared to discuss the 9:00 a.m. status of the EMT. (Doc. 3988).

2 Parties to file a joint report on 8/3/2023 by the status of the EMT’s pre- 5:00 p.m. monitoring phase timeline. (Doc. 3988).

3 Parties to file a joint report on 10/3/2023 by the status of the EMT’s pre- 5:00 p.m. monitoring phase timeline. (Doc. 3988).

4 Parties to file a joint report on 11/3/2023 by the status of the EMT’s pre- 5:00 p.m. monitoring phase timeline. (Doc. 3988).

III.B CORRECTIONAL STAFFING The defendants must submit On March 1, correctional staffing reports to June 1, the court and the EMT. (Doc. September 1, 3464) at § 2.1.6. By agreement and December of the parties, the defendants 1 of each are to submit these reports on year 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.

2 Status conference: The parties 7/14/2023 at should be prepared to discuss 9:00 a.m. what the quarterly correctional- staffing reports reflect, including what retrospective trends the reports reflect and what prognosis the reports indicate. As discussed at the February 10, 2023, conference, the court is concerned the numbers appear to be getting worse.

3 The parties submitted a joint Status report filing concerning a proposal for due 9/27/2022 the mediation and development of and every 21 a concrete plan to address ADOC’s days still grossly inadequate thereafter 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).

4 Status conference: The parties 7/14/2023 at should be prepared to address 9:00 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.

5 The formatting for the 12/28/2022 at correctional staffing reports 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 submitted a joint report on how to proceed on this issue on December 28, 2022. (Doc. 3889).

6 Status conference: The parties 7/14/2023 at should be prepared to discuss 9:00 a.m. correctional staffing report formatting issues, including how the formatting will account for new staffing analyses, the ongoing issue of how “overtime” factors into measuring staffing, and what the EMT’s status is regarding its evaluation of the correctional staffing reports.

7 The defendants filed 2022 Done Correctional Staffing Analysis Report on November 1, 2022. (Doc.

3849) The defendants filed the Updated Done 2022 Correctional Staffing Analysis (Doc. 3928) on February 24, 2023, which resolved the parties’ disputes as to the adequacy of the 2022 Correctional Staffing Analysis (Doc. 3927).

9 Status conference: The parties 7/14/2023 at should be prepared to address the 9:00 a.m.

Updated 2022 Correctional Staffing Analysis Report. (Doc. 3928).

10 Status conference: The parties 7/14/2023 at should be prepared to discuss how 9:00 a.m. the court can keep track of the defendants’ ongoing process to update the staffing analysis, including how the Resource Planning Unit (RPU) is performing, given the finalized status of the Updated 2022 Correctional Staffing Analysis and the completion of the RPU's work with the Savages and training on correctional staffing analysis taught the National Institute of Corrections (NIC).

11 The defendants must develop with 1/20/2023 at the Savages, and submit to the 5:00 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 defendants filed their proposed benchmarks on January 20, 2023 (Doc. 3901), the plaintiffs filed a response (Doc.

3906), to which defendants replied (Doc. 3917).

12 Status conference: The parties 7/14/2023 at should be prepared to discuss the 9:00 a.m. proposed benchmarks and reports on them (Docs. 3901, 3906, 3917), including how the contested issue of “overtime” relates to benchmarks.

13 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.

III.C MENTAL-HEALTH STAFFING The defendants must submit On March 1, mental-health staffing reports to June 1, the court and the EMT. (Doc. September 1, 3464) at § 2.2.4. By agreement and December of the parties, the defendants 1 of each are to submit these reports on year 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.

2 Status conference: The parties 7/14/2023 at should be prepared to discuss 9:00 a.m. what the quarterly mental-health staffing reports reflect, including what retrospective trends the reports reflect and what prognosis the reports indicate, including how the change of vendor is expected to impact mental-health staffing.

The plaintiff’s triannual report (Doc. 3981) indicates the mental- health staffing rates are in a “dire” situation, even when viewed under the defendants’ measuring mechanisms.

3 The parties filed reports on what 12/28/2022 at the most recent quarterly 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 ordered 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. The parties filed that report on December 28, 2022. (Doc. 3892).

4 Status conference: The parties 7/14/2023 at should be prepared to discuss the 9:00 a.m. preceding joint report.

5 The formatting for the 12/28/2022 by mental-health staffing reports 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 submitted a joint report on how to proceed on this issue on December 28, 2022. (Doc. 3889).

6 Parties should be prepared to 7/14/2023 at discuss mental-health staffing 9:00 a.m. formatting issue.

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

8 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.

III.D RESTRICTIVE HOUSING The defendants must file with the On a weekly court and the EMT reports on each basis 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).

2 The court required the parties to 12/28/2022 at file reports on what the most 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).

3 Status conference: The parties 7/14/2023 at should be prepared to address the 9:00 a.m. matters discussed in the cell above, as well as what the recent SMI reports reflect.

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

5 Status conference: The parties 7/14/2023 at should be prepared to address 9:00 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.

6 The Phase 2A omnibus remedial 12/28/2022 by order provided that all RHU cells 5:00 p.m. 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).

7 Status conference: The parties 7/14/2023 at should be prepared to address the 9:00 a.m. issue of the continued cleanliness of RHU cells.

8 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.

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

III.F HIGHER LEVELS OF CARE In collaboration with the EMT, 1/27/2023 at ADOC must reassess, on an annual 5:00 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 submitted joint reports on how to proceed on this issue on January 27, 2023 (Doc. 3905) and February 9, 2023 (Doc. 3918).

2 Status conference: The parties 7/14/2023 at should be prepared to discuss the 9:00 a.m. matter in the preceding cell.

3 The parties have submitted to the 12/28/2022 at court their views on the issue of 5:00 p.m. 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 required that they file another joint report on their mediation efforts. (Doc. 3860). On July 7, 2023, the parties filed a joint plan regarding high temperatures in mental health units, which included an amended AR 619. (Doc. 3986).

4 Status conference: The parties 7/14/2023 at should be prepared to discuss the 9:00 a.m. results of their mediation efforts on the issue of the risk of high temperatures in the mental-health units, as described above in the preceding cell, and what action, if any, the court needs to take on this issue.

IV. MISCELLANEOUS IV.A STATUS CONFERENCES Triannual status conference, with 7/14/2023 at the parties to submit reports 10 9:00 a.m. business days before the status conference (Doc. 3467 and Doc.

3480).

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

3480).

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

3480).

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

3480).

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

3480).

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

3480).

IV.B 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.

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

DONE, this the 13th day of July, 2023. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE