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)

JEFFERSON S. DUNN, in his )

official capacity as )

Commissioner of )

the Alabama Department of )

Corrections, et al., )

)

Defendants. )

PHASE 2A INPATIENT TREATMENT

REMEDIAL OPINION AND ORDER

Previously this court found that the State of Alabama

provides inadequate mental-health care in its prisons in

violation of the Eighth Amendment’s prohibition against

cruel and unusual punishment. See Braggs v. Dunn, 257

F. Supp. 3d 1171, 1267 (M.D. Ala. 2017) (Thompson, J.).

The issue now before the court is whether the defendants’

plan to remedy the deficiencies found in inpatient

treatment--that is, mental-health treatment in the

Residential Treatment Units (RTUs) and Stabilization

Units (SUs)--is adequate.1 The court finds that their

proposed plan fails to ensure minimally adequate

inpatient care in four of nine key disputed areas: (1)

ensuring an adequate number of treatment beds; (2)

ensuring adequate treatment space; (3) making SU cells

suicide-resistant; and (4) managing high temperatures for

patients on psychotropic medication. Accordingly, the

court will order the relief necessary to address these

deficiencies and remedy the constitutional violation

found.

I. BACKGROUND

A. Procedural Background

The plaintiffs in this class-action lawsuit include

inmates with mental illness in the custody of the Alabama

1. The court and the parties have sometimes referred

to the RTUs and SUs collectively as ‘residential

treatment units.’ To avoid confusion, the court will

instead use the terms ‘inpatient care units’ or

‘mental-health units’ to refer to RTUs and SUs

collectively. Meanwhile, the court will refer to care

provided in hospital-level settings exclusively as

‘hospital-level care.’

Department of Corrections (ADOC). The defendants are the

ADOC Commissioner and the ADOC Associate Commissioner of

Health Services, who are both sued in only their official

capacities. In a liability opinion, this court found

that ADOC’s mental-health care was, “[s]imply put, ...

horrendously inadequate.” Braggs, 257 F. Supp. 3d at

1267.

After two months of mediation to develop a

comprehensive remedial plan to address all of the factors

contributing to the Eighth Amendment violation, it became

apparent that the remedy was too large and complex to be

addressed all at once. The court therefore severed the

remedy into several discrete issues, to be addressed

seriatim. See Phase 2A Revised Remedy Scheduling Order

on Eighth Amendment Claim (doc. no. 1357). Two related

issues, which the court later consolidated for

simultaneous resolution, are “identification and

classification of prisoners with serious mental-health

needs” and “out-of-cell time and treatment for inmates

in need of residential treatment,” that is, inpatient

care. See Additional Phase 2A Revised Remedy Scheduling

Order on Eighth Amendment Claim (doc. no. 1524) at 2.

In the liability opinion, the court found that ADOC

“fails to provide residential-level care to those who

need it,” as a result of flawed identification processes.

Braggs, 257 F. Supp. 3d at 1205. Specifically, the court

found ADOC’s historically inadequate intake and referral

processes led to empty beds in RTUs and SUs, despite the

existence of individuals in need of inpatient care. See

id. Those who do make it into the inpatient units, the

court found, still fail to receive proper care. See id

at 1212. Instead, the inpatient units operate “almost

exactly the same way” as segregation, id., with “a severe

lack of out-of-cell time[] and a lack of meaningful

treatment activities,” id. at 1214. These conditions put

patients “at a substantial risk of continued pain and

suffering, decompensation, and self-harm.” Id. In

short, “ADOC's failure to provide adequate treatment and

out-of-cell time in mental-health units forces the most

severely mentally ill patients to face yet another risk

factor for decompensation, even though their placement

was for the specific purpose of alleviating the symptoms

of their mental illness.” Id. at 1217.

When the court turned to the remedy for these two

related elements of the Eighth Amendment violation, it

gave the defendants an opportunity to propose a remedial

plan and allowed the plaintiffs to respond. See

Defendants’ Phase 2A Proposed Remedial Plan on

Identification, Classification, and Residential Unit

Out-of-Cell Time and Treatment (doc. no. 1594);

Plaintiffs’ Response (doc. no. 1649). The parties then

reached agreements, which the court approved, regarding

remedies for the first issue--ADOC’s deficient

classification and identification processes, including

both intake and referral. See Coding Injunction (doc.

no. 1792); Intake Injunction (doc. no. 1794); Referral

Injunction (doc. no. 1821).

The court later held a hearing on the issues not

resolved by the parties’ agreements and whether any

remedial order at all should be entered as to inpatient

treatment at this time. Since the hearing, the parties

have reached additional stipulations regarding

out-of-cell time and treatment in inpatient units: the

Individualized Treatment Planning Injunction (doc. no.

1865); the Psychotherapy and Confidentiality Injunction

(doc. no. 1899); and the Correctional Officer

Confidentiality Injunction (doc. no. 1900). These

stipulations include that ADOC must provide 10 hours of

structured and 10 hours of unstructured out-of-cell time

per week in all inpatient units. See Psychotherapy and

Confidentiality Stipulations (doc. no. 1899-1). The

parties also agreed that the units shall have available

at least psycho-educational groups, individual therapy,

group psychotherapy, pharmacotherapy, and activity

therapy. See id at 2.

In March 2020, the court issued an interim injunction

to enforce all of the parties’ stipulations until, at the

latest, December 30, 2020. See Interim Injunction (doc.

no. 2793). Because of the novel coronavirus pandemic,

the issue of whether the stipulations satisfy the

requirements of the Prison Litigation Reform Act (PLRA),

18 U.S.C. § 3626(a)(1)(A), beyond that date cannot be set

for final resolution until the fall, and the court will

defer judgment as to whether the measures are warranted

until that hearing has occurred. Regardless, the court

relies in this opinion on the defendants’ representations

that they agreed to the stipulations in good faith and

that ADOC intends to continue complying with them. See

Mar. 5, 2019, Status Conf. Tr. (doc. no. 2399) at 42 (the

defendants stating that “the Department of Corrections

negotiated these stipulations in good faith. And we're

still focused on compliance with those orders”). The

stipulations affecting today’s order on inpatient

treatment units are described in detail throughout this

opinion.

B. Factual Background

As stated, ADOC’s inpatient care includes two types

of units, RTUs and SUs, which together house and treat

the most severely mentally ill inmates. RTUs are

intended to provide a therapeutic environment to mentally

ill inmates in need of intensive and ongoing care. There

are three levels to the RTU: inmates in levels one and

two (called ‘closed’ RTUs) live in individual cells while

level three is ‘open,’ which means that patients live in

an open dormitory with other RTU residents. RTU levels

are decreasingly intensive and restrictive from level one

to level three, with some patients progressing through

the levels as their conditions improve and others

remaining at a particular level based on their ongoing

conditions and symptoms.

SUs are for patients who are suffering from acute

mental-health problems, such as acute psychosis or other

conditions causing an acute risk of self-harm, and who

have not been stabilized through other interventions.

SUs are the most intensive and restrictive units,

intended to stabilize patients as quickly as possible so

that they can return to a less-restrictive environment.

All SU patients are housed in an individual cell.

Three of ADOC’s major prison facilities--Bullock,

Donaldson, and Tutwiler--serve as ‘treatment hubs’ for

mental-health services and contain RTUs and SUs. In

addition to these treatment hubs, Kilby has a limited

number of SU beds.

II. LEGAL STANDARD

The court’s remedial order regarding the SUs and RTUs

is governed by the PLRA, which provides that a “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 the Federal right, and is the least

intrusive means necessary to correct the violation of the

Federal right.” 18 U.S.C. § 3626(a)(1)(A). In

conducting this ‘need-narrowness-intrusiveness’ inquiry,

the court is required to “give substantial weight to any

adverse impact on public safety or the operation of a

criminal justice system caused by the relief.” Id.

“As this court has stated before, [prison officials

in cases challenging prison conditions] should be given

considerable deference in determining an appropriate

remedy for the constitutional violations involved.”

Laube v. Haley, 242 F. Supp. 2d 1150, 1153

(M.D. Ala. 2003) (Thompson, J.) (citing Bell v. Wolfish,

441 U.S. 520, 547-48 (1979)); see also Turner v. Safley,

482 U.S. 78, 85 (1987) (“[F]ederal courts have ... reason

to accord deference to the appropriate prison

authorities.”).

Nevertheless, this court retains the responsibility

to remedy a constitutional violation. See Brown v.

Plata, 563 U.S. 493, 511 (2011). While a court “must be

sensitive to the State’s interest in punishment,

deterrence, and rehabilitation, as well as the need for

deference to experienced and expert prison administrators

faced with the difficult and dangerous task of housing

large numbers of convicted criminals,” id., it “must not

shrink from [its] obligation to enforce the

constitutional rights of all persons, including

prisoners.” Id. (internal quotation marks and citations

omitted). It “may not allow constitutional violations

to continue simply because a remedy would involve

intrusion into the realm of prison administration.” Id.

Accordingly, the deference afforded prison

administrators in remedying a constitutional violation

must not be “complete.” King v. McCarty, 781 F.3d 889,

897 (7th Cir. 2015) (per curiam) (citing Plata, 563 U.S.

at 511).

III. DISCUSSION

Though the parties have agreed to many remedial

measures to address the constitutional inadequacies in

ADOC’s inpatient mental-health treatment, significant

issues remain in dispute. The plaintiffs ask the court

to order relief in nine areas: (1) increasing the number

of inpatient treatment beds available; (2) increasing the

amount of confidential treatment space; (3) making all

SU cells suicide-resistant; (4) air conditioning all

mental-health units; (5) establishing admissions

criteria for the different levels of inpatient treatment;

(6) defining privileges and rights of patients in the

units; (7) increasing natural light; (8) and providing

additional training to correctional officers who work in

mental-health units. The plaintiffs also seek a court

order regarding (9) monitoring of inpatient treatment.

The defendants, on the other hand, argue that the

court should not enter any remedial order at this time.

First, they contend that the remedy is limited in scope

to out-of-cell time and treatment and that the remedial

orders the plaintiffs seek do not fit into either issue.

Second, they argue that criticisms of their proposed

remedial plan are premature and that the court should

give the defendants an opportunity to implement their

plan before entering any remedial order.

For the reasons that follow, the court finds the

defendants’ proposed plan incomplete with regard to the

first four of the nine areas listed above.

A. Number of Inpatient Treatment Beds

i. Findings

In the liability opinion, the court found that “ADOC

does not adequately utilize residential treatment unit

beds and fails to provide residential-level care to those

who need it, leading to persistent or worsening

symptoms.” Braggs, 257 F. Supp. 3d at 1205. In reaching

this conclusion, the court credited defense expert

Dr. Raymond Patterson’s opinion that, based on

comparisons to other American prison systems, “roughly

15 % of prisoners on [ADOC’s] mental-health caseload

should be housed in RTU or intensive stabilization unit

settings.” See id. With 3,439 patients on the

mental-health caseload in September 2016, see Joint Ex.

344, Sept. 2016 Monthly Operating Report (doc. no. 1038-

703) at 1, Dr. Patterson’s 15 % estimate meant that

“approximately 515 ADOC prisoners should [have been]

housed in the RTU or the SU,” Braggs, 257 F. Supp. 3d at

1205. However, only “310 of the 376 RTU and SU beds were

being used to house prisoners with mental-health needs.”

Id. Internal reports from ADOC showed that “[t]his

practice of not filling even existing mental-health unit

beds has persisted for years.” Id.

Since the liability opinion, the estimate that 15 %

of the mental-health caseload requires inpatient

treatment has emerged as an expert consensus. In her

testimony about the defendants’ proposed remedial plan,

plaintiff expert Dr. Kathryn Burns agreed with defense

expert Dr. Patterson that “ADOC should have residential

treatment beds of one sort or another for 15 % of the

[mental-health] caseload.” Apr. 27, 2018, Trial Tr.

(doc. no. 2696) at 114. Defense consultant Dr. Mary

Perrien also agreed with the 15 % estimate. See Dec. 12,

2017, Trial Tr. Rough Draft (R.D.) at 85 (“Q: ... as a

general matter, you anticipate that 15 % of the caseload

would be housed in the RTU or SU; correct? A: That’s

correct.”). Dr. Perrien suggested, however, that 1 % of

the overall caseload should receive either SU or

hospital-level care, and thus, the 15 % estimate may

include those requiring hospital-level settings in

addition to those who should be housed in the RTUs and

SUs. See id. at 87.

The court also found that ADOC, at the same time,

systematically under-identifies mentally ill inmates and

that, therefore, the mental-health caseload was

significantly smaller than would be expected under a

functioning intake, classification, and referral system.

See Braggs, 257 F. Supp. 3d at 1205 n.32. In September

2016, the caseload in major ADOC facilities was

approximately 14 % for men and 52 % for

women--substantially less than the 20 to 30 % average

rate of mental illness for men and 75 to 80 % average for

women in correctional systems across the country.2 See

2. In the liability opinion, the court relied on the

actual ADOC caseload percentages of between 14 % and 15 %

for men and 54 % for women at Tutwiler Prison for Women,

which came from ADOC statistics from June 2016. See

Braggs, 257 F. Supp. 3d at 1201, 1248. However, because

the court ultimately relied on the mental-health caseload

from the September 2016 monthly report to calculate the

estimated need for 515 inpatient beds, the court instead

uses the September 2016 mental-health caseload statistics

here. In September 2016, the male population in ADOC

major facilities was 18,711 with a caseload of 2,696 and

id. at 1201. Thus, the court’s estimate of 515 inmates

in need of inpatient treatment, based on 15 % of the

caseload at that time, likely was significantly less than

the reality of the existing need. See id. at 1205 n.32.

ii. Changes to Identification Procedures

As discussed, the parties have since entered into

stipulations to address the issue of under-identification

of inmates with mental-health needs. See Intake

Injunction (doc. no. 1794); Referral Injunction (doc. no.

1821). These stipulations, which are aimed at improving

the intake and referral processes, and their effects on

the mental-health caseload are described below.

a. Intake

ADOC’s failure to utilize adequately its inpatient

treatment units is “a problem that starts with the

inadequate intake screening process.” Braggs, 257 F.

the female population at Tutwiler was 885 with a caseload

of 458. See Joint Ex. 344, Sept. 2016 Monthly Operating

Report (doc. no. 1038-703) at 1.

Supp. 3d. at 1206. Experts from both sides testified

that fundamentally flawed intake procedures led to

systematic under-identification of mentally ill inmates,

including those in need of inpatient treatment. See id.

At the time of the liability trial, the intake process

was conducted by unsupervised licensed nurse

practitioners (LPNs) who are unqualified “to assess the

presence or acuity of mental illness symptoms based on

the information obtained during the intake process.” Id.

at 1202. Further, the problem of understaffing led to

some inmates not even participating in this intake

process; without enough mental-health practitioners,

inmates were sometimes sent from Kilby, where all male

inmates are screened, to other facilities without having

received an initial intake. See id at 1203.

To remedy the inadequate intake procedures, the

parties reached stipulations requiring the following

steps, among others, be taken upon an inmate’s arrival

to ADOC. See Intake Injunction (doc. no. 1794). As soon

as possible and no later than 12 hours after arrival, a

registered nurse (RN) with mental-health training must

conduct and document a mental-health intake screening.

See Intake Stipulations (doc. no. 1794-1) at 1. Using

agreed-upon intake tools and metrics, the mental-health

RN will determine whether a referral is indicated and,

if so, designate whether it is emergent, urgent, or

routine, as defined by the parties’ agreement. See id.

at 5. Where a referral has been made to psychiatry, a

psychiatrist will evaluate the inmate within seven days

of a nonurgent referral and 24 hours of an urgent

referral. See id. at 10-11.

For every inmate, within 14 days of the intake

screening, a psychologist or licensed mental-health

professional will conduct an additional mental-health

screening including a social-history assessment and

suicide-risk assessment. See id. at 7-8. A licensed

psychologist, psychiatrist, or certified registered

nurse practitioner (CRNP) collaborating with a

psychiatrist will then assign the individual a

mental-health code after review of the intake screening

and assessment results. See id. at 8. The mental-health

code assigned to each inmate shall be considered and

utilized by ADOC Classification personnel when making

institutional assignments. See id. at 13.

b. Referral

The parties have also agreed to measures to improve

referral procedures. See Referral Injunction (doc. no.

1821). As the second mechanism for identifying and

classifying inmates with mental illness (intake being the

first), the referral process is critical to identifying

“prisoners whose mental illnesses develop during their

incarceration and prisoners whose mental-health needs

were not identified during the intake process.” Braggs,

257 F. Supp. 3d. at 1203. During the liability trial,

experts from both sides agreed that ADOC’s referral

process was seriously deficient. First, the court found

ADOC lacked “a system to triage and identify the urgency

of each request, and to make referrals according to the

level of urgency.” Id. Second, the court found that

correctional officers, who were already overburdened due

to overcrowding and understaffing, were ill-positioned

to identify and refer inmates with mental-health needs.

See id. at 1203-04.

The parties have since agreed that all ADOC personnel

who have direct contact with inmates, including

correctional officers, must complete a ‘Comprehensive

Mental Health Training Curriculum,’ to be approved by

plaintiff expert Dr. Burns. See Referral Stipulations

(doc. no. 1821-1) at 1-2. This comprehensive training

will include curricula regarding “[t]he early warning

signs or symptoms of mental illness”; “[t]he availability

of mental health services within the ADOC”; “[t]he nature

and extent of mental health services available within the

ADOC”; “[t]he process for referring inmates for mental

health evaluations,” id. at 3; and “how to properly

characterize what is an emergent, urgent, or routine

referral,” Additional Stipulations Regarding Referrals

(doc. no. 1821-2) at 7. The parties represented at a

hearing in December 2019 that development and approval

of this training were still in process but would soon be

complete. See Dec. 6, 2019, Status Conf. Tr. (doc. no.

2686) at 62. Upon approval of this training, all staff

to receive the training must do so within 30 days of

assignment to a major facility. See Additional

Stipulations Regarding Referrals (doc. no. 1821-2) at 7.

The parties have also clarified that inmates

themselves may request mental-health services and that

“[a]ny individual working within ADOC may refer any

inmate within a major facility for assessment by mental

health personnel.” Id. at 1. The stipulations describe

the referral procedures and documentation required for

emergent, urgent, and routine referrals. All referrals

must result in a clinical assessment and/or intervention

by a mental-health provider, psychologist, mental-health

CRNP, or psychiatrist. See Referral Stipulations (doc.

no. 1821-1) at 5. To triage these requests, ADOC has

committed to designating one nurse per shift to serve as

the triage nurse at every major facility, who must be at

least qualified as an RN with mental-health training.

See Additional Stipulations Regarding Referrals (doc. no.

1821-2) at 2-3.

c. Effects of Stipulations

The stipulations regarding intake and referral

processes appear to target the deficiencies the court

found to contribute to the under-identification of

inmates with mental-health needs, including those in need

of inpatient treatment. According to plaintiff expert

Dr. Burns and ADOC Director of Psychiatry Dr. Edward

Kern, once ADOC has functioning identification processes,

it should expect its mental-health caseload to

substantially increase to reflect the average caseload

in American prisons with functioning mental-health care

systems. See Apr. 27, 2018, Trial Tr. (doc. no. 1817)

at 16 (Dr. Burns’s testimony that functioning intake will

increase the mental-health caseload); Apr. 25, 2018,

Trial Tr. (doc. no. 1942) at 46 (Dr. Kern’s testimony

that the mental-health caseload is expected to increase

under functioning intake and classification system). At

the December 2019 hearing, counsel for the plaintiffs

represented that, as a result of updated identification

procedures, the mental-health caseload is now

approaching, but not yet reaching the size the experts

expect. See Dec. 6, 2019, Hr’g Tr. (doc. no. 2686) at

30. According to a report filed shortly after that

hearing, the caseload has reached 21 % of the total male

ADOC population (up from 14 %) and 67 % of the female

population (up from 52 %). See Joint Report Regarding

the Mental Health Caseload (doc. no. 2705) (showing a

male caseload of 3,543 and a female caseload of 608);

Dec. 2019 ADOC Monthly Statistical Report at 4, available

at

http://www.doc.state.al.us/docs/MonthlyRpts/DMR%2012%20

December%202019PUB.pdf (showing a male population in ADOC

major facilities of 16,585 and a female population at

Tutwiler of 901). The plaintiffs made the unrefuted

representation during the December hearing that the

caseload is expected to continue expanding and

stabilizing until it reaches a representative proportion

of the ADOC population around October 2020. See Dec. 6,

2019, Hr’g Tr. (doc. no. 2686) at 30.

To be sure, the number of patients in RTUs and SUs

has also increased since the liability trial. As of

December 2019, ADOC is housing 387 men and 18 women in

inpatient units, see Joint Report Regarding the Mental

Health Caseload (doc. no. 2705),3 up from the 310 men

and 14 women housed in these units in 2016, see Joint Ex.

344, Sept. 2016 Monthly Operating Report (doc. no.

1038-703) at 3-4. However, these numbers reflect only a

marginal increase in the overall percentage of the

mental-health caseload housed in mental-health

units--from 9.4 % in September 2016, see id., to 9.8 % in

3. Importantly, the December filing reports “the

total number of inmates receiving residential-level

mental health treatment in ADOC’s residential treatment

units and stabilization units,” not necessarily all those

actually in need of inpatient care. Joint Report

Regarding the Mental Health Caseload (doc. no. 2705) at

1 n.1 (emphasis added).

December 2019, see Joint Report Regarding the Mental

Health Caseload (doc. no. 2705). 4

iii. Remaining Areas of Dispute

The defendants argue that the liability opinion does

not mandate any remedial action regarding the number of

inpatient treatment beds available. According to the

defendants’ plan, there are 46 SU beds and 400 RTU beds

available across all facilities for men, and eight SU

beds and 50 RTU beds available for women. See Defendants’

Phase 2A Proposed Remedial Plan on Identification,

Classification, and Residential Unit Out-of-Cell Time and

Treatment (doc. no. 1594) at 24, 26. The defendants

argue that the 96 beds in the Structured Living Unit

4. The court reaches these calculations by dividing

the total number of patients in RTUs and SUs by the

mental-health caseload size. In September 2016, there

were 324 total patients in RTUs and SUs and 3,439 patients

reported on the caseload. See Joint Ex. 344, Sept. 2016

Monthly Operating Report (doc. no. 1038-703) at 1, 3-4.

In December 2019, there were 405 patients in RTUs and SUs

and 4,151 patients on the caseload. See Joint Report

Regarding the Mental Health Caseload (doc. no. 2705) at

1.

(SLU) at Donaldson should also be included in the total

number of beds in the “mental-health units.” Defendants’

Reply in Support of Proposed Opinion (doc. no. 1849) at

7 n.5. The SLU is “a diversionary outpatient unit for

persons with serious mental illness or who are otherwise

found to be inappropriate for a restrictive housing

placement in lieu of a restrictive housing placement.”

Psychotherapy and Confidentiality Stipulations (doc. no.

1899-1) at 13.

ADOC does not plan to increase the number of

inpatient treatment beds available. Rather, the

defendants assert that the existing beds are sufficient

to meet the need, demonstrated by the number of beds

unused and available in the RTUs and SUs. They further

assert that the projected number of inmates in need of

inpatient treatment at ADOC prisons is speculative given

the possibilities that ADOC will house fewer inmates

overall; that some patients will be transferred to

hospital-level care; and that, with improvements to other

inadequacies in the provision of mental-health care,

fewer inmates will need inpatient treatment. See

Defendants’ Reply in Support of Proposed Opinion (doc.

no. 1849) at 19-21; June 18, 2018, Oral Arg. Tr. (doc.

no. 1905) at 45-46.

The plaintiffs initially argued that, based on the

most conservative calculation of the need for inpatient

treatment, the court should order the defendants to

“construct, refurbish, or otherwise establish a total of

500 mental-health unit beds for prisoners at men’s major

facilities and 128 mental-health unit beds for prisoners

at women’s major facilities.” Plaintiffs’ Proposed

Opinion (doc. no 1840) at 18. More recently, the

plaintiffs instead requested that the court order ADOC

to “reassess the need for RTU/SU beds once its caseload

stabilizes.” Joint Report Regarding the Mental Health

Caseload (doc. no. 2705) at 3.

The plaintiffs argue that ADOC’s continued

underutilization of its existing beds is not evidence

that more beds will not be needed, but rather that ADOC

still fails to identify individuals in need of inpatient

treatment. The plaintiffs assert that the agreed-upon

remedial measures to address under-identification will

continue to increase the number of patients on the

caseload as well as increase the number of patients

identified as needing inpatient care. They also point

to defense expert Dr. Patterson’s opinion that vacancies

in mental-health units were likely partly due to the lack

of treatment provided, which rendered placement in those

units minimally useful. See Jan. 31, 2017, Trial Tr.

(doc. no. 1277) at 286. The plaintiffs assert that, when

the mental-health units are functioning--that is to say,

providing treatment and out-of-cell time and meeting

their therapeutic purpose--ADOC will see an increase in

the number of inmates referred to and retained in RTUs

to receive the level of care they need.

iv. The Court’s Resolution

The court finds that the defendants’ plan fails to

account for the number of inpatient treatment beds that

will be required once ADOC properly identifies and refers

inmates for necessary inpatient treatment. For the

reasons that follow, the court finds that doing nothing

to ensure that ADOC has enough beds to meet the need is

unacceptable. However, the court does not think it is

appropriate, at this time, to require the defendants to

create a specific number of beds. Instead, the court

will take the more limited approach of ordering them to

devise their own plan as to how they will accommodate the

increasing need.

The defendants’ ‘do nothing’ approach to the issue

of bed space is inadequate for several reasons. First,

basing a remedial plan on the ‘actual’ caseload and

current identified need for inpatient treatment

encourages ADOC to continue to under-identify the need

and underutilize its mental-health units to avoid

creating more beds. The court has already found these

practices contribute to decompensation, self-harm, and

pain, in violation of the Eighth Amendment.

Second, the need for additional inpatient treatment

beds is not merely “hypothetical” as the defendants

argue. Defendants’ Reply in Support of Proposed Opinion

(doc. no. 1849) at 18. ADOC’s present caseload

statistics do not change the experts’ agreement that the

size and needs of the caseload should approximate

averages from correctional systems across the country.

As discussed, the experts agree that ADOC can anticipate

approximately 15 % of the mental-health caseload to need

inpatient mental-health treatment. In its liability

findings, the court found no reason to expect a

substantial deviation from national averages in ADOC

prisons. Braggs, 257 F. Supp. 3d at 1201. The defendants

have not presented any evidence to suggest the experts’

projections are an overestimate.5

Based on the experts’ projections, the need for

inpatient treatment is due to outgrow the existing

5. The court is not persuaded by the defendants’

argument that the need for inpatient treatment will not

increase because outpatient treatment will improve. The

experts’ estimate of 15 % is based on comparisons to

other prison systems in the United States that presumably

provide at least minimally adequate outpatient mental-

health treatment. Once ADOC’s outpatient treatment

improves and its identification processes are fully

inpatient treatment units. As ADOC continues to

implement the agreed-upon remedial measures, the size of

the mental-health caseload has increased and should

continue to increase, as should the number of patients

referred for inpatient treatment. For men, the caseload

has already grown from 14 % to 21 % of the population,

slightly exceeding the experts’ conservative estimate of

20 %. See Dec. 2019 ADOC Monthly Statistical Report at

4, available at

http://www.doc.state.al.us/docs/MonthlyRpts/DMR%2012%20

December%202019PUB.pdf. Calculating 15 % of the December

male caseload results in an estimate of 531 beds required

to meet the need for residential-level

care--substantially more than the 446 beds ADOC reports

are currently available. Though the female caseload had

not yet reached the conservative estimate, as of

December, it had also grown from 52 % to 67 % of the

population. Id. The December female prison population

functioning, the percentage of inmates identified for

inpatient treatment should increase.

of 901, id., yields a conservative projection of a

caseload of 676 patients, such that approximately 101

female inmates should be housed in inpatient care units.

Even applying the 15 % estimate to the

under-representative December 2019 female caseload,

ADOC’s existing 58 inpatient beds fall short of the

approximately 91 female inmates projected to need

inpatient treatment. These numbers mean that there are

currently enough beds for only 12.6 % of the December

male caseload and only 9.5 % of even the

under-representative December female

caseload--substantially less than 15 %.

Meanwhile, despite the fact that the projected needs

significantly exceed the existing capacities of the RTUs

and SUs, many inpatient beds remain vacant. The

defendants reported in December that only 387 men and,

perhaps most concerningly, only 18 women were receiving

inpatient care. These vacancies do not support a finding

that ADOC has enough treatment beds. Rather, they

reflect the substantial likelihood that approximately 144

men and 83 women are still not receiving the inpatient

treatment they need. More than three years after the

liability trial, it appears that ADOC continues both to

under-identify mental-health needs and underutilize its

existing inpatient beds. This ongoing failure may be

explained in part by the fact that, though the intake and

referral stipulations have been in place for over two

years now, their full implementation has been delayed.

First, as of December 2019, when the joint report

regarding the caseload statistics was filed, the

‘Comprehensive Mental Health Training,’ which includes

training for correctional staff on identifying mental

illness symptoms and making mental-health referrals, had

not yet been finalized and implemented. Second, and most

significantly, understaffing is an ongoing obstacle.

Without sufficient mental-health and correctional staff

to implement the intake and referral processes, remedial

measures can go only so far to address the problem of

under-identification. Thus, though ADOC may have updated

its policies and procedures and seen some resulting

improvements, the court finds that the status of the

mental-health caseload and inpatient units does not yet

reflect the results expected once ADOC has fully

implemented the identification and staffing remedies.

Nonetheless, in deference to the defendants, the

court declines to order the creation of a specific number

of additional RTU or SU beds to meet the expected need.

Instead, the court will order the defendants to propose

a plan for how it will accommodate the expected increase

in patients referred for inpatient treatment, based on

the experts’ projection that this number will be

approximately 15 % of the projected mental-health

caseload.6 Alternatively, if the defendants contest the

experts’ consensus, they may conduct a “needs assessment”

of ADOC’s specific system, as posed by defense expert

Dr. Patterson as another way to estimate the need. Jan.

31, 2017, Trial Tr. (doc. no. 1277) at 90-91. Any such

assessment will be subject to the court’s later

6. The defendants’ plan should take into account

that, as of December, the male caseload already exceeded

the experts’ conservative projection.

determination of the reliability of the assessment’s

findings. The court will allow the defendants to propose

a plan based either on the expert consensus or,

alternatively, based on the results of an independent

needs assessment.

In any case, the defendants may not include in their

calculation of existing beds the beds in the Structured

Living Unit (SLU), which is an outpatient unit created

since the start of this litigation as an alternative to

segregation for inmates with serious mental illness. See

Psychotherapy and Confidentiality Stipulations (doc. no.

1899-1) at 13. The parties have already agreed that

inmates “in need of residential-level care shall not be

housed in the SLU.” Id.

The court does, however, accept the defendants’

assertion that adequate provision of hospital-level care

may narrow the gap between the need for and the existing

number of SU beds. ADOC has contracted for 14

hospital-level treatment beds at Citizens Baptist Medical

Center. See Joint Report Regarding the Mental Health

Caseload (doc. no. 2705) at 2. In accordance with the

parties’ stipulations on hospital-level care, ADOC has

also agreed to reassess ADOC’s need for hospital beds on

an annual basis. See Amended Stipulation Regarding the

Provision of Hospital-Level Care (doc. no. 2383-1) at 2.

As discussed, defense consultant Dr. Perrien indicated

that, when calculating the 15 % of the caseload in need

of inpatient treatment she would include inmates in need

of hospital-level care, in addition to those housed in

RTUs and SUs. See Dec. 12, 2017, Trial Tr. R.D. at 87.

Accordingly, the defendants may include in their plan an

explanation of how, if at all, these 14 hospital beds

affect the number of SU beds needed.

Finally, the defendants’ proposed plan should also

take into consideration their own expert Dr. Patterson’s

caution not to simply “throw” more beds into the existing

RTUs and SUs: “[I]t trivializes if we just put more beds

in, we’ll be okay. ... The environment has to be safe.

Don’t put our officers at risk of being harmed. ...

[T]hat’s why I’m hesitant to suggest just throwing beds

at it will fix it. There’s much more to it than that.”

See Jan. 31, 2017, Trial Tr. (doc. no. 1277) at 252-53.

v. PLRA Findings

Section 3626(a)(1)(A) of the PLRA requires a district

court to make particularized findings that each provision

of prospective relief ordered satisfies the ‘need-

narrowness-intrusiveness’ requirement. See United

States v. Sec’y, Fla. Dep’t of Corr., 778 F.3d 1223, 1228

(11th Cir. 2015). The court now finds that the

requirement that the defendants plan for how they will

accommodate all those referred for inpatient treatment

under ADOC’s improved identification procedures

satisfies the PLRA. While the defendants take issue with

the contention that ADOC requires more inpatient beds,

the court’s remedial order is based on the consensus of

the witnesses, including the defendants’ own expert and

consultant. Ensuring sufficient treatment beds to meet

the needs of ADOC’s seriously mentally ill population is

foundational to remedying this element of the

constitutional violation: that ADOC fails to provide

minimally adequate inpatient mental-health treatment to

those who need it. Without enough RTU and SU beds,

inmates in need of inpatient treatment will necessarily

continue to be housed in units that do not provide them

with the level of treatment they need. As described in

the liability opinion, “these practices also have a

downward-spiral effect on the rest of the system: those

who do not get needed treatment often end up in crisis

cells, frequently receive disciplinary sanctions, and may

be placed in segregation, where they have even less

access to treatment and monitoring.” Braggs, 257 F.

Supp. 3d at 1206. Until ADOC creates and implements a

plan to address this need, it will continue to put inmates

with mental illness at a substantial risk of serious

harm.

The court finds that the requirement that the

defendants devise a plan to meet the need for inpatient

beds is narrowly drawn, extends no further than necessary

to remedy the constitutional violation found, and is the

least intrusive means of doing so.

B. Treatment Space

i. Findings

Treatment space is out-of-cell space where patients

housed in mental-health units can participate in

counseling appointments and therapeutic group

activities. As discussed, the court previously found

that out-of-cell time and treatment activities--both

required components of minimally adequate inpatient

care--were severely lacking in ADOC’s RTUs and SUs. See

Braggs, 257 F. Supp. 3d at 1214. “Without bringing

patients out of their cells for counselling sessions,

treatment team meetings, group sessions, and activities,

placement in a ‘mental-health unit’ does no good for

patients who need the highest level of care; careful

observation and treatment cannot happen when confined in

a small cell all day.” Id. In the liability phase, the

court found that 10 hours of structured therapeutic

activity and 10 hours of unstructured activity per week

are the standard in mental-health units in prisons around

the country. See id. at 1215. Although this standard

“does not necessarily set the constitutional floor, a

substantial deviation from the acceptable professional

standard could support a finding of an Eighth Amendment

violation.” Id. (internal citation omitted).

The parties have since agreed that ADOC will follow

this national standard and provide 10 hours of structured

therapeutic out-of-cell time and 10 hours of unstructured

out-of-cell time per week to all patients in

mental-health units by March 2020.7 See Psychotherapy

and Confidentiality Stipulations (doc. no. 1899-1). ADOC

has also agreed to offer, at a minimum, psychoeducational

groups, individual therapy, group therapy,

pharmacotherapy, and activity therapy. See id. at 2.

Per the parties’ agreement, sessions must be held in

7. The court does not have up-to-date information

regarding the status of implementation of this agreement,

but, as stated, assumes that ADOC is complying with all

agreements, per defendants’ representations to the court.

See Mar. 5, 2019, Status Conf. Tr. (doc. no. 2399) at 42.

settings that provide for confidentiality, with an

exception only where it “is not possible due to safety

concerns, based upon clinical determinations.” Id. at

4-5. The court previously found that confidentiality is

“a hallmark of and a necessary condition for

mental-health treatment.” Braggs, 257 F. Supp. 3d at

1210. Inmates “often do not feel safe sharing their

mental-health issues in the presence of correctional

officers or other prisoners because what they share with

the mental-health staff may make it easier for others to

exploit them; as a result, the lack of confidentiality

undermines the effectiveness and quality of counseling

sessions.” Id. However, the court also found that some

ADOC facilities do not have mental-health offices where

confidential counseling can occur. See id. Plaintiff

expert Dr. Burns credibly opined during her testimony on

inpatient treatment that therapeutic groups should also

be conducted in confidential settings: “it is important

that there not be outside bystanders, but the people in

the group maintain confidentiality within the group with

one another.” Apr. 27, 2018, Trial Tr. (doc. no. 2696)

at 127.

ii. Dispute

The plaintiffs assert that the treatment space

currently available at the mental-health treatment hub

prisons is inadequate. For support, they point to

testimony to that effect by ADOC Director of Psychiatry

Dr. Kern, defense expert Dr. Patterson, and plaintiff

expert Dr. Burns. During the liability trial, Dr.

Patterson credibly opined that the prisons “don’t have

adequate treatment space” and that “[t]here are issues

with confidentiality.” Jan. 31, 2017, Trial Tr. (doc.

no. 1277) at 138. At the hearing on the defendants’

remedial plan for inpatient treatment, Dr. Kern similarly

opined that an increase in confidential treatment space

for RTU and SU patients is necessary. See Apr. 25, 2018,

Trial Tr. (doc. no. 2695) at 107. He further stated that

he was unaware of any specific plans by ADOC to remedy

this space problem. See id. In addition, Dr. Burns

testified specifically about certain examples of

insufficient space. For instance, she credibly opined

that the SU at Kilby lacks space for confidential

counseling appointments and confidential group therapy.

See Apr. 27, 2018, Trial Tr. (doc. no. 2696) at 132-33.

She also credibly opined that ADOC currently has

treatment space for only one confidential group at a time

in the Donaldson RTU--which is insufficient to provide

10 hours of structured therapeutic time per week to all

144 inmates housed therein--and for only non-confidential

groups in the Bullock SU.8 See id. at 128-29. The

plaintiffs assert that failure to require ADOC to remedy

the lack of adequate treatment space would undermine

other remedial measures to improve treatment in the

8. Dr. Kern testified that two mental-health groups

could occur simultaneously in the Bullock SU, though did

not opine on whether such an arrangement could ensure

confidentiality. See Apr. 25, 2018, Trial Tr. (doc. no.

2695) at 56. He also testified that the Donaldson RTU

has space for “group activity,” though did not specify

whether that space allows for confidentiality either or

whether it allows for enough simultaneous groups to meet

ADOC’s commitments. Apr. 24, 2018, Trial Tr. (doc. no.

1939) at 42.

inpatient units. Proceeding without additional treatment

space, they argue, would set ADOC up to fail.

The defendants’ proposal does not include any plans

regarding treatment space at any of the treatment hubs.

The defendants stated at the hearing on inpatient

treatment that the sufficiency of space to accommodate

the programming and out-of-cell requirements to which

they have agreed is “a challenge in terms of scheduling”

but not “necessarily ... a concern” for the defendants.

June 18, 2018, Oral Arg. Tr. (doc. no. 1905) at 54-55.

The defendants further stated that ADOC has acquired

‘therapeutic furniture,’ which is furniture that

restrains patients during therapy sessions and thereby

allows the sessions to be conducted with fewer

correctional staff. Id. at 54.

iii. The Court’s Resolution

The court finds the defendants’ proposal fails to

address adequately the consensus among expert witnesses

that, overall, the mental-health units lack sufficient

treatment space. The court will therefore require the

defendants to conduct an assessment as to how much

additional treatment space is needed and to propose a

plan to address the additional need.

Group therapy, a particularly important form of

treatment in correctional institutions with finite

resources, see Braggs, 257 F. Supp. 3d at 1211, cannot

occur unless there is enough space and cannot be

effective unless that space allows for confidentiality,

see id. at 1210. In accordance with national standards,

ADOC has agreed to provide significantly more out-of-cell

time than it has previously provided, and in settings

that provide for confidentiality. To fulfill this

commitment, ADOC must have enough space in which to do

so, but witnesses for both parties testified that

currently it does not.

Moreover, the experts’ opinions that ADOC lacks

sufficient treatment space do not account for the court’s

requirement today that ADOC prepare for the projected

increase in the number of patients referred for inpatient

care. If, as Dr. Patterson, Dr. Kern, and Dr. Burns all

testified, the current space is not enough to provide

minimally adequate treatment when the existing

mental-health units are at capacity, it is certain to be

insufficient for the additional inpatient beds required

to meet the projected need.

While ‘therapeutic furniture,’ otherwise called

‘restraining desks’ or ‘restraining chairs,’ is a helpful

addition to ADOC’s mental-health units, the court fails

to see how it addresses the issue of sufficiency of space.

Therapeutic furniture helps to address lack of staff and

reduce “the amount of security” necessary to run

treatment groups. Apr. 25, 2018, Trial Tr. (doc. no.

2695) at 116. But this would not appear to have

significant bearing on the amount of physical space

necessary to provide enough confidential treatment to all

patients.

The court finds that in order to provide minimally

adequate treatment in inpatient units, ADOC must plan for

where it will provide that treatment. Failing to do so

will result in the harm caused by lack of treatment:

“without out-of-cell time and effective treatment,

housing severely mentally ill prisoners in a

mental-health unit is tantamount to ‘warehousing’ the

mentally ill.” Braggs, 257 F. Supp. 3d at 1214 (citation

omitted). The court cannot tell from the record,

however, how much new space is needed; indeed, out of

deference, this how-much decision should be first tackled

by the defendants. Accordingly, the court will require

the defendants to assess, in consultation with their

mental-health experts, how much additional treatment

space is needed and to produce a plan as to where ADOC

will provide out-of-cell confidential treatment to

patients in the SUs and RTUs. The assessment must account

for where all hours of structured out-of-cell treatment

per patient per week can occur and how these spaces will

provide adequate confidentiality to ensure meaningful

treatment in group and individual settings. It must also

include explicit consideration of the projected increase

in patients identified for inpatient treatment according

to the expert consensus or according to a new needs

assessment the defendants will conduct, as described

earlier in this opinion.

iv. PLRA Findings

The court now finds that this relief satisfies the

‘need-narrowness-intrusiveness’ requirement of

§ 3626(a)(1)(A) of the PLRA. Without enough treatment

space, ADOC will be unable to provide a minimally

adequate amount of therapeutic activities to patients in

mental-health units, undermining one of the remedial

measures most fundamental to remedying the constitutional

violation found. The court anticipates that additional

treatment space will be necessary, particularly if the

defendants’ plan to address the need for inpatient

treatment includes adding more beds. However, allowing

the defendants considerable deference, the court does not

require construction of additional treatment space, and

instead takes the narrowest approach of requiring the

defendants to conduct their own assessment and propose

their own plan. The court’s requirement is narrowly

drawn, extends no further than necessary to remedy the

constitutional violation found, and is the least

intrusive means of doing so.

C. Suicide-Resistant Cells

i. Findings

The court previously found that not all ADOC

mental-health unit cells are suicide-resistant. See

Braggs, 257 F. Supp. 3d at 1227. Patients in these units

have repeatedly succeeded in hanging themselves from

tie-off points in the cells. While it may be impossible

to make any cell fully suicide-proof, the court saw

firsthand during its visit to the Bullock SU in February

2017 that “sprinkler heads are located directly above the

sink and the toilet, making it easy for suicidal

prisoners to climb up to tie a ligature on the sprinkler

head.” Id. The serious risk of harm posed by the

construction of these cells was realized when Jamie

Wallace, a mentally ill inmate, took his own life in an

SU cell shortly after testifying in the liability trial.

“Wallace was left alone for days in an isolated cell in

a treatment unit, where he had enough time to tie a sheet

unnoticed; because his cell was not suicide-proof, he was

able to find a tie-off point from which to hang himself.”

Id. at 1186.

ii. Dispute

The dispute regarding the design of SU cells appears

to be centered on whether the issue should be addressed

now or in a later stage of this litigation. In their

briefing, the defendants maintain that this issue is

outside the scope of the remedial phase on inpatient

treatment. They contend that the topic of

suicide-resistant cells in SUs should be addressed when

the parties resolve suicide-prevention matters on the

whole. See Defendants’ Reply in Support of Proposed

Opinion (doc. no. 1849) at 12. Meanwhile, the plaintiffs

seek an order now that all cells used for stabilization

placements be made suicide-resistant (that is, without

tie-off points) and have cell door windows measuring at

least 24 by 18 inches. See Plaintiffs’ Proposed Opinion

(doc. no. 1840) at 28-29.

On September 6, 2019, the parties filed stipulations

regarding suicide-prevention measures. See Suicide

Prevention Stipulations (doc. no. 2606-1). Among other

provisions, the stipulations include that “ADOC will

determine, in collaboration with Dr. Mary Perrien, the

appropriate number of suicide resistant cells for each

ADOC major facility. The number of suicide resistant

cells for each ADOC major facility will be subject to the

approval of the mental health monitor or, if there is not

yet a mental health monitor, Plaintiffs’ expert.” Id.

at 6.

During an on-the-record hearing about these

stipulations on December 6, 2019, the plaintiffs stated

that this provision does not resolve the issue of

suicide-resistant cells in SUs. See Dec. 6, 2019, Hr’g

Tr. (doc. no. 2686) at 74-75. The parties clarified that

defense consultant Dr. Perrien’s analysis will be limited

to whether ADOC needs to create additional crisis cells,

not whether or which of the existing cells must be made

suicide-resistant. See id. Because many of the SU cells

are currently used as crisis cells, and the parties have

already agreed that all crisis cells must be

suicide-resistant, some SU cells will necessarily be made

suicide-resistant. However, whether the court should

require that the remaining SU cells--as well as

additional SU cells that ADOC may create in the

future--be suicide-resistant remains in dispute. Despite

the defendants’ earlier contention that the

suicide-prevention portion of the remedial phase was the

proper phase in which to address this issue, the

defendants presented no argument or evidence at the

December 6 hearing about the parties’ suicide-prevention

agreements that SU cells need not be suicide-resistant.

iii. The Court’s Resolution

Crediting the opinions of both ADOC Director of

Psychiatry Dr. Kern and plaintiff expert Dr. Burns, and

with no contradicting evidence, the court finds that all

SU cells must be suicide-resistant. See Apr. 25, 2018,

Trial Tr. (doc. no. 2695) at 107; Apr. 27, 2018, Trial

Tr. (doc. no. 2696) at 126. Neither in this portion of

the remedial phase nor in the hearing on

suicide-prevention measures generally did defendants

make any substantive argument or present any expert

testimony that this measure is unnecessary.

SU cells are intended to house patients “who are

suffering from acute mental-health problems--such as

acute psychosis or other conditions causing an acute risk

of self-harm--and have not been stabilized through other

interventions.” Braggs, 257 F. Supp. 3d at 1183. To

address the obvious and substantial risk of serious harm

to these patients, ADOC must eliminate the structural

elements that enable patients to commit suicide while

housed in cells intended for intensive treatment. Cells

shall be considered suicide-resistant if they meet the

requirements to which the parties have already agreed

under their suicide-prevention agreement, see Suicide

Prevention Stipulations (doc. no. 2606-1) at 6.9

Alternatively, the court is willing to consider other

equally effective measures to make SU cells

suicide-resistant, should the defendants have a different

proposal.

iv. PLRA Findings

This relief satisfies the

‘needs-narrowness-intrusiveness’ requirement of

§ 3626(a)(1)(A) of the PLRA. Making all SU cells

suicide-resistant is essential to addressing the

substantial risk of fatal harm to patients who are placed

in these cells precisely because they are likely to

engage in self-harm. As discussed, the defendants have

already agreed that SU cells used as suicide watch must

9. The suicide-prevention stipulations include that

“[s]uicide watch cells shall be considered suicide

resistant if they meet the requirements set forth in

section III(B) of the ADA Report.” Suicide Prevention

Stipulations (doc. no. 2606-1) at 6. This stipulation

references the standards for making cells

suicide-resistant outlined by consultants as part of

their evaluation of ADOC’s facilities in Phase I of this

case. See ADA Report (doc. no. 2635-1) at 42.

be suicide-resistant. The relief required is, therefore,

narrowly drawn to include only the remaining SU cells as

well as any additional SU cells that ADOC proposes to

create in response to today’s remedial order. The court

also defers to the metrics to which the defendants have

already agreed under the suicide-prevention agreement to

ensure a cell is suicide-resistant. See Suicide

Prevention Stipulations (doc. no. 2606-1) at 6. As the

court has previously held, “where, as here, the

provisions of relief ordered by a court are adopted from

an agreement jointly drafted and reached by the parties,

it is compelling evidence that the provisions comply with

the needs-narrowness-intrusiveness criteria.” Braggs v.

Dunn, 383 F. Supp. 3d 1218, 1253 (M.D. Ala. 2019)

(Thompson, J.) (citations omitted). Nonetheless, the

court also leaves open the possibility for ADOC to

propose alternative measures to meet the same end,

allowing even more flexibility. The court finds that

this relief is narrowly drawn, extends no further than

necessary to remedy the constitutional violation found,

and is the least intrusive means of doing so.

D. Heat Management

i. Findings

It is undisputed that patients on psychotropic

medications are at risk of overheating, as such

medications “impact a person’s temperature regulation

center, and ... make[] them prone to things like heat

stroke, heat prostration, and in severe cases, death.”

Apr. 27, 2018, Trial Tr. (doc. no. 1817) at 120 (Dr.

Burns testifying). Plaintiff expert Dr. Burns explained

that psychotropic medications cause individuals to

overheat without their realizing it, such that “it is

difficult to expect that they would be able to recognize

when they need to seek assistance ....” Id. at 133. The

danger of overheating is an “important reason” why ADOC

Director of Psychiatry Dr. Kern agreed that RTUs and SUs

should be air-conditioned. Apr. 25, 2018, Trial Tr.

(doc. no. 2695) at 105. While Tutwiler and Bullock’s

mental-health units are apparently air-conditioned, see

June 18, 2018, Oral Arg. Tr. (doc. no. 1905) at 64-65,

Donaldson, the site of mental-health units housing as

many as 96 patients total, is not, see id. at 66. It is

not clear whether Kilby, which has 16 SU beds, is air-

conditioned.

ii. Dispute

To address this serious risk, the plaintiffs seek an

order requiring the defendants to install air

conditioning in all inpatient treatment units. The

defendants, however, again argue that the issue of heat

management is outside the scope of this remedial phase.

The defendants further insist that installing air

conditioning is an unnecessarily burdensome task and that

inmates experiencing overheating can use the

accommodations procedure under the Americans with

Disabilities Act (ADA), 42 U.S.C. § 12131 et seq., to

request and obtain relief. Through that procedure, the

defendants assert, an individual in need of an

accommodation due to their heat sensitivity may make a

request for an accommodation. See Joint Report (doc. no.

1650) at 1. Upon making such a request, the inmate

“should be evaluated by qualified medical clinicians, in

consultation with the inmate’s mental health provider,

to determine if an accommodation is appropriate.” Id.

at 1. If an accommodation is determined to be medically

appropriate, “then ADOC should grant and implement that

accommodation.” Id. at 2. The defendants do not give

details as to what that accommodation may be.

This procedure, the plaintiffs argue, is inadequate

because, as explained by Dr. Burns, patients on

psychotropic medications are typically not aware that

they are overheating and in need of any accommodation.

The plaintiffs further contend that, even if a patient

were to utilize the accommodations process, the

accommodation may still be inadequate--should a clinician

determine the required accommodation is to move that

patient out of an inpatient treatment unit to an

air-conditioned unit, he or she may no longer receive

residential-level mental-health treatment. See Apr. 27,

2018, Trial Tr. (doc. no. 1817) at 125. Thus, use of the

ADA procedure may require a trade-off between air

conditioning and inpatient mental-health treatment.

Further, the plaintiffs argue, with nearly 100 % of

patients in inpatient treatment units taking psychotropic

medication, in the event that all residents are

clinically determined to require air-conditioned

housing, it is unclear how ADOC would accommodate the

need.

In addition to the ADA process, the defendants

pointed during the hearing on inpatient treatment to

ADOC’s existing heat-management policy, which provides

for regular monitoring of the temperature in segregation

units when the outside temperature is higher than 80

degrees. Joint Ex. 118, Admin. Reg. § 619 (doc. no.

1038-141) at 2. Per this regulation, if the cell

temperature detected exceeds 90 degrees in a segregation

unit, staff must automatically provide accommodations

such as using fans to increase ventilation and airflow,

providing increased amounts of fluids and ice, and

allowing additional showers to provide cooling. See id.

These requirements do not appear to extend to the

mental-health units, however. Instead, the policy

broadly states that: “The Director of Treatment and

Wardens will ensure that measures to reduce sun/heat

exposure risks for inmates taking psychotropic medication

are initiated and maintained at all ADOC institutions.”

Id. The policy also requires that nurses conduct inmate

education with those on psychotropic medications by

informing them of the risks of overheating, and that, in

some situations, inmates be provided sunscreen. Id. at

2-3.

iii. The Court’s Resolution

As an initial matter, the court rejects the

defendants’ position that this issue is outside the scope

of the inpatient treatment remedy, for maintaining a safe

environment for patients is essential to providing

minimally adequate care. While the court will not at

this time require ADOC to install air conditioning in all

mental-health units, the court will require the

defendants to create a heat management plan to address

the substantial risk of serious harm to patients on

psychotropic medications in these units.

The court has serious doubts about ADOC’s ability to

adequately address the risk to patients through means

less than air conditioning. The court agrees with the

plaintiffs that the ADA process cannot protect

individuals who do not realize when they are overheating

and, thus, do not know to request an accommodation.

Further, with nearly 100 % of patients in mental-health

units taking psychotropic medications, accommodating

individual patients by moving them into air-conditioned

units one by one is both illogical and inadequate if it

results in their loss of inpatient care. In fact, as the

plaintiffs rightly noted, to do so may even be impossible

as it would likely require the rehousing of entire units

of patients.

The court is very concerned about the near certainty

of these logistical impediments to ensuring adequate

temperatures in these units while simultaneously

providing inpatient treatment to all who need it. ADOC’s

failure to fulfill one of these requirements in pursuit

of fulfilling the other will result in additional

violations of either the ADA, or of the Eighth Amendment,

or both. Nonetheless, in deference to the defendants,

the court will order them simply to devise a plan and

procedures to address the serious risk posed by high

temperatures in the mental-health units. The defendants

should specifically address the court’s concerns about

accommodating individuals who do not know they are

overheating, the risk that those accommodated by

reassignment to air-conditioned housing will lose access

to their inpatient mental-health treatment, and the

logistics of providing adequate accommodations to an

entire unit at once. To the extent that ADOC intends to

rely on measures short of air conditioning, the

defendants should give details as to how the measures

they propose will ensure temperatures safe for patients

on psychotropic medications. For example, the defendants

say that, if a segregation cell temperature exceeds 90

degrees, staff will automatically provide fans, increase

amounts of fluids and ice provided to the inmate, and

allow additional showers. However, the defendants have

provided no information of how ADOC will reliably

determine when a particular cell exceeds 90 degrees and

no information of how ADOC will determine, should a cell

exceed 90 degrees, whether the measures it has taken have

been adequate to prevent a particular patient’s

overheating, for, depending on how extreme the weather

conditions are, the measures may or may not be adequate

to redress the above-90-degree temperature. The

defendants should also evaluate the feasibility of

installing air conditioning in the mental-health units

in any of the new facilities the ADOC plans to construct.

iv. PLRA Findings

The court now finds that this relief satisfies the

‘needs-narrowness-intrusiveness’ requirement of

§ 3626(a)(1)(A) of the PLRA. First, addressing the risk

of overheating is essential to ensuring the safety of

those in inpatient units and, through the promulgation

of its existing policies, ADOC itself has acknowledged

that risk. Second, ADOC has already adequately addressed

the issue of heat management in Tutwiler and Bullock

mental-health units by installing air conditioning. The

relief required is therefore limited to the units

containing inpatient beds at Donaldson, and possibly at

Kilby, and any additional mental-health units ADOC may

create at other prisons, including those newly

constructed. Third, the court finds the relief the least

intrusive possible as it gives the defendants an

opportunity to devise a solution. The court therefore

finds that this relief is narrowly drawn, extends no

further than necessary to remedy the constitutional

violation found, and is the least intrusive means of

doing so.

E. Admissions Criteria

i. Findings

In the liability opinion, the court credited defense

expert Patterson’s opinion that the RTU admission (and

discharge) process is flawed and that these flaws

contribute to under-identification of inmates needing

residential treatment. See Braggs, 257 F. Supp. 3d at

1205. In particular, inmates repeatedly sent to the SU

should be considered for a higher level of care, such as

the RTU, to receive longer-term intensive treatment. See

id. Instead, the court found that ADOC regularly

releases these individuals to general population, and

they consequently cycle between general population and

crisis placements. See id. This pattern contributes to

ADOC’s failure to provide inpatient treatment to those

who need it, despite the existence of empty inpatient

treatment beds. See id.

ii. Dispute

Since the briefing in this remedial phase, the

parties have reached several stipulations addressing this

topic. The stipulations about psychotherapy and

confidentiality (doc. no. 1899-1) appear to directly

address the plaintiffs’ concerns that the defendants

should be clear in their policies about the following:

whether inmates can move between the various levels of

care, what the possible discharge placements are from

each level of care, that inmates can enter into the

continuum of inpatient care at any level, that stays in

SUs should be brief, that some inmates may remain in RTUs

indefinitely, and that prolonged SU placements should

lead to a higher level of inpatient care. These

stipulations also outline the types of services patients

will receive in SUs and RTUs, including the number of

clinical encounters and counseling sessions, and provide

processes for ensuring periodic re-evaluation of the

appropriateness of a patient’s current level of

treatment. See id. The parties have also reached other

stipulations to improve continuity of care, including,

for example, that treatment teams will meet to review and

update treatment plans during any movement between, in,

or out of any inpatient unit. See Individualized

Treatment Planning Stipulations (doc. no. 1865-1) at 15.

The remaining dispute under the topic of admissions

to mental-health units is about the admissions criteria

themselves. The defendants’ proposed plan does not

include a plan to change the existing criteria. The

defendants argue that ADOC’s current criteria are

adequate because they were not found to be

constitutionally deficient. The plaintiffs urge the

court to require the defendants to establish new

admissions criteria. They argue the existing criteria

are inadequate on their face, resulting in the flawed RTU

admission management the court described in the liability

opinion. See Braggs, 257 F. Supp. 3d at 1205. The

plaintiffs point to Dr. Burns’s testimony that, in

general, admissions and discharge criteria in inpatient

care units should be sufficiently clear such that both

patients and staff know what to expect in each level.

See Apr. 27, 2018, Trial Tr. (doc. no. 1817) at 26-27,

30. According to Dr. Burns, clear criteria help staff

determine when they should make referrals, who is

eligible for transfer to an RTU or SU, how long patients

are anticipated to stay in any given environment, and how

patients should spend their time in each environment.

See id. at 26-27. For patients, she opined, clear

criteria help them understand what is required for them

to move from more restrictive housing placements--SU and

the lower RTU levels--to less restrictive environments.

See id. at 29-31. The plaintiffs assert that ADOC’s

existing RTU criteria, see Joint Ex. 135, Admin. Reg. §

633 (doc. no. 1038-167),10 are “so vague to be basically

10. The existing administrative regulations provide

the following criteria for each RTU level: (1) RTU level

one is for patients “experiencing problems in

functioning” and/or “demonstrating the inability to

control impulses” as well as those admitted to the RTU

and awaiting an evaluation; (2) RTU level two is for

patients “unable to participate in total RTU program due

to limited impulse control” or “cognitive impairment,”

as well as those “who could benefit from less intensive

meaningless.” June 18, 2018, Oral Arg. Tr. (doc. no.

1905) at 77.

The defendants agree with the plaintiffs that ADOC’s

existing criteria are “loose” and “not detailed.” June

18, 2018, Oral Arg. Tr. (doc. no. 1905) at 79. However,

they assert that, because the determination of what level

of treatment a patient requires is a clinical one, the

criteria should have this level of flexibility. See id.

iii. The Court’s Resolution

Without expert testimony as to the adequacy of ADOC’s

existing admissions criteria, the court cannot, at this

time, find the criteria inadequate. The court finds

credible Dr. Burns’s testimony that, to ensure

consistency in referral and discharge decisions, the

treatment involvement and small group interaction”; and

(3) RTU level three is for “[i]nmates able to follow

simple concrete instructions,” “[i]nmates, with support,

able to comprehend and comply with institutional

regulations,” “inmates able to tolerate low stress

activities in group situations” and “inmates [who] have

no recent episode of violent behavior toward self or

others.” Joint Ex. 135, Admin. Reg. § 633 (doc. no.

1038-167) at 18.

criteria should clearly describe what level of

functioning and need each level of inpatient care is

intended to address. However, the court lacks the

clinical expertise to extrapolate from Dr. Burns’s

opinion as to exactly how ADOC’s existing policies are

inadequate. The court is unable to determine when

consistency must give way to flexibility and vice versa,

for the court, using its common sense, sees value in both

consistency and flexibility. Therefore, the court

declines to enter a remedial order on the issue at this

time. The court believes that the plaintiffs are asking

the court to delve too much into detailed discretionary

clinical judgment. The court also believes it is wise

to wait and see how the various stipulations to which the

parties have agreed play out, albeit perhaps indirectly,

with regard to issue of RTU admission; it may be that the

deficiencies the plaintiffs have identified will resolve

themselves. Otherwise, monitoring might reveal

deficiencies, if any.

F. Privileges

i. Findings

In the liability opinion, the court found that, due

to “an unduly harsh and punitive practice limiting

property,” patients in mental-health units “do not have

books to read or other things to keep them engaged while

spending the vast majority of their time in their cells.”

Braggs, F. Supp. 3d 1171 at 1214-15. This practice “makes

mental-health units far from therapeutic and exacerbates

prisoners’ idleness.” Id. at 1214. The court observed

firsthand during its visits to Bullock and Donaldson that

in the inpatient units, “the majority of

prisoners ... were lying in their cells, often in a fetal

position and facing the wall” with “no way to engage in

any remotely meaningful activity in the cell.” Id. at

1215.

ii. Dispute

The parties again disagree on whether the defendants

are obligated to remedy this issue. The defendants’ plan

makes no mention of privileges or access to property for

patients housed in the mental-health units. The

defendants maintain that the issue is outside the scope

of this remedial phase. The existing administrative

regulations provide some guidance as to what privileges

patients can expect in each level of the RTU,11 including

regarding the location of meals and medication

administration. See Joint Ex. 135, Admin. Reg. § 633

(doc. no. 1038-167) at 18. The regulations also state

that patients in RTU level one may have “[l]imited

personal property,” in RTU level two may have “[p]roperty

greater than that of Level 1 inmates but less than that

of Level 3 inmates,” and in RTU level three may have “the

same property as general population inmates,” with

possible limitations on cans or caffeinated coffee. Id.

11. This regulation includes a level four RTU, which

appears to no longer exist.

The plaintiffs argue that the liability findings

support a remedial order that the defendants define the

privileges and access to property to which patients in

the mental-health units are entitled. The plaintiffs

point to Dr. Burns’s testimony that the following issues

should be “thought through ahead of time and spelled

out,” see Apr. 27, 2018, Trial Tr. (doc. no. 2696) at 63,

for each level of inpatient care: which types of property

patients can have; whether and with what restrictions

patients are entitled to visitation, phone, mail, and

commissary privileges; whether patients can leave their

cells without handcuffs and shackles; which patients must

participate in group activity using therapeutic

furniture; and whether patients are required to eat in

their cells.

iii. The Court’s Resolution

The court declines to enter the order the plaintiffs

seek requiring the defendants to define privileges in the

inpatient units. While the court is very concerned about

the detrimental effects of in-cell idleness in

particular, ADOC already has a policy in place allowing

privileges in these units. In addition, like admissions

criteria, the court recognizes that entitlement to

privileges must be based on clinical determinations. As

Dr. Burns credibly testified, the privileges to which

patients are entitled are based on “level of functioning”

and “clinical condition.” Apr. 27, 2018, Trial Tr. at

88. While the harsh lack of property the court previously

observed in mental-health units is deeply concerning, the

court assumes that, as part of improved treatment

planning in inpatient units, clinicians will now

recommend appropriate in-cell activities for patients and

that ADOC personnel will carry out these clinical

recommendations. In short, the court believes this issue

should, and will, be addressed as part of the overall

improved treatment planning that will result from other

remedial measures.

As discussed, it is clear that depriving patients of

things to do in cell--such as reading and

writing--undermines the therapeutic nature of the units.

Without any privileges, the mental-health units will

remain ‘segregation-like,’ which the court has already

found to cause worsening symptoms for mentally ill

inmates and underutilization of residential treatment.

However, the court will not take on the role of

mental-health staff by entering extremely detailed

remedial orders in this regard. Instead, to the extent

these deficiencies still remain, they could be addressed

through monitoring.

G. Natural Light

i. Findings

It is undisputed that access to natural light has

positive effects on both mental and physical health.

Plaintiff expert Dr. Burns testified during the inpatient

treatment hearing that exposure to natural light is

“important for mental health and well-being” as well as

“for vitamin reasons.” Apr. 27, 2018, Trial Tr. at 126.

Dr. Kern testified that it is “a good general plan to

increase natural light” in mental-health units. Apr. 25,

2018, Trial Tr. (doc. no. 2695) at 106.

ii. Dispute

Relying on Dr. Burns’s testimony, the plaintiffs seek

an order requiring the defendants to “ensure that all

mental-health units within ADOC have adequate natural

lighting.” Plaintiffs’ Proposed Opinion (doc. no. 1840)

at 28. The plaintiffs also assert that natural light is

important to improve the segregation-like atmosphere in

inpatient treatment units. See June 18, 2018, Oral Arg.

Tr. (doc. no. 1905) at 62. The defendants again argue

that the issue is outside the scope of the inpatient

treatment remedy.

iii. The Court’s Resolution

As the court held in the liability opinion, patients

in mental-health units “are at a higher risk of

decompensation ... if their housing environment is not

therapeutic.” Braggs, 257 F. Supp. 3d at 1212. Thus,

in renovating existing prisons under the Phase 1 ADA plan

and building new ones, ADOC should take into account the

important effect of natural light on the overall

environment of mental-health units and the health of

those residing therein. The court will not enter a

remedial order on this issue, however, as the record does

not contain sufficient evidence for the court to find

that requiring ADOC to provide more natural light in the

units meets the needs-narrowness-intrusiveness

requirement of the PLRA, 18 U.S.C. § 3626(a)(1)(A).

H. Additional Training for Correctional Officers

i. Findings

As discussed, the court found in the liability

opinion that ADOC fails to identify those in need of

treatment both during and after the intake process. A

functioning identification system relies, in part, on the

ability of correctional officers to observe and identify

mental-health symptoms and refer inmates for

mental-health care. See Braggs, 257 F. Supp. 3d at

1203-1204. For this to happen, facilities must have

sufficient correctional staffing, but also, officers must

know how to recognize behavior related to mental illness.

In the liability trial, plaintiff expert Dr. Craig Haney

credibly opined that training correctional officers to

identify mental-health symptoms and make referrals

improves the accessibility of mental-health care. See

Jan. 19, 2017, Trial Tr. (doc. no. 1266) at 30-31. On

the other end, plaintiff expert Dr. Burns testified that

correctional staff interacting directly with patients who

have made it into inpatient units should receive training

on specific skills for working in those units. See Apr.

27, 2018, Trial Tr. (doc. no. 2696) at 131-32.

ii. Dispute

Prior to the hearing on inpatient treatment, the

parties agreed to stipulations regarding training for

“[a]ll persons working within any ADOC major facility who

have any direct contact with inmates.” See Referral

Stipulations (doc. no. 1821-1) at 1. Pursuant to these

stipulations, ADOC and its mental-health vendor were to

develop a ‘Comprehensive Mental Health Training

Curriculum’ to include curricula about identifying mental

illness, the mental-health services available within

ADOC, and the process for referring inmates for mental

health evaluations. See id. at 2-3. The agreement

requires that plaintiff expert Dr. Burns review this

proposal and that ADOC implement the finalized training

no later than February 1, 2019. See id. at 3. All

correctional staff must complete the training within 30

days of assignment to a major ADOC facility. See id. at

6-7. In an on-the-record hearing on December 6, 2019,

the parties represented that, while this training had not

been finalized, it was likely to be approved by Dr. Burns

shortly thereafter. See Dec. 6, 2019, Status Conf. Tr.

(doc. no. 2686) at 62.

In their proposal, filed before this stipulation,

the defendants propose training correctional staff in the

new mental-health classification system, including about

proper documentation in treatment plans and progress

notes. See Defendants’ Phase 2A Proposed Remedial Plan

on Identification, Classification, and Residential Unit

Out-of-Cell Time and Treatment (doc. no. 1594) at 21.

This new training would not be implemented until all of

the court’s remedial orders have been entered. In the

interim, the defendants propose continuing to provide the

training prescribed by existing ADOC regulations. See

id. These regulations prescribe a two-day training for

staff routinely assigned to SU, RTU, infirmary, and

segregation units, which includes topics such as “crisis

intervention strategies,” “confidentiality,” and

“watches and the use of restraints for mental health

reasons.” Joint Ex. 98, Admin. Reg. § 608 (doc. no.

1038-120) at 3-4.

The plaintiffs argue that the training included in

the defendants’ original proposal is insufficient because

it does not include additional training for ADOC

correctional staff working in mental-health units. The

plaintiffs assert that training should ensure staff have

“enhanced interpersonal communication and crisis

de-escalation skills,” “a better understanding of the

symptoms of mental illness” and knowledge of how “to use

restraints.” Plaintiffs’ Proposed Opinion (doc. no.

1840) at 29. Despite the stipulation creating a

‘Comprehensive Mental Health Training,’ the issue of

specific training for officers in mental-health units

remains unresolved according to representations made by

the plaintiffs during the December 6, 2019, hearing. See

Dec. 6, 2019, Hr’g Tr. (doc. no. 2686) at 67.

iii. The Court’s Resolution

The court agrees with the plaintiffs that training

correctional officers is important to implementing the

remedial measures and ensuring a functional mental-health

care system. The court fails to see, however, how the

existing training and the nearly finalized ‘Comprehensive

Mental Health Training Curriculum’ do not, in

combination, address the topics requested by the

plaintiffs; assuming the topics in the existing training

continue to be included, every topic on which the

plaintiffs assert correctional officers in RTUs and SUs

should be trained appears to be included. The court

defers its determination of this issue to when it

determines, in the fall of 2020, whether the parties’

agreements and stipulations regarding training meet the

requirements of the PLRA, 18 U.S.C. § 3626(a)(1)(A).

I. Monitoring

i. Dispute

The plaintiffs seek an order appointing a security

and a mental-health monitor, to be paid by the

defendants, and giving those monitors the authority to

“visit the facilities, speak with staff and prisoners,

review logs and other documents, as necessary, to

determine whether prisoners are being timely referred and

transferred to mental-health units; whether there are

delays or waitlists for transfers to mental-health units;

how long prisoners are staying in mental-health units;

to which types of units prisoners are discharged from

mental-health units; how long prisoners with serious

mental illness remain in segregation; and whether there

are any obstacles to achieving constitutional

compliance.” Plaintiffs’ Proposed Opinion (doc. no.

1840) at 30-31. The plaintiffs propose that the monitors

be allowed to conduct a variety of evaluations to assess

these issues. The plaintiffs also seek an order

requiring ADOC to produce multiple monthly reports,

ranging from caseload statistics to duty logs. “To

ensure the eventual transition of monitoring” to the

Office of Health Services (OHS), the plaintiffs propose

including OHS staff in these monitoring processes. Id.

at 38.

The defendants assert that the court should require

no monitoring or reporting because ADOC should be

accorded deference in the implementation of changes to

inpatient treatment units and because the requirement the

plaintiffs seek is overly burdensome.

ii. The Court’s Resolution

The court agrees with the plaintiffs that it is

necessary to devise a monitoring scheme to ensure

compliance with the remedies the court will order.

However, the court will reserve the issue of monitoring

at this time for a global monitoring resolution at a

later date.

***

Therefore, with regard to inpatient mental-health

treatment and as discussed and outlined above, it is

ORDERED that, on or before 5:00 p.m. on July 1, 2020, the

defendants, with input from their experts, are to submit

the following to the court: (1) a plan to ensure the

creation of more and adequate inpatient treatment beds;

(2) a plan to ensure the creation of more and adequate

treatment space; (3) a plan to make all SU cells

suicide-resistant; and (4) a plan to manage high

temperatures for patients on psychotropic medication.

DONE, this the 29th day of May, 2020.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE