The opinion
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 OPINION AND ORDER ON GOOD CAUSE
The defendants have filed a motion to terminate
certain stipulated remedial orders entered in this case
that were originally put in place without the
‘need-narrowness-intrusiveness’ findings required by the
Prison Litigation Reform Act (PLRA). See generally
Motion to Terminate (doc. no. 2924); see also 18 U.S.C.
§ 3626(a)(1)(A). The PLRA imposes a mandatory stay of
any prospective relief 30 days after a motion to
terminate that relief is filed, continuing until the
motion is resolved. See 18 U.S.C. § 3626(e)(2)(A)(i).
The defendants initially indicated their intent to seek
termination of the stipulated remedial orders in a brief
filed August 31, 2020, so the court assumes the mandatory
stay should be scheduled to take effect on September 30.
See Defs.’ Pretrial Br. (doc. no. 2908) at 55-57. The
court may postpone this automatic stay for up to 60 days
for good cause, as long as the postponement is not made
to accommodate “general congestion of the court’s
calendar.” 18 U.S.C. § 3626(e)(3).
Now before the court is the plaintiffs’ motion for a
postponement. See generally Pls.’ Motion to Postpone
Stay (doc. no. 2980). For the reasons below, the court
finds that good cause exists to postpone the operation
of the automatic stay for 60 days. The stay set to begin
on September 30 will start on November 29 instead.
I. BACKGROUND
Over the course of several years, the parties in this
longstanding class action agreed to a series of
stipulations to resolve significant aspects of the
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litigation’s sprawling remedial dispute. At the request
of the parties, the court entered these stipulations as
orders. The court assumed that the parties agreed that
these stipulations complied with the PLRA. However, the
orders entered before February 2019 generally did not
contain findings as to whether the provisions of the
stipulations met the ‘need-narrowness-intrusiveness’
test established by 18 U.S.C. § 3626(a)(1)(A). The PLRA
gives defendants the right to move to terminate orders
entered without such findings at any time. See 18 U.S.C.
§ 3626(b)(2).
The court scheduled an evidentiary hearing to
determine whether these entered stipulations met the
need-narrowness-intrusiveness requirement of the PLRA.
At the close of the defendants’ pretrial brief, they
exercised their rights under the PLRA and moved to
terminate many or all of the remedial orders that were
scheduled for consideration at the PLRA hearings. See
Defs.’ Pretrial Br. (doc. no. 2908) at 55-57.
3
The court asked the defendants to provide a motion
to terminate separate from the pretrial brief to clarify
which orders or provisions they sought to terminate and
under what statutory provisions they sought termination.
In their subsequent motion, they identified various
provisions of each of the stipulations slated for
consideration at the PLRA hearings and sought termination
of these provisions. See generally Motion to Terminate
(doc. no. 2924). The defendants have vacillated
repeatedly about whether the lists of provisions
identified in their motion are exhaustive, returning
intermittently to a position asserted in the pretrial
brief that their intent is to terminate all of the
stipulated remedial orders in their entirety. See Defs.’
Response to the Court’s Order (doc. no. 2970) at 4 (noting
intent to seek termination of every provision of every
order, including provisions not mentioned in the motion
to terminate). But see, e.g., Motion Hearing Tr. (doc.
no. 2955) at 51-52 (stating the opposite); Motion to
Terminate (doc. no. 2924) at 8 (indicating that the
4
motion to terminate “provides a list of all provisions
... that [the State] currently believes must be
terminated or modified”).
The motion to terminate remains pending. The
remedial orders identified therein are thus subject to
the automatic stay mandates of 18 U.S.C. § 3626(e) until
the court resolves the motion.
II. LEGAL STANDARD
As mentioned above, the PLRA permits district courts
to postpone the operation of the automatic stay mandated
by 18 U.S.C. § 3626(e)(2)(A) for up to 60 days “for good
cause.” 18 U.S.C. § 3626(e)(3). There is little case
law interpreting this provision, but what exists suggests
that the threshold for finding good cause is not high.
The Supreme Court has called the ‘good cause’
standard of § 3626(e)(3) “relatively generous.” Miller
v. French, 530 U.S. 327, 340 (2000). Moreover, Judge
Bybee of the Ninth Circuit, dissenting from a case that
upheld the imposition of a lengthy notice requirement on
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defendants before filing a motion to terminate because
of the burden of preparing to defend against such
motions, still found that good cause should be all but
presumed in labyrinthine class actions like the present
litigation. See Plata v. Brown, 754 F.3d 1070, 1082 (9th
Cir. 2014) (Bybee, J. dissenting). As Judge Bybee wrote:
“Good cause presumably exists in unusually complex cases
like this one.” Id.
III. GOOD CAUSE
The court finds that good cause exists in this case
to postpone the operation of the automatic stay for 60
days. The evidentiary burden on the plaintiffs to
compose a defense of these orders, the breadth and
complexity of the remedial relief on which the plaintiffs
must now seek discovery, and the compressed schedule the
PLRA sets forth--compressed further by the uncertainty
regarding the intended scope of the defendants’
motion--convince the court that the circumstances here
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meet the “relatively generous” good cause threshold of
§ 3626(e)(3).
The plaintiffs first received notice of the
defendants’ motion to terminate in the state’s pretrial
brief on the eve of a series of hearings on a separate
PLRA issue, hearings for which the parties had spent more
than a year preparing. See Phase 2A Revised Remedy
Scheduling Order (doc. no. 2537) at 3-4 (initially
scheduling the hearings for July 2019). The court
recognizes that this put the plaintiffs in the difficult
position of not only having to turn the ship around, but
to get going almost instantly in another direction. The
plaintiffs were required to end their preparation for
those hearings, reassess their arguments under a
different legal standard, see generally Braggs v. Dunn,
2020 WL 5517262 (M.D. Ala. Sept. 14, 2020) (discussing
the “current and ongoing violation” standard that governs
motions to terminate), conceive a discovery plan to meet
the newly applicable standard, and ready themselves to
defend a substantial part of the case’s remedial scheme
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from being wiped clean. The plaintiffs indicated on the
record at a hearing on September 9 that they would need
significant discovery as to current conditions in ADOC
facilities to be fairly prepared to present their
defense. See Motion Hr’g Tr. (doc. no. 2955) at 76-77
(“[I]t would be akin to essentially redoing a lot of the
liability trial over again.”). This is, simply put, a
task that takes more than the 30 days the PLRA permits
by default.
The default deadline has been made all the more
infeasible as the plaintiffs continue to labor under
confusion about exactly which provisions or orders the
state is moving to terminate. The defendants’ pretrial
brief appeared to express an intent to seek wholesale
termination of all of the orders. See Defs.’ Pretrial
Br. (doc. no. 2908) at 57. The defendants’ motion to
terminate, at several points, suggested the opposite.
See, e.g., Motion to Terminate (doc. no. 2924) at 8
(“Below, the State provides a list of all provisions by
categorical objection that it currently believes must be
8
terminated or modified.”). Perhaps most puzzlingly, when
asked about this ambiguity on the record at the
September 9 status conference, defense counsel told the
court in no uncertain terms that the defendants were
moving to terminate only specified provisions of orders,
not all of the orders in their entirety. See Motion Hr’g
Tr. (doc. no. 2955) at 51-52. The court conducted the
following exchange with defense counsel during that
conference:
“THE COURT: Just some clarification, Mr. Lunsford.
With your motion to terminate, are you seeking to
terminate all orders or just portions of orders?
“MR. LUNSFORD: Your Honor, mostly what we're moving
to terminate is the portions of the orders that we've
identified in the motion to terminate. There are some
orders in their entirety that we believe should not
be finalized or carried further, and so that--there
are some discrete orders we've identified, but for
the most part it is discrete parts.
“THE COURT: Okay. So, then, you're seeking to
terminate some whole orders and some parts of orders?
“MR. LUNSFORD: That's correct, but mostly parts. Just
a few orders in their entirety.
“THE COURT: Okay. Very good. That helps a lot. And
you've identified that for us; right?
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MR. LUNSFORD: Yes, sir, we have. We identified all
those sections to the extent we could in the--in our
motion to terminate.”
Id.
At the September 17 and 18 status conferences, less
than two weeks before the default date for the automatic
stay, the defendants purported to clarify that in fact
they sought to terminate all of the remedial orders in
their entirety. See, e.g., Sept. 18, 2020, Motion Hr’g
R.D. Tr. at 3:16-4:2. But at a subsequent status
conference on September 23, the defendants seemed to
advance yet another position on which orders or
provisions are at issue, indicating that they intended
to terminate in their entirety the remedial orders
entered more than two years ago--the majority, but not
all, of the orders identified in the motion to
terminate--and only certain provisions from the more
recent orders. See Sept. 23, 2020, Motion Hr’g R.D. Tr.
at 14:16-19, 17:19-21, 19:6-20.
In another twist, the defendants have indicated that
they may only seek to modify, rather than terminate, some
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orders or provisions they identify as having been made
unworkable by the coronavirus pandemic. But they have
said they won’t be able to clarify for the court or the
plaintiffs what orders they seek only to modify or how
they seek to modify them until the close of business on
September 29, one day before the stay is scheduled to go
into effect. See id. at 5:15-6:11, 24:21-25:12. Even
if it were true, as the defendants argue, that the extent
of the necessary discovery does not alone provide a basis
for good cause, see Defs.’ Rule 26(f) Report (doc. no.
2976) at 1 n.2,1 the defendants’ persistent mercuriality
since filing their motion about which orders or
1. The court finds it difficult to square this
argument with the Eleventh Circuit’s repeated insistence
that a district court abuses its discretion by failing
to provide plaintiffs an evidentiary hearing and adequate
opportunity to supplement the record when faced with a
motion to terminate. See Cason v. Seckinger, 231 F.3d
777, 782-83 (11th Cir. 2000); Loyd v. Ala. Dep’t of
Corrs., 176 F.3d 1336, 1342 (11th Cir. 1999). Following
the defendants’ argument would seem particularly
problematic in the circumstances of this case, where the
coronavirus pandemic presents a new and significant issue
on which plaintiffs have never had discovery.
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provisions they seek to terminate and the plaintiffs’
fair confusion on that question would still justify
postponing the stay.2
The plaintiffs additionally note that courts have
found good cause based on indicia in the existing record
of continuing constitutional violations. See Pls.’
Motion to Postpone Stay (doc. no. 2980) at 1-2. The
parties disagree about how fulsome such indicia must be
to support a finding of good cause. They cite a
smattering of mostly unreported cases in which district
courts across the country have articulated various views
of the requirements for a finding of good cause based on
evidence of ongoing constitutional violations: for
instance, as requiring only “allegations” of
2. The ongoing coronavirus pandemic will likely make
the plaintiffs’ task of developing evidence even more
difficult because of the complications it has created for
legal visitors attempting to enter prisons and interview
prisoners. Indeed, the defendants have argued that the
risks caused by the pandemic should prevent the
plaintiffs’ expert from conducting any facility
inspections whatsoever in preparation for the termination
hearings. See Defs.’ Rule 26(f) Report (doc. no. 2976)
at 1 n.2.
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constitutional deficiency, see Skinner v. Uphoff, 410 F.
Supp. 2d 1104, 1112 (D. Wyo. 2006) (Brimmer, J.),
“evidence arguably supporting” such allegations, see
Lancaster v. Tilton, 2007 WL 4145963, at *1 (N.D. Cal.
Nov. 19, 2007) (Alsup, J.), a “strong indication in the
record that a constitutional violation persists,” Balla
v. Idaho State Bd. of Corrs., 2019 WL 9831023, at *1
(D. Idaho Mar. 28, 2019) (Winmill, J.) (quoting 3 Michael
B. Mushlin, Rights of Prisoners § 17:10 (5th ed. 2018)),
or, most stringently, that the record already
demonstrates “widespread constitutional violations,” see
Merriweather v. Sherwood, 235 F. Supp. 2d 339, 344
(S.D.N.Y. 2002) (McMahon, J.).3
3. Although the court takes no position today on
which (if any) of these formulations accurately
characterizes the necessary showing for good cause based
on evidence of current violations, the district court’s
dictum in Merriweather appears incompatible both with the
Eleventh Circuit’s mandate that plaintiffs must be
allowed an opportunity to develop a record of current
violations before determinations are made regarding a
motion to terminate, see Cason, 231 F.3d at 782-83; Loyd,
136 F.3d at 1342, and with the Second Circuit’s position
at the time Merriweather was decided that the good cause
postponement provision exists in part to “provide
13
As recently as September 2, 2020, the court observed
that “ADOC has still not adequately monitored its
provision of mental-health care,” that “ADOC has been
unable or unwilling to take necessary steps to monitor
its own practices,” and that “external monitoring is
necessary to address ongoing constitutional violations.”
Braggs v. Dunn, -- F. Supp. 3d ---, 2020 WL 5231302, at
*21, *27-28 (M.D. Ala. Sept. 2, 2020) (emphases in
original). But the court sees no need to rule on whether
the existing evidence of ongoing constitutional
violations provides an independent basis for good cause
in light of the extraordinary complexity of the issues
on which the parties must prepare to present evidence and
the continuing opacity about what orders or provisions
are being challenged.
plaintiffs with ‘an opportunity to present evidence
showing the need for continuation of prospective
relief,’” see Merriweather, 235 F. Supp. 2d at 344
(quoting Benjamin v. Jacobson, 172 F.3d 144, 166 (2d Cir.
1999)).
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As other courts contemplating motions to terminate
in complex cases like this one have noted, the mandate
of § 3626(b)(3) that the plaintiffs must show a “current
and ongoing violation” of federal law and that each order
“remains necessary to correct” that violation tends to
require the development of “substantial evidence” and a
“detailed factual inquiry.” See Plata v. Brown, 2013 WL
654996, at *1 (N.D. Cal. Feb. 21, 2013) (Henderson, J.).
In light of the nigh-insurmountable difficulty that the
30-day default deadline places on parties preparing for
such hearings when the remedial disputes are as expansive
and nuanced as those presented here, Congress created the
60-day extension to allow the parties enough time to put
together a fair and adequate case while still ensuring
that the court rules promptly on termination motions.
See Plata, 754 F.3d at 1082 (Bybee, J., dissenting). A
default schedule that would at best be implausible was
here made impossible by the frequent changes in the
defendants’ position about precisely what relief they
sought to terminate. Granting an extension today
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appropriately recognizes the immensity of the task that
the court and the parties face at this juncture.
For all of these reasons, pursuant to 18 U.S.C.
§ 3626(e)(3), the court finds good cause to postpone for
60 days the automatic stay of the remedial orders
identified in the defendants’ motion to terminate.
Accordingly, it is ORDERED that:
(1) The plaintiffs’ motion to postpone the stay
(doc. no. 2980) is granted. The automatic stay of the
orders identified in the defendants’ motion to terminate
(doc. no. 2924) will be postponed by 60 days under
18 U.S.C. § 3626(e)(3).
(2) The orders that are identified in the motion to
terminate and that are properly subject to that motion
will be stayed on November 29, 2020, unless the court
finds before then that the relief meets the requirements
of 18 U.S.C. § 3626(b)(3).
DONE, this the 24th day of September, 2020.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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