Opinion
CIVIL ACTION NO. 2:14cv601-MHT
2021-12-27
Edward BRAGGS, et al., Plaintiffs, v. Jefferson S. DUNN, in his official capacity as Commissioner of the Alabama Department of Corrections, et al., Defendants.
Ashley Nicole Austin, Prison Law Office, Montgomery, AL, Patricia Clotfelter, William Glassell Somerville, III, Baker Donelson Bearman Caldwell & Berkowitz, Birmingham, AL, William Van Der Pol, Jr., Alabama Disabilities Advocacy Program (ADAP), Tuscaloosa, AL, for Plaintiff Edward Braggs. Patricia Clotfelter, William Glassell Somerville, III, Baker Donelson Bearman Caldwell & Berkowitz, Birmingham, AL, William Van Der Pol, Jr., Alabama Disabilities Advocacy Program (ADAP), Tuscaloosa, AL, for Plaintiffs Tedrick Brooks, Gary Lee Broyles, Chandler Clements, Christopher Gilbert, Dwight Hagood, Sylvester Hartley, John Maner, Rick Martin, Willie McClendon, Roger McCoy, Jermaine Mitchell, Tommie Moore, Matthew Mork, Bradley Pearson, Turner Rogers, Timothy Sears, Brian Sellers, Augustus Smith, Hubert Tollar, Daniel Tooley, Joseph Torres, Donald Ray Turner, Jamie Wallace, Robert Myniasha Williams, Roger Moseley, Quang Bui, Charlie Henderson, Sheila Allen, William Sullivan, Serena English, Valerie Wheeler, Justin Hall, Raymond Bosarge, Cordara Dunner, Karen Norris, Cherritha Harris, Brittany Ellis, Tomas Snyder. Edward A. Bedard, Pro Hac Vice, King & Spalding LLP, Atlanta, GA, Evan David Diamond, Pro Hac Vice, King & Spalding LLP, New York, NY, Joshua Christopher Toll, Pro Hac Vice, King & Spalding LLP, Washington, DC, Patricia Clotfelter, William Glassell Somerville, III, Baker Donelson Bearman Caldwell & Berkowitz, Birmingham, AL, Rachel Sarah Rubens, King & Spalding, San Francisco, CA, William Van Der Pol, Jr., Alabama Disabilities Advocacy Program (ADAP), Tuscaloosa, AL, for Plaintiffs Christopher Jackson, Brandon Johnson, Leviticus Pruitt. Anil Ashok Mujumdar, Dagney Johnson Law Group, Birmingham, AL, Andrea Jane Mixson, Alabama Disabilities Advocacy Program, Tuscaloosa, AL, Rhonda C. Brownstein, Alabama Disabilities Advocacy Program, Montgomery, AL, for Plaintiff Alabama Disabilities Advocacy Program. Bruce Warfield Hamilton, Pro Hac Vice, Southern Poverty Law Center, New Orleans, LA, Catherine E. Stetson, Pro Hac Vice, Neal Kumar Katyal, Pro Hac Vice, Jo-Ann Tamila Sagar, Pro Hac Vice, Hogan Lovells US LLP, Washington, DC, Jasmin Louisa Mize, Pro Hac Vice, Southern Poverty Law Center, Decatur, GA, Kristina Alekseyeva, Pro Hac Vice, Hogan Lovells LLP, New York, NY, Leslie Faith Jones, Pro Hac Vice, Southern Poverty Law Center, Jackson, MS, Mark S. Whitburn, Pro Hac Vice, Whitburn & Pevsner, PLLC, Arlington, TX, Patricia Clotfelter, Lisa Wright Borden, Anil Ashok Mujumdar, Dagney Johnson Law Group, William Glassell Somerville, III, Baker Donelson Bearman Caldwell & Berkowitz, Birmingham, AL, Rhonda C. Brownstein, Susanne Emily Cordner, Pro Hac Vice, Ashley Nicole Austin, Brock Boone, Jonathan Michael Barry-Blocker, Southern Poverty Law Center, Montgomery, AL, William Van Der Pol, Jr., Barbara Ann Lawrence, Lonnie Jason Williams, Sophia Leigh Hoppock, Alabama Disabilities Advocacy Program (ADAP), Tuscaloosa, AL, for Plaintiff All Plaintiffs. David Randall Boyd, John Garland Smith, Balch & Bingham LLP, Joseph Gordon Stewart, Jr., Alabama Department of Corrections, Montgomery, AL, LaKeisha W. Butler, Matthew Reeves, William Richard Lunsford, Maynard Cooper & Gale PC, Huntsville, AL, Steven C. Corhern, Balch & Bingham, Birmingham, AL, for Defendant Alabama Department of Corrections. David Randall Boyd, John Garland Smith, Balch & Bingham LLP, Joseph Gordon Stewart, Jr., Stephanie Lynn Dodd Smithee, Alabama Department of Corrections Legal, Montgomery, AL, Luther Maxwell Dorr, Jr., Maynard, Cooper & Gale, P.C., Steven C. Corhern, Balch & Bingham, Birmingham, AL, Stephen Clarence Rogers, William Richard Lunsford, Matthew Reeves, Dustin David Key, Kenneth Scott Steely, LaKeisha W. Butler, Maynard Cooper and Gale PC, Huntsville, AL, for Defendant Deborah Crook. David Randall Boyd, John Garland Smith, Balch & Bingham LLP, Joseph Gordon Stewart, Jr., Stephanie Lynn Dodd Smithee, Alabama Department of Corrections, Legal Division, Montgomery, AL, Dustin David Key, Kenneth Scott Steely, LaKeisha W. Butler, Matthew Reeves, Stephen Clarence Rogers, William Richard Lunsford, Maynard Cooper & Gale PC, Huntsville, AL, Luther Maxwell Dorr, Jr., Maynard, Cooper & Gale, P.C., Steven C. Corhern, Balch & Bingham, Birmingham, AL, for Defendant John Q. Hamm.
Ashley Nicole Austin, Prison Law Office, Montgomery, AL, Patricia Clotfelter, William Glassell Somerville, III, Baker Donelson Bearman Caldwell & Berkowitz, Birmingham, AL, William Van Der Pol, Jr., Alabama Disabilities Advocacy Program (ADAP), Tuscaloosa, AL, for Plaintiff Edward Braggs.
Patricia Clotfelter, William Glassell Somerville, III, Baker Donelson Bearman Caldwell & Berkowitz, Birmingham, AL, William Van Der Pol, Jr., Alabama Disabilities Advocacy Program (ADAP), Tuscaloosa, AL, for Plaintiffs Tedrick Brooks, Gary Lee Broyles, Chandler Clements, Christopher Gilbert, Dwight Hagood, Sylvester Hartley, John Maner, Rick Martin, Willie McClendon, Roger McCoy, Jermaine Mitchell, Tommie Moore, Matthew Mork, Bradley Pearson, Turner Rogers, Timothy Sears, Brian Sellers, Augustus Smith, Hubert Tollar, Daniel Tooley, Joseph Torres, Donald Ray Turner, Jamie Wallace, Robert Myniasha Williams, Roger Moseley, Quang Bui, Charlie Henderson, Sheila Allen, William Sullivan, Serena English, Valerie Wheeler, Justin Hall, Raymond Bosarge, Cordara Dunner, Karen Norris, Cherritha Harris, Brittany Ellis, Tomas Snyder.
Edward A. Bedard, Pro Hac Vice, King & Spalding LLP, Atlanta, GA, Evan David Diamond, Pro Hac Vice, King & Spalding LLP, New York, NY, Joshua Christopher Toll, Pro Hac Vice, King & Spalding LLP, Washington, DC, Patricia Clotfelter, William Glassell Somerville, III, Baker Donelson Bearman Caldwell & Berkowitz, Birmingham, AL, Rachel Sarah Rubens, King & Spalding, San Francisco, CA, William Van Der Pol, Jr., Alabama Disabilities Advocacy Program (ADAP), Tuscaloosa, AL, for Plaintiffs Christopher Jackson, Brandon Johnson, Leviticus Pruitt.
Anil Ashok Mujumdar, Dagney Johnson Law Group, Birmingham, AL, Andrea Jane Mixson, Alabama Disabilities Advocacy Program, Tuscaloosa, AL, Rhonda C. Brownstein, Alabama Disabilities Advocacy Program, Montgomery, AL, for Plaintiff Alabama Disabilities Advocacy Program.
Bruce Warfield Hamilton, Pro Hac Vice, Southern Poverty Law Center, New Orleans, LA, Catherine E. Stetson, Pro Hac Vice, Neal Kumar Katyal, Pro Hac Vice, Jo-Ann Tamila Sagar, Pro Hac Vice, Hogan Lovells US LLP, Washington, DC, Jasmin Louisa Mize, Pro Hac Vice, Southern Poverty Law Center, Decatur, GA, Kristina Alekseyeva, Pro Hac Vice, Hogan Lovells LLP, New York, NY, Leslie Faith Jones, Pro Hac Vice, Southern Poverty Law Center, Jackson, MS, Mark S. Whitburn, Pro Hac Vice, Whitburn & Pevsner, PLLC, Arlington, TX, Patricia Clotfelter, Lisa Wright Borden, Anil Ashok Mujumdar, Dagney Johnson Law Group, William Glassell Somerville, III, Baker Donelson Bearman Caldwell & Berkowitz, Birmingham, AL, Rhonda C. Brownstein, Susanne Emily Cordner, Pro Hac Vice, Ashley Nicole Austin, Brock Boone, Jonathan Michael Barry-Blocker, Southern Poverty Law Center, Montgomery, AL, William Van Der Pol, Jr., Barbara Ann Lawrence, Lonnie Jason Williams, Sophia Leigh Hoppock, Alabama Disabilities Advocacy Program (ADAP), Tuscaloosa, AL, for Plaintiff All Plaintiffs.
David Randall Boyd, John Garland Smith, Balch & Bingham LLP, Joseph Gordon Stewart, Jr., Alabama Department of Corrections, Montgomery, AL, LaKeisha W. Butler, Matthew Reeves, William Richard Lunsford, Maynard Cooper & Gale PC, Huntsville, AL, Steven C. Corhern, Balch & Bingham, Birmingham, AL, for Defendant Alabama Department of Corrections.
David Randall Boyd, John Garland Smith, Balch & Bingham LLP, Joseph Gordon Stewart, Jr., Stephanie Lynn Dodd Smithee, Alabama Department of Corrections Legal, Montgomery, AL, Luther Maxwell Dorr, Jr., Maynard, Cooper & Gale, P.C., Steven C. Corhern, Balch & Bingham, Birmingham, AL, Stephen Clarence Rogers, William Richard Lunsford, Matthew Reeves, Dustin David Key, Kenneth Scott Steely, LaKeisha W. Butler, Maynard Cooper and Gale PC, Huntsville, AL, for Defendant Deborah Crook.
David Randall Boyd, John Garland Smith, Balch & Bingham LLP, Joseph Gordon Stewart, Jr., Stephanie Lynn Dodd Smithee, Alabama Department of Corrections, Legal Division, Montgomery, AL, Dustin David Key, Kenneth Scott Steely, LaKeisha W. Butler, Matthew Reeves, Stephen Clarence Rogers, William Richard Lunsford, Maynard Cooper & Gale PC, Huntsville, AL, Luther Maxwell Dorr, Jr., Maynard, Cooper & Gale, P.C., Steven C. Corhern, Balch & Bingham, Birmingham, AL, for Defendant John Q. Hamm.
PHASE 2A OMNIBUS REMEDIAL OPINION
Myron H. Thompson, UNITED STATES DISTRICT JUDGE
PART I.
I. INTRODUCTION...1191
II. BACKGROUND...1193
III. LEGAL STANDARD...1198
A. The "Current and Ongoing Violation" Standard...1199
B. Burdens of Proof...1201
C. The "Facility-by-Facility" Issue...1202
D. Monitoring of the Proposed Remedies...1204
I. INTRODUCTION
The plaintiffs in the current phase of this longstanding class-action lawsuit are a group of seriously mentally ill state prisoners and the Alabama Disabilities Advocacy Program (ADAP), which represents mentally ill prisoners incarcerated in Alabama. The defendants are the Commissioner of the Alabama Department of Corrections (ADOC) and ADOC's Interim Associate Commissioner of Health Services. They are sued in their official capacities for injunctive and declaratory relief.
Four years ago, the court found that ADOC failed to provide minimally adequate mental-health care to inmates in its custody, in violation of the Eighth and Fourteenth Amendments to the United States Constitution. See Braggs v. Dunn, 257 F. Supp. 3d 1171 (M.D. Ala. 2017) (Thompson, J.). Since then, the parties have engaged in a series of court proceedings and negotiations to develop the relief necessary to remedy this constitutional violation. Certain remedies have been entered by agreement of the parties; others have been ordered following adversarial proceedings. And, most recently, the parties presented additional evidence at a series of omnibus remedial hearings between May 24 and July 9, 2021.
This opinion, which the court will issue in three parts, and the accompanying order represent the culmination of these efforts and mark the point at which the claims presented in this phase of the litigation transition into the period of monitoring. They establish an omnibus remedial framework that will govern this phase of the litigation moving forward—a "remedy that addresses the serious constitutional violations" found by the court "and that will be a durable solution for the monitors to help ADOC implement." Braggs v. Dunn, No. 2:14cv601-MHT, 2020 WL 7711366, at *8 (M.D. Ala. Dec. 29, 2020) (Thompson, J.).
The court has divided the opinion into three parts primarily for the convenience of the recently created monitoring team. The first part discusses the history of the litigation leading up to this point, and the legal standards governing the court's provision of relief. The second part discusses ways in which conditions in ADOC facilities have changed since the time of the liability opinion. The third part discusses the parties’ proposed provisions, the relief that the court orders and its reasons for doing so, and the court's findings under the Prison Litigation Reform Act or PLRA, 18 U.S.C. § 3626(a)(1)(A). While the monitoring team may wish to read the first and second parts, it is the third part that they will find most useful. The court anticipates that they may use it as a reference guide to better understand the intricacies of the remedial order, which will be their touchstone in determining the defendants’ compliance.
While the opinion is long, its length is due in significant part to the fact that in the years leading up to the omnibus remedial proceedings, ADOC addressed some of the problems identified in the liability opinion. The court describes that progress in detail, both to give ADOC due credit and to explain why certain relief that the plaintiffs request, and which may have been necessary at the time of the liability opinion, is no longer needed. In fact, a significant portion of the present opinion is devoted to contextualizing the court's decision to decline to adopt relief. The court's omnibus remedial order does not address certain violations identified in the liability opinion, and it was important to the court that readers, including the parties and the men and women incarcerated in ADOC facilities, understand why.
The opinion is also lengthy because many deeply serious problems remain unresolved, and the court took seriously both its obligation to provide adequate relief and its PLRA obligation to explain why it adopted each of the various remedial provisions it did. When Jamie Wallace took his own life during the course of the liability hearing, the court called it "powerful evidence of the real, concrete, and terribly permanent harms that woefully inadequate mental-health care inflicts on mentally ill prisoners in Alabama." Braggs, 257 F. Supp. 3d at 1186. In the four years since, at least 27 more men in ADOC's custody have died by suicide--including one immediately after the conclusion of the omnibus remedial hearings.
The common thread among these tragedies is ADOC's lack of correctional staff. As its own mental-health vendor has noted: "No one disputes that the ADOC has a severe shortage of Correctional Officers (COs), as documented in an April 2019 US Department of Justice report as well as in multiple quotes from ADOC staff to the media." Wexford Health Response to the February 14, 2020 ADOC Letter on Performance Deficiencies (P-3323) at 2 (emphasis in original). This deficiency in correctional staff is nearly unchanged in its severity and impact since the court's liability opinion four years ago. Indeed, ADOC has never reported an increase in the number of correctional supervisors in any quarterly correctional staffing report since it started filing them in 2018. And as at the time of the liability trial and opinion, the lack of correctional staff undermines the department's ability to meet the mental-health needs of its prisoners in numerous, insidious ways. Prisoners do not receive adequate treatment and out-of-cell time because of insufficient security staff to supervise these activities. They are robbed of opportunities for confidential counseling sessions because there are too few staff to escort them to treatment, forcing providers to hold sessions cell-side. They decompensate, unmonitored, in restrictive housing units, and they are left to fend for themselves in the culture of violence, easy access to drugs, and extortion that has taken root in ADOC facilities in the absence of an adequate security presence. The resulting sky-high rates of suicidality divert scarce mental-health resources from treatment provision to crisis management, exacerbating the deficiencies in care.
Shortly after it released the liability opinion in 2017, the court warned the parties that, because staffing is so key to the provision of mental-health care, it "must be addressed at the outset" and "fully remedied before almost anything else can be fully remedied." Phase 2A Revised Remedy Scheduling Order on Eighth Amendment Claim (Doc. 1357) at 4. The defendants now ask to extend the deadline by which ADOC must attain an appropriate level of correctional staffing even further than previously agreed, from February 2022 to July 2025. It is against this backdrop--four years of severe understaffing and the likelihood of four more--that the court considers what relief is necessary today to bring Alabama's prison system into constitutional compliance.
II. BACKGROUND
In its June 2017 liability opinion, the court found that ADOC's mental-health care system violated the United States Constitution in seven ways:
"(1) Failing to identify prisoners with serious mental-health needs and to classify their needs properly;
"(2) Failing to provide individualized treatment plans to prisoners with serious mental-health needs;
"(3) Failing to provide psychotherapy by qualified and properly supervised mental-health staff and with adequate frequency and sound confidentiality;
"(4) Providing insufficient out-of-cell time and treatment to those who need residential treatment; and failing to provide hospital-level care to those who need it;
"(5) Failing to identify suicide risks adequately and providing inadequate treatment and monitoring to those who are suicidal, engaging in self-harm, or otherwise undergoing a mental-health crisis;
"(6) Imposing disciplinary sanctions on mentally ill prisoners for symptoms of their mental illness, and imposing disciplinary sanctions without regard for the impact of sanctions on prisoners’ mental health; [and]
"(7) Placing seriously mentally ill prisoners in segregation without extenuating circumstances and for prolonged periods of time; placing prisoners with serious mental-health needs in segregation without adequate consideration of the impact of segregation on mental health; and providing inadequate treatment and monitoring in segregation."
Braggs, 257 F. Supp. 3d at 1267-68 (footnote omitted).
As the court noted in the liability opinion, "only prisoners with serious mental-health needs have a cognizable Eighth Amendment claim." Braggs , 257 F. Supp. 3d at 1191. "The concept of ‘serious mental-health need’ in the Eighth Amendment context should not be confused with ‘serious mental illness,’ a term of art in the mental-health care field." Id. at 1190 n.11. To avoid confusion, where this opinion refers to mentally ill prisoners or prisoners with mental-health needs, the court emphasizes that it refers to those with serious mental-health needs.
The court further found that "persistent and severe shortages of mental-health staff and correctional staff, combined with chronic and significant overcrowding, are the overarching issues that permeate each of the above-identified contributing factors of inadequate mental-health care." Id. at 1268. Two years later, following additional briefing and argument, the court issued a supplemental liability opinion, finding that "ADOC has not been conducting adequate periodic mental-health evaluations of prisoners in segregation, and that this failure has contributed to the ADOC defendants’ violation of the Eighth Amendment." Braggs v. Dunn, 367 F. Supp. 3d 1340, 1342 (M.D. Ala. 2019) (Thompson, J.).
In the years following these liability opinions, the parties agreed to a series of stipulations resolving most of the remedial disputes generated by the court's liability findings, with a few significant exceptions that will be discussed below. For each of these agreed-upon stipulations, the court held an on-the-record hearing, reviewing in detail and clarifying the terms of the agreement. At the request of the parties, the court then entered these stipulations as orders.
At the time it entered these orders, the court believed that the agreements met the "need-narrowness-intrusiveness" requirements of the PLRA. See 18 U.S.C. § 3626(a)(1)(A) ; see also Cason v. Seckinger, 231 F.3d 777, 785 n.8 (11th Cir. 2000) ("[W]e do not mean to suggest that the district court must conduct an evidentiary hearing about or enter particularized findings concerning any facts or factors about which there is not dispute. The parties are free to make any concessions or enter into any stipulations they deem appropriate."). However, the orders generally did not contain findings that the provisions of the stipulations met the PLRA's requirements.
In February 2019, the defendants raised as an issue the possibility that these orders did not comply with the PLRA because they did not have PLRA findings. The court then scheduled a set of evidentiary hearings to determine whether the stipulations met the ‘need-narrowness-intrusiveness’ standard of the PLRA. In the meantime, by agreement of the parties, the court found that each of the orders "temporarily satisf[ied] the requirements of the PLRA," pending a final determination after the scheduled hearings. Phase 2A Opinion and Interim Injunction (Doc. 2716) at 4.
These hearings were continued several times. They were first continued at the parties’ joint request so that the parties could attempt to negotiate a resolution of the remedial disputes addressed by the stipulations in light of the newly raised PLRA concern. During that process, the parties successfully negotiated certain remedial agreements related to suicide prevention. See Joint Notice and Motion to Stay (Doc. 2706) at 2-3. After a lengthy period of mediation, the parties ultimately informed the court on March 20, 2020, that the negotiations on the remaining disputes had not been successful. See Joint Notice Regarding Monitoring and PLRA Negotiations (Doc. 2775) at 1. The court scheduled the hearings to begin on April 13, 2020. See Phase 2A Revised Remedy Scheduling Order (Doc. 2778) at 5.
The day the parties informed the court that their negotiations had failed, the Alabama State Health Officer suspended all public gatherings of 25 or more people due to the onset of the novel coronavirus (COVID-19) pandemic in Alabama and across the country. See State Health Officer Issues Amended Health Order Suspending Public Gatherings, https://www.alabamapublichealth.gov/blog/2020/03/20.html (Mar. 20, 2020). Five days later, the first confirmed death of an Alabama resident due to COVID-19 was announced. See Alabama Announces First Death of a State Resident Who Tested Positive for COVID-19 , https://www.alabamapublichealth.gov/blog/2020/03/25b.html (Mar. 25, 2020). On April 3, the State Health Officer issued a stay-at-home order requiring every person in Alabama "to stay at his or her place of residence except as necessary to perform" essential activities. Order of the State Health Officer, https://governor.alabama.gov/assets/2020/04/Final-Statewide-Order-4.3.2020.pdf (Apr. 3, 2020).
As the threat of COVID-19 became apparent, the parties each moved to continue the April 2020 hearings. See generally Defs.’ Unopposed Motion to Continue (Doc. 2779); Pls.’ Motion to Continue (Doc. 2780). In their motion, the defendants aptly explained that, while "the medical and scientific community continues to analyze the nature of COVID-19, this global pandemic represents an unprecedented threat to public health due to its contagious nature and rate of mortality for those at significant risk for complications." Defs.’ Unopposed Motion to Continue (Doc. 2779) at 2. They requested a continuance to "protect the health of the inmates in the custody of the Alabama Department of Corrections." Id. at 3.
The hearings were eventually rescheduled to start on September 14, 2020, with the duration of the temporary PLRA findings on the stipulated remedial orders extended to December 30. See Phase 2A Opinion and Order Regarding Long-Term Suicide Prevention Stipulations (Doc. 2977) at 5. Just before the hearings were set to begin, at the close of the defendants’ pretrial brief, the defendants indicated an intent to move under the PLRA, 18 U.S.C. § 3626(b)(1), (b)(2), to terminate some or all of the orders scheduled for consideration. See Defs.’ Pretrial Memorandum (Doc. 2908) at 55-57. The court requested clarification of the defendants’ intent, and the defendants filed a formal motion to terminate. See generally Defs.’ Motion to Terminate (Doc. 2924).
Under the PLRA, the defendants’ motion to terminate placed the burden on the plaintiffs to show that the stipulated remedial orders remained necessary to correct a "current and ongoing violation" of federal law. See 18 U.S.C. § 3626(b)(3) ; see also Braggs v. Dunn, No. 2:14cv601-MHT, 2020 WL 5517262, at *2 (M.D. Ala. Sept. 14, 2020) (Thompson, J.) ("Opinion and Order Regarding the ‘Current and Ongoing Violation’ Issue"). The statute also required the court to rule on the motion within 30 days, extendable to 90 days for good cause, or else a mandatory stay of prospective relief would go into effect. See generally Braggs v. Dunn, No. 2:14cv601-MHT, 2020 WL 5735086, at *2 (M.D. Ala. Sept. 24, 2020) (Thompson, J.). The plaintiffs therefore moved that they be allowed to conduct immediate on-site prison inspections to develop the evidence of changed circumstances that would be necessary for the court to be able to consider the remedies under this standard and in this abbreviated timeframe. See generally Pls.’ Motion to Require Onsite Prison Inspections (Doc. 2986).
After the court granted the plaintiffs’ motion for prison inspections, the defendants withdrew their motion to terminate. See Defs.’ Oral Motion to Withdraw (Doc. 3004); Order (Doc. 3005). While allowing the defendants to withdraw their motion, the court emphasized that it nevertheless took seriously the issues that had prompted the motion. It explained that it would "continue to address, with reasonable speed, which items in the remedial orders at issue may be terminated or modified, either by agreement or court action, as part of the resolution of the PLRA findings or otherwise." Order (Doc. 3005) at 1-2.
The court solicited proposals from the parties about how to proceed in determining whether and to what extent the stipulated remedial orders complied with the PLRA. After receiving these proposals, the court determined that the "shortest path toward concluding this phase of the litigation" was for each party to submit a proposed omnibus remedial order encompassing the entire scope of relief at issue and for the court to hold "a single evidentiary hearing to consider these proposals," after which it would "create a final omnibus remedial order resolving all of the outstanding issues" in this phase of the litigation. Braggs, 2020 WL 7711366, at *7-8. This omnibus remedial order would be entered with the need-narrowness-intrusiveness findings required by the PLRA, and the parties would be afforded discovery and the opportunity to present evidence as to whether the disputed remedies met that standard in light of the current conditions in ADOC facilities. See id. at *7. The parties agreed to extend the duration of the stipulated remedial orders until that omnibus order was entered. See Joint Request to Extend Phase 2A Remedial Orders (Doc. 3076) at 1-2; Phase 2A Revised Remedy Scheduling Order (Doc. 3077).
Discovery proceeded, and a series of evidentiary hearings were held in May, June, and July 2021. Now, per the process set forth by the court and in the parties’ agreements, the omnibus remedial order that accompanies this opinion replaces all of the stipulated remedies entered in this case, and, for the most part, will be the remedial order and injunction that governs this phase of the litigation henceforth.
In the time since the liability opinions, several of the most complicated remedial issues have proceeded on different tracks from the negotiation and stipulation process described above. Chief among these are the issues of correctional staffing, suicide prevention, and monitoring, each of which has been the subject of adversarial proceedings resulting in remedial orders, rather than negotiated agreements. In addition, the remedial issues related to segregation, units not designated as restrictive housing that nonetheless functioned as segregation, and inpatient treatment had each also been the subject of adversarial proceedings, but no remedial order had yet been issued when the shift was made to the present omnibus remedial process. The procedural circumstances differ for each of these issues in significant ways, as follows.
First, perhaps the least procedurally complex of the issues was the matter of the monitoring scheme that will apply to the claims in this phase of the litigation following the close of the remedial process. The court requested a proposed plan from the defendants about how compliance with the court's remedial orders should be monitored, and it gave the plaintiffs the opportunity to respond to the defendants’ proposal. The court then held a hearing on the defendants’ proposed monitoring plan in which it heard testimony from experts, from the then-ADOC Commissioner and the then-Associate Commissioner of Health Services, and from four individuals whom the defendants proposed as potential members of a monitoring team. See Braggs v. Dunn, 483 F. Supp. 3d 1136, 1141-42 (M.D. Ala. 2020) (Thompson, J.).
After staying proceedings on the issue of monitoring for about a year at the parties’ request while they endeavored unsuccessfully to mediate the issue, the court issued an opinion and order resolving the parties’ disputes and establishing a three-phase monitoring plan. Under this monitoring plan, an external monitoring team will first begin monitoring the defendants’ compliance with the remedial orders, then will train an internal monitoring team housed within ADOC itself to take on this monitoring role, and finally will transition the monitoring duties entirely to ADOC to monitor itself. See id. at 1141. The object of this approach was to "help ADOC develop internal buy-in, resulting in more active cooperation and timely compliance," and to create "a more effective, less intrusive process and avoid an indeterminate period of external monitoring." Id.
The monitoring opinion and order were entered in September 2020 with PLRA findings. The defendants filed a motion to alter or amend the order, and the court denied that motion. See Braggs v. Dunn, No. 2:14cv601-MHT, 2020 WL 6152367 (M.D. Ala. Oct. 20, 2020) (Thompson, J.). The defendants did not appeal. Because there was a recent order resolving the monitoring issue that was entered with PLRA findings, this issue--unique among the remedial disputes in this phase of the litigation--was not among the matters that the omnibus remedial hearings were planned to address. See Braggs v. Dunn, No. 2:14cv601-MHT, 2021 WL 83410, at *1 (M.D. Ala. Jan. 7, 2021) (Thompson, J.) (setting forth "the entirety of what will be considered during the omnibus remedial process").
Second, the issues of correctional and mental-health staffing, which the court found to be "overarching issues that permeate each of the" court's liability findings, Braggs, 257 F. Supp. 3d at 1268, were also the subject of a remedial opinion and order entered with PLRA findings after adversarial proceedings. See Braggs v. Dunn, No. 2:14cv601-MHT, 2018 WL 985759 (M.D. Ala. Feb. 20, 2018) (Thompson, J.). Unlike the court's monitoring opinion and order, however, the understaffing opinion and order were entered more than three years ago, shortly after the court made its original liability findings. Because of the amount of time that had elapsed, and because the court agreed with the defendants’ concerns "about implementing relief without ensuring that it is necessary" in light of changes in conditions, Braggs, 2020 WL 7711366, at *6, the parties’ disputes regarding what remedies related to staffing should apply to ADOC moving forward were incorporated into this omnibus remedial process.
Both parties acknowledged that correctional staffing levels in particular have not significantly increased since the entry of the court's understaffing remedial opinion and order. The central remaining provision of the correctional understaffing relief was a deadline of February 2022 for ADOC to achieve the staffing levels recommended by the defendants’ own staffing experts, Margaret and Merle Savage, a deadline that both parties understood would have to be modified given ADOC's slow pace of progress in filling many of its correctional positions. Accordingly, the parties agreed that the posture of this issue differed somewhat from that of the issues covered by the parties’ stipulated remedial orders. While the question as to the latter issues was whether the relief proposed by the plaintiffs satisfied the need-narrowness-intrusiveness standard of the PLRA, the question as to correctional staffing was whether and how the existing remedy should be modified in light of changed circumstances--such as the effects of the COVID-19 pandemic--and in recognition of the existing deadline's implausibility at this juncture. In addition, ADOC has significantly changed the type of correctional officers it uses.
The question as to mental-health staffing was also whether the existing remedial order should be modified or ended. But, in contrast to correctional staffing, the defendants asserted that mental-health staffing levels have improved considerably since the court's understaffing opinion and order was issued. They brought forth evidence during the omnibus proceedings purporting to show that several facilities are at or near the levels sufficient to allow for adequate care, based on the staffing ratios developed by their consultants. Accordingly, the central issue for the court was whether the evidence in fact reflected the improvements claimed by the defendants, and whether to modify or lift the current relief related to mental-health staffing if so.
Third, the remedies related to suicide prevention have been the subject of both adversarial proceedings and negotiated agreements. In May 2019, after receiving expert reports and holding a trial on the need for suicide prevention relief, the court issued an opinion and order requiring ADOC to take various immediate steps to mitigate the risk of suicide faced by mentally ill prisoners in ADOC's custody. See Braggs v. Dunn, 383 F. Supp. 3d 1218 (M.D. Ala. 2019) (Thompson, J.). This opinion included PLRA findings. See, e.g., id. at 1254. Soon thereafter, the parties entered a short-term agreement on the suicide remedies and requested that the court stay its mandates and impose the stipulated short-term remedy instead. See Joint Notice and Motion to Stay (Doc. 2560 & Doc. 2560-1). The court did so, adopting the parties’ agreement, as with the other stipulated remedies, that the terms of the agreement met the PLRA's need-narrowness-intrusiveness requirement pending a final determination after a hearing on PLRA compliance. See Order (Doc. 2569); Order (Doc. 2698).
The parties later reached a separate, long-term agreement on suicide prevention remedies. See Joint Filing of Agreements on Suicide Prevention Measures and Mental Health Staffing (Doc. 2606 & Doc. 2606-1). The court approved this agreement but did not issue an associated injunction, instead putting the enforceability of its order on hold pending a determination of whether the long-term agreement complied with the PLRA. See Phase 2A Order Approving Suicide-Prevention Agreement (Doc. 2699) at 1-2. The short-term stipulations remained in effect pending the results of the omnibus remedial hearings.
The upshot of this posture was that, while the proposed remedial provisions related to suicide were part of the omnibus proceedings and were assessed for their compliance with the PLRA's need-narrowness-intrusiveness requirement, the court's stayed opinion and order regarding suicide provisions would go into effect if the court found that the proposed provisions did not comply with the PLRA. However, because the suicide remedies addressed in the stayed opinion were approved by the court in May 2019--two years prior to the beginning of the omnibus remedial proceedings--the stayed relief would be arguably immediately terminable under the PLRA by motion of the defendants if it went into effect following the omnibus hearings. See 18 U.S.C. § 3626(b)(1)(A)(i).
Finally, there were additional issues that had been litigated by the parties but were under submission with the court at the time of the omnibus remedial proceedings. These included the relief related to ADOC's segregation or restrictive housing units (also known as RHUs), non-RHUs that were nonetheless functioning as segregation units, and inpatient treatment. Because no relief had been entered by the court as to these issues, the proposed remedial provisions related to these matters were situated no differently for purposes of the omnibus proceedings than were the proposed remedies related to the matters covered by the parties’ stipulated remedial orders. The court proceeds now to discuss the legal standard under which it assessed these provisions.
III. LEGAL STANDARD
1 The PLRA requires that, before entering prospective relief to redress constitutional or federal statutory injury in any civil suit regarding prison conditions, a trial court must find that the 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). The Eleventh Circuit Court of Appeals has explained that this means the court must make "particularized findings that each requirement" of the relief "satisfies each of the need-narrowness-intrusiveness criteria." United States v. Sec'y, Fla. Dep't of Corrs., 778 F.3d 1223, 1228 (11th Cir. 2015).
The 2021 omnibus remedial hearings from which this opinion results were directed toward determining the appropriate scope of prospective relief to be entered, so this particularized need-narrowness-intrusiveness mandate applied. The defendants in this case have argued that the court must also make a global finding that the relief as a whole meets the need-narrowness-intrusiveness standard; while it is not apparent from the text of the PLRA that this is correct, the court will make such a global finding as well.
The legal standard under which these hearings operated differed in one further way from the need-narrowness-intrusiveness standard that generally governs remedial proceedings in litigation regarding prison conditions. As the court explained in its opinion setting forth the process by which the omnibus remedy would be developed, the length of time that has passed since the liability opinion issued gave the court "grave concerns about implementing relief without ensuring that it is necessary under current conditions." Braggs, 2020 WL 7711366, at *6. The specific relief necessary to remedy the constitutional deficiencies found in the court's liability opinion may have changed since the time of that opinion. On some issues, sustained improvements in ADOC's provision of mental-health care may have rendered some relief inappropriate. In other areas, progress may have been partial, making certain relief that would have been essential at the time of the liability opinion now unnecessary. Also, personnel changes (for example, the introduction of Basic Correctional Officers (BCOs) and Correctional Cubicle Operators (CCOs) to take on some of the duties of correctional officers) might warrant changes in relief. As a matter of equity, the court therefore determined that it would consider changes in circumstances in ADOC facilities--rather than looking only to the circumstances that existed at the time of the liability trial, as the plaintiffs suggested the court should do--to decide whether the relief proposed by the parties was necessary to remedy the violations that the court has found. See id.
Although this assessment of changed circumstances principally affected the necessity prong of the need-narrowness-intrusiveness inquiry, the court also considered whether conditions had changed such that the proposed relief was either not narrowly tailored to the violations found by the court or not the least intrusive way of correcting those violations.
Although the parties agreed that the PLRA's need-narrowness-intrusiveness mandate applied, their proposed remedial orders each raised issues about how this standard should apply to various aspects of the relief under consideration. The court addresses these arguments below.
A. The "Current and Ongoing Violation" Standard
The defendants argued prior to the hearings and continued to argue during the proceedings that the court needed also to find a "current and ongoing violation" of federal law before entering relief. See, e.g., Defs.’ Pretrial Br. (Doc. 3219) at 9-10. As a result, they argued, the plaintiffs were required to "demonstrate that the State acts with deliberate indifference to Plaintiffs’ serious mental-health needs." Id. at 10. This "current and ongoing violation" requirement appears in the PLRA in § 3626(b)(3), "which governs the termination of prospective relief by motion of a party." Sec'y, Fla. Dep't of Corrs., 778 F.3d at 1227. That section of the statute comes into play when a party files a motion to terminate an injunction previously entered in a prison conditions suit, and the statute describes elsewhere in § 3626(b) the circumstances in which a party is empowered to file such a termination motion. See 18 U.S.C. § 3626(b)(1)(A), (b)(2).
2 As the court explained in its opinion setting forth the process by which the remedial hearings would be conducted, "In the absence of a motion to terminate, there is no statutory requirement that the court find a ‘current and ongoing violation’ of federal law before entering" relief. Braggs, 2020 WL 7711366, at *6. This follows from the text of the PLRA, which places the "current and ongoing violation" requirement in the provision applicable to proceedings on a motion to terminate and excludes this requirement from the provision that governs the entry of prospective relief. See 18 U.S.C. § 3626(a)(1)(A), (b)(3). It also is required by Eleventh Circuit precedent. The circuit court in Thomas v. Bryant, 614 F.3d 1288 (11th Cir. 2010), considered the argument that although § 3626(b)(3) "governs termination proceedings," nonetheless "the ‘current and ongoing’ violation requirement should inform [the court's] inquiry" when entering prospective relief outside of the context of a motion to terminate. Id. at 1319-20. The court held "that the ‘current and ongoing’ requirement is distinct from the standard" prescribed by § 3626(a)(1)(A). Id. at 1320. The "need-narrowness-intrusiveness limitation governs the initial entry of an injunctive relief in prison litigation cases," while "[w]hether there is a ‘current and ongoing’ constitutional violation sufficient to avoid termination of the current injunction is a matter to be considered upon motion by either party in a termination proceeding." Id.
As discussed above, the defendants filed a motion to terminate in September 2020 but withdrew the motion thereafter. There was no motion to terminate before the court in the remedial hearings preceding this opinion. For this reason, the need-narrowness-intrusiveness standard of § 3626(a)(1)(A) rather than the "current and ongoing violation" standard of § 3626(b)(3) provided the statutory requirements for the hearings, and the plaintiffs were not required to demonstrate current and ongoing deliberate indifference by the defendants.
The evidence in the record demonstrates, and the court so finds, that the plaintiffs crafted their case to conform with this understanding of the legal standard. During the 2021 omnibus relief hearings, the plaintiffs stated explicitly that, if the court had required them to prove a current and ongoing violation, they would have sought further discovery from the defendants and presented more and different evidence. See June 4, 2021, R.D. Trial Tr. at 195-96. Moreover, the court finds that the current record is inadequate to resolve the question of whether ADOC remains deliberately indifferent on a current and ongoing basis. If the court has incorrectly decided this issue, then upon remand the court will allow the parties to engage in the discovery that was disallowed on the issue and the court will resolve the issue based on the evidence presented.
Although they recognized that no termination motion was pending at the time of the remedial hearings, the defendants argued that the requirement of § 3626(a)(1)(A) for the court to find that the relief "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" incorporates the "current and ongoing" requirement. The defendants argued, in other words, that the requirement that the relief be tied to "the violation of the Federal right" raises the question of precisely what violation the relief must address, and they said the answer must be a current violation ongoing at the time of the entry of relief. Therefore, plaintiffs requesting prospective relief must show that the violation they seek to address is a "current and ongoing" violation at the time the court enters the relief.
This argument is not without some persuasive force. But ultimately it cannot be squared with the text of the PLRA. The termination provision of § 3626(b)(3) requires a court to find that the relief at issue "remains necessary to correct a current and ongoing violation of the Federal right," and that it is narrowly tailored and the least intrusive means of doing so. 18 U.S.C. § 3626(b)(3). That provision requires both a "current and ongoing violation" and that the relief meet the need-narrowness-intrusiveness finding as to that ongoing violation. By contrast, § 3626(a)(1)(A) requires only that the relief "extends no further than necessary to correct the violation of the right" and is narrowly drawn and the least intrusive means to address the violation. The absence of the "current and ongoing" language from § 3626(a)(1)(A), which otherwise duplicates the standard of § 3626(b)(3), is conspicuous and must be given interpretive significance. And interpreting the need-narrowness-intrusiveness requirement to subsume the "current and ongoing violation" standard would make the latter language in § 3626(b)(3) redundant.
Again in their post-trial brief, the defendants pressed the argument that the court must find current and ongoing deliberate indifference at this stage of the proceedings. This, they said, is due not only to the PLRA--based on the misinterpretation of that statute addressed above--but also because the Eleventh Amendment grants the defendants immunity against the plaintiffs’ claims unless the court makes liability findings again. See Defs.’ Post-Trial Br. (Doc. 3367) at 37.
In cases both simple and complex, courts routinely make liability findings before making remedial findings. Courts taking that approach do not need to re-do their liability findings at the remedial stage. In that sense, this court is no differently situated than any other. Contrary to the defendants’ position, neither the PLRA nor the Eleventh Amendment invalidates that run-of-the-mill procedural tack.
The defendants base their additional argument in significant measure on a single sentence in the court's December opinion describing the omnibus remedial process, in which the court said that "compliance with the PLRA does not displace the court's duty under Eighth Amendment law to find a ‘substantial risk of serious injury’ before entering injunctive relief." Braggs , 2020 WL 7711366, at *6. But nothing whatsoever in that opinion--including the stray sentence the defendants now claim undermines and supersedes everything else the court said before, after, and within its December opinion about the legal standard applicable to the omnibus proceedings--suggests that a new showing of deliberate indifference is required before entering remedies to address constitutional violations for which the court has already found the defendants deliberately indifferent.
B. Burdens of Proof
Plaintiffs seeking prospective relief related to prison conditions generally bear the burden of showing that their proposed remedies satisfy the need-narrowness-intrusiveness standard discussed above. The plaintiffs here, however, argued that by agreeing to the terms of the various stipulated remedial orders that the court had entered, the defendants had either waived or forfeited their argument that any proposed relief that reiterated the provisions of these orders did not comply with the PLRA, or that the defendants were estopped from making such an argument. See Pls.’ Pretrial Br. (Doc. 3220) at 24-33.
The court rejected the plaintiffs’ waiver, estoppel, and forfeiture arguments under the particular procedural circumstances presented here. It also rejected the plaintiffs’ fallback position that the defendants’ agreement to the stipulated orders shifted the burden of proof in the proceedings, placing the onus on the defendants to show why the plaintiffs’ proposed remedies did not meet the need-narrowness-intrusiveness requirement. See id. at 24.
3 When the court determined that omnibus remedial proceedings were "the shortest path toward concluding this phase of the litigation," it instructed the parties to re-assess nearly the totality of the remedies entered in this case, including the stipulated orders, and to compile proposals for what relief is now necessary in light of changed circumstances in ADOC facilities. Braggs, 2020 WL 7711366, at *7-8. Not unexpectedly, some of the provisions included in each party's proposal were drawn from the stipulated remedial orders. But the 2021 omnibus proceedings were not simply a delayed version of the PLRA hearings that had been scheduled for September 2020 before the defendants filed their motion to terminate. They were not directed at assessing the PLRA compliance of the stipulated orders. Rather, the omnibus proceedings were a new process to consider the PLRA compliance of new proposed remedies--remedies which, once entered, would "replace all of the currently operational remedial stipulations." Id. While the court considered similarities between the terms of the stipulated orders and the parties’ proposed provisions, it was the plaintiffs who were requesting that the court enter their proposed remedies as orders; they therefore bore the burden of demonstrating that their proposals comported with the standards of the PLRA.
The exceptions to this broad re-assessment, as discussed above, were the provisions of the court's monitoring opinion and order.
As noted above, the staffing remedy was somewhat differently situated because the dispute there was how the deadline for compliance should be adjusted in light of changed circumstances. Each party therefore bore the burden of demonstrating that its proposed modifications to the understaffing order were tailored to the changed circumstances.
C. The "Facility-by-Facility" Issue
In the defendants’ pretrial brief and proposed omnibus remedial order, they raised the argument that a "one-size-fits-all remedy ... remains inappropriate" for the ADOC system because the major prison facilities "present a diversity of circumstances, housing configurations, personnel and capabilities, and each facility possesses its own strengths and its own challenges." Defs.’ Pretrial Br. (Doc. 3219) at 12. The defendants made three main arguments in support of this position. First, that relief targeted at particular kinds of units (for instance, remedies pertaining to stabilization units) should not apply in facilities without such units. Second, that certain facilities have improved more than others in particular remedial areas (for instance, in mental-health staffing levels), so relief that is necessary at one facility on a specific issue may not be necessary at another. And third, that any new facilities ADOC may build in the coming years cannot be subject to whatever relief is set in place today because the court cannot make findings as to the necessity, narrowness, or intrusiveness of imposing relief at those facilities until they are constructed.
The first argument seems to be merely a matter of semantics. Any relief that prescribes the conditions or treatment that must be provided on a particular kind of unit plainly does not apply to other kinds of units and therefore has no bearing at a facility without such units. As an example, the plaintiffs’ proposed treatment requirements for residential treatment units (RTU) by their terms apply to only residential treatment units; a prison without an RTU would not be subject to them and need not be monitored for compliance with them. See, e.g., Pls.’ Proposed Treatment Guide (Doc. 3206-1) at 23 ("Preliminary treatment plans must be created within three (3) working days of a patient's placement in an RTU ...."). The same holds true when particular conditions of the provision do not apply to a certain location. For example, a requirement that treatment take place in a confidential, out-of-cell location would be implemented differently in a celled facility than it would in a dormitory-style facility. The plaintiffs do not argue to the contrary, and the court finds that no clarifying provision is necessary to set down in words what is facially apparent: A remedial obligation specific to a particular type of unit does not apply to facilities without such a unit. As Dr. Burns explained, these provisions "require the exercise of some common sense about what's applicable and what's not." June 10, 2021, R.D. Trial Tr. at 170-71. The court is confident that ADOC and the EMT will exercise such common sense in implementing the relief ordered today.
45 The defendants’ second argument raises an evidentiary question about how pervasive the evidence of problems must be to support findings of systemwide deficiency and the need for systemwide relief. It is clear, as the cases cited by the defendants in support of this argument reflect, that a finding of harm to only one or two inmates is insufficient to support a systemwide remedy without evidence that other prisoners have experienced the same injury. See Lewis v. Casey, 518 U.S. 343, 359-60, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (a finding that two inmates were harmed was inadequate, without more, to conclude that a systemwide violation existed); Thomas v. Bryant, 614 F.3d 1288, 1324 (11th Cir. 2010) (because "[t]he district court held that the DOC violated the constitutional rights of only two inmates," a non-systemic injunction was appropriate). It is equally clear that systemic relief does not require a finding that every prisoner at every prison facility has been harmed by the policy or practice that is the subject of the court's order.
The court's liability findings in this case were systemic. See Braggs, 257 F. Supp. 3d at 1267-68 ; see also Defs.’ Response to Court's February 2, 2018, Order (Doc. 1595) at 1 (acknowledging that the court's liability findings were systemwide, not limited to certain facilities). To the extent that the court proceeds to discuss harm to individual inmates in individual prisons, it must be remembered that it does so against the backdrop of those findings--findings that were supported by far more than isolated incidents of harm, and that the defendants have not challenged.
For the most part, the relief that remains necessary to correct those systemic violations is also systemic. As the court has held in previously rejecting the defendants’ suggestion that relief be limited to certain facilities, "all of ADOC's major prisons--and in particular the prisons for men--form part of an interlocking system." Braggs, 2018 WL 985759, at *3 n.2. Focusing relief on only a few facilities "could fatally hinder its ability to remedy the constitutional violation found." Id.
Moreover, as Dr. Burns credibly testified based on the information she reviewed before the omnibus hearings, serious violations exist at every major facility. See May 26, 2021, R.D. Trial Tr. at 138. The frequent movement of inmates throughout the prison system also makes facility-by-facility discrepancies in the relief imposed largely inappropriate. See id. at 33-34. As the court pointed out in the liability opinion, "mentally ill prisoners are subject to a substantial risk of serious harm from practices that are common in ADOC facilities no matter where they are housed currently, because they may be housed in any of these facilities in the future due to ADOC's frequent and unpredictable transfers of prisoners across facilities." Braggs, 257 F. Supp. 3d at 1193 n.16.
The defendants’ expert Dr. Metzner suggested that, at least as to some areas of relief, the court should limit its order to certain specific facilities. However, he emphasized that ADOC's policies in these areas should still apply systemwide and noted the "assurances" he had received from ADOC that this would be the case. July 1, 2021, R.D. Trial Tr. at 56; see also June 30, 2021, R.D. Trial Tr. at 156-57. For the reasons discussed below regarding ADOC's history of failing to follow the court's orders and its own policies, however, the court does not have confidence in ADOC's assurances and will not currently limit its order on that basis. The court is open to revisiting the scope of its order in the future if there is evidence of systemic improvements. And in the meantime, the court trusts that the monitoring team will make appropriate decisions about whether, how, and how often to monitor the various facilities in light of the team's findings about the scope of deficiencies at each prison.
As to certain issues, however, the evidence may show either that the problems are sufficiently limited to particular prisons that only those facilities should be subject to relief in that area, or that particular prisons have sufficiently distinguished themselves from the remainder of the system that they should be excluded from the relief. This may be true particularly in remedial areas related to the physical environments of the prisons--issues that are by nature facility-specific to a degree. In sum, while system-wide relief is typically necessary for the system-wide violations found in this case, the court will limit relief to specific facilities when the evidence demonstrates that such limitation is appropriate. Similarly, the court will consider whether the relief it has entered should apply to any new major facilities constructed by ADOC if and when such facilities are built, based on whether the evidence shows that the relief should include those facilities.
D. Monitoring of the Proposed Remedies
Although the monitoring process for the proposed remedies was not among the remedial matters at issue in the omnibus proceedings, see Braggs, 2021 WL 83410, at *1, the defendants raised two arguments related to monitoring during the proceedings. First, their proposed order included a series of provisions that, if adopted, would establish a monitoring scheme different from the one put in place by the court in its September 2020 monitoring opinion and order. Because the monitoring opinion and order were entered with PLRA findings and were not slated for re-litigation in these proceedings, see id., the court declined to adopt the defendants’ proposed monitoring provisions.
Second, the defendants argued that various provisions of the plaintiffs’ proposed order did not comply with the PLRA because they did not include restrictions on how the external monitoring team (EMT) might decide to monitor the orders. In effect, the defendants took the position that proposed remedial provisions could comply with the PLRA only if the scope of discretion afforded the monitoring team as to how it would monitor those provisions was set forth in the provisions themselves and constrained by them. For instance, the defendants expressed the concern that monitoring could be excessively costly for ADOC if the EMT took particular approaches to monitoring the provisions of the omnibus order, and the defendants argued that the plaintiffs’ proposed provisions did not comply with the PLRA because the provisions did not address how they would be monitored or reject the overly expensive monitoring processes envisioned by the defendants.
The scope of the EMT's authority was established by the monitoring opinion and order. The appropriate point at which to raise concerns about the potential intrusiveness of monitoring was during the course of litigation that preceded that opinion and order. And indeed, the defendants did raise these concerns during that litigation--including, according to defense counsel, its concern about the costs of monitoring. See June 21, 2021, R.D. Trial Tr. at 132-34, 271-72. The court considered the concerns raised by the defendants at the time, and it found that the monitoring scheme it adopted complied with the need-narrowness-intrusiveness mandate of the PLRA. See Braggs, 483 F. Supp. 3d at 1168. The court therefore declined to re-evaluate how the provisions of the proposed omnibus orders might be monitored or to impose a requirement that the provisions themselves expressly prescribe their own monitoring regimes, both of which would amount to re-litigation of an issue recently decided by the court after extensive adversarial proceedings and with particularized PLRA findings.
***
This concludes the first part of the court's omnibus remedial opinion. Two parts follow.
DONE, this the 27th day of December, 2021.
PHASE 2A OMNIBUS REMEDIAL OPINION
PART II.
I. INTRODUCTION...1205
II. CHANGED CIRCUMSTANCES IN ADOC FACILITIES...1205
A. The Court's Liability Findings...1206
B. Recent Suicides...1214
1. Laramie Avery...1214
2. Jaquel Alexander...1214
3. Casey Murphree...1217
4. Charles Braggs...1218
5. Gary Campbell...1219
6. Tommy McConathy...1220
C. Changed Circumstances in Areas of Liability...1222
1. Correctional Staffing...1222
2. Mental-Health Staffing...1227
3. Restrictive Housing...1230
4. Intake...1232
5. Coding...1233
6. Referral...1234
7. Confidentiality...1236
8. Treatment Teams and Plans...1238
9. Psychotherapy...1241
10. Suicide Prevention...1244
11. Higher Levels of Care...1246
12. Discipline...1248
13. Training...1250
D. Failure to Comply with Orders and Policies...1251
E. Timeframes...1254
F. The Effects of COVID-19...1255
I. INTRODUCTION
As stated previously, this opinion is divided into three parts. This is the second part, which discusses the ways in which conditions in ADOC facilities have changed since the time of the liability opinion.
II. CHANGED CIRCUMSTANCES IN ADOC FACILITIES
Before addressing the PLRA compliance of the particular remedial provisions that the court will impose, it is necessary to discuss where the conditions of mental-health care in the ADOC system have changed or improved since the liability trial and where they continue to fall short. Certain aspects of the provision of mental-health care in ADOC facilities are better than they were at the time of the liability trial. Such improvements do not necessarily categorically preclude the need for remedies in those areas, but they do alter the appropriate scope of relief and make certain provisions proposed by the plaintiffs unnecessary to ensure sustained constitutional compliance by the department with regard to these issues.
Other parts of ADOC's mental-health care system have not improved since the liability trial. To illustrate these continued shortcomings, the court will first discuss in detail the findings of the liability trial and then will proceed to discuss several recent suicides in the ADOC system in which some of the problems that have been ongoing since the time of the liability findings played a role. To be clear, not every problematic area was a factor in each suicide. But while not every prisoner experienced every problem, the problems are systemic nonetheless. The circumstances of these deaths stand as examples of particularly serious failures in the ADOC's provision of mental-health care and demonstrate the potential consequences of these inadequacies.
Furthermore, while evidence was presented as to each of the 12 suicides that occurred at ADOC between September 2019 and the 2021 hearings, the court now discusses only six of these suicides that show most plainly where mental-health care at ADOC remains below the constitutional floor, although all 12 reflect deficiencies that warrant relief. And finally, the court keeps in mind that failures of mental-health care that result in suicides are not the only serious lapses in treatment. Luck can be the difference between a suicide attempt and a completed suicide. It would be a morbid kind of reactivity to find that inadequacies in the ADOC's mental-health care system require a remedy only when they have resulted in death.
A. The Court's Liability Findings
In its liability opinion, the court identified a host of systemic deficiencies in ADOC's provision of mental-health care to inmates. These issues were interrelated: failures at each step of the process of identifying and treating inmates snowballed to produce a mental-health care system that was "horrendously inadequate" when taken as a whole. Braggs v. Dunn, 257 F. Supp. 3d 1171, 1267 (M.D. Ala. 2017) (Thompson, J.). And as witnesses and experts from both sides acknowledged, these issues were only exacerbated by the "two-headed monster" of ADOC's struggles with overcrowding and understaffing, which presented a significant challenge to improving any part of the system. Id. at 1184.
ADOC's failure to meet the minimum standard of care required by the Constitution "start[ed] at the door," with an inadequate intake process for inmates entering the department's custody. Id. The court found that ADOC relied on unsupervised licensed practical nurses (LPNs) to conduct mental-health screening, despite the fact that they lacked the training or qualifications to assess inmates for symptoms of mental illness. See id. at 1202. This issue was "compounded by insufficient mental-health staffing," which led to some inmates being transferred to other facilities without having received an intake screening at all. Id. at 1203. The department's purported percentage of mentally ill prisoners--one of the lowest in the country--was a clear reflection of the deficiency of this process. As the court concluded, it was the result not of Alabama having fewer mentally ill prisoners than other systems or of providing better mental-health care, but "because a substantial number--likely thousands--of prisoners with mental illness" were being missed at intake. Id. at 1185. Because of this failure to identify inmates’ mental-health needs, seriously mentally ill prisoners were "languish[ing] and decompensat[ing] in ADOC without treatment, ending up in crisis care and engaging in destructive--sometimes fatal--self-harm." Id. at 1201.
Even when inmates’ mental-health needs were identified, referrals for additional follow-up were routinely ignored, leaving inmates without the treatment they needed. The court found that ADOC's referral process was "riddled with delays and inadequacies" at the time of the liability opinion. Id. at 1203. Unlike in "a functioning system," ADOC lacked any mechanism for triaging referrals and identifying the urgency of each request, despite the issue being flagged for years in internal audits. Id. As a result, there was no way to ensure that even urgent requests would be processed in a timely manner or actually referred to providers. See id. Correctional officers, stretched thin by inadequate staffing, were "ill-positioned" to circumvent the broken referral system by noticing inmates’ behavioral changes and getting them the help they needed. Id. at 1203-04. Indeed, inmates were so desperate to get the attention of mental-health staff that they engaged in self-injury, fire setting, suicide attempts, and other destructive behavior. See id. at 1204.
ADOC also failed to properly classify and track those with mental-health needs. At the liability trial, multiple witnesses and experts testified about cases in which ADOC's coding system "fail[ed] to accurately reflect prisoners’ mental-health needs." Id. For example, inmates who had been placed on suicide watch repeatedly for self-harm and suicide attempts remained coded as an MH-0, or an individual "not having any mental-health treatment needs." Id. at 1205. Lack of a functioning classification system made it impossible for the department to flag those in need of help and ensure they received it. As with failures at intake, the result was that seriously mentally ill prisoners were left to "languish and decompensate in ADOC without treatment." Id. at 1201.
Even when inmates with mental-health needs did receive care, the court found that their treatment was so deeply flawed as to be constitutionally inadequate. Experts on both sides described treatment planning as "the foundation of all forms of health care" because it is necessary to ensure that treatment is consistent and informed. Id. at 1206. The need for treatment plans is heightened in prisons, where inmates have little ability to manage their own care, and "even more crucial" in the chaotic context of ADOC facilities. Id. However, the court found that ADOC provided only " ‘cookie-cutter’ plans" that were not individualized to each prisoner's symptoms and needs, failed to account for changes in the prisoner's mental-health state, and did not reflect changes in the prisoner's treatment environment. Id. at 1207. These plans were developed during "haphazardly" run treatment-team meetings, where lack of attendance by and coordination between members led to conflicting treatment plans being signed into action within days of each other. Id. The court determined that this disorganized, pro forma treatment planning process failed "to provide a meaningful and consistent course of treatment" that could actually help address inmates’ needs. Id. at 1185. As a result, ADOC provided less effective care and ran a "substantial risk of prolonging pain and suffering of those who have treatable mental illnesses." Id. at 1206.
The type of treatment that inmates received was no less inadequate. The court concluded that, while "[c]onstitutionally adequate mental-health care in prisons requires more than simply providing psychotropic medications to mentally ill prisoners," ADOC had failed to provide sufficient counseling or psychotherapy to inmates with serious mental-health needs. Id. at 1208. Shortages in both mental-health and correctional staffing undermined "the availability and quality of individual and group counseling sessions." Id.
As the court noted, at the time of the liability opinion there were too few mental-health staff to care for the number of prisoners on the mental-health caseload, a problem that was only growing worse as the caseload grew. See id. Staff members’ caseloads were sometimes "twice as much as they should be": Counselors were expected to care for 80-90 inmates, while nurse practitioners were expected to see 20-25 inmates per day. See id. As a result, providers were "continually getting behind," and counseling sessions would frequently be canceled or delayed. Id. (internal quotation marks omitted). And when the sessions did occur, they "[did] not amount to much." Id. at 1209. Experts’ review of medical records revealed that progress notes from counseling sessions were cursory and vague, and they did not reflect actual clinical judgments or overall assessments of the patients. Id.
The lack of adequate correctional staff also interfered with inmates’ treatment. Because ADOC did not have enough correctional officers to escort inmates to counseling sessions and to provide security for those sessions, care was frequently disrupted. Id. at 1185. Providers testified that not being allowed to see patients due to a lack of correctional staffing was a "persistent problem" that had only gotten worse over the years. Id. at 1210. Inmates in segregation were particularly harmed by the staffing shortage, since they had to be escorted from their cells by correctional officers. See id. at 1209. As a result, "the frequency of counseling sessions for those in segregation [was] especially low." Id.
While experts testified that group therapy could be a helpful tool for the treatment of those receiving inadequate individual therapy, the court concluded that "ADOC's provision of group therapy [was] also inadequate." Id. at 1211. Group therapy was equally affected by the staffing shortages within the department, leading sessions to be canceled or simply not to happen. Id. As a result, inmates in ADOC custody were left with "little access to group therapy," or indeed to treatment of any kind. Id.
Workaround solutions adopted in the face of these staffing shortages only compounded the inadequacy of care. Mental-health providers testified that, when inmates could not be escorted to counseling sessions, they would sometimes "go to the cells themselves and attempt to talk to their patients at the cell-front." Id. at 1210. But as experts explained, these non-confidential "cell-front check-ins are insufficient as counseling and do not constitute actual mental-health treatment." Id. Indeed, based on personal visits to ADOC facilities, the court found that "[c]onducting a counseling session across the door in these loud spaces seemed nearly impossible." Id.
The court further determined that ADOC consistently failed to ensure the confidentiality of psychiatric contacts, which "undermine[d] the effectiveness and quality of counseling sessions." Id. at 1210. While expert witnesses testified that "confidentiality between providers and patients is a hallmark of and a necessary condition for mental-health treatment," inmates were frequently receiving check-ins during which they could be heard by correctional officers or other inmates. See id. Even when sessions were not held cell-front, they were not necessarily confidential. Many ADOC facilities, the court found, lacked a confidential setting for treatment sessions altogether. See id. Other facilities lacked offices with windows and doors that would have allowed security without sacrificing confidentiality, so correctional officers had to be stationed close enough to overhear sessions. See id. As a result, prisoners reported that they did not "feel safe sharing their mental-health issues," which made it difficult for providers to provide useful counseling. Id.
Untrained providers presented another hurdle to adequate treatment of inmates. When there were too few mental-health staff to provide care, ADOC often relied on "unsupervised, unlicensed counselors, referred to as ‘mental health professionals,’ " to take their place. Id. at 1211. The court identified the lack of supervision for these individuals as "a significant, system-wide problem affecting the delivery of mental-health care," which violated both state regulations and the standard of care for mental-health patients. Id.
The result of ADOC's inadequate provision of psychotherapy was care that utterly failed to address the needs of mentally ill inmates. ADOC's failure to provide adequate treatment increased the "substantial risk of serious harm" to inmates, "leaving them at a greater risk for continued pain and suffering, self-injurious behavior, suicidal ideation, and ... disciplinary actions." Id. at 1212.
These problems, the court found, became "even more pronounced for prisoners in mental-health units, where ADOC houses the most severely mentally ill prisoners in its custody." Id. Inmates in these units, the court found, were "warehous[ed], rather than treat[ed]." Id. at 1216. Despite ADOC's knowledge of these prisoners’ acute mental-health needs, it provided them "grossly inadequate care," housing these severely ill individuals in units that operated "almost exactly the same way" as segregation, with minimal out-of-cell time and little treatment. Id. at 1212.
Not only was ADOC operating these inpatient treatment units under conditions comparable to segregation, it was also using the units as extra segregation cells to house inmates without mental-health needs. This "persistent and long-standing practice of placing segregation inmates without mental-health needs in mental-health units" compromised the provision of treatment on those units by creating a safety risk to the mentally ill inmates on the unit, by diverting the attention of the scarce correctional officers, and by preventing programming from taking place. Id. at 1212-13. Placing segregation inmates in inpatient cells also contributed to a shortage of such cells for prisoners who needed them. See id. at 1213.
The "segregation-like atmosphere" of ADOC's inpatient units and the gross inadequacy of the care offered there was also caused by "a severe lack of out-of-cell time" and the "lack of meaningful treatment activities." Id. at 1214. As the court found, the "careful observation and treatment" that prisoners needing inpatient care require "cannot happen when confined in a small cell all day. In fact, 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." Id. (quoting Wyatt v. Aderholt, 503 F.2d 1305, 1309 n.4 (5th Cir. 1974) ). Inmates housed in ADOC's inpatient units received "a vanishingly small amount of time outside their cells": 30 minutes of individual therapy and 2.5 hours of non-therapeutic group activity per week for those housed in the men's stabilization unit (SU) at Bullock, and little more in the residential treatment units (RTUs). Id. at 1215.
In Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
This part of the opinion also discusses ADOC's promulgation of policies--an area in which the court declines to order relief.
Along with minimal out-of-cell time, prisoners in the inpatient units received "little treatment except for psychotropic medication due to staffing level shortages of both treatment and custody staff." Id. at 1214. Group activities were often cancelled, and mental-health staff were forced to man the laundry and showers instead of providing mental-health care because there "were not enough correctional officers to perform those basic duties." Id. at 1216. Individual psychiatric contacts often had to be provided as cell-front check-ins because there was insufficient correctional staff to be able to take inmates out of their cells, "negat[ing] the therapeutic utility of these contacts" due to a lack of confidentiality and resulting in "cursory" and "gravely inadequate" psychiatric contacts. Id.
Finally, ADOC consistently failed to provide hospital-level care to inmates who needed it. When ADOC's available mental-health interventions proved unsuccessful to stabilize or treat a prisoner, the department's regulations required that the inmate be considered for transfer to a psychiatric hospital. Despite those regulations, the court found that "ADOC virtually never transfer[red] patients to hospitals, except in the case of prisoners nearing the end of their sentence." Id. at 1217. "As Dr. Burns put it, waiting for an unstable patient's end of sentence to transfer him or her to a hospital is akin to ‘someone with chest pain who has to wait until they're released from prison to get taken to a hospital to have the chest pain treated.’ " Id. at 1218.
ADOC's process for identifying inmates at risk of suicide and providing "meaningful therapeutic contact to alleviate suicide risk" similarly "suffer[ed] from serious deficiencies." Id. at 1218-19. The department's approach to risk assessment was "too limited to adequately identify those at high risk," and acutely suicidal prisoners often did "not receive crisis care because of a severe shortage of crisis cells and staffing, and due to a culture of skepticism towards threats of suicide." Id. at 1220. ADOC's crisis cells were unsafe, containing tie-off points and dangerous items that could be used for self-injury. See id. Suicidal prisoners received inadequate monitoring and treatment, and inappropriate releases from suicide watch and a lack of post-release follow-up care "push[ed] suicidal prisoners back into crises again and again." Id.
At the time of the court's liability opinion, ADOC and its mental-health vendor had only recently begun using a suicide risk-assessment tool--a tool that is "widely recognized to be an essential part of mental-health care"--during prisoner intake, and the department continued not to perform such assessments when prisoners threatened or engaged in self-harm or were placed in crisis cells. Id. at 1221. Even acutely suicidal inmates often could not get appropriate intervention due to a lack of crisis cells. "[T]he number of crisis cells in each of the 15 major facilities within ADOC [was] insufficient," and this deficiency was exacerbated by backlogs for admission to the SU, causing suicidal inmates to linger in crisis cells designed for short-term placement. Id. at 1222. Without enough cells to provide crisis intervention to everyone who needed it, ADOC would "gamble on which prisoners to put in [the crisis cells] and frequently discount prisoners’ threats of self-harm and suicide." Id. Staff of ADOC's mental-health vendor frequently suggested that "prisoners who are claiming suicidality and self-harm tendencies are in fact malingering or seeking ‘secondary gains’--such as getting out of a segregation cell, or getting away from an enemy, or debt problems." Id. at 1223. Despite instructions not to presume that expressions of suicidality were not genuine, mental-health staff "continued to write off prisoners’ threats of self-harm as motivated by inmate-to-inmate debt or secondary gains, rather than conducting a proper assessment." Id.
The lack of crisis cells also resulted in acutely suicidal inmates being placed in unsafe environments such as shift offices or non-suicide watch cells. As experts for both parties agreed, "housing a suicidal inmate in a space like a shift office is quite dangerous: not only are these places full of items that can be used for self-harm, but, depending on where the prisoner is placed, such placements can also cut off suicidal prisoners from the treatment that they desperately need." Id. at 1225. For instance, one expert found an inmate during a prison tour who had been housed in a mental-health office for more than a day without any treatment or access to a bathroom. See id. at 1225 & n.49. Moreover, even the crisis cells themselves were unsafe; the court found that the cells were "ridden with physical structures that provide easy opportunities to commit suicide." Id. at 1226. Despite the fact that the overwhelming majority of recent suicides at ADOC had happened by hanging, "many of ADOC's crisis cells [had] easily accessible tie-off points, such as sprinkler heads, hinges, fixtures, and vents, making them incredibly dangerous for suicidal prisoners." Id. at 1227. Certain features of the cells--such as grates over the cell windows--also made it very difficult to see into them, increasing the risk that suicide attempts in the cells would not be interrupted in time to save the inmate's life. See id.
Inmates in crisis also received "woefully inadequate" treatment and monitoring, exacerbating the risk of harm. Id. at 1229. With respect to treatment, inmates on suicide watch did not consistently receive out-of-cell counseling appointments and were often kept in crisis cells for extended periods of time. "As experts on both sides agreed, crisis-cell placement is meant to be temporary and should not last longer than 72 hours, because the harsh effects of prolonged isolation in a crisis cell can harm patients’ mental health." Id. at 1226. Nonetheless, mental-health staff "considered transferring prisoners in crisis to treatment units only in a small fraction of the crisis placements that last[ed] longer than 72 hours." Id.
As for monitoring, prior to the liability trial, ADOC had not conducted constant watch even for the most acutely suicidal prisoners. Failing to provide this level of watch places those inmates at the highest risk of suicide in grave danger; "if a prisoner is waiting for an opportunity to kill himself, it is too dangerous to walk away, and he must be constantly observed." Id. at 1229. Instead, ADOC provided suicide watch checks at 15-minute intervals. But while these checks were supposed to be staggered or random to make them unpredictable to a prisoner who might be looking for a chance to attempt suicide, experts reviewing ADOC's monitoring logs found that they often had "pre-filled times at exact intervals," making it "impossible to ensure that staggered checks are actually happening." Id. This practice continued even after the parties agreed to correct it and the court ordered compliance with that agreement. See id.
Finally, the court found that prisoners were routinely released from suicide watch improperly--that is, without a face-to-face assessment by a psychiatric provider--and that they received grievously inadequate follow-up care. Experts "observed multiple instances of prisoners who were released directly from crisis cells back into segregation, with little or no follow-up treatment in subsequent weeks." Id. at 1231. This led to "a pattern of cycling between crisis cells and segregation with little follow-up treatment after crisis cell-release." Id.
The court also found that "ADOC ha[d] an unacceptable practice of disciplining mentally ill prisoners for behavior that stems from their mental illnesses and doing so without adequate regard for the disciplinary sanctions’ impact on mental health." Id. Among other problems, the court found that ADOC had a "common and system-wide" practice of "punishing prisoners for engaging in self-harm." Id. at 1232. This practice persisted despite an ADOC regulation purporting to forbid it. See id. Not only did this "fail[ ] to address the underlying mental-health issues," it also resulted in segregation placements for mentally ill prisoners, further increasing the risk of harm. Id.
This problem was exacerbated by ADOC's failure to consider inmates’ mental-health when imposing disciplinary sanctions. As the court found, failing to do so is "dangerous because certain sanctions, such as placement in segregation, expose mentally ill prisoners to a substantial risk of worsening symptoms and significantly reduced access to monitoring and treatment." Id. at 1233. At the time, ADOC's regulations required consultation with mental-health staff during disciplinary actions involving prisoners on the mental-health caseload. But, as the court found, "the system [fell] far short in practice." Id. Evaluators conducted superficial assessments, did not understand that they were supposed to assess whether the prisoner's conduct was connected to mental illness, and did not make recommendations about how the inmate's mental health should be considered in the process or what punishments were contraindicated for the inmate for mental-health reasons. See id. at 1233-34. As a result, these consultations operated as "little more than a rubber stamp" for the disciplinary process. Id. at 1234. This yielded "frequently egregious" consequences: mentally ill prisoners who attempted to hurt or kill themselves routinely received segregation placements as punishment, further heightening their risk of self-harm and suicide. Id. Some prisoners "bounced between segregation units and suicide-watch cells over lengthy periods of time" and were "never put on the mental-health caseload despite repeated instances of self-harm." Id. at 1241.
While there are "inherent psychological risks of segregation," particularly for people with serious mental illness, the conditions in ADOC's segregation units compounded the risk of harm. Id. at 1238. Inmates in segregation experienced a "lack of any meaningful activity or social contact" due to non-existent programming and minimal time out-of-cell; then-Associate Commissioner Culliver testified that ADOC tries to give inmates in restrictive housing five hours per week out-of-cell, "which means that even when ADOC officers are able to meet their goal, prisoners spend on average over 23 hours per day inside of a cell." Id. "[W]hen prisoners remain in their cells around the clock, mental-health staff have a harder time observing the patient and diagnosing illnesses effectively, and correctional officers and fellow prisoners also lack sufficient regular contact with the prisoner to notice the onset of symptoms of mental illness." Id. at 1239.
Thus, though the extreme isolation made the mental-health needs of inmates in segregation "considerably greater," the court found that "due to staffing shortages, mental-health treatment and monitoring in segregation are gravely more limited than in general population, and nonexistent at some facilities." Id. at 1242. Prisoners in segregation lacked access to mental-health groups and therapeutic activities and had minimal access to individual treatment "because of ADOC's failure to bring inmates out of their segregation cells for treatment" due to a lack of correctional staff. Id. at 1243. As in the inpatient units, without enough correctional officers to provide the security and escorts necessary to get inmates out of their cells, mental-health staff had to make do with "cell-front check-ins, instead of actual treatment sessions"--brief, non-confidential interactions that "cannot replace individual counseling sessions." Id. Mental-health rounds in segregation were even more "cursory"; one ADOC doctor described them as "drive-bys," often taking a minute or two per prisoner, and "sometimes even without verbal exchanges." Id. at 1244.
The lack of correctional staff also led to inadequate monitoring of inmates in segregation. Most troubling was ADOC's failure to perform monitoring rounds in segregation every 30 minutes, "the level of monitoring in segregation units necessary to keep prisoners safe from self-harm and suicide." Id. Plaintiffs’ expert Vail "saw logs at ADOC that suggested that no segregation checks were done for multiple hours." Id. This lack of adequate monitoring, combined with the lack of suicide resistance of the segregation cells, created extremely dangerous conditions for prisoners in restrictive housing. See id. at 1244-45. In that context, both parties’ experts "were alarmed by ADOC's systematic overuse of segregation for mentally ill prisoners, who are most vulnerable to the risk of deterioration in such an isolated environment." Id. at 1242.
The most acute risk of harm from these segregation practices was felt by prisoners with a serious mental illness: The court found "overwhelming[ ]" evidence that this "subset of prisoners ... should never be placed in segregation in the absence of extenuating circumstances." Id. at 1245-46. As the then-Associate Commissioner of Health Services testified, "placing seriously mentally ill prisoners in segregation is ‘categorically inappropriate’ ... [and] is tantamount to ‘denial of minimal medical care.’ " Id. at 1246. The program director of ADOC's mental-health vendor at the time "agreed with the bright-line rule against placing prisoners with serious mental illness ins segregation." Id. The Associate Commissioner further testified that ADOC's then-new mental-health coding system, once fully implemented, would ensure that "no seriously mentally ill inmate would be housed in a segregation setting." Id. (quoting Naglich Testimony at vol. 5, 67). But with a lack of evidence at the time that ADOC had implemented this bright-line policy of excluding inmates with serious mental illness from segregation, the court found that "it is categorically inappropriate to place prisoners with serious mental illness in segregation absent extenuating circumstances," and that "even in extenuating circumstances, decisions regarding the placement should be with the involvement and approval of appropriate mental-health staff, and the prisoners should be moved out of segregation as soon as possible and have access to treatment and monitoring in the meantime." Id. at 1247.
At the time of the liability trial and opinion, the court also found "substantial evidence ... that ADOC [was] not conducting adequate periodic mental-health assessments of prisoners in segregation to identify those who become mentally ill while in segregation." Id. at 1249. After further briefing and argument from the parties, the court issued a supplemental liability opinion finding that ADOC's failure to conduct adequate periodic mental-health evaluations of all prisoners in segregation contributed to the Eighth Amendment violation found in the original liability opinion. See Braggs v. Dunn, 367 F. Supp. 3d 1340, 1342 (M.D. Ala. 2019) (Thompson, J.). The court found that these periodic evaluations of inmates both on and off the mental-health caseload "do not occur with adequate frequency, and that even when they do occur the evaluations are so cursory as not to be worth the paper they are written on." Id. at 1350. It concluded that these periodic assessments were "inadequate at identifying signs of psychological harm and decompensation," placing both mentally ill and non-mentally ill inmates in segregation at substantial risk of harm. Id. at 1355.
The court proceeds now to discuss several of the suicides that have taken place in ADOC facilities since the court issued its liability opinion. As became apparent during the course of the omnibus proceedings, many of the liability findings described above appear again in the circumstances of these deaths, evidencing continued problems in these areas. Again, as the court found, "persistent and severe" understaffing permeated many of these deficiencies, Braggs, 257 F. Supp. 3d at 1268 ; as will be discussed below, understaffing continues to impede the provision of adequate mental-health care throughout the ADOC system.
B. Recent Suicides
1. Laramie Avery
Laramie Avery was 32 years old when he hanged himself in the restrictive housing unit at Bullock Correctional Facility on April 14, 2020. He had been incarcerated in the ADOC system for 15 months at the time and had never been on ADOC's mental-health caseload nor flagged as a person with a serious mental illness (SMI).
Avery was placed in restrictive housing, or segregation, for the first time in February 2020. During his pre-placement mental-health screening, he appeared intoxicated and confused, and he told the screener that he didn't "have much to live for." Pls. Ex. 3302 at ADOC518578. An urgent mental-health referral was made, and he was designated as contraindicated for placement in segregation. See Pls. Ex. 3301 at ADOC518513. Avery was placed in the restrictive housing unit despite the contraindication.
In late March, Avery was referred again for mental-health services after asking to see a mental-health provider because of his "documented history of mental illness." Id. at ADOC518504. He was never seen for this referral. He was referred again for mental-health services on April 11 and was not seen before his death.
At 9:28 a.m. on April 14, Avery was discovered hanging from the ceiling vent of his cell by a correctional officer during pill call. See Pls. Ex. 3299 at ADOC504208. One minute later, a second officer arrived at the cell, and the cell door was opened. Two minutes later, a doctor and two more officers arrived. At that point, Avery was cut down and placed on a stretcher to be taken to the health care unit. Nine minutes later, Avery arrived at the health care unit, and CPR began. Ten minutes after that, Avery was pronounced dead.
In total, 12 minutes passed between the time when Avery was found hanging in his cell and the initiation of CPR. Two minutes passed between the arrival of a second officer at the cell and the officers’ decision to cut Avery down from where he hung. Before cutting Avery down, the officers took a photograph of him hanging from the ceiling of his cell. See Pls. Ex. 3406 at ADOC572292. At the time of Avery's death, the stipulated remedial order related to suicide prevention required that "immediate life-saving measures shall be taken after there are two (2) correctional officers present." Order (Doc. 2569) at 17.
2. Jaquel Alexander
Jaquel Alexander hanged himself in his cell at the Donaldson structured living unit (SLU) on May 17, 2020, when he was 26 years old. The SLU is a diversionary unit for inmates with serious mental illnesses to avoid placing the inmates in segregation.
Alexander had been in ADOC custody since 2016. It appears from his records that he was first placed in a restrictive housing unit in October 2019. He was placed in restrictive housing again in December 2019, and he acknowledged "considering self-harm or suicide" in a pre-placement mental-health assessment. Pls. Ex. 3298 at ADOC539034. He did not receive a suicide risk assessment or further evaluation. See id.
During that placement, he submitted a request to see a mental-health provider because he was "having really bad dreams of being killed and suicidal thoughts of hurting myself." Id. He was placed on acute suicide watch on December 15 and found to be at high risk of suicide. He was discharged from suicide watch on December 23 but put back on watch on December 25 after he told a mental-health provider during a restrictive housing screening that he was feeling "depressed" and "suicidal." Id. at ADOC539035. He was released from suicide watch again the next day.
At this point, Alexander was not on the mental-health caseload and was not flagged as having a serious mental illness. Despite the series of suicide watch placements in December 2019, he did not receive a full mental-health assessment and was not placed on the caseload.
On January 2, 2020, a nursing progress note indicated that Alexander had been "choked out" by his cell mate while in a crisis cell at Fountain Correctional Facility. Id. He was transferred to Holman Correctional Facility that day and placed again on suicide watch. The next day, he was removed from suicide watch and sent back to Fountain, where he was placed immediately in restrictive housing. At the time, both an agreed-upon court order and ADOC policy prohibited moving inmates directly from suicide watch to restrictive housing absent documented exceptional or exigent circumstances. See Order (Doc. 2569) at 16; Pls. Ex. 3180 ("Daniels Directive"). There is no indication in Alexander's records of what circumstances justified this placement.
Alexander was moved from Fountain to Ventress Correctional Facility on January 7; in a meeting with a mental-health provider prior to the transfer, he was "tearful" and said he "just need[ed] MH meds." Pls. Ex. 3298 at ADOC539035. He was put on suicide watch again two days later after expressing suicidal thoughts during a screening before another placement in restrictive housing. On January 15, during another pre-placement screening before another restrictive housing placement, he said he felt "sad, hopeless or depressed," and he acknowledged cutting his wrist. Id.
On January 23, Alexander was seen for the first time for a psychiatric evaluation. He was diagnosed with major depressive disorder, placed on the mental-health caseload with a code of MH-C, and flagged as having a serious mental illness. See id. His records do not indicate that he ever received a treatment-team meeting or that a treatment plan was ever developed for him. See May 24, 2021, R.D. Trial Tr. at 68-69.
Since the time of the liability trial, ADOC has created a coding system under which inmates are assigned one of four lettered codes. See Joint Stipulation for the Evidentiary Hearing Regarding the Phase 2A Remedial Order (Doc. 3288) at 8. A code of A indicates that the inmate is not on the mental-health caseload and is not receiving ongoing mental-health services. A code of B indicates that the inmate requires outpatient mental-health services at intervals of 90 to 120 days, has demonstrated stable coping skills for a period of six months or more, and can be housed in facilities that do not provide daily on-site coverage by mental-health staff. A code of C indicates that the inmate requires outpatient mental-health services at intervals of 30 to 60 days, has a diagnosed mental disorder (excluding a substance use disorder) currently associated with an impairment in psychological, cognitive, or behavioral functioning that substantially interferes with his or her ability to meet the ordinary demands of living, and must be housed in facilities that provide daily on-site coverage by mental-health staff. A code of D indicates that the inmate receives chronic or acute mental-health services and requires placement in a designated mental-health treatment unit.
As explained in the Savages’ staffing analysis and in Meg Savage's testimony, for an essential post to be filled, it need only in fact be occupied 75 % of the time. See Savages’ Staffing Analysis (Doc. 1813-1) at 106. In addition, per the parties’ stipulations, compliance with this deadline and with the benchmarks below will not be monitored at Hamilton or Tutwiler absent further order of this court. See Joint Stipulation (Doc. 3288) at 3.
Alexander was placed on suicide watch twice more in February and early March--in February after he expressed suicidality during a screening before placement in segregation, and in March when he cut his wrist with a razor. See Pls. Ex. 3298 at ADOC539035-36. On March 12, he was again placed in restrictive housing after his pre-placement screening mistakenly failed to note that he had a serious mental illness and was therefore contraindicated for segregation placement. See id. at ADOC539036. Six days later, he attempted to hang himself with a towel in his segregation cell. See id.
These suicidal acts appeared to be connected to fears of being hurt or killed by other inmates. During his pre-placement screening on March 12, he said that he had been "getting away from a hit," and in subsequent interactions with mental-health providers he said he had "enemies all over this camp" and that he felt unsafe in most of the general population dorms of Ventress. Id. On March 29, he was placed again on constant suicide watch after a pre-placement screening for restrictive housing. Throughout these suicide watch placements, he was never referred for a higher level of mental-health care such as placement in a mental-health stabilization unit.
On April 8, 2020, Alexander tried to jump the fence at Ventress. He received a disciplinary infraction for attempting to escape. A mental-health consultation form was provided to his disciplinary hearing officer, but the form had an error code in the box indicating whether Alexander was on the mental-health caseload. See Pls. Ex. 3296 at ADOC517817. The consultation form indicated that there were no mental-health issues that needed to be considered if Alexander was found guilty. See id. Alexander was found guilty of the violation and sentenced to 45 days in segregation. See id. at ADOC517819. He remained in segregation for at least 22 days in spite of his serious mental illness designation.
On May 13, Alexander was moved from Ventress to Donaldson and was placed in the Donaldson structured living unit. His transfer documents incorrectly indicated that he did not have a serious mental illness. See Pls. Ex. 3298 at ADOC539037. He received a routine mental-health referral and was scheduled to meet with a mental-health provider on May 15. See Pls. Ex. 3297 at ADOC518193.
Early on the morning of May 16, he asked to be placed in a crisis cell and received an urgent mental-health referral. See id. at ADOC518191. The on-call mental-health provider was not notified for more than 12 hours. See id. Alexander met with a nurse instead of the mental-health provider--with a correctional officer present as well--and told the nurse that he was suicidal. See id. at ADOC518184. The nurse called the mental-health provider, who, without speaking to Alexander at that time, told the nurse to have him returned to his cell and said that she would check on him in the morning. See id.
Under the stipulated order then in effect, "An emergent or urgent mental-health referral must be communicated verbally, in person or by telephone, to the mental-health staff as soon as possible, but in no case longer than one (1) hour." Phase 2A Order and Injunction on Mental Health Identification and Classification Remedy, Attachment A (Doc. 1821-1) at § 2.2. If the staff member who made the referral did not recognize the referral as urgent and the referral was not recognized as urgent until it was triaged, then it is possible that the 12-hour delay before the referral was triaged and a mental-health provider was subsequently notified would not violate the stipulated order. But, if that was the case, the court is concerned that an inmate "[r]equesting to be placed in a crisis cell" could be understood, even initially, to require only a routine referral. Pls. Ex. 3297 at ADOC518191.
The court will require the defendants, within 21 days of the effective date, to submit to the court a proposal for specific dates by which this may be done.
According to the note for this interaction, the provider "verbalized that she spoke with inmate earlier today." Id. ; see also id. at ADOC518193 (routine referral that resulted in an appointment scheduled for the morning of May 15).
The defendants’ expert Dr. Metzner agreed with Vail that these security checks are "good correctional practice," but did not appear from his testimony to agree with Vail's view about the degree of criticality of these checks. June 30, 2021, R.D. Trial Tr. at 181. However, as Metzner acknowledged, he is an expert in correctional psychiatry, not an expert in correctional administration and security like Vail. See id. at 180. Accordingly, and based on the evidence that missed security checks played a role in several of the recent suicides, although the court gave due weight to Metzner's opinion on these security checks, it found Vail's testimony on the importance of security checks more persuasive. Moreover, ADOC is falling short of the security-check requirement under either expert's view of the necessary compliance rate. On this issue, the defendants are missing the mark by yards, not inches.
Alexander was sent back to his cell and was not placed on suicide watch. He hanged himself a few hours later. Per the psychological autopsy conducted by ADOC's mental-health vendor Wexford Health Sources, "[a]n opportunity for crisis intervention was missed on the day prior to his death when an MHP [mental-health provider] failed to follow suicide prevention protocol and place the inmate in crisis housing." Pls. Ex. 3298 at ADOC539039. There is no evidence that the mental-health provider was disciplined for this failure or that any other action was taken by the department to prevent such failures from being repeated in the future.
3. Casey Murphree
The day after Jaquel Alexander's death, Casey Murphree, age 49, hanged himself in a restrictive housing cell at Bullock Correctional Facility. He was on the mental-health caseload at the time with a code of MH-B, and he was flagged as having a serious mental illness due to his bipolar disorder.
6 Murphree had been incarcerated in ADOC since 1996. For a period of time, he was coded MH-C, but his code was changed to MH-B in April 2019. Under ADOC's mental-health coding system, MH-B and MH-C are the codes reflecting that a prisoner is on the mental-health caseload and is receiving treatment on an outpatient basis; inmates coded MH-C are those who have more significant treatment needs and who therefore meet more frequently with mental-health providers. Murphree's records indicate that he was re-classified to MH-B at his request, not because of a change in his clinical needs but because he wanted to be able to get a job. See Pls. Ex. 3281 at ADOC518569.
It is unclear why Murphree believed he could not get a job with a code of MH-C. In general, employment opportunities in State prisons may not be denied based on an inmate's mental-health status if reasonable accommodations would allow the prisoner to perform the work. See Pa. Dep't of Corrs. v. Yeskey , 524 U.S. 206, 210, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (holding that Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. , bars States from denying the "benefits" of "vocational ‘programs’ " to qualified prisoners with a disability).
Nor are the restrictive housing units unsafe only for inmates on ADOC's mental-health caseload. As illustrated by the deaths of Gary Campbell and Charles Braggs, ADOC does not have sufficient staff to be able to consistently identify people who decompensate and develop mental-health needs in segregation, making the units unsafe for inmates both on and off the caseload.
On February 10, 2020, Murphree met with a mental-health provider for an individual counseling session, which lasted 10 minutes. See Pls. Ex. 3280 at ADOC518070. The provider noted that Murphree was rambling, had "irrational thinking," and was "somewhat delusional." Id. The plan articulated on Murphree's progress note from the counseling session was for the provider to follow up with him within 30 days. See id. There is no indication in Murphree's records that he was ever seen for this follow-up appointment.
At about 6:35 a.m. on May 17, 2020, Murphree received a mental-health referral prior to placement in restrictive housing. See id. at ADOC518063. The nurse who filled out the referral form noted that Murphree had multiple altercations over the previous 24 hours and gave him an emergent referral, which under the then-effective stipulated remedial order required that he be seen within three hours. See id. On a pre-placement screening completed at the same time, Murphree was listed as clinically contraindicated for restrictive housing due to his serious mental illness. See id. at ADOC518064.
As Dr. Burns credibly testified, bellicosity and uncooperativeness can be symptoms of bipolar disorder. See May 24, 2021, R.D. Trial Tr. at 79.
The court does not order, as the plaintiffs propose, that "[i]mplementation of the mental-health stiffing ratios must be reviewed by appropriately qualified experts agreed upon by the parties or selected by the EMT." Pls.’ Post-Trial Br. (Doc. 3370 at 74). The monitoring team's familiarity with ADOC's mental-healthcare system will better position it to evaluate the staffing ratios than any outside expert.
Murphree was placed in restrictive housing notwithstanding his contraindication for segregation. There is no evidence in his records that any consideration was given to an alternative placement for him. See Pls. Ex. 3281 at 1. He was never seen by mental-health staff for the emergent referral made prior to his segregation placement.
At 3:40 a.m. on May 18, 2020, about 20 hours after Murphree entered segregation, he was found dead in his cell with a ligature around his neck. See id. By the time he was found, rigor mortis had set in, a process that Dr. Kathryn Burns testified takes several hours. See May 24, 2021, R.D. Trial Tr. at 80-81. Under ADOC's administrative regulations, officers must conduct cell-by-cell security checks in restrictive housing every 30 minutes, 24 hours a day. As plaintiffs’ expert Eldon Vail credibly testified, these security checks are among the highest priorities of any safety measures in correctional facilities because the risk of suicide for inmates housed in segregation is so extreme. See, e.g., June 1, 2021, R.D. Trial Tr. at 107.
In addition to these 30-minute security checks by correctional staff, nurses conduct daily rounds in segregation to provide medication and to check whether prisoners need to request medical or mental-health assistance. In Murphree's records, the nurse conducting these rounds in the Bullock restrictive housing unit initialed that she visited him on May 19, 20, and 21, the three days after his death. See Pls. Ex. 3280 at ADOC518091.
At the omnibus remedial hearings, defense counsel represented that, according to his understanding, these round sheets were stored "separate from [an inmate's individual] medical records." May 28, 2021, R.D. Trial Tr. at 12. According to defense counsel, after Murphree committed suicide, his cell was occupied by a new occupant, but "Murphree's sheet remained in the stack of sheets that the medical nurse signs off." Id. at 13. There is no evidence in the record to indicate that this is what actually happened, so the court does not know whether to credit it as true. But even if this is what happened, it leaves the court with serious concerns about whether rounds are performed as required and about the reliability and credibility of ADOC's recordkeeping.
ADOC's consultants explained that they intended the term "qualified mental-health professional," or QMHP, to refer to professionals who are "appropriately licensed to practice (assess for the presence of mental illness, evaluate for the risk of suicide, provide therapy) independently with no supervision required," but not to "associate licensed counselor[s], licensed bachelor[s] of social work, [or] licensed marriage and family therapist[s]." See Recommended Staffing Ratios (Doc. 2385-1) at 3. They further explained that "[t]he requirements for QMHPs [would be] generally the same as for psychologists," id. at 12, that QMHPs in the restrictive housing units would "provide one 90-minute therapy group" per day, id. at 11, and that QMHPs in the SUs would provide "structured therapeutic activity," id. at 13.
The parties disagreed as to the term's precise meaning, with the defendants proposing to define the term differently depending on whether it was used in the staffing ratios or in their proposed remedial provisions. Thus, the court was confronted with three different definitions--one from the plaintiffs, and two from the defendants. Much confusion ensued.
For now, suffice it to say that the court assumes that the EMT, in monitoring ADOC's compliance with the staffing ratios, will count as qualified mental-health professionals only those professionals who are qualified to provide therapy.
4. Charles Braggs
Charles Braggs was 28 years old when he hanged himself on July 27, 2020, in his cell in the restrictive housing unit at St. Clair Correctional Facility, where he had been living for more than two years. He was not on the mental-health caseload. At the time of his death, Braggs was 6’4", weighed 131 pounds, and had methamphetamine in his system. See Pls. Ex. 3282 at PL9916, PL9921. He had been in restrictive housing for all but one month since his incarceration at ADOC began in 2011.
Inmates like Braggs who are in restrictive housing and are not on the mental-health caseload are supposed to receive mental-health assessments every 90 days to ensure that the stress of segregation has not caused them to need increased mental-health care. In the time Braggs spent in his cell at the St. Clair restrictive housing unit, he received two such assessments: one in December 2018, and one in March 2019. During these assessments, according to Wexford's review of his death, "he reported auditory hallucinations, sleep disturbances, and reported possible paranoid/delusional thought content and exhibited blunted affect and disheveled appearance." Pls. Ex. 3284 at ADOC539022. In spite of this, "[t]here is no evidence that consideration was given to removing him from the [restrictive housing unit] or that he was referred to or evaluated by the mental health provider." Id.
Under the stipulated segregation remedial order then in effect, ADOC was required to conduct mental-health rounds in restrictive housing at least weekly, stopping at each inmate's cell to determine whether the inmate might require mental-health care. The last documented round conducted in the St. Clair restrictive housing unit was on May 21, 2020, more than two months before Braggs died. See Pls.’ Ex. 4119 at 2. Lack of adequate correctional staff was the reason given for this string of missed rounds. See id.
On the morning of July 27, 2020, the day Braggs died, he placed a medical request on a sick call form to see a nurse because he had been "having seizures lately." Pls. Ex. 4118 at ADOC590774. He was not seen for this request. According to a prisoner in the cell next to his, who was interviewed by ADOC's chief psychiatrist after Braggs's death, Braggs had been asking for mental-health services for two weeks before he died. See Pls. Ex. 4119 at 2.
After speaking with Braggs during medical rounds on the evening of July 27, the nurse asked a correctional officer at 7:15 p.m. to have Braggs brought to the infirmary. See Pls. Ex. 4118 at ADOC590777. At 7:25 p.m., the nurse asked the officer again to bring Braggs to the infirmary and was told that Braggs couldn't be brought over "because he didn't have any clothes." Id. At 8:00 p.m., the nurse asked the captain on duty to instruct his officers to bring Braggs to the infirmary. See id. At 8:15 p.m., the officers found Braggs dead in his cell. See id. at ADOC590778.
In the months leading up to his death, Braggs routinely had scheduled out-of-cell time canceled for lack of correctional staff. Inmates in restrictive housing cells are supposed to be allowed out of their cells for five hours each week for exercise; as Dr. Burns testified, the purpose of this requirement is to ensure "a change of scenery, so they're not locked in that same space 24 hours a day, seven days a week." May 24, 2021, R.D. Trial Tr. at 106. In the seven months before his death, Braggs rarely received these required five hours per week out of his cell. In some weeks, records indicate that he received no time at all out of his cell due to understaffing, except for occasional showers or health-care appointments. See, e.g., Pls. Ex. 3921 at ADOC517731.
5. Gary Campbell
Gary Campbell hanged himself in his restrictive housing cell at Limestone Correctional Facility on November 27, 2020, at the age of 43. He was not on the mental-health caseload and was not flagged as having a serious mental illness. He had been living in the cell where he died for more than two years at the time of his death, after being placed in restrictive housing at his own request. During that time, Campbell had received none of the required 90-day mental-health assessments.
In November 2019, Campbell received a mental-health referral after he mailed two letters that were "tangential and disorganized," which the referring officer noted was "[n]ot normal for Campbell." Pls. Ex. 3291 at ADOC546285. In these letters, according to the notes of Nina Tocci, one of ADOC's regional psychologists, Campbell declared that he "is the Wisdom and Power of G-d." Pls. Ex. 3267 at 1. He took "a threatening tone about the ungodly people in the world (‘others’) and those that ‘talk against me,’ " and he expressed "that his character was being ‘assassinated.’ " Id.
The following month, he was seen by a mental-health provider in response to this referral. The meeting took place cell-side because Campbell refused to come out of his cell. See Pls. Ex. 3291 at ADOC546286. According to the progress note of that session, Campbell denied suicidal or homicidal ideation but explained that "he [was] content being in his cell because he has God. [Campbell] reports he knows he will be released from prison eventually and will continue to be a vessel to do God[’]s work." Id. There was no evidence of any follow-up from this session in his records.
In June 2020, Campbell was seen again by a mental-health provider after being referred by the Limestone Warden for another "bizarre letter." Id. at ADOC546288. He refused again to come out of his cell for the session, denied suicidal or homicidal ideation, said he was "still content with being in his RH cell," and asked for paper and puzzles. Id. There was no evidence of further follow-up or evaluation.
Early in the morning on November 27, 2020, Campbell was found hanging in his cell by correctional officers "after an undetermined amount of time." Pls. Ex. 3292 at ADOC546327. The officers cut Campbell down and called for medical assistance, but they did not remove the sheet from his neck or begin CPR. After nursing staff arrived, Campbell was moved to the medical unit, where CPR was started. At 6:34 a.m., he was pronounced dead. Id.
As Wexford staff explained in their review of Campbell's death, "[i]t cannot be ruled out whether ... Campbell was exhibiting symptoms of psychosis as there is not sufficient evidence or a psychiatric evaluation to make that determination." Id. at ADOC546328. Campbell "spent two years in an isolated environment, with minimal psychological stimulation." Id. Per Tocci's notes, he "lived isolated from others because he was allowed to. He did not come out of [restrictive housing unit] for two years. That was stressful and he was not even aware that talking to someone could have been helpful." Pls. Ex. 3267 at 1.
In sum, Campbell asked to live by himself for years in a small segregation cell, and ADOC granted his request. It checked on him twice when his rambling and religiously obsessive letters raised alarms, but these cell-side assessments were brief and perfunctory, and they were never followed up with a full mental-health evaluation. At some point, he decompensated further; no one knows when or why because no one was paying attention. Then, one morning, he hanged himself. Sometime later, he was found, cut down, moved to the medical unit, and declared dead.
6. Tommy McConathy
Tommy McConathy, age 32, hanged himself from a ventilation grate in his cell in the stabilization unit at Bullock Correctional Facility on March 2, 2021. When he died, McConathy had a mental-health code of MH-D, indicating inpatient placement, and he was flagged as seriously mentally ill with diagnoses of major depressive disorder and post-traumatic stress disorder.
The Bullock SU has a unique history in this litigation. The stabilization units--the men's unit at Bullock and the women's unit at Tutwiler--are inpatient units "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 have not been stabilized through other interventions." Braggs, 257 F. Supp. 3d at 1183. During the liability trial, a prisoner named Jamie Wallace, who was housed on that unit and who suffered from severe mental illness, testified "that he had tried to kill himself many times, showed the court the scars on arms where he made repeated attempts, and complained that he had not received sufficient treatment for his illness." Braggs, 257 F. Supp. 3d at 1184. "Because of his mental illness, he became so agitated during his testimony that the court had to recess and reconvene to hear his testimony in the quiet of the chambers library and then coax him into completing his testimony as if he were a fearful child." Id. Ten days after his testimony, while the trial was ongoing, Wallace hanged himself in his cell in the Bullock SU. See id.
Ultimately, the court ordered ADOC to make all SU cells suicide-resistant. In a filing in July 2020, the defendants informed the court that it had complied with this requirement and retrofitted all of its SU cells to be suicide-resistant. See Response to Phase 2A Order on Inpatient Treatment (Doc. 2880) at 4-5. According to the defendants’ filing, suicide resistance requires the "removal of all tie-off points." Id. at 4.
McConathy hanged himself in the Bullock SU by tying a bed sheet to a ventilation grate located above the sink in his cell. The grate could be reached by standing on the sink. See May 24, 2021, R.D. Trial Tr. at 154. According to defense expert Dr. Jeffrey Metzner, who said he had seen a photograph of McConathy's cell, the ventilation grate was of a type that would generally be suicide-resistant except that a corner of the grate was broken, creating a tie-off point that allowed McConathy to kill himself. See July 1, 2021, R.D. Trial Tr. at 2-3. Metzner did not know how long the grate had been broken before McConathy hanged himself from it. See id.
Before his death, McConathy's incarceration was characterized by frequent, pervasive sexual and physical violence. As he told a mental-health provider during a therapy session at Kilby Correctional Facility in September 2020, he was being trafficked by a gang and forced to perform sex acts to pay off the gang's debt. See Pls. Ex. 3310 at ADOC546530. He told the provider that he would kill himself if he had to go back to Easterling Correctional Facility, where this trafficking had apparently happened. See id. Easterling was not the only source of his fear, however; as he said in a crisis counseling meeting a few days later, he had been to five different facilities and "all the inmates are out to harm him." Id. at ADOC546541. During a session at the Bullock SU the following month, he told his counselor that this was his "last try. I want help but I will not let them hurt me again. I will die first." Id. at ADOC546648. The provider noted that McConathy was "adamant about his desire to die" if placed in a position where he would be raped again. Id.
Six days after that, McConathy was transferred from the Bullock SU to the residential treatment unit, an inpatient unit that at Bullock is a dormitory environment. See id. at ADOC546668. The following month, he reported another sexual assault and told his crisis counselor that he "can't function on the RTU!" Id. at ADOC546690. At that point, he had been on repeated suicide watches since December 2019. The day after he reported his assault on the RTU, a mental-health provider found McConathy to be "at high risk for continued suicide watch until [his] safety needs are addressed." Id. at ADOC546712.
Although the provider indicated that McConathy would be considered for referral to Citizens Hospital, a hospital that has a small number of inpatient beds available for ADOC inmates who have not been successful with any of the levels of care offered in ADOC facilities, McConathy was not transferred to Citizens until 30 days later on January 13, 2021. Safe at the hospital, he stabilized significantly, although he "continued to report fear of returning to a setting in which he would be physically and sexually assaulted." Pls. Ex. 3312 at ADOC589249. His medications were adjusted, and he was found to be "calm[ ] and pleasant." Id.
On February 18, 2021, McConathy was discharged from Citizens Hospital back to the Bullock SU. On March 1, McConathy was seen by a mental-health provider and said that he "learned a great deal about his mental health at Citizens," but that "he feels people still want to harm him." Pls. Ex. 3310 at ADOC546887. In the progress note, the plan given was to continue providing therapy and medication, but to release McConathy from the SU. See id. His treatment team recommended that he be discharged to the Donaldson RTU, a celled environment where they hoped he might be safer than the dormitory setting of the Bullock RTU. See Pls. Ex. 3312 at ADOC589250.
At around 12:30 p.m. the next day, McConathy was found hanging in his SU cell. He was cut down and CPR was initiated. About 10 minutes later, he was pronounced dead.
C. Changed Circumstances in Areas of Liability
Based on the totality of the evidence presented during the omnibus remedial proceedings, the court proceeds to discuss its findings with regard to the changed circumstances in ADOC facilities related to each of the areas of liability previously found by the court. Serious problems with the provision of mental-health care in ADOC facilities persist in many of the remedial areas discussed below; others show some improvement, and a few show that ADOC has taken significant steps forward since the time of the court's liability opinion. To be clear, the fact that significant deficiencies persist with regard to a particular aspect of the mental-health care offered by ADOC does not mean that every remedial provision proposed by the parties is necessary to correct those deficiencies. Nor does the absence of broad, ongoing deficiencies as to another part of the mental-health care system mean that no relief is necessary: ADOC may be exceeding the constitutional minimum in most but not all elements of a given part of its mental-health care system, and some narrow relief may still be needed to remedy the points at which it continues to fall short. But the general degree of improvement or lack of improvement in the areas of relief that were the subject of the omnibus proceedings will inform the court's determination of precisely what remedies remain necessary in each area and what modes of providing that relief are the most narrowly tailored and least intrusive ways of correcting the violations at issue.
1. Correctional Staffing
As the court found in its liability opinion in 2017, ADOC's severe staffing shortages, "combined with chronic and significant overcrowding, are the overarching issues that permeate each of the" failures of ADOC's mental-health care system that contributed to the court's finding of constitutional deficiency. Braggs, 257 F. Supp. 3d at 1268. For that reason, when the court split the remedial phase of this suit into component elements to make developing relief a more manageable task, the court declared that "the understaffing issue must be addressed at the outset." Phase 2A Revised Remedy Scheduling Order on Eighth Amendment Claim (Doc. 1357) at 4. Staffing, the court explained, "must be fully remedied before almost anything else can be fully remedied." Id. This approach, the court said, was an act of "triage," id.--that is, the act of responding to a disaster "according to a system of priorities designed to maximize the number of survivors," Triage, Merriam-Webster Online , https://www.merriam-webster.com/dictionary/triage (last visited December 20, 2021). Because having too few staff to provide adequate care to its prison population lay at the heart of all of the court's other findings of constitutional inadequacy, the problem of understaffing had to be addressed first in order to maximize the number of lives saved.
Understaffing was therefore the first of the court's liability findings subjected to remedial proceedings and a long-term remedial order. See Phase 2A Understaffing Order (Doc. 1657). In that order, the court instructed the defendants, inter alia, to obtain a correctional staffing analysis from the firm of Margaret ("Meg") and Merle Savage by May 2018 and, by February 20, 2022, to "have fully implemented the Savages’ correctional staffing recommendations," as modified by any subsequent agreements or orders. Id. at 2-3.
The defendants have long disputed the adequacy of the PLRA findings in the opinion accompanying the understaffing remedial order and raised this issue again during the omnibus remedial proceedings. The defendants’ recourse for these complaints was either to appeal the court's order at the time it was issued or to file a motion to modify or terminate that order, under the PLRA or otherwise. Whatever the merits of the defendants’ concern may be, the defendants remained obligated to comply with the order absent modification, termination, or reversal.
The Savages timely completed and submitted their staffing analysis and recommendations to ADOC on May 1, 2018. See Savages’ Report (Doc. 1813-1) at 2. They recommended that ADOC maintain, in total, 3,826 full-time equivalent correctional officer positions between what are termed "mandatory" and "essential" posts. "Essential" posts are those that are "needed for normal operations but may be temporarily interrupted." Id. at 106. As Meg Savage testified during the omnibus proceedings, so-called "normal operations" are "the situation where activities are being conducted routinely as prescribed in all policy and procedures," which includes "such things as programming, recreation activities, vocational and educational systems, all up and running, supervised appropriately." June 16, 2021, R.D. Trial Tr. at 41-42. These positions must be filled 75 % of the time; that degree of interruption does not cause "significant impact" to the operations of the prisons. Savages’ Report (Doc. 1813-1) at 106.
"Mandatory" posts, which comprise the vast majority of the 3,826 positions recommended by the Savages, are those that "cannot be left unfilled without jeopardizing safety and security." Id. As Meg Savage testified, "in a fully functional agency staffing unit," the number of "mandatory" posts would match the numbers of another designation--"critical minimum" posts--which are those positions that, if they are not staffed at a particular time, should cause a facility to "immediately lock down and make sure that everything is safe, because you've reached a critical level." June 15, 2021, R.D. Trial Tr. at 122-24, 129. These "critical minimum" positions are, in Savage's terms, "the practical application of [the] post plan" from the staffing analysis at an individual facility: They may be subject to certain changes on the ground as the responsibilities or units in a particular prison shift, but any changes should be regularly reconciled with the post plan to ensure that they match the "mandatory" posts described there. Id. at 126. Because prisons cannot safely operate in a non-lockdown status without these "mandatory" or "critical" posts filled, much less provide the level of programming and recreation prescribed by prison policy, these posts must be manned 100 % of the time. See id. at 126-27. Leaving such posts unfilled would yield what Meg Savage called "unacceptable" consequences for safety, such as housing units with no supervision, id.; as the Savages explained in their staffing analysis, "[a]ny time staffing falls below Critical Minimum an emergency should be declared, inmates locked down, and steps taken to resolve the problem." Savages’ Report (Doc. 1813-1) at 22.
Instead of declaring emergencies and locking down, the evidence demonstrates that ADOC operates daily at staffing levels well below what the Savages considered necessary, and that the system has made only slight progress toward minimally adequate staffing in the three years since the court's understaffing remedial order. The first report on correctional staffing levels that ADOC filed with the court after receiving the Savages’ assessment showed that, at the end of March 2018, the system had filled 1,467 of the 3,826 total correctional staff positions. See Quarterly Staffing Report (Doc. 1858-1) at 2. The last staffing report before the omnibus remedial hearings, filed exactly three years later, showed that ADOC has now filled 1,830.5 correctional staff positions. See Quarterly Staffing Report (Doc. 3246-1) at 4. This number excludes 90 so-called "Correctional Cubicle Operators," who "are not certified officers" and "can have no inmate contact," and who therefore were not included in the Savages’ staffing recommendations. Savages’ Report (Doc. 1813-1) at 13, 38. In total, ADOC has gained 459.5 correctional officers and lost 96 supervisors since the Savages submitted their staffing analysis in May 2018. ADOC continues to have filled less than half of the mandatory and essential positions listed in the staffing analysis. At the present pace of improvement--363.5 positions in three years--ADOC is on track to achieve sufficient staffing to safely conduct normal operations sometime in mid-2037.
The defendants have argued that the posts listed in the Savages’ staffing analysis in fact reflected "optimal" staffing levels rather than the levels necessary to safely conduct normal operations. See, e.g. , Defs.’ Post-Trial Br. (Doc. 3367) at 56-57. Meg Savage made several statements to that effect during her testimony. See, e.g. , June 15, 2021, R.D. Trial Tr. R.D. Trial Tr. at 46, 80-81; see also Savages’ Report (Doc. 1813-1) at 105. Just as often, however, Savage said the opposite in unequivocal terms. See, e.g. , June 16, 2021, R.D. Trial Tr. at 50, 54-55. Moreover, the notion that the Savages’ analysis described optimal levels is belied by the terms of the analysis itself. "Essential" posts, along with "mandatory posts," are defined as the positions "needed for normal operations." Savages’ Report (Doc. 1813-1) at 106. "Normal operations," in turn, are defined as a level between optimal staffing and critical minimum staffing. See id. at 22. So too, there exists a third kind of post--"important" posts--and as Meg Savage explained, filling these "important" posts is what allows a prison system to reach optimal levels. See June 16, 2021, R.D. Trial Tr. at 50. The Savages’ staffing analysis contained no "important" posts in its facility post plans. See Savages’ Report (Doc. 1813-1) at 121-33. Accordingly, considering all of the evidence, the court finds that the Savages’ staffing analysis reflected the posts necessary for ADOC to safely conduct normal operations, not the posts necessary to achieve optimal staffing levels. And regardless, the gist of the Savages’ testimony was clear: ADOC's correctional staffing is woefully inadequate.
The evidence presented in the omnibus hearings made clear how this grievous systemwide understaffing is felt daily at ADOC facilities. On a representative week at Donaldson Correctional Facility, the prison managed at most to fill 61 of the 97 mandatory posts at the prison one day on one shift. See Pls. Ex. 3860 at ADOC588188-90. In the inpatient RTU and SLU units at Donaldson that week, ADOC filled at most seven of the 13 mandatory posts. See id. These were maximum numbers; on other shifts during the week, Donaldson had as few as 21 of the 97 mandatory posts filled prison-wide and only one post filled across the RTU and SLU: a single officer in the control room for those units and no one on the floor. See id. at ADOC588208, 217-18.
Donaldson was not an outlier among ADOC facilities in its degree of understaffing. During similarly representative weeks at Bullock, St. Clair, and Easterling, ADOC again did not fill all of the mandatory posts on a single shift at any of the facilities, even counting correctional cubicle officers and trainees. Nor are these facilities the worst of the system; according to the defendants’ most recent quarterly staffing report prior to the omnibus remedial hearings, Bibb, Kilby, and Ventress Correctional Facilities all had correctional staff vacancy rates of over 50 %. See Quarterly Staffing Report (Doc. 3246-1) at 3. Only the Hamilton Aged and Infirmed Center had adequate correctional staffing as reflected in that report, and otherwise only the Tutwiler Prison for Women had a vacancy rate of less than 40 %. See id.
ADOC began a pilot program at Easterling, Hamilton, and Tutwiler to begin tracking the fill rate of critical minimum posts at those facilities. See June 15, 2021, R.D. Trial Tr. at 112-13. But instead of an honest assessment of the facilities’ critical staffing needs, ADOC elected simply to leave off every mandatory five-day post from the Savages’ staffing analysis, including only the mandatory seven-day posts instead. See June 17, 2021, R.D. Trial Tr. at 7-8. This across-the-board decision appears both baseless and arbitrary, and it is out of keeping with Meg Savage's testimony that mandatory and critical posts should generally be identical, absent some reason why a particular post might become non-critical based on specific changes at the facility. See June 15, 2021, R.D. Trial Tr. at 122-24. Savage testified that she did not know why ADOC had, as she said, "excluded" all mandatory five-day posts in creating these rosters. June 17, 2021, R.D. Trial Tr. at 8.
Of course, necessary staffing levels are always relative to prison population. Incarcerating more prisoners requires more staff; incarcerating fewer requires fewer. What staff are needed may also vary with changes in the responsibilities of a facility, or structural changes such as the opening or closing of particular units. For that reason, among the Savages’ recommendations that the court's understaffing order required the department to "fully implement[ ]," Phase 2A Understaffing Remedial Order (Doc. 1657) at 3, were that "another staffing analysis ... be conducted for every facility starting in January 2019" to re-assess the prisons’ needs and that an "agency staffing unit" be created to "implement[ ] and enforce[ ] ... any changes resulting from this analysis," Savages’ Report (Doc. 1813-1) at 20, 100. Among its responsibilities, this agency staffing unit would set critical minimum levels for each facility and ensure that those levels matched the mandatory posts in the staffing analysis. See id. at 22; see also June 15, 2021, R.D. Trial Tr. at 122-24.
Despite the court's order to implement the Savages’ recommendations, ADOC has done nothing in the intervening three years to update the Savages’ staffing analysis. Nor has the department established the agency staffing unit; until the absence of this unit came up in Meg Savage's testimony during the omnibus proceedings, ADOC had taken no steps to set up the staffing unit or hire an agency staffing head. As a result of ADOC's failure to implement these recommendations, Savage testified that she did not know whether the number of correctional staff positions currently needed for the system to operate safely is higher or lower than the number she and her husband found in their 2018 analysis. See June 16, 2021, R.D. Trial Tr. at 9-14.
That said, ADOC's population figures do not suggest that the systemwide number of necessary correctional staff should be radically different going forward than it was at the time of the court's understaffing order. While the system's in-house population has fallen somewhat since that time, nearly all of the decrease is due to the dramatic drop-off of admissions starting in April 2020 as the COVID-19 pandemic took hold. Compare Pls. Ex. 4033 at 3, with, Joint Stipulation (Doc. 3288) at 2. Those un-admitted people did not simply disappear; as the parties’ joint evidentiary stipulation shows, the decline in admissions has been accompanied by a sustained, coordinate rise in what ADOC terms "County Jail Population: On-The-Way." Joint Stipulation (Doc. 3288) at 2. When those inmates arrive, the correctional staffing needs of ADOC will only increase.
Right now, the lack of correctional staff continues to have profound consequences for the safety of prisoners incarcerated in the ADOC system. Tommy McConathy was raped in the Bullock RTU, where duty post logs show that the entire dormitory was at times staffed by a single correctional cubicle officer in the control room and no one on the dormitory floor. See Pls. Ex. 3403 at ADOC558777; May 28, 2021, R.D. Trial Tr. at 157-58. Charles Braggs's records indicated that he was offered out-of-cell exercise time on only four days in the six months he spent in segregation before his death, and the entries in his file frequently note staff shortages as the reason why his required out-of-cell exercise time was cancelled. See Pls. Ex. 3921 at ADOC517730-58. Representative duty post logs from St. Clair showed multiple restrictive housing units staffed with a single officer in the control room and no one on the unit floor. See Pls. Ex. 4269 at ADOC588534. Because two officers are required to take an inmate out of his cell, Savage testified that she "honestly d[id] not know" how ADOC could get any of the prisoners on those units out if needed in the case of a mental-health emergency. June 16, 2021, R.D. Trial Tr. at 195. Audits of ADOC's restrictive housing units routinely found compliance levels with the required 30-minute security checks below 20 %; the extraordinary degree to which non-compliance with this requirement puts inmates at risk was illustrated by the case of Casey Murphree, who was not found for hours after his death, after rigor mortis had set in.
Moreover, a candid March 2020 letter from Wexford to ADOC's then-Associate Commissioner of Health Services explained how continued, extreme correctional understaffing undermines the adequacy of mental-health care in ADOC facilities across the board. The absence of correctional staff and the resulting violence and stress among ADOC inmates resulted in decompensation and suicidality, leading to skyrocketing demand for suicide watch--more than 4,000 % above the suicide watch hours anticipated in Wexford's contract. See Pls. Ex. 3323 at 1-2. As a result, Wexford has had to divert its mental-health resources en masse to suicide watch, yielding a system of crisis response in lieu of mental-health care. See id. In Wexford's words:
"No one disputes that the ADOC has a severe shortage of Correctional Officers (COs), as documented in an April 2019 US Department of Justice report as well as in multiple quotes from ADOC staff to the media. Furthermore, no one disputes that this lack of security presence is a major contributing factor to the ongoing and excessively high levels of contraband, inmate drug use, and inmate-on-inmate violence the ADOC has experienced over the past several years.
"With many prison units lacking COs to protect against aggressive and/or predatory troublemakers, many inmates are afraid for their lives, resulting in unprecedented levels of stress, anxiety, and panic disorders among the ADOC inmate population. In many cases, the hostile prison conditions lead inmates to suicidal thoughts or acts. This has greatly increased the number of patients Wexford Health must place on suicide watch: fewer security staff enables greater violence; which increases fear and suicidal thinking; which increases the need for suicide watch hours. The dramatic increase in suicide watch volume has left us with no choice but to replace the performance of routine mental health tasks—which comprise a large part of the audits—with providing crisis-level services, to ensure the safety of our patients."
Id. at 2 (emphasis in original).
Taken as a whole, the evidence presented at the omnibus remedial hearings reflected a beleaguered and dysfunctional system where still-egregious correctional staffing deficiencies make providing constitutionally adequate mental-health care impossible. In light of this evidence, the court finds that continued correctional understaffing in all ADOC facilities except the Hamilton Aged and Infirmed Center and Tutwiler prison for women places mentally ill inmates in ADOC custody at substantial risk of serious harm, including decompensation, victimization, self-injury, and death.
Because of the nearly unchanged severity of ADOC's correctional understaffing and the degree to which it continues to "permeate" the entirety of the department's mental-health care system, Braggs , 257 F. Supp. 3d at 1268, this understaffing creates a substantial risk of serious harm regardless of any other continued deficiencies. However, as will be discussed below, the correctional understaffing is exacerbated by ongoing problems in many of the other areas in which the court has previously found liability.
2. Mental-Health Staffing
In contrast to its minimal efforts to increase correctional staffing, ADOC has made significant, albeit incomplete, progress toward increasing mental-health staffing in ADOC facilities to constitutionally acceptable levels.
In its 2017 liability opinion, the court surveyed levels of mental-health staffing across ADOC disciplines and facilities and found them "chronically insufficient." Braggs, 257 F. Supp. 3d at 1194. ADOC's prisoner population had become more mentally ill over the preceding decade, "both in terms of the number of individuals who need[ed] mental-health care and in terms of the acuity of mental-health care needs." Id. at 1194. Yet ADOC had hired fewer and fewer mental-health providers--far fewer than it was authorized to hire under its contract with its mental-health vendor. Id. at 1194–95. The resulting understaffing caused "a plethora of issues, including insufficient identification of mental illness at intake and referrals; missed counseling appointments and group sessions; and inadequate monitoring of prisoners in mental-health crises." Id. at 1197.
To remedy those issues, the defendants proposed a plan with short-run and long-run components. See Phase 2A Understaffing Remedial Opinion (Doc. 1656) at 17–18. The short-run component called for ADOC, in the course of slightly more than a year, to double the number of psychiatrists, psychologists, certified nurse practitioners, licensed mental-health professionals and registered nurses employed at ADOC facilities. Id. at 18–20. In addition, the defendants proposed that ADOC must fill certain existing positions in its Office of Health Services (OHS)--the ADOC department responsible for monitoring the provision of mental-health care--and create and fill others. Id. at 23–27.
The long-run component of the defendants’ plan called for ADOC to employ a team of three mental-health consultants to develop ratios for determining the number of mental-health staff of various types needed per inmate. The defendants proposed to apply those ratios to ADOC caseload numbers, and thereby determine an appropriate number of mental-health staff for each facility and discipline. Id. at 20–22. ADOC would then modify its contract with its mental-health vendor to provide the recommended number of staff.
The court found the defendants’ proposed plan "minimally adequate" to remedy the constitutional violations identified in its 2017 liability opinion, and ordered its adoption, with slight modifications. Phase 2A Understaffing Remedial Opinion (Doc. 1656) at 1; Phase 2A Understaffing Remedial Order (Doc. 1657) at 1. The court supported this order with PLRA findings. See Phase 2A Understaffing Remedial Opinion (Doc. 1656) at 33-37.
To implement the short-run component of the defendants’ plan, the court ordered ADOC to hire, by July 1, 2018, the full number of mental-health professionals available to it under its then-existing contract with its mental-health vendor. See Phase 2A Understaffing Remedial Order (Doc. 1657) at 4. The court also ordered ADOC to fill the positions of Clinical Director of Psychiatry and Ombudsman in the ADOC Office of Health Services, and to create and fill the positions of Director of Mental Health Services and Southern Regional Psychologist. See id. at 6–7.
To implement the long-run component of the defendants’ plan, the court ordered ADOC to meet a series of deadlines. First, it ordered the defendants’ mental-health consultants--Catherine Knox, Jeffrey L. Metzner, and Mary Perrien--to begin to develop mental-health staffing ratios by September 1, 2018. See id. at 4-5. Second, it ordered that the defendants’ consultants submit finalized mental-health staffing ratios to the defendants to be filed with the court by March 4, 2019. See id. at 5. Third, it ordered that ADOC modify its contract with its mental-health vendor to provide the positions required by the staffing ratios by August 15, 2019. See id. Fourth, it ordered that the defendants’ consultants review implementation of the staffing ratios and make recommendations, if necessary, for revising them, by January 15, 2020. See id. at 5–6. Finally, it ordered that ADOC's mental-health vendor fill the mental-health staffing positions consistent with the contract by February 15, 2020. See id. at 6.
In the months following the entrance of the court's Phase 2A Understaffing Remedial Order, ADOC seemed to the plaintiffs to be dragging its feet, and in July, 2018, the plaintiffs moved to hold the defendants in contempt, alleging that ADOC had failed to meet certain deadlines imposed by the understaffing order, and that it had withheld data concerning its compliance. See Pls. First Notice of Non-Compliance and Motion for Order to Show Cause Why Defendants Should Not be Held in Contempt (Doc. 1916). The defendants opposed the motion, see Defs. Response in Opposition (Doc. 1936), and after a series of hearings on the nature of ADOC's obligations regarding mental-health staffing, the parties agreed to resolve their dispute by stipulating to various modifications of the court's Phase 2A Understaffing Remedial Order, see Amended Stipulations Regarding Mental Health Staffing (Doc. 2283-1). Under the parties’ stipulations, which the court entered as an enforceable order, see Order (Doc. 2301), ADOC agreed to provide mental-health staffing consistent with certain minimum staffing requirements until such time as its consultants finalized their staffing ratios, and to submit quarterly staffing reports to the court and monthly reports to the plaintiffs.
ADOC proceeded to make significant progress. Its consultants completed their recommended mental-health staffing ratios in February, 2019, see Recommended Staffing Ratios for Mental Health Services (Doc. 2385-1), and in September of the same year the parties jointly filed a mental-health staffing matrix, based on those staffing ratios, specifying the number of full-time-equivalent staff to be hired at each ADOC facility, see Mental-Health Staffing Matrix (Doc. 2618-1). The court approved that staffing matrix in December 2019, together with stipulations by the parties regarding the manner in which ADOC was to comply with its consultants’ recommendations, and incorporated the staffing matrix and stipulations into an enforceable order. See Phase 2A Order and Injunction on Mental-Health Staffing Remedy (Doc. 2688). ADOC then modified its contract with Wexford to hire mental-health staff according to those stipulations and the staffing matrix. See P-3321. Those modifications went into effect on October 1, 2020. See id. at ADOC528698.
Since then, ADOC has hired a significant number of new mental-health staff. While ADOC has yet to meet the targets set forth in the December 2019 staffing matrix, its consultant, Dr. Metzner, testified that several ADOC facilities have sufficient mental-health staff to provide a constitutionally permissible level of care to their current inmate populations, including Easterling Correctional Facility, Fountain Correctional Facility, Holman Correctional Facility, Kilby Correctional Facility, and Limestone Correctional Facility, see June 30, 2021, R.D. Trial Tr. at 123–32, and that certain positions at St. Clair Correctional Facility and Staton Elmore Correctional Facility are adequately staffed, id. at 141–42.
Dr. Metzner later testified that he misread a staffing chart prepared by Wexford and overestimated the extent to which the ADOC facilities were staffed by up to 15 %. See July 1, 2021, R.D. Trial Tr. at 7; July 5, 2021, R.D. Trial Tr. at 65–66. Still, the court does not question that ADOC has made great progress in staffing at the facilities that Dr. Metzner identified.
Nevertheless, while change has come faster in this area than others, its pace has been slower than ordered, and serious deficiencies in mental-health staffing remain. The court's 2018 remedial staffing order set a deadline of August 15, 2019, for ADOC to modify its contract with its mental-health vendor to provide the positions required by the staffing matrix. ADOC failed to meet that deadline, and it has not caught up. Its consultants have not revised their ratios, as they were required to do by January 15, 2020. And although ADOC has made encouraging progress at some facilities, no facility is in complete compliance with the court's 2018 remedial staffing order and the parties’ staffing matrix. In fact, according to the most recent staffing report in the record, at only seven of its facilities has ADOC staffed even a single type of position in accordance with the requirements of the staffing matrix. See Quarterly Mental-Health Staffing Report (Doc. 3227-1) at 3–4 (reporting that ADOC has fully staffed the positions of mental-health observer, at Bibb Correctional Facility; mental-health observer, at Bullock Correctional Facility; mental-health observer, at Donaldson Correctional Facility; mental-health licensed nurse practitioner, at Fountain Correctional Facility; mental-health observer, at Holman Correctional Facility; mental-health licensed nurse practitioner, at Kilby Correctional Facility; and mental-health observer, at Limestone Correctional Facility at the levels provided in the staffing matrix.). At no facility has it staffed more than one type of position in accordance with the requirements of the staffing matrix. See id.
That several ADOC facilities may have enough mental-health staff to serve their current populations is an encouraging development, but not necessarily a permanent one. In response to the COVID-19 pandemic, ADOC largely stopped conducting intake from local jails, and, as a result, its inmate population has fallen below the levels that the staffing matrix was designed to accommodate. See, e.g., June 30, 2021, R.D. Trial Tr. at 122 (testimony of Dr. Metzner, estimating that ADOC's caseload has decreased by 3,000 inmates due to COVID-19). Both parties agree that, when the pandemic abates, ADOC will likely see a substantial and rapid increase in its inmate population. See Joint Stipulation For Evidentiary Hearing (Doc. 3288) at 2; Pls. Dem. Ex. 236; Pls. Exs. 3224–3232; June 30, 2021, R.D. Trial Tr. at 111 (testimony of Dr. Metzner); July 5, 2021, R.D. Trial Tr. at 76 (testimony of Dr. Metzner). It remains to be seen whether the ADOC facilities that are sufficiently staffed today will stay that way, or whether the requirements of the staffing matrix--which ADOC has not met--are accurate indicators of the quantity of staff needed to provide a constitutionally permissible standard of care once intake from local jails resumes.
More troubling still, ADOC's shortage of correctional staff calls into question the adequacy of mental-health staffing even in those facilities where ADOC has made the most progress. Dr. Metzner based his testimony that certain ADOC facilities have sufficient mental-health staff to serve their current populations on the mental-health staffing ratios; given the number of mental-health staff employed at each facility, he used the ratios to determine the maximum number of inmates those staff could treat. At certain facilities with lower-than-predicted inmate populations, the ratios projected current staffing levels to be adequate. The ratios, however, are based on a set of assumptions, including the assumption that "[t]here will be adequate correctional staffing." See Doc. 2385-1 at 2. Unfortunately, that assumption has proven false and is projected to remain false for years. ADOC has failed to provide adequate correctional staffing, and that failure has had a direct impact on the ability of mental-health staff to treat inmates efficiently. As explained above, extreme correctional understaffing has prevented mental-health staff from treating inmates simply because there are insufficient correctional staff to escort inmates to and from their cells. See supra at 73-76; Pls. Ex. 3310 at ADOC546882; May 25, 2021, R.D. Trial Tr. at 140-44; Pls. Ex. 3347 at ADOC553738. It has also resulted in a proliferation of violence, causing a massive increase in suicide watch hours that has required mental-health staff to "replace the performance of routine mental health tasks ... with providing crisis-level services." Supra at 76 (quoting Pls. Ex. 3323 at 2). It is therefore almost certain that mental-health staff are unable to treat inmates as efficiently as the staffing ratios assume, and it is likely that more mental-health staff are currently needed even in those facilities where the defendants have made the most progress.
3. Restrictive Housing
The court discussed above and will discuss in more detail below the current risks to inmates in ADOC's restrictive housing units that are the direct result of the system's ongoing dearth of correctional officers. These problems include, for instance, insufficient out-of-cell time and the inadequate provision of the 30-minute security checks necessary to interrupt decompensation and suicide. The court will not further elaborate those problems here. Instead, it notes several additional, serious problems with the mental-health care provided to inmates in ADOC's restrictive housing units that are discussed less elsewhere in this opinion.
First, ADOC continues to lack a functioning process for diverting individuals from segregation who are contraindicated for placement there due to suicide risk, serious mental illness, or other significant mental-health issues. Part of this is due to the deficiencies in the disciplinary process discussed above, which should help prevent inmates who are clinically contraindicated for segregation from receiving segregation sentences. But the pre-placement screening process also is intended to divert inmates from segregation when necessary, and it, too, fails almost categorically to do so. In other words, if ADOC's mental-health care system were functioning adequately, there would at least two layers of protection (the disciplinary process and the pre-placement screening process) to prevent inmates with serious mental illnesses from being placed in segregation for disciplinary reasons, and one layer of protection (the pre-placement screening process) to prevent inmates with serious mental illnesses from being placed in segregation for non-disciplinary reasons. But neither works in practice, and suicidal inmates and those with serious mental illness are routinely placed in segregation as a result.
ADOC has improved its practice of conducting pre-placement screenings for prisoners entering segregation to assess them for contraindications to restrictive housing, although there is some evidence that these screenings too often miss contraindications. Dr. Burns, for instance, testified about her review of the records of an inmate the parties called D.R., who received pre-placement screenings that "continually said there were no contraindications for [restrictive housing unit] placement, even though he was a person with a serious mental illness." May 25, 2021, R.D. Trial Tr. at 87.
More troubling is that, as of the time of the liability trial, ADOC staff regularly ignore the results of pre-placement screenings. Laramie Avery and Casey Murphree both were flagged in pre-placement screenings as clinically contraindicated for segregation due to mental-health concerns. See Pls.’ Ex. 3302 at 518578; Pls.’ Ex. 3280 at ADOC518064. Both were placed in restrictive housing anyway, and both died there, Murphree within a day of his arrival. Two mental-health staff members told correctional officers that another inmate referred to as A.J. should not be placed in segregation because of his mental-health; they eventually had to refer him for suicide watch even though he did not need it because the captain with whom they were communicating said he was going to place A.J. in segregation anyway. See May 25, 2021, R.D. Trial Tr. at 27.
Although the court found in the liability opinion that "it is categorically inappropriate to place prisoners with serious mental illness in segregation absent extenuating circumstances," Braggs, 257 F. Supp. 3d at 1247, ADOC has never developed a working definition of these "extenuating circumstances"--often now called "exceptional circumstances." See July 1, 2021, R.D. Trial Tr. at 225-26, 233. Under ADOC policy and the orders of this court, inmates coming directly from suicide watch also cannot be placed in restrictive housing in the absence of exceptional circumstances due to the risk that the conditions of isolation may cause them to relapse into suicidality. But with no definition in place, ADOC instead sends these prisoners to segregation, as one provider put it, as "a matter of course," Pls. Ex. 3320 at 1, obtaining pro forma authorizations in minutes with no evidence that alternative placements were considered or that the circumstances were exceptional under any plausible definition of the term.
Within the restrictive housing units, the provision of mental-health rounds has become more consistent. Although Charles Braggs received no weekly mental-health rounds for more than two months before his death, recent audits of almost all of the major facilities show significant compliance with these rounds. See Pls.’ Ex. 3255 (Bibb); Pls.’ Ex. 3258 (Bullock); Pls.’ Ex. 3264 (Easterling); Pls.’ Ex. 3269 (Fountain); Pls’ Ex. 3270 (Kilby); Pls.’ Ex. 3272 (Limestone); Pls.’ Ex. 3276 (St. Clair); Pls.’ Ex. 3318 (Tutwiler); Pls. Ex. 3320 (Ventress). This is a recent improvement in many cases, but it is a commendable one.
Periodic mental-health assessments, on the other hand, continue to be conducted sporadically if at all, particularly for inmates who are not on the mental-health caseload. Braggs received only two assessments in the two years he had been in his segregation cell at St. Clair before he died. Gary Campbell lived in restrictive housing for nearly three years without a single periodic assessment. When these assessments or other contacts lead to mental-health referrals, mental-health staff often fail to follow up on them appropriately. Laramie Avery received two referrals in the weeks before his death and was not seen. Jaquel Alexander received an urgent referral the day before he died, and the mental-health provider was not notified of the referral for 12 hours. Casey Murphree received an emergent referral less than 24 hours before his death--the most acute referral level possible, which requires that the inmate be seen within three hours. He was not seen for the referral before he died. As a result of the failure to follow up on referrals appropriately, inmates who are psychologically deteriorating in segregation are missed, do not receive the mental-health treatment they need, and too often decompensate to the point of self-harm and suicidality. Combined with the dearth of correctional staff, these conditions continue to make ADOC's segregation units dangerous for inmates with mental-health needs housed in them.
4. Intake
The court recognizes the hard work ADOC has put into improving the intake process and ensuring that every inmate receives a mental-health screening upon entering ADOC custody. The parties agree that ADOC has completely overhauled its intake process since the time of the liability opinion, and the evidence is clear that every inmate who enters the system is currently receiving this screening. Moreover, the rate of identified mental illness in ADOC facilities has increased, and it now falls within the expected range for both male and female prison populations. This is an encouraging turnabout from the low rates found during the liability trial.
While ADOC has made admirable improvements to intake generally, there are nevertheless issues remaining that require current relief. As Dr. Burns noted, ADOC's own mental-health care provider recommended a variety of changes to the intake process in response to failures identified during reviews of inmate suicides. In particular, ADOC seems to have struggled to document and follow up on the results of the intake screening. For example, the psychological autopsy Wexford conducted after Laramie Avery committed suicide noted that, while inmates were receiving psychological testing during intake, "there is no interpretation of the results and it's not incorporated into the inmate's treatment during his incarceration." June 2, 2021, R.D. Trial Tr. at 108. After Charles Braggs committed suicide months later, Wexford reiterated that recommendation, writing that, "Psychological Assessments are highly recommended to be interpreted at intake and assessed for any potential risk factors or indicators the inmate may experience an underlying mental health problem that needs further evaluation by a mental health provider." Charles Braggs Psychological Autopsy (P-3284) at ADOC539024. Dr. Burns also noted these issues, expressing her concern that, "although the tests were administered, the results were not being interpreted and used in the treatment of the patients." June 7, 2021, R.D. Trial Tr. at 107.
Nor has the department consistently made an effort to ensure that all of an inmate's previous mental-health records, which may contain important information to facilitate the inmate's treatment, are received and assessed so that providers can accurately determine who is in need of care and what care is needed. This makes it more likely that prisoners who should be on the caseload will be missed and that providers will make treatment decisions without access to information about an inmate's mental-health history that may be vital to identify the inmate's current mental-health needs. This problem was realized in the treatment of Marquell Underwood. In the course of a routine referral soon after his intake screening, Underwood stated that he had been treated for bipolar disorder prior to his incarceration and reported "an increase in mood swings, including depression and irritability." May 24, 2021, R.D. Trial Tr. at 56. In response, his records were not requested and he was not placed on the mental-health caseload. Id. at 56-57. Roughly 18 months later, he committed suicide, without ever having been placed on the mental-health caseload. In his psychological autopsy, Wexford noted its failure to request documents that may have been relevant for his treatment, recommending that in the future there be "[i]mproved continuity of care ... between county jail and ADOC for any mental health patients or inmates who may have presented with suicidal ideations or self-harming prior to transport." Marquell Underwood Psychological Autopsy (P-3316) at ADOC518596.
Also a concern is ADOC's continued reliance on unsupervised LPNs to help conduct the intake screenings. The court found in the liability opinion that LPNs lacked adequate training and medical knowledge to conduct intake and that utilizing them in that role contributed to ADOC's under-identification of prisoners with mental illness. However, Dr. Burns testified that she had seen LPNs continue to conduct intake screenings even after the liability trial. See June 2, 2021, R.D. Trial Tr. at 206. While these LPNs were supposed to be supervised by RNs, Dr. Burns noted that for some of the records she reviewed, it appeared that the RN had signed off on the screening before it was even completed. Id.
While it is admirable that ADOC now appears to be conducting intake for all inmates, that alone is not enough. The department's continued failure to adequately track, interpret, and follow up on the results of the intake screening contributes to the same inability to identify inmates noted in the liability opinion, leaving them without the care they need.
5. Coding
It is clear that ADOC has made enormous progress in improving its coding system since the time of the liability opinion. Experts from both sides agreed that ADOC had completely replaced its old number-based system and that all inmates were now receiving the new codes—indeed, the parties themselves stipulated to this. See Joint Stipulation for the Evidentiary Hearing Regarding the Phase 2A Remedial Order (Doc. 3288) at 8; see also note 2, supra. ADOC also created an SMI designation flag for the first time, and both parties agree that the flag is being used for inmates. It is clear that the department has invested significant resources in creating and implementing this new system, and the court notes with approval the improvements in identifying and tracking inmates that have resulted.
However, the plaintiffs provided extensive evidence that the documentation of codes and SMI flags is inconsistent at best, which creates an opportunity for inmates to fall through the cracks. Dr. Burns credibly testified that she had found inconsistent documentation in her review of inmates’ charts, including charts that continued to reflect outdated codes, see June 8, 2021, R.D. Trial Tr. at 29, coding that included "not applicable" notations, see June 2, 2021, R.D. Trial Tr. at 205-06, and forms that failed to include inmates’ SMI designations, see May 24, 2021, R.D. Trial Tr. at 70; May 25, 2021, R.D. Trial Tr. at 33; id. at 42. Indeed, on one form she reviewed, "both yes and no [were] circled for SMI," making it impossible to tell what the provider intended to communicate. June 9, 2021, R.D. Trial Tr. at 32. ADOC's internal audit of its mental-health provider indicated an ongoing problem with codes on the Master Problem List not matching codes listed on other documents or in the Office of Health Services database. See June 10, 2021, R.D. Trial Tr. at 113. As Dr. Burns testified, without accurate and consistent documentation of inmates’ mental-health codes, it is difficult for providers to "know where the mental-health caseload is, who needs what sorts of services," or which inmates might need special attention. June 2, 2021, R.D. Trial Tr. at 229-30.
The court also finds that providers in ADOC are not always coding inmates appropriately to their needs. Dr. Burns presented extensive testimony about the failure of providers to add inmates to the mental-health caseload or increase their codes even in the face of overwhelming evidence that they were in crisis. For example, Laramie Avery was referred to mental-health several times before his suicide, but he was never added to the mental-health caseload. See May 24, 2021, R.D. Trial Tr. at 50. Marquell Underwood bounced back and forth between restrictive housing and suicide watch and reported a history of bipolar disorder, but he too was never placed on the caseload before his suicide. See id. at 57. Jaquel Alexander was not added to the caseload until after the "fifth or [sixth] time" he was placed on suicide watch, id. at 68, and inmate M.H. was actually downcoded from MH-D to MH-B despite the fact that he had had several recent incidents in which he cut himself and was placed on watch, see May 25, 2021, R.D. Trial Tr. at 45. Wexford flagged these failures as an issue in several separate psychological autopsies, but there is no evidence that any action was ever taken to improve the coding process and ensure that inmates were receiving the appropriate codes. See May 24, 2021, R.D. Trial Tr. at 61, 70.
Dr. Burns also pointed to several incidents in which providers made decisions about an inmate's mental-health code based on inappropriate factors. For example, Marco Tolbert was downcoded from MH-D to MH-C simply because he asked for it, despite the fact that he appeared disheveled and depressed. See id. at 19. Casey Murphree also successfully sought to be downcoded because he thought that it would help him get a job, even though he gave vague responses to questioning about auditory hallucinations and the provider had records showing that he was not fully compliant with his medications. See id. at 74. Dr. Burns testified that ability to get a job is not an appropriate clinical factor to consider in determining an inmate's mental-health status and that she saw no evidence that the team had discussed any proper factors before Murphree was downcoded. See id. at 74-75. There were similar issues with the SMI flags. Dr. Burns identified a few inmates with categorial SMIs, a designation that is based on the type of mental illness a person is suffering from and which one "would not expect to be discontinued," but the flags would disappear without explanation. See id. at 173-77; May 25, 2021, R.D. Trial Tr. at 35-36; id. at 40. These failures seriously call into question ADOC's ability to accurately identify, label, and track inmates’ mental-health needs, even despite the department's overhaul of its coding system.
6. Referral
Referrals are the key means by which inmates who are not on the caseload or who need additional care are flagged for further evaluation by mental-health professionals. As experts for both parties reported, inmates depend on referrals to get care--"[i]t's not like they can pick up the phone and make an appointment with somebody" themselves. June 3, 2021, R.D. Trial Tr. at 18. Referrals may be made by prison staff or by the inmates themselves, and ADOC has adopted regulations that lay out the process by which both groups may make a referral. Evidence presented at the omnibus remedial hearings included several referrals made by both groups, indicating that they are aware of and actively using the referral system. While there is some evidence that this process is not always used by inmates--Braggs, for example, had been asking for mental-health services for two weeks before his suicide, according to the inmate in the cell next to his, see May 24, 2021, R.D. Trial Tr. at 119-20--it is encouraging that ADOC has created a process that both inmates and staff feel comfortable using as a means to request needed care.
At the time of the liability opinion, ADOC did not have a system to triage and identify the urgency of each referral, which is vital to ensuring that requests are met in a timely fashion and to avoid unnecessary delays in the provision of care. Since that time, however, ADOC has made impressive progress in developing a triage process and implementing it throughout the prison system. Most of the referrals viewed during the omnibus remedial hearings had been triaged by a mental-health staff member in a timely fashion, which is a major improvement for a system that lacked any sort of triage process only a few years ago. ADOC has made real, important progress, and the court is confident that the department will continue its commitment to ensuring that triage is completed quickly and thoroughly so that inmates can receive the treatment they need. While ADOC has done an admirable job in ensuring that referrals can be made, the system falls apart at the follow-up stage. Over the course of the omnibus remedial hearings, the court received evidence of numerous troubling incidents in which referrals were made but inmates did not receive care within the required timeframes, if at all. In some instances, referrals were not received in a timely fashion. See May 25, 2021, R.D. Trial Tr. at 53-54 (noting late receipt of referrals made for inmate T.M.); June 2, 2021, R.D. Trial Tr. at 100 (explaining that there were seven days between when a referral for Marquell Underwood was made and when it was received). In other cases, it was unclear whether there was a documentation error or a failure to provide care. Dr. Burns testified that there were "multiple episodes in which the referral forms ... don't show if there was a mental-health follow-up" at all, leaving her uncertain about whether it had occurred. May 26, 2021, R.D. Trial Tr. at 17. In the vast majority of cases, however, the problem was that mental-health staff did not timely respond to the referrals, leaving the inmates waiting--sometimes for months--on care.
During the triage process, referrals are separated into three categories, each of which requires a different level of urgency of response. The evidence presented at the omnibus remedial hearings indicates that in practice, the categories mean little.
Emergent referrals indicate, as Dr. Burns explained, that "the nurse has determined there's an imminent risk of injury or some otherwise necessary and immediate need for mental-health services." June 3, 2021, R.D. Trial Tr. at 25. According to the defendants’ expert, the common requirement in corrections is that these types of referrals should be responded to within four hours. See June 29, 2021, R.D. Trial Tr. at 221. However, inmate R.J. was not seen for three days after he received an emergent referral because mental-health staff were told that there was no security to bring him out for the assessment. In the interim, he was not put on watch, nor is there any indication that mental-health staff attempted to go see him. See May 25, 2021, R.D. Trial Tr. at 118-20.
Urgent referrals indicate that "there is an urgent need, like an urgent care center type need." June 3, 2021, R.D. Trial Tr. at 26. Dr. Burns testified that such a need "doesn't have to be responded to instantly, as in the immediate, or as soon as possible, like an emergency need, but it does need to be responded to ... within 24 hours." Id. In ADOC, though, inmate T.M. did not receive an assessment for three weeks after he set himself on fire and received an urgent referral. See May 25, 2021, R.D. Trial Tr. at 52.
Routine referrals are made "for some nonemergency purpose," and Dr. Burns stated that mental-health staff should have 14 days to respond. June 3, 2021, R.D. Trial Tr. at 26. But frequently the timeframes were much longer. Inmate A.J. was referred on February 28, 2020, but he was not seen until May of that year. See May 25, 2021, R.D. Trial Tr. at 27. Inmate W.S. received an assessment by an MHP within two weeks, but that assessment resulted in a referral to the CRNP that was not followed up on for two more months. Id. at 178. And at times, ADOC staff failed to respond at all. For example, Laramie Avery received no response to either of the routine referrals that were made in the weeks before his suicide. See May 24, 2021, R.D. Trial Tr. at 45-47. Repeated efforts to access care seemed to do nothing to speed up the process. Inmate K.W. had five referrals in less than a month, two of which were urgent, but there were still 22 days between the first referral and when he was seen, longer than would be acceptable under any time frame. See June 10, 2021, R.D. Trial Tr. at 12, 17.
ADOC itself found low compliance scores with the response timeframes for all three levels during its internal audits. Despite the department's awareness of the problem, however, there is no evidence that ADOC has made progress in avoiding delays and ensuring that referrals are addressed within a reasonable period.
As Dr. Burns testified, these failures to respond are a "red flag" about the state of ADOC's referral system. May 26, 2021, R.D. Trial Tr. at 95. The point of a referral is to get an inmate the care they need in the timeframe in which they need it. Delayed or inadequate follow-up undermines the efficacy of the entire referral process. Indeed, without follow-up, referrals are essentially useless, and referrers are doing nothing more than shouting into the void. And failure to ensure that inmates are seen can have tragic, irreversible consequences. When mental-health staff did not respond to the emergent referral for Casey Murphree on the day it was made, he did not receive any care until "he was found hanging" approximately 20 hours later. May 24, 2021, R.D. Trial Tr. at 76-77.
7. Confidentiality
Confidentiality is, as the court found in its liability opinion and Dr. Burns testified during the omnibus remedial hearing, an "absolutely necessary condition" for the adequate provision of mental-health care. June 3, 2021, R.D. Trial Tr. at 14. Inmates must feel safe enough to speak freely with mental-health staff and disclose personal, sensitive information that is relevant to their treatment. Confidentiality is particularly vital in the prison setting, where inmates may "become vulnerable later to some taunting or blackmail or extortion" if staff or other inmates can overhear their sessions with mental-health staff. Id. However, evidence from the omnibus remedial hearings indicated that the department still struggles to provide confidential spaces for treatment and to ensure that treatment consistently occurs in a confidential setting.
It would not be fair to ADOC to say that inmates never receive confidential mental-health services. In fact, the court was encouraged to note that many of the sessions discussed during the trial occurred in out-of-cell, confidential settings. However, given the importance of confidentiality to effective mental-health treatment, the court remains concerned about the number of instances of non-confidential sessions raised during the hearing. As Dr. Burns testified, some facilities have extensive confidential treatment space close to where inmates are housed, which is useful for holding sessions with inmates. See, e.g., May 25, 2021, R.D. Trial Tr. at 155 (describing the confidential area at St. Clair); June 7, 2021, R.D. Trial Tr. at 65 (describing the confidential treatment space in Bullock). However, out-of-cell spaces are not always used in ways that maintains confidentiality. Dr. Burns discussed several inmates whose sessions were interrupted, destroying confidentiality. For example, inmate DR was seen in an office, but "people were in and out of the office," making it difficult for him to talk openly with his counselor. May 25, 2021, R.D. Trial Tr. at 88. And inmate A.E. reported that, because he saw his counselor at the same time that he saw the doctor, he had not had a confidential, one-on-one session in years. See id. at 90.
Several progress notes described sessions held in what were referred to as "semi-confidential" settings, where the participants were in a setting where they could be overheard but were directed to speak quietly to maintain privacy. Tommy McConathy received crisis counseling "behind a screen" where he and the provider simply talked "with low voices." Id. at 6. Progress notes for inmate A.J. indicate that he was seen for treatment in spaces where he and his mental-health provider had to "sp[eak] quietly to ensure confidentiality." Id. at 26-27. This does not actually ensure confidentiality, and it is not sufficient to meet the court's directive. As Dr. Burns explained, it is not appropriate to think of confidentiality as "partial or semi. It's either all or none." May 24, 2021, R.D. Trial Tr. at 156-57. And it is particularly vital that ADOC make every effort to provide confidentiality for treatment sessions given the tragic consequences that can result when inmates do not receive effective treatment. The court reiterated the importance of confidentiality during the suicide prevention hearing, and Dr. Burns noted that she had seen the issue of confidentiality arise in a number of recent suicides and serious suicide attempts. See id.
Nor is it appropriate for ADOC to give up on providing confidential treatment to inmates who are hesitant or unwilling to leave their cells. Several of the instances of non-confidential sessions involved inmates who refused to come out of their cells, which the court acknowledges can be difficult for staff to address. For example, Gary Campbell repeatedly refused to come out of his cell for sessions and had only cell-side interactions with mental-health staff in the months before his suicide. See May 24, 2021, R.D. Trial Tr. at 128-29. However, the responsibility to get inmates the care they need, even in the face of their noncompliance, rests with ADOC. Dr. Burns convincingly testified that there was more that the staff could have done to try to ensure confidentiality, including coming back on another day or asking a higher-ranking staff member to make the request. See id. at 131-33. As ADOC's own regional psychologist noted in reflecting on Campbell's suicide, he remained in his restrictive housing unit cell for two years "because he was allowed to ... That was stressful and he was not even aware that talking to someone could have been helpful." Email from Nina Tocci Regarding Gary Campbell's Suicide, P-3267 at 1.
The court is also troubled by the impact understaffing continues to have on the provision of confidentiality. Even in facilities with confidential treatment spaces, out-of-cell interactions require sufficient staff to escort inmates to their sessions and stand watch to address any safety issues. When there are not enough staff to transport and monitor inmates, mental-health staff are forced to go to the inmates and hold sessions cell-side, which are not at all confidential. There were a number of instances discussed during the omnibus remedial hearings in which inmates were not being removed from their cells for counseling sessions. Inmate M.W. received "many cell-side contacts" during his stay in the Bullock SU, May 25, 2021, R.D. Trial Tr. at 40, and inmate A.C. reported that he was not offered any confidential treatment while in the same unit, but that "the counselor came to the door to see him a couple of times a week," June 2, 2021, R.D. Trial Tr. at 69. Inmates that Dr. Burns spoke to at St. Clair reported that they were not always removed from their cells for counseling sessions. See June 7, 2021, R.D. Trial Tr. at 86. And inmate Danny Tucker received a follow-up session after he was released from suicide watch that was held cell-side, just hours before he committed suicide in that same cell. See June 24, 2021, R.D. Trial Tr. at 16.
ADOC's own audits highlighted the problems with confidentiality at many facilities. Though Dr. Burns described some of the issues with the audits, including small sample sizes, the court is still concerned that the results, taken as a whole, show an overwhelming failure to provide treatment in confidential spaces. Multiple facilities received compliance scores below 50 % on confidentiality, including Bibb, Easterling, Donaldson, and Limestone. See Bibb Audit Report (P-3256) at 5 (scoring 30.77 % compliance with confidentiality); Easterling Audit Report (P-3266) at 5-6 (26.09 %); Donaldson Audit Report (P-3263) at 6-7 (22.54 %); Limestone Audit Report (P-3273) at 6 (14.81 %). No facility scored above 70 % on the audit. Even accounting for the flaws in the audits, these numbers are troubling, and they indicate a widespread and ongoing issue with ensuring confidential treatment for inmates.
8. Treatment Teams and Plans
Since the court found in the liability opinion that ADOC's treatment planning process was inadequate and resulted in incomplete, generalized, or nonexistent plans, the department has made encouraging progress. Neither the plaintiffs’ expert nor the defendants’ expert could identify an inmate on the mental-health caseload who lacked a designated treatment team, a reflection of the department's commitment to ensuring that every inmate receives consistent, individualized treatment planning. ADOC has also created new forms for treatment-team meetings to assist mental-health staff in determining who needs to attend the meetings and the timeframes in which they must be completed. Based on the treatment plans discussed during the omnibus remedial hearings, it seems that the forms have been successful in ensuring that individuals who should attend meetings are actually in attendance and that those who must miss a meeting are prompted to review the minutes and remain current on the inmate's treatment status. Though the results of ADOC's own audits of treatment teams indicate only mixed levels of compliance with the requirements that each inmate have a specified treatment team and that the team consist of all relevant staff members, it appears that ADOC has made significant progress in ensuring that inmates are assigned treatment teams made up of relevant staff members.
However, there has been less consistent improvement in ensuring that treatment teams are meeting frequently enough to address inmates’ changing needs. Treatment teams provide no benefit if they are not actually meeting to check on inmates’ progress and adjust their treatment as necessary. The need for treatment-team meetings is linked to inmates’ mental states: It is even more vital that the team meet, and that they do so more frequently, for inmates who are housed in more intensive units, because those inmates tend to be "more unstable" and may need their care to be fine-tuned. June 3, 2021, R.D. Trial Tr. at 161. Testimony from the omnibus remedial hearings revealed a worrying pattern of treatment teams not meeting to discuss inmates for months at a time. One inmate, M.M., did not have any treatment-team meetings for eight months, from July 2020 to March 2021. See June 9, 2021, R.D. Trial Tr. at 211. By the time Dr. Burns spoke with him, in March 2021, she reported that "it was apparent that he needed more frequent contact and monitoring of his condition." May 25, 2021, R.D. Trial Tr. at 97. This held true even for inmates who were housed in intensive inpatient units. For example, when inmate A.E. was housed in the residential treatment unit, he should have had treatment-team meetings once a month. See June 9, 2021, R.D. Trial Tr. at 206. But his treatment records indicate that the team instead met only once every four months. See id. at 191. When a treatment team fails to meet at sufficient intervals, inmates may end up failing to get the level of care they need. And the consequences can be tragic--as documented in Wexford's own psychological autopsy, there was no indication that Jaquel Alexander's treatment team met a single time after he was placed on the caseload. See May 24, 2021, R.D. Trial Tr. at 70. He committed suicide just two months later. See id. at 68.
When treatment teams do meet, evidence presented at the omnibus remedial hearings suggests that they may not always meet for long enough to have a substantive discussion. Dr. Burns testified to seeing records of treatment-team meetings that lasted "[o]ne minute, three minutes, six minutes maybe." May 25, 2021, R.D. Trial Tr. at 110. And several of these meetings were combined with other treatment sessions, leaving even less time for the team members to review the inmate's progress and determine if adjustments were necessary. For example, one team meeting that was listed as lasting for six minutes included a simultaneous medication management session. See id. A meeting that lasts mere minutes is not sufficient to allow for careful, thorough review of an inmate's file. As Dr. Burns testified, she would expect even a normal, follow-up treatment-team meeting, when "there are no changes and things are going just fine" to last at least 15 to 20 minutes. Id. at 135. It is difficult to imagine that the treatment team could discuss an inmate in any real detail in less than half that time.
Treatment teams also frequently lack the information they need to make accurate decisions about inmates’ mental-health needs and the care they should be receiving. Dr. Burns detailed dozens of examples of major events that were not included in inmates’ files. For example, Casey Murphree had a treatment plan review in October 2019, around the same time as he was involved in "at least five violent altercations resulting in injury." May 24, 2021, R.D. Trial Tr. at 82. However, these altercations were "not reflected in any of the mental-health documentation during this period." Id. As a result, Dr. Burns testified, "the people providing his care were unaware that these things were happening, which would have been a trigger to potentially increase their level of contact or nominally look at his medication compliance to see how he was doing." Id. Without access to this information about Murphree's clear deterioration, it was impossible for the treatment team to provide an accurate assessment of Murphree's progress or develop a treatment plan that would actually address his needs.
This pattern was repeated over and over again. There was poor documentation of inmates’ behavioral outbursts, as when inmate Travis Jackson set fire to his cell and received a crisis assessment, but the information was not added to his mental-health record. See id. at 145. There was poor documentation of medical issues that could be relevant to an inmate's mental-health treatment, as when inmate J.F. was hospitalized and diagnosed with atrial fibrillation, but there were "no notes or any indication in discharge planning that medical ... became part of his treatment team to talk about things like medication prescriptions or follow-up." May 25, 2021, R.D. Trial Tr. at 37. These widespread issues with documentation made it difficult for the treatment teams to get a clear picture of the inmates they were caring for, resulting in missed opportunities for additional care or needed interventions.
As a result of these issues, many treatment plans remain inadequate to address the needs of inmates. ADOC's own audit of its treatment planning process found that "master treatment plans and treatment plans following an inmate's discharge from suicide watch are frequently omitted." May 26, 2021, R.D. Trial Tr. at 17-18. When the audit team was able to find and inspect treatment plans, it found that they "were often of poor quality, were left incomplete, or otherwise lacked necessary documentation." Id. Compliance percentages at various facilities were low, to the point that the auditor heralded as "progress" the fact that Fountain had "recent treatment plans for about half of the charts reviewed" during a spot audit. Id. at 115. Jaquel Alexander serves as a sobering example of the outcome of these inadequate treatment plans. Alexander, whose long history of self-injury and suicide watch placements indicated that he was in desperate need of treatment, was not provided with a treatment plan at all once he was added to the caseload. See May 24, 2021, R.D. Trial Tr. at 68. At the time he killed himself, four months later, there was no indication that his treatment team had ever met. See id.
Not only are treatment plans frequently inadequate, they are also not being amended to address changes in inmates’ needs or circumstances. Treatment planning is particularly crucial at transition points, when the risk is highest that information may be lost and that the consistency of care may be interrupted. However, Dr. Burns testified that in her review of patient records, she found that there were "not always ... treatment plan changes when there's a significant event, like removal or placement off watch or discharge into outpatient from a residential treatment unit." May 26, 2021, R.D. Trial Tr. at 18. For instance, when inmate Marco Tolbert was released from the residential treatment unit to an outpatient unit, his treatment plan was not updated. See June 2, 2021, R.D. Trial Tr. at 97. He committed suicide three months later, without having been seen by mental-health staff once since his release. See id. at 96. ADOC's internal audits of various facilities’ compliance with the requirement to update treatment plans after major events also showed low rates of compliance. Several facilities scored in the single digits. See Bullock RTU and SU Audit Results (P-3260) at 9 (showing 11.39 % compliance on major event movements); Bullock Outpatient Audit Results (P-3263) at 10-11 (2.92 % compliance); St. Clair Audit Results (P-3277) at 7 (7.14 % compliance). Dr. Burns expressed particular concern about these results, noting that it was "worrisome" that inmates in need of care would have the opportunity simply to fall through the cracks. May 26, 2021, R.D. Trial Tr. at 103.
Indeed, ADOC's transfer process is haphazard and poorly documented, exacerbating the inadequacies of the treatment plans. As the court found in the liability opinion, the transfer experience can be particularly difficult for mentally ill inmates, since they often struggle to adjust to their new environment and develop trust with a new set of providers. See Braggs, 257 F. Supp. 3d at 1241 n.67. In ADOC, mentally ill inmates are moved between units and facilities frequently, often without any documented consideration of the impact these moves might have on their mental state or care. When inmate T.M. was sent to the residential treatment unit, there was "no transfer note indicating why" or explaining what kind of treatment he needed. May 25, 2021, R.D. Trial Tr. at 53. When he was released from that unit, the same thing happened--he was released without a "discharge note or transfer note" to notify his new unit that he was coming. Id. Inmate J.F. bounced around from Kilby to Bullock to Bibb to Donaldson and then back to Bullock, all without any transfer notes or discharge plans. See id. at 36. Inmate M.W. was also transferred, in his case from the stabilization unit to an outpatient level of care, with no "discharge notice or transitional note to the outpatient team." Id. at 39-40. In fact, the psychiatrist who directed the discharge was told that it happened by the inmate himself--there was either no notice of it in the inmate's chart or the psychiatrist did not have the chart. See id.
The transfer documentation that does exist is not always accurate. For example, when Jaquel Alexander was transferred from Ventress to Donaldson days before his death, the transfer form incorrectly indicated that he had no SMI designation. See Jaquel Alexander Psychological Autopsy (P-3298) at ADOC539037. The lack of clear and consistent communication between units means that relevant information is lost, impacting patient care. The mental-health staff member who completed Alexander's risk assessment after his transfer, who indicated no familiarity with his prior risk factors, identified him as a "low" risk of harm to self. Id. And sometimes, inmates themselves simply get lost in the shuffle. For example, when inmate M.H. was released to the residential treatment unit from suicide watch, his records indicate that he was not seen by mental-health staff for a week, despite his obviously fragile state. See id. at 44. This lack of adequate communication between providers further disrupts the continuity of inmates’ care, leaving staff members without the information they need to provide proper treatment.
9. Psychotherapy
Even when inmates are assessed and identified as in need of care, assigned a treatment team, and provided with a plan to address their particular mental-health concerns, they frequently find themselves without most or all of the treatment they have been prescribed. At the time of the liability opinion, the court made clear that ADOC's treatment modalities--that is, the types of interventions that are provided to inmates with mental-health needs--were insufficient to meet the constitutionally required standard of care. Unfortunately, the court has not seen much improvement in ADOC's provision of mental-health treatment since that time. Though the court recognizes that ADOC has dealt with enormous challenges in trying to continue treatment during the COVID-19 pandemic, these deficiencies were present even before facilities began to lock down. Inmates in ADOC custody are regularly being denied access to the care they needed, an ongoing violation of their constitutional rights.
In some cases, there are logistical problems that prevent inmates from receiving certain forms of care at all. Several inmates reported to Dr. Burns that they were not being notified when treatment like group therapy or pill call was available, causing them to miss it. See May 25, 2021, R.D. Trial Tr. at 28; id. at 142. In other cases, inmates received their prescribed treatment, but far less frequently than they should have. This was true even in the units that should be providing heightened levels of care: Dr. Burns testified that inmates have insufficient access to treatment across ADOC's residential treatment units, stabilization units, structured living units, and outpatient units. See id. at 192; May 26, 2021, R.D. Trial Tr. at 16. Inmate A.E. had been without a single counseling session for six months, even though he was in a residential treatment unit and psychotherapy was included in his treatment plan. See May 25, 2021, R.D. Trial Tr. at 89. Inmate D.R. said that he was "really only seen very infrequently for counseling sessions," id. at 87, while inmate M.M. said that he only "sees his counselor every once in a blue moon," id. at 97. Perhaps most concerningly, several of the men who recently committed suicide were receiving less care than their treatment plan called for. Marco Tolbert, for example, was not seen by mental-health staff for the three months he was in general population after being released from the RTU. See May 24, 2021, R.D. Trial Tr. at 22. Casey Murphree's provider made a note to follow up with him in 30 days to monitor his depression, anxiety, and attention deficit disorder, but he was not seen. See id. at 76. And one of the recommendations included in Jamal Jackson's psychological autopsy was that mental-health staff should actually follow up with all patients "as written on the treatment plans," which they had failed to do for him. June 2, 2021, R.D. Trial Tr. at 112.
When they do occur, counseling sessions are often far too short for any real treatment to occur. Dr. Burns identified a disturbing pattern of counseling sessions that lasted only "[a] matter of minutes." May 25, 2021, R.D. Trial Tr. at 53; see also id. at 82 ("[S]ome of those notes were just really a minute or two long in length in terms of an individual session."); id. at 110 ("The individual contacts that are documented in the records for people in the SLU by mental-health staff were extraordinarily brief so that, again, these are two or three minute sort of discussions."); id. at 129 ("[T]hat's been [a] recurrent theme about people having ... very little time with their counselor ...."). As she explained, sessions that brief cannot really be considered counseling: "[Y]ou wouldn't be able to cover any information in the space of two minutes about what the counseling is about. If it's about family stress or if it's about grief counseling or if it's about trauma counseling, you barely have any time to discuss not only what the inmate patient's feelings are, but also to provide any guidance or suggestions for how to make things improve. Two minutes just isn't enough time." See id. at 135-36. Indeed, Dr. Burns testified that these sessions did not even last as long as she would expect a check-in or "supportive kind of chat" to be, let alone a therapeutic treatment session. Id. at 136. The defendants’ expert, Dr. Metzner, echoed Dr. Burns, noting that he would have "concerns, significant concerns" about any counseling session that lasted only three minutes. July 1, 2021, R.D. Trial Tr. at 168.
ADOC has particularly struggled to consistently provide group therapy. Many of the records discussed during the omnibus remedial hearings involved recent cancellations of groups, which are attributable in large part to the COVID-19 pandemic. ADOC largely shut down group treatment for several months at the start of the pandemic, a decision that was in line with CDC recommendations and which Dr. Burns agreed was appropriate under the circumstances. See June 21, 2021, R.D. Trial Tr. at 93, 101-02. And there is evidence that ADOC has begun to reinstitute groups at many facilities as it loosens its lock down. See id. at 89-90, 93. However, even before the pandemic hit, inmates reported that groups were sparsely offered and frequently cancelled. Based on her extensive review of patient records, as well as conversations with inmates and Wexford's monthly client reports, Dr. Burns concluded that "people are not getting the number of groups in the residential treatment unit. They're not getting the groups in SLU. They're not getting the groups in SU ... there are ... not enough groups, not enough structured therapeutic activity going on." May 26, 2021, R.D. Trial Tr. at 56-58. ADOC itself came to the same conclusion. In a letter the department sent to Wexford before the pandemic, ADOC concluded that group therapy was not being provided at a sufficient level in RTU, SU, or SLU units. See id. at 16.
Beyond the lack of groups, inmates housed in ADOC's inpatient units are not receiving sufficient out-of-cell time in general. Dr. Burns called it a "common theme" among inmates she talked to that they were not receiving an appropriate amount of structured or unstructured out-of-cell time. May 25, 2021, R.D. Trial Tr. at 192. "[R]ecords and interviews" from the Bullock SU revealed that inmates are not receiving sufficient structured or unstructured time. Id. at 85-86. There are similar issues in the Tutwiler RTU and SU, see id. at 70-71, the Bullock RTU, see id. at 99-101, the Donaldson RTU, see id. at 110, and the Donaldson SU, see id. at 140. Indeed, the investigator looking into Tommy Lee Rutledge's death in Donaldson's RTU reported that "inmates never leave their cells." Id. at 149. And insufficient out-of-cell time in mental-health units is particularly egregious given that it undermines the purpose of the units, which is to provide inmates with more intensive treatment and support. Without any out-of-cell activities, these units instead end up functioning very much like restrictive housing units instead. See id. at 219.
This inadequate out-of-cell time cannot be blamed on COVID-19 restrictions, though the court does note that the pandemic may have exacerbated the problem. Dr. Burns testified to having seen "months and weeks of operation" before the pandemic in which inmates were not receiving the proper amount of out-of-cell time. May 25, 2021, R.D. Trial Tr. at 218. Defendants’ expert Dr. Metzner agreed, reporting that while inmates are "not getting 10 and 10, you know, related to COVID issues," it also "wasn't happening" pre-pandemic. June 1, 2021, R.D. Trial Tr. at 202-03.
This finding applies with equal force to the SLU. Although it is not an inpatient unit, the SLU is intended to provide a more supportive, treatment-based alternative to segregation for inmates with mental illness. However, the current lack of programming in ADOC's SLUs means that they are functionally indistinguishable from the restrictive housing units. Indeed, plaintiffs’ expert Vail testified that inmates in the Donaldson SLU were getting less out-of-cell time as they should have gotten in the restrictive housing units. See May 28, 2021, R.D. Trial Tr. at 78-80.
Problems with the provision of care are not limited to inmates on the mental-health caseload. Inmates who are not on the caseload but who are in need of mental-health care must be still be provided with adequate treatment, and it is just as urgent that they receive the care they need as it is for inmates who are on the caseload. Decompensation in prison is common, and emergent mental-health needs must be taken seriously. A review of recent suicides in ADOC custody demonstrates the stakes--several of the men who killed themselves were not on the mental-health caseload, and despite warning signs, they did not receive appropriate interventions in time. Laramie Avery reported both a history of mental-health treatment and symptoms of mental-health issues, and he received numerous referrals. See May 24, 2021, R.D. Trial Tr. at 50. Nevertheless, mental-health staff never responded or performed a more comprehensive assessment. See id. Jamal Jackson presented with psychotic symptoms in December, but by the time he committed suicide in May, mental-health staff had not followed up with him once. See id. As Dr. Burns reported from interviews she performed at Donaldson, inmates in general population find it difficult to get a response from mental-health staff, let alone a timely response, leaving them without anyone to talk to about their concerns. See May 25, 2021, R.D. Trial Tr. at 110.
Finally, documentation of the treatment that does occur is frequently inconsistent or incomplete, making it difficult to ensure that an inmate is receiving appropriate treatment and to effectively maintain continuity of care. For example, progress notes sometimes contained outdated or incorrect information or failed to explain major changes in an inmate's care. Inmate JF's file contained progress notes that "appeared to be pre-written" and contained inaccurate information, such as concluding that he should stay on watch when he had already been taken off watch. May 25, 2021, R.D. Trial Tr. at 34-35. And there was no explanation in Danny Tucker's record for the fact that his SMI flag was removed, see May 24, 2021, R.D. Trial Tr. at 178-79, or why he was downcoded to MH-A, see id. at 181. Dr. Burns explained that without any information about why these treatment decisions were made, it would be difficult for other providers to verify whether they were appropriate. See id. at 178-79.
In some cases, it appeared that no progress note was written at all. A note on a referral for inmate W.S. indicated that he was seen by a mental-health provider, but there was not "an actual note describing that interaction with him in the chart. Just that he was seen by the MHP on that date." May 25, 2021, R.D. Trial Tr. at 178. This issue was also flagged in Marquell Underwood's psychological autopsy, which recommended that "anytime an inmate is seen by MH for a referral, it is recommended a note, other than writing on the referral form, is generated. This note is recommended to include the plan, referral to other providers, and any further course of action taken with the inmate." Underwood Psychological Autopsy (P-3316) at 15.
ADOC itself acknowledges the deficiencies in the care being provided. In a letter to Wexford, the department chastised the company for the "pattern of failure of mental-health staff to meet with their patients at required intervals and to conduct group therapies on a routine basis." May 26, 2021, R.D. Trial Tr. at 16. This letter was sent before ADOC facilities began to lock down because of the COVID-19 pandemic, further diminishing the amount of care being offered. However, in the years since the liability opinion, ADOC has failed to demonstrate any real, lasting improvement, even in the face of overwhelming evidence that inmates are receiving a level of care that is constitutionally inadequate.
10. Suicide Prevention
At the time of the liability trial, ADOC had just begun using suicide risk assessments to identify prisoners at risk of self-harm. Today, the provision of those assessments has improved substantially; they are broadly used during the intake process and are frequently employed elsewhere in ADOC's mental-health treatment system. The availability of crisis cells has increased as well, and monitoring of inmates in crisis cells appears generally adequate. ADOC no longer seems to be using pre-filled forms to indicate the times of checks for inmates on close watch. See June 8, 2021, R.D. Trial Tr. at 90. ADOC has also implemented a constant watch procedure for acutely suicidal inmates, a critical component of suicide prevention.
These are significant steps for which the department should be applauded. Where ADOC continues to fall badly short in its provision of mental-health care to suicidal inmates, however, is in the areas of assessment, discharge, and follow-up from suicide watch. Inmates placed on suicide watch too often do not receive suicide risk assessments. Recent audits of Donaldson, Hamilton, Bullock, and Ventress found moderate or poor compliance with requirements to conduct these suicide risk assessments--assessments that defendants’ expert Dr. Metzner testified were "dangerous" not to do well. July 1, 2021, R.D. Trial Tr. at 158; see also Pls. Ex. 3559 (Donaldson); Pls. Ex. 3562 (Hamilton); Pls. Ex. 3558 (Bullock); Pls. Ex. 3626 (Ventress). Equally troubling, ADOC often fails to ensure that prisoners requiring suicide watch are considered for placement on the mental-health caseload, even those with repeated suicide watch placements in a short period of time. Marquell Underwood, Jaquel Alexander, and Travis Jackson all had repeated suicide watches before their deaths without being considered for the mental-health caseload, and only Alexander was eventually placed on the caseload after a series of suicide watches.
Moreover, in spite of longstanding ADOC policy and this court's orders, prisoners are routinely discharged from suicide watch directly to restrictive housing with no evident consideration or documentation of exceptional circumstances justifying the placement. One provider at Ventress was chastised for candidly admitting during a spot audit of the facility that prisoners are sent from suicide watch to segregation as "a matter of course"; she was instructed to discuss the facility's practices in less blunt terms. Pls. Ex. 3320 at 1. Emails authorizing segregation placements for prisoners coming from suicide watch indicated that the transfers are often approved in a matter of minutes after a request is made. Pls. Dem. Ex. 268. This continued practice was implicated in several of the recent suicides. See, e.g., May 24, 2021, R.D. Trial Tr. at 139-40 (discussing Travis Jackson).
Finally, inmates discharged from suicide watch still receive inadequate follow-up assessments and treatment to ensure that they do not decompensate and relapse into suicidality. During the suicide prevention trial, defense expert Dr. Perrien testified that follow-up evaluations in the days immediately after a person is discharged from suicide watch are "absolutely necessary." Braggs, 383 F. Supp. 3d at 1264. But ADOC continues to struggle to conduct the follow-up assessments required on each of the first three days after inmates are discharged from suicide watch. For example, inmate J.B. attempted suicide by overdose, was placed on acute suicide watch, and was moved to non-acute suicide watch all in the course of a single day, but he received no follow-ups at all once his suicide watch was discontinued the next day. See May 25, 2021, R.D. Trial Tr. at 49-51. Audits of ADOC facilities show problems with this obligation as well; Bullock, for instance, was found in March 2020 to have only 40-50 % compliance with any of the follow-ups required after a prisoner is discharged from suicide watch. See Pls. Ex. 3558 at 1.
These ongoing inadequacies in ADOC's system of suicide prevention are exacerbated by the broader problem of correctional understaffing in the prisons. As discussed above, Wexford has identified the "lack of security presence" as "a major contributing factor to the ongoing and excessively high levels of contraband, inmate drug use, and inmate-on-inmate violence," which in turn "increases fear and suicidal thinking" among inmates. Pls. Ex. 3323 at 2 (emphasis removed). This has led to a "dramatic increase in suicide watch volume" of 4,348 % over the hours anticipated in Wexford's contract, leaving Wexford, in its words, "with no choice but to replace the performance of routine mental-health tasks ... with providing crisis-level services, to ensure the safety of our patients." Id.
The court reiterates these findings in part because they shape the court's consideration of an issue hotly disputed between the parties during the omnibus remedial hearings: the rate of suicides in ADOC facilities in recent years relative to rates in other state prison systems. The parties presented contrary data on this question, each with its own set of flaws. The plaintiffs’ figures, which purported to show that ADOC's suicide rates are much higher than the national average among prison systems, were based on a cross-year comparison that, according to Dr. Metzner, distorted the numbers. See June 30, 2021, R.D. Trial Tr. at 72-73. The defendants’ data, which they claimed showed that Alabama prisons have a very low rate of suicides, in fact appeared to demonstrate the opposite: the defendants presented a report showing that the average annual rate of suicide in ADOC prisons from 2001 to 2018 was among the lowest in the country--far lower than the annual rate of suicide in ADOC facilities from 2018 to 2020--suggesting that suicide rates at ADOC have risen dramatically in recent years. Compare Pls. Ex. 3223 at 19, with, Pls. Dem. Ex. 265.
The defendants did not contest that the plaintiffs’ calculation of the annual suicide rate in ADOC facilities from 2018 to 2020 was accurate. They claimed instead that the plaintiffs’ comparison of that rate to the national suicide rate across prison systems was skewed. See Defs.’ Post-Trial Br. (Doc. 3367) at 104. The court does not rely on that comparison here.
Deaths by suicide are the very worst outcomes of deficiencies in a prison system's mental-health care, but they are also rare events, both in Alabama and elsewhere. A few instances of good or bad luck during serious suicide attempts can make the difference in a given year between a high suicide rate and a low one. See June 30, 2021, R.D. Trial Tr. at 7-8. More important to the court's assessment of ADOC's current suicide prevention system was Wexford's compelling explanation that whatever suicides ADOC prevents, it does not by successfully identifying and addressing the mental-health needs of suicidal inmates, but by the brute force tactic of pouring an unsustainable number of man-hours into close and constant watch, to the exclusion of other critical mental-health services. This is not a suicide prevention system; it is a crisis management system. Wexford's decision to pile its resources into the watch procedures as a last-ditch means of averting suicide does not mean that ADOC is performing adequately in the area of suicide prevention. To the contrary, its suicide prevention system remains badly broken, ultimately provides little but constant and close watch to prevent death, and cannot realistically be fixed without sufficient correctional staff to make it possible for Wexford to start moving mental-health resources into other aspects of care.
11. Higher Levels of Care
Within ADOC, two kinds of units are available offering an inpatient level of care: the residential treatment units, or RTUs, which are short- or long-term placements for inmates with very significant mental-health needs who are at risk of decompensation in less restrictive settings; and the stabilization units, or SUs, which are designed to provide intensive treatment to inmates with acute needs when a crisis cell--which is designed for short-term stays--proves insufficient. In addition, inmates with the most serious mental-health needs for whom even these inpatient units have been unsuccessful may be referred for hospital-level treatment, which is currently provided via 14 beds at Citizens Baptist Medical Center in Talladega.
The provision of hospital-level care appears to have improved since the time of the liability trial. The plaintiffs agree that the 14 beds ADOC currently maintains at Citizens are adequate for the system's mental-health caseload. It is no longer true that ADOC "virtually never transfers patients to hospitals, except in the case of prisoners nearing the end of their sentence," as the court found in the liability opinion. Braggs, 257 F. Supp. 3d at 1217. That said, some problems with timely access to hospital-level care remain. After Tommy McConathy was raped on the RTU, a mental-health provider reported that he would be considered for referral to Citizens, but McConathy did not get to Citizens for more than a month after that. See Pls. Ex. 3312 at 4. A prisoner whom the parties called M.H., after a series of incidents of serious self-harm and unsuccessful treatment in RTU and SU settings, still waited 10 days after a referral to Citizens before he was sent to the hospital. See May 25, 2021, R.D. Trial Tr. at 43-44.
The status of the inpatient units within ADOC is somewhat more problematic. The court found in its May 2020 remedial opinion on inpatient treatment, which included PLRA findings, that there was an "expert consensus" that ADOC needed residential treatment beds sufficient to accommodate 15 % of the mental-health caseload. Braggs v. Dunn, No. 2:14cv601-MHT, 2020 WL 2789880, at *4 (M.D. Ala. May 29, 2020) (Thompson, J.). The court further found that the necessary number of beds could not be based on the "current identified need for inpatient treatment," because doing so "encourages ADOC to continue to under-identify the need and underutilize its mental-health units to avoid creating more beds." Id. at *8. At the time, ADOC had 446 inpatient beds for men and 58 inpatient beds for women, enough to cover only 12.6 % of the male caseload and 9.5 % of the female caseload. See id. But even with that shortfall, many of the inpatient beds remained unfilled, indicating that ADOC was continuing to fail to identify people who needed inpatient levels of care. See id.
Little has changed in this regard since the court's May 2020 inpatient treatment opinion. At the end of March 2021, a Wexford report found that ADOC had a total of 433 inpatient beds between its men's and women's facilities, including totals of 391 RTU beds and 42 SU beds. See Defs.’ Ex. 4079 at 43-44. Adding the 14 hospital beds at Citizens brings ADOC's residential treatment capacity to 447 beds, a significant decrease from the number of beds available at the time of the court's inpatient treatment opinion. These beds remain underutilized as well; only 30 SU beds and 346 RTU beds were occupied at the end of March 2021, according to the Wexford report. See id.
This decline in treatment beds does not reflect an equivalent decline in the mental-health caseload. To the contrary: In March 2021, the mental-health caseload stood at 4,564, meaning that ADOC now has inpatient beds for less than 10 % of its caseload. See id. at 42. With the anticipated rise in admissions in the wake of the COVID-19 pandemic, this deficit is likely to grow even more severe.
During the litigation leading up to the court's inpatient treatment opinion, the defendants maintained that structured living unit (SLU) beds should be counted toward the inpatient total. See Braggs, 2020 WL 2789880, at *7. Because the SLU is an "outpatient unit" that serves "as an alternative to segregation for inmates with serious mental illness," and because prisoners needing inpatient-level care are prohibited from being housed in the SLU, the court rejected this argument. Id. at *9 (emphasis in original). Notwithstanding the court's resolution of this issue, the defendants pressed it again in the omnibus remedial hearings, this time by misrepresenting the testimony of their expert Dr. Metzner to suggest that he agreed that these units should be counted toward the inpatient total. See, e.g. , Defs.’ Post-Trial Br. at 109-10. But Metzner's testimony was clear: He opined that, while the SLUs are not inpatient units now and should not be counted as such, he believed that converting some or all of those units to inpatient treatment spaces and finding an alternative site for outpatient diversionary unit might be the best way for ADOC to meet the inpatient bed requirements. See July 1, 2021, R.D. Trial Tr. at 130-34. Metzner did not testify either that the SLUs currently help fulfill ADOC's need for inpatient beds or that those units could be double-counted as both inpatient units and outpatient diversionary units, as the defendants seek to do. See id.
Even for inmates who need inpatient treatment and are lucky enough to be identified as such and placed in one of ADOC's available beds, there remains the problem of temperature regulation. In its May 2020 remedial opinion, the court found that ADOC had failed to adequately regulate the temperatures of its inpatient treatment units. See Braggs, 2020 WL 2789880, at *14. High temperatures in inpatient treatment units pose a significant threat to inmates’ safety, because nearly 100 % of inmates in mental-health units take psychotropic medications, which thwart the body's ability to regulate its own temperature and prevent inmates from realizing when they are overheating and seeking help. To ensure that ADOC did not needlessly subject inmates to risk of heat stroke, heat prostration, and hyperthermia, the court ordered the defendants to "devise a plan and procedures to address the serious risk posed by high temperatures in the mental-health inmates." Id. at *15.
In July 2020, the defendants reported that ADOC had completed installation of HVAC systems in all mental-health treatment units, thereby eliminating the need for any remedial order addressing the issue. See Response to Phase 2A Order of Inpatient Treatment (Doc. 2880) at 5–6. On December 7, 2020, however, Tommy Lee Rutledge died of hyperthermia in the Donaldson RTU. The temperature in his cell was between 101 and 104 degrees. See May 25, 2021, R.D. Trial Tr. at 144–45. Rutledge's death makes it abundantly clear that ADOC has not adequately addressed the problem of heat management.
Accordingly, the court finds that while the provision of hospital-level care has improved since the liability trial, problems remain with timely access to hospital-level care, the number of inpatient beds in ADOC facilities remains inadequate to meet the needs of mentally ill prisoners in ADOC custody, and ADOC has failed to mitigate the risk of overheating.
One significant deficiency found by the court in its liability opinion does appear to have been corrected, however: The evidence does not show that segregation inmates without mental illness are currently being housed in ADOC's inpatient units. The department is to be commended for fixing this "persistent and long-standing practice." Braggs, 257 F. Supp. 3d at 1212.
12. Discipline
ADOC has taken strides since the liability opinion to avoid disciplining prisoners for engaging in self-harm. In January 2020, ADOC removed from its list of infractions the so-called Rule 505 violation it previously used to discipline inmates for self-injurious behavior. See June 14, 2021, R.D. Trial Tr. at 32. The defendants also assert, and the plaintiffs do not dispute, that ADOC also expunged Rule 505 violations from the records of inmates on the mental-health caseload and those with a serious mental illness or intellectual disability. See Joint Stipulation (Doc. 3288) at 9-10.
Where ADOC's disciplinary process continues to fall grievously short, however, is in the area of mental-health consultations to the disciplinary process to ensure that an inmate's mental-health needs and contraindications are considered when assigning punishment for misconduct. After correctional understaffing, this appears to be one of the remedial area where the least progress has been made since the liability opinion.
As Mr. Vail credibly testified, based on his review of several hundred disciplinary reports, the mental-health consultations provided to hearing officers are wholly useless in almost all cases. Regardless of the prisoner's circumstances or mental-health needs, hearing officers receive superficial, check-box forms almost uniformly indicating that the prisoner is competent to take part in the hearing, that mental illness didn't affect his or her behavior, that there is nothing to consider with regard to mental-health when meting out punishment, and that the mental-health staff member will not be present for the hearing. See May 27, R.D. Trial Tr. at 10. The forms frequently display an error code in the space provided for the consultant to indicate whether the prisoner is on the mental-health caseload. See, e.g., Pls.’ Ex. 2953 at ADOC492463. There is no box on the form for the consultant to indicate whether the inmate has a serious mental illness. See id. Across the hundreds of disciplinary reports Vail reviewed, he found only eight that included any comment on the inmate's mental-health beyond a notation that there were no mental-health issues to consider. See May 26, 2021, R.D. Trial Tr. at 209-10.
As the court once said of periodic mental-health evaluations in segregation, these consultations are not "worth the paper they are written on." Braggs, 367 F. Supp. 3d at 1350. This is true even in cases where the prisoner has serious mental-health needs that cry out for consideration. For example, the consultation to Jaquel Alexander's disciplinary proceeding in April 2020, after he attempted to jump the fence at Ventress, was as useless as most others: It listed an error code where it should have indicated that he was on the mental-health caseload; it said that his behavior was unrelated to any mental-health issues; it declared that nothing related to mental-health need be considered in determining his sentence; and it informed the hearing officer that mental-health staff would not be present for the hearing. See Pls. Ex. 3296 at ADOC517817. Although by that time Alexander had been diagnosed with a serious mental illness, no indication that he had an SMI appeared on the consultation. See id. With no information to suggest that a restrictive housing placement might be harmful to Alexander, the hearing officer sentenced him to 45 days in segregation, where he hanged himself three weeks later.
This will not do. Based on the evidence presented at the omnibus remedial hearings, the court finds that ADOC's system of mental-health consultations is still extraordinarily dysfunctional, with egregious consequences for inmates with mental-health needs. See Braggs, 257 F. Supp. 3d at 1234. The consultations remain "little more than a rubber stamp" for the disciplinary process. Id. The dysfunction of this system continues to expose mentally ill inmates facing disciplinary proceedings to serious harm.
13. Training
Finally, it appears that the issue of training could be largely a success story. The evidence presented at the omnibus remedial hearings suggested that ADOC has taken real steps forward in its implementation of the trainings previously developed by experts for both parties. Dr. Burns testified that ADOC has implemented the comprehensive mental-health training, the suicide prevention training, the suicide risk assessment training, and several other training curriculums that it was ordered to conduct, and that current and newly hired staff appear to receive these trainings. See June 22, 2021, R.D. Trial Tr. at 48, 50-51, 53-55; June 23, 2021, R.D. Trial Tr. at 225-26.
There are admittedly still some reasons for concern. In deposition testimony, Cheryl Price, ADOC's Assistant Deputy Commissioner for Operations, said that she herself had not received the comprehensive mental-health training and that she did not know if the training had been provided to all staff members who were required to receive it. See June 1, 2021, R.D. Trial Tr. at 42. Under the stipulated remedial orders currently in effect, all staff who have any direct contact with inmates are required to receive this training. See Phase 2A Order and Injunction on Mental-Health Identification and Classification Remedy, Attachment A (Doc. 1821-1) at § 1.1. That order has been in place for more than three years; that Price had not received this training and did not know who still needed to receive it gives cause for concern about the extent to which training is provided.
Similarly, a March 2021 spot audit of Ventress noted that the facility's site program manager "would benefit from training on the Suicide Risk Assessment." Pls. Ex. 3626 at ADOC565532. As Dr. Burns credibly testified, this is "somewhat worrisome because that person will be overseeing the other people and kind of setting the tone." May 26, 2021, R.D. Trial Tr. at 137-38; see also id. at 54 (explaining that site program managers are "in charge of mental-health services at a given facility"). The evidence also raised questions about the current sufficiency of ADOC's emergency preparedness drills for suicide prevention; several psychological autopsies following recent suicides recommended that training should be reinforced through emergency preparedness drills, also known as "man-down" drills. See Pls. Ex. 3295 at ADOC518575; Pls. Ex. 3302 at ADOC518581; see also Pls. Ex. 3263 at 83 (December 2019 audit of Donaldson indicating that the audit team recommended Wexford "begin planning and implementing man-down drills").
More broadly, documentation of trainings has been a significant challenge. Wexford acknowledged as much in a March 2020 letter to the former Associate Commissioner of Health Services. See Pls. Ex. 3323 at 5. According to Wexford, "a lack of time and resources" placed it in a position where it was able to train its staff but unable to document this training. See id. (emphasis omitted). This lack of documentation creates serious problems for the tracking and monitoring of training, and it must be corrected; without reliable documentation, ADOC and Wexford run the risk that individuals who have not received necessary training will fly under the radar until after prisoners are harmed.
The trainings at issue are too important to go undocumented; they are foundational to the proper function of ADOC's system of mental-health care and critical to prepare staff to make decisions in what could be life-or-death situations. For some trainings, the connection is immediately apparent: Emergency preparedness drills are necessary to prepare staff to intervene in suicide attempts and take life-saving action in a moment when every second counts. See June 4, 2021, R.D. Trial Tr. at 64-65. Other trainings are necessary to minimize the risk that mentally ill prisoners ever reach this point. Comprehensive mental-health training, suicide prevention training, and suicide risk assessment training all operate to instruct staff to recognize prisoners’ mental-health needs in order to facilitate a response that is proportionate to the urgency and severity of those needs. See id. at 22-23, 54-55, 57. Recent failures to respond appropriately to indicators of current mental-health needs, particularly signs of possible suicidality, reflect an ongoing need for this training to be received and reinforced. See, e.g., May 24, 2021, R.D. Trial Tr. at 66 (the day before he committed suicide, Jaquel Alexander was not placed on suicide watch after he verbalized suicide ideation); id. at 44-45 (Laramie Avery was not placed on suicide watch or diverted from segregation after he twice stated that he did not have much to live for). In light of the need for training to provide a stable foundation for the provision of mental-health care across all other areas of liability, the court will order a few remedial provisions in this area, most notably with regard to documentation. But for the most part, the court finds the evidence presented at the omnibus remedial hearings encouraging.
D. Failure to Comply with Orders and Policies
The defendants argue that ADOC staff should be given broad discretion to determine how best to bring the system into constitutional compliance. The court recognizes the importance, both under the PLRA and in ensuring that relief is practical, of deferring to those who know the system best and building flexibility into the remedy. However, in certain areas, the plaintiffs have presented compelling evidence of years of ongoing constitutional violations and ADOC's failure to make any progress towards compliance. In those areas, the court cannot risk leaving unfettered discretion to the department. Experience has proven that ADOC either cannot or will not take the steps necessary to improve in these areas, a history that demands that the court enter more intrusive relief.
7 The relevant question in considering whether relief ordered under the PLRA is overly intrusive is "whether the same vindication of federal rights could have been achieved with less involvement by the court in directing the details of defendants’ operations." Armstrong v. Schwarzenegger, 622 F.3d 1058, 1071 (9th Cir. 2010). That a defendant has previously failed to comply with its own policies, or with the court's orders, may indicate that the answer is no.
ADOC has a long history of failing to comply with the remedial orders in this case. In the liability opinion, the court noted that the department had demonstrated deliberate indifference to the state of its mental-health care system for years, "in spite of countless reports, emails, and internal documents putting ADOC on notice of the actual harm and substantial risks of serious harm posed by the identified inadequacies in mental-health care." Braggs, 257 F. Supp. 3d at 1256. Indeed, ADOC failed to act to improve its provision of mental-health care until directly prompted by the court, even while claiming credit for actions it had not taken. During the course of the liability trial, the then-Associate Commissioner of Health Services claimed that "a new mental-health coding system prohibiting placement of seriously mentally ill prisoners in segregation was in the middle of a roll-out at the time of her testimony in December 2016." Id. at 1262. However, this turned out to be untrue--"her representation was disputed by the testimony of two of her colleagues, who explained that [the Office of Health Services] moved ten mentally ill prisoners out of segregation into the Donaldson RTU only after her testimony, and that there was no official policy change." Id.
Two years later, in the suicide prevention opinion, the court found "ample evidence" that ADOC's noncompliance continued. Braggs v. Dunn, 383 F. Supp. 3d 1218, 1246 (M.D. Ala. 2019) (Thompson, J.). It pointed out that ADOC had consistently failed to comply even with the remedial measures "the defendants agreed to implement," id. at 1278, and that it had demonstrated "time and again" that it was unable "to ensure that its ground-level staff comply with directives from the top, not to mention with the orders of this court," id. "The history of this case," the court concluded, "is replete with evidence of directives given and corrective action plans created that have been doomed to irrelevance because of a lack of follow-through to ensure the directives were obeyed and the plans put into action." Id.
These failures have continued through the omnibus remedial hearings. Indeed, the defendants’ own witness, Meg Savage, testified to what the court considers one of their more egregious failures: she explained that in the three years that had passed since the court had ordered the defendants to establish an agency staffing unit, they had taken no steps whatsoever toward doing so, despite the fact that without the agency staffing unit, the defendants could not determine the number of correctional staff positions currently needed for ADOC's facilities to operate safely--a necessary precondition for hiring sufficient staff. See June 16, 2021, R.D. Trial Tr. at 9-14.
In other areas, too, ADOC has declined to remedy shortcomings of which it was plainly aware. Dr. Burns identified a number of recommendations made prior to the suicide prevention hearing that were repeated nearly verbatim in the most recent reviews. And even with regard to the earliest psychological autopsies, she testified that there was no indication that ADOC had incorporated their recommendations into its subsequent practice or, indeed, made any effort to do so. See May 24, 2021, R.D. Trial Tr. at 199.
While the court does not rely on ADOC's decades-long history of inadequate mental-health care to support the need for relief in this case, that history is nevertheless noteworthy. As the court documented in its previous monitoring opinion, see Braggs , 483 F. Supp. 3d 1136, 1171-72 (M.D. Ala. 2020) (Thompson, J.), ADOC's mental-health care was found by a district court to be constitutionally inadequate all the way back in 1972. See Newman v. Alabama , 349 F. Supp. 278, 284 (M.D. Ala. 1972) (Johnson, C.J.), vacated in part on other grounds, Newman v. Alabama , 522 F.2d 71 (5th Cir. 1975) ("The large majority of mentally disturbed prisoners receive no treatment whatsoever. It is tautological that such care is constitutionally inadequate"). In a separate decision four years later, the court lamented that "nothing ha[d] been done" to address the identified deficiencies and that ADOC continued to violate the Eighth Amendment by failing to provide adequate mental-health care. See Pugh v. Locke , 406 F. Supp. 318, 324 (M.D. Ala. 1976) (Johnson, C.J.), aff'd and remanded sub nom. Newman v. Alabama , 559 F.2d 283 (5th Cir. 1977), cert. granted in part, judgment rev'd in part on other grounds, and remanded sub nom., Alabama v. Pugh , 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978). In 1979, the district court again found that, despite monitoring, "nothing ha[d] been done to correct the situation" and placed ADOC into a receivership that lasted until 1988. Newman v. State of Ala. , 466 F. Supp. 628, 631 (M.D. Ala. 1979) (Johnson, C.J.). Just four years after the court's oversight terminated, however, yet another complaint was filed alleging that the conditions for mentally ill inmates in ADOC's custody had deteriorated to the point of unconstitutionality. See Complaint (Doc. 1), Bradley v. Haley , No. 2:92cv70-WHA (M.D. Ala. 1992) (Albritton, J.). And though by the end of monitoring in that case, the monitor concluded that ADOC had achieved "remarkable" progress, see Bradley Final Monitoring Report (Doc. 2133-3) at 1, 4, 6, Braggs v. Dunn , No. 14cv601-MHT (M.D. Ala. 2018) (Thompson, J.), the court in this case identified deficiencies in nine of the 11 areas in which ADOC had been found by the Bradley monitor to have improved. See generally Braggs , 257 F. Supp. 3d at 1171.
The cumulative result of all these failures, as the court made clear during the omnibus remedial hearing, is that the court is unable to rely on ADOC's willingness and ability to self-correct. See June 29, 2021, R.D. Trial Tr. at 133. Instead, for at least those areas that remain the most problematic, the court finds it necessary to order more detailed and specific provisions. As the court said before, paraphrasing Dr. Burns's testimony, such specificity is necessary "when you're dealing with a gross failure to comply or failure to comply over a long period of time." June 2, 2021, R.D. Trial Tr. at 181.
Similarly, the court finds that provisions requiring documentation are particularly important in light of the longstanding nature of ADOC's noncompliance. The defendants have argued that some of the deficiencies that the court identified may well have been "documentation issue[s]" rather than failures to comply. June 29, 2021, R.D. Trial Tr. at 96. As both Dr. Burns and Mr. Vail have explained, however, "in corrections, if you didn't write it down, it didn't occur." May 27, 2021, R.D. Trial Tr. at 121-22; see also May 24, 2021, R.D. Trial Tr. at 102. If ADOC really is making progress, adequate documentation is necessary for it to get credit for its improvement.
The history of this case also demonstrates that there is a disconnect between policies that are implemented at a system-wide level and what is actually happening on the ground in ADOC facilities. Indeed, the court at one point described ADOC's failure to comply not only with the court's directives, but with its own policies, as "a severe, ongoing dysfunction in the system." Braggs, 257 F. Supp. 3d at 1264. To give just one example: in March 2019, ADOC Deputy Commissioner Charles Daniels announced a directive generally prohibiting the release of inmates from suicide watch directly to segregation, see Braggs, 383 F. Supp. 3d 1218, 1273 (M.D. Ala. 2019) (Thompson, J.), yet a mental-health provider later reported to an auditor at Ventress Correctional Facility that inmates were sent to suicide watch to segregation "as a matter of course." Pls.’ Ex. 3320 at 1.
Adequate documentation is necessary to correct this disconnect. As Vail testified, "documentation provides for accountability." June 1, 2021, R.D. Trial Tr. at 46. "[I]f you're trying to figure out if ADOC is making progress," it is vital that you have records of the actions that were taken and decisions that were made, when, and by whom. Id. Without adequate documentation, the court believes that the department will continue to struggle to ensure that remedies are being successfully implemented.
Finally, ADOC's persistent shortage of correctional staff raises doubts as to whether it is capable of implementing relief in multiple areas simultaneously, thereby heightening the need for thorough documentation. ADOC's shortage of staff has reduced it and its mental-health vendor to a constant state of ‘robbing-Peter-to-pay-Paul’ borrowing; to implement relief in one area, it must divert staff from another, all with the goal of triaging--that is, maximizing the number of surviving inmates. As Wexford explained to ADOC, when it "had resources available to conduct training--but not enough to document the training--we went ahead and trained anyway, prioritizing educated, competent staff above recordkeeping." March 2, 2020, letter from Wexford to ADOC (P-3323) at 5. Similarly, in order to provide adequate crisis monitoring, Wexford diverted staff from other tasks, "disrupt[ing] all routine mental-health caseload activities to address the immediate and more serious needs of inmates in crisis." Id. at 3. Given this history, the court is concerned as to whether ADOC can sustain the progress it has made in certain areas while also implementing the court's orders designed to address deficiencies in other areas. In other words, it is simply not enough for ADOC to say that it has achieved compliance in one area; the critical question, as stated, is whether it can achieve and sustain adequate compliance in various areas simultaneously. The history of this case strongly suggests that, because of longstanding and severe understaffing, it cannot. Documentation may therefore be necessary even in areas where ADOC has made the most progress, so as to ensure that that progress does not erode once ADOC turns its attention to other matters.
E. Timeframes
Closely related to the defendants’ request for broad discretion is the issue of timeframes. In a number of areas of liability, one or both of the parties propose provisions requiring that certain actions be taken within definite timeframes. The court rejects these proposals in many instances, even when they come from both parties. In a few instances, however, it does adopt specific timeframes. While the provisions containing these timeframes may be more intrusive than ones with more open-ended language, such as "as soon as possible," "within a reasonable timeframe," or indeed no temporal restriction at all, the court finds them to be necessary, narrowly tailored, and the least intrusive means that will correct the constitutional violation at issue.
Numerous factors support the court's finding that the few provisions it orders containing specific timeframes are necessary, narrowly tailored, and minimally intrusive.
8First, most, if not all, of the provisions in question are adopted from interim orders to which the defendants have previously agreed and, in some cases, which the defendants again propose in their proposed remedial order. "[W]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, 383 F. Supp. 3d at 1253. The fact that the defendants had a hand in drafting and fashioning the language of a provision when it was stipulated, while not dispositive, is certainly an indicator that the provision is necessary, narrowly tailored, and minimally intrusive.
Second, although the defendants maintain that these provisions are no longer necessary, evidence of current conditions reflects that the defendants have not complied with these provisions consistently. Many prisoners continue not to receive care within the timeframes required by court order and ADOC's own policies. ADOC's failures to comply with these provisions while ordered to do so is significant evidence that these failures would continue in the absence of an order. Moreover, as explained above, ADOC's severe shortage of correctional staff has hampered its ability to implement and sustain relief in multiple areas at the same time. Therefore, even assuming that ADOC were to improve the timeliness of its responses in certain areas, the question would remain as to whether it could sustain that progress while making improvements in other areas despite severe staffing shortages. No resort to ‘robbing-Peter-to-pay-Paul.’
Third, credible expert testimony offered by either or both sides underscores the necessity of compliance with these provisions and ties ADOC's observed failures to apply these provisions to substantial harms to prisoners with mental illness and to the constitutional violations that the court has found.
In sum, where the court orders that the defendants must comply with specific timeframes, it does so only after careful consideration of the history of this case, evidence of ADOC's recent practices, and the expert testimony of both sides and a determination that no less intrusive means would be sufficient to redress ADOC's constitutional violations. Moreover, the court anticipates that its specification of these timeframes will allow the defendants to obtain relaxation or termination of the ordered provisions earlier than it would otherwise. This is for two reasons. First, a specific timeframe better enables the monitoring team to determine whether ADOC is in compliance with a given provision, and makes it more difficult for the plaintiffs to dispute compliance. If the compliance team is able to report with reasonable certainty that ADOC is compliant with a provision and can sustain that compliance, the court will, upon request, take up the issue immediately. Second, a specific timeframe provides clear notice to the defendants of what, exactly, is required of them, thereby ensuring that there will be no period during which ADOC struggles to determine what constitutes a reasonable amount of time for taking required action, and no possibility that it will be caught unaware by a determination by the EMT that it is out of compliance with the provision. Moving forward, the clarity of these provisions will best enable the monitoring team to monitor the extent of ADOC's failures and successes and allow the court and the parties to take appropriate action.
F. The Effects of COVID-19
In the December 2020 opinion setting out the process for the omnibus remedial hearings, the court noted that it would consider "the effects of COVID-19" in determining the omnibus remedy. Braggs v. Dunn, 2020 WL 7711366, at *8 (M.D.Ala. Dec. 29, 2020). As the court said then, the outbreak of the COVID-19 pandemic "seized and disrupted the progress of this suit as it has the quotidian rituals of all of our lives," and it was necessary to take this disruption into account both in the procedures by which the final remedy for this phase of the litigation was determined and in the substance of that remedy. Id. at *3. The court recognized that the pandemic had not only affected the litigation history leading up to these proceedings, but also had the potential to affect the appropriate scope of relief or to require certain temporary alterations of the remedy during the course of the pandemic.
In practice, COVID-19 had two principal effects on the omnibus remedial proceedings themselves, both of which created complicated evidentiary issues related to the court's consideration of whether particular proposed remedial provisions were necessary under current conditions. The first was a problem with the discovery of evidence for the proceedings. Because of ADOC's concerns about the transmission risk involved in conducting site visits and inmate interviews, the plaintiffs’ expert Dr. Burns was sharply limited in the extent to which she could conduct these forms of evidence gathering. By agreement of the parties, Burns was the only plaintiffs’ expert permitted to conduct site visits, and she was limited to visiting four facilities for short periods of time: up to eight hours each at Donaldson and Bullock, and generally up to four hours each at St. Clair and Tutwiler. See Joint Discovery Plan (Doc. 3098) at 2-3; Facility Inspection and Inmate Interview Protocol (Doc. 3098-1) at 1. While on-site, the only inmate interviews permitted were three- or five-minute cell-front interviews through a cell door with appropriate social distancing, although Burns was allowed to identify prisoners during her visits for follow-up interviews by videoconference. See Facility Inspection and Inmate Interview Protocol (Doc. 3098-1) at 2-4.
The defendants argued, and their expert Dr. Metzner testified, that, through no fault of Dr. Burns, these limitations precluded her from developing credible opinions about the provision of mental-health care across the ADOC system, which Metzner said he believed required, among other things, three-day site visits. See July 1, 2021, R.D. Trial Tr. at 43. Given the particular history of this litigation, the court disagrees; indeed, it found Burns's testimony generally credible and reliable, including her opinions regarding the provision of mental-health care in ADOC facilities on a systemic level. That is because the evidentiary record of this case was not a tabula rasa when the omnibus hearings began. The court found long-standing and systemic deficiencies in its liability opinion, and it reaffirmed in various subsequent remedial opinions that many of these problems continued to exist. On top of those persistent deficiencies, as discussed above, there is the alarming history of ADOC's failure to follow the court's orders and its own policies and regulations. The recurrence of these same system-wide problems in the facilities Burns visited and the records of the prisoners she interviewed amounted to compelling evidence that these issues continue to plague ADOC's provision of mental-health care. The fact that correctional understaffing "permeate[s]" the inadequacies in ADOC's mental-health care system and continues to be a grave problem at every major facility except Tutwiler and Hamilton further supported the credibility of Burns's opinions that the deficiencies she witnessed were emblematic rather than isolated. Braggs, 257 F. Supp. 3d at 1268.
The second evidentiary problem that the COVID-19 pandemic caused had to do with the question of what evidence was most helpful for understanding how conditions in ADOC facilities will change as the pandemic wanes. Since March or April 2020, ADOC, like many institutions, has been operating in some ways rather differently from what it did before. For instance, group therapy sessions and face-to-face counseling became more complicated to conduct safely, and they may have been all but impossible in the early stages of the pandemic when little was known about the virus and the availability of vaccines was a distant hope. But pre-pandemic evidence, at this juncture, is increasingly out of date: several of the ADOC Office of Health Services’ facility-wide audits, which the plaintiffs argued need updating because of the amount of time that has passed, were conducted in late 2019. See, e.g., Pls. Ex. 3271 (Kilby OHS Audit from November 2019). In other words, the court faced the question of how to assess current conditions given that nearly the last year-and-a-half were conditions under COVID-19.
That is a question without an easy answer. The court therefore adopted what it believed to be a reasonable approach. As to a given remedial area, when conditions during the pandemic appeared similar to the conditions that existed before the outbreak of COVID-19, the court took recent conditions as indicating how that aspect of ADOC's mental-health care is likely to operate in the future. But when conditions appeared to have worsened during the pandemic, the court considered whether pre-pandemic conditions suggested that the worsening was due to COVID-19, and if so whether the problem would likely be resolved as the pandemic wanes. As a hypothetical example, the court would be hesitant to find that the provision of individual counseling remained deficient based solely on evidence that counseling sessions were inconsistently provided in November 2020 without evidence that they were also provided inconsistently in November 2019. This hesitancy gave appropriate flexibility and deference to ADOC in responding to the exceptional threat that the COVID-19 pandemic posed to prison inmates and staff.
9 That said, this flexibility has certain limits. COVID-19 does not grant ADOC carte blanche to provide inadequate mental-health care for the duration of the pandemic. The Eighth Amendment does not have a force majeure clause. Events since March 2020 have not lessened the mental-health needs of prisoners in ADOC's custody; indeed, the stress and uncertainty caused by the pandemic have likely heightened those needs. Though it may be more difficult to provide certain kinds of mental-health treatment under such conditions, a prison system could not constitutionally pause such treatment for the length of the pandemic, which has now lasted well over a year and which has no end clearly in sight. Thus, while the weight given to evidence of conditions during the pandemic varied depending on how those conditions compared to pre-pandemic mental-health care in the ADOC system, the court in all instances looked to the totality of the evidence--including evidence of recent conditions--to determine whether each particular remedial provision was necessary under current circumstances.
For similar reasons, the court declined to adopt the defendants’ request that it grant the monitoring team power to waive remedial provisions during a pandemic or similar unforeseen circumstances. Instead, the difficulties posed by these circumstances should be taken into account when assessing ADOC's compliance with these provisions and whether any non-compliance under such conditions requires further remedial action.
***
This concludes the second part of the court's omnibus remedial opinion. One part follows.
DONE, this the 27th day of December, 2021.
PHASE 2A OMNIBUS REMEDIAL OPINION
PART III.
I. INTRODUCTION...1258
II. REMEDIAL PROVISIONS AND PLRA FINDINGS...1259
A. Correctional Staffing...1259
B. Mental-Health Staffing...1265
C. Restrictive Housing...1269
1. Exceptional Circumstances...1269
2. Screening for Serious Mental Illnesses...1273
3. Mental-Health Rounds...1276
4. Mental-Health Assessments...1279
5. Out-Of-Cell Time...1282
6. Security Checks...1283
7. Restrictive Housing Cells...1284
8. Other Provisions Regarding Segregation...1287
D. Intake...1287
1. Use of LPNs to Conduct Intake...1287
2. Documentation of Intake Screening...1288
3. Inmates’ Previous Records...1289
4. Other Provisions Regarding Intake...1290
E. Coding...1291
1. Assignment of Codes...1292
2. Documentation of Codes...1292
F. Referral...1293
1. Making of Referrals...1294
2. Response to Referrals...1295
3. Communication of Emergent or Urgent Referrals...1297
4. Communication of Routine Referrals...1299
5. Triage of Referrals...1299
6. Observation in Response to Emergent Referrals and Referrals for Suicide Watch...1301
7. Other Provisions Regarding Referrals...1303
G. Confidentiality...1303
H. Treatment Teams and Plans...1305
1. Frequency of Treatment-Team Meetings...1305
2. Length of Treatment-Team Meetings...1306
3. Lack of Pertinent Information...1306
4. Nonexistent or Vague Treatment Plans...1307
5. Failure to Update Treatment Plans...1308
6. Coordination of Transfers and Treatment...1309
7. Other Provisions Regarding Treatment Teams and Planning...1312
I. Psychiatric and Therapeutic Care...1314
1. Access to Treatment...1314
2. Insufficient Out-Of-Cell Time...1317
3. Monitoring of Inmates Not on the Mental-Health Caseload...1319
4. Inadequate Progress Notes...1320
5. Other Provisions Regarding Psychiatric and Therapeutic Care...1321
J. Suicide Prevention...1323
1. Immediate Response to Suicide Attempts...1323
2. Suicide Watch Placement...1326
3. Suicide Watch Cells...1328
4. Observation...1331
5. Suicide Watch Conditions...1333
6. Referral to Higher Level of Care...1335
7. Discharge...1338
8. Follow-Up...1340
9. Other Provisions Regarding Suicide Prevention...1342
K. Higher Levels of Care...1343
1. Timely Access to Hospital-Level Care...1344
2. Inpatient Beds...1345
3. Temperature Regulation...1348
4. Other Provisions Regarding Higher Levels of Care...1349
L. Discipline...1350
1. Mental-Health Consultations to the Disciplinary Process...1350
2. Consideration of Mental-Health Consultations...1352
3. Other Provisions Regarding Discipline...1355
M. Training...1356
1. Documentation of Training...1357
2. Emergency Preparedness Drills...1359
3. Training for Mental-Health Observers...1360
III. GLOBAL PLRA FINDINGS...1361
IV. CONCLUSION...1362
I. INTRODUCTION
As stated previously, this opinion is divided into three parts. This is the third part, which discusses the parties’ proposed provisions, the relief that the court orders and its reasons for doing so, and the court's PLRA findings. The court anticipates that the monitoring team may use this part as a reference guide to better understand the intricacies of the order. Both deal with the following areas of liability, in the following order: correctional staffing; mental-health staffing; restrictive housing; intake; coding; referral; confidentiality; treatment teams and plans; psychiatric and therapeutic care; suicide prevention; higher levels of care; discipline; and training.1
II. REMEDIAL PROVISIONS AND PLRA FINDINGS
A. Correctional Staffing
The currently operative 2017 understaffing remedial order requires the ADOC to have "fully implemented the Savages’ correctional staffing recommendations" by February 20, 2022. Phase 2A Understaffing Remedial Order (Doc. 1657) at 3. As discussed previously, the recommendations that must be "fully implemented" by that date include: (1) hiring for the 3,826 full-time-equivalent correctional staffing positions necessary to fill the "mandatory" and "essential" posts described in the staffing analysis; (2) undertaking "another staffing analysis ... for every facility"; and (3) creating an "agency staffing unit" to "implement[ ] and enforce[ ] ... any changes resulting from" the Savages’ analysis. Savages’ Report (Doc. 1813-1) at 20, 100, 121-33. It is clear at this point that at least the first of these requirements is out of reach. Overall correctional staffing numbers in ADOC's system have barely increased in three years, and the system has filled less than half of the positions necessary to meet the requirement of 3,826 full-time-equivalent officers. This failure must be considered in the context that, despite the court's instruction in 2018 that "the defendants are not to delay implementation until the last minute, but are to begin immediately and swiftly upon receiving" the Savages’ recommendations, the defendants had, at the time of the 2021 omnibus hearings, taken no steps whatsoever toward complying with the second and third requirements. Braggs v. Dunn, No. 14cv601-MHT, 2018 WL 985759, at *8 (M.D. Ala. Feb. 20, 2018) (Thompson, J.).
a. The Parties’ Proposed Provisions
To remedy ADOC's continued, extraordinary correctional understaffing, the plaintiffs propose mainly that the court maintain the existing February 2022 deadline. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 2.1.1. In the alternative, if the court modifies this deadline, the plaintiffs ask that benchmarks be imposed on the ADOC's compliance to ensure that another three-plus years do not pass with minimal progress made and with no intervening points at which that lack of progress might be reviewed by the court. See Pls.’ Post-Trial Br. (Doc. 3370-1) at 342-44. The plaintiffs propose that these benchmarks should prioritize correcting the staffing deficiencies at ADOC's mental-health hubs, intake facilities, and restrictive housing units first, but they do not propose specific benchmarks beyond that general suggestion of structure. See id.
The defendants propose that no relief is necessary. See Defs.’ Post-Trial Br. (Doc. 3367) at 58-59. In the alternative, they propose two modified deadlines for fixing its correctional staffing deficiencies, as well as new intervening dates for creating the agency staffing unit and completing the updated staffing analysis. See Defs.’ Revised Correctional Staffing Proposal (Doc. 3351) at §§ 2.1.1-2.1.7. The first of these deadlines would require the ADOC to reach critical minimum staffing by, at the latest, December 31, 2023. See id. at 6. The latter of the deadlines would require the ADOC to fill 85 % of the mandatory posts described in the updated staffing analysis by July 1, 2025. See id. In light of Meg Savage's testimony that meeting critical minimum staffing should generally mean filling all mandatory posts, see June 15, 2021, R.D. Trial Tr. at 122-27, it is unclear how these two deadlines would work together: Filling critical minimum posts should require more staff than filling 85 % of mandatory posts. The ADOC's proposal contains no timeline for it to fill any of the essential posts—the positions necessary for "normal operations." June 16, 2021, R.D. Trial Tr. at 41-42. It also does not include any adjustments to the operation of ADOC facilities during the four years before it would under its proposal achieve 85 % of the staffing level at which, according to Savage, the prisons could safely operate in a non-lockdown status.
b. The Court's Ordered Relief
10 The court will adopt a hybrid of the timelines proposed by the defendants and the plaintiffs. In light of ADOC's minimal progress toward correcting its severe correctional understaffing in the four years since the liability opinion, the court will extend to July 1, 2025, the deadline for filling all mandatory and essential posts prescribed in the most recent staffing analysis in effect at that time.2 This extension grants the defendants’ request for another four years from the time of the omnibus remedial hearings to achieve the level of staffing necessary to safely conduct normal operations, including programming, recreation, and other activities "as prescribed in all policy and procedures." June 16, 2021, R.D. Trial Tr. at 41-42. Given the exceptionally slow pace of progress the ADOC has made over the past four years, the court finds that this deadline is the earliest date with which it is realistic to expect the department may be able to comply.
However, when the amount of work (much of which should have been done years ago) ADOC must put into achieving adequate correctional staffing is considered, July 2025 is just around the corner. Time is of the essence. Every week and month is dear. The court, therefore, agrees with the plaintiffs that it is necessary to impose certain intermediate benchmarks--that is, "point[s] of reference" against which ADOC's progress may be assessed. Benchmark, Merriam-Webster Online , https://www.merriam-webster.com/dictionary/benchmark (last visited December 21, 2021). In deference to the ADOC, the court will not attempt to prescribe these benchmarks itself. Instead, it will order the defendants, in consultation with the Savages, to propose realistic benchmarks for the level of correctional staffing ADOC will attain by December 31 of 2022, 2023, and 2024. These benchmarks should be achievable for ADOC, should appropriately prioritize filling mandatory posts and staffing the mental-health hubs and intake facilities, and should put the ADOC on track to comply with the court's order to fill all mandatory and essential posts by July 1, 2025. Once imposed, ADOC will be required to submit status reports to the court regarding its progress towards meeting them.
The benchmarks need not be enforceable. They are merely meant as a means of measuring ADOC's progress towards filling its mandatory and essential posts by 2025, so that the court and the parties can determine if ADOC is falling behind and take appropriate action immediately. By assessing ADOC's progress against the benchmarks, the court and the parties will decrease the chances that, come four years from the omnibus remedial hearings, they will have to scramble to ensure that ADOC complies with the court's correctional staffing order or, worse, to extend the deadline for doing so by another four years. It is unfortunate that, in all likelihood, eight years will pass from the time of the court's liability opinion before ADOC achieves the staffing it needs to provide inmates the care that the constitution requires. Twelve years would be beyond the pale.
To facilitate meeting these deadlines and benchmarks, ADOC should also create its agency staffing unit and work with the Savages to update the staffing analysis as soon as possible after the issuance of this order.3 The defendants’ proposal also contains a provision requiring ADOC to revise the format of its correctional staffing reports; while this may be necessary, the court will not order ADOC to do so now. If the monitoring team determines that alterations to the format of ADOC's reports would aid the oversight of its compliance with these deadlines, the court anticipates that the defendants will work collaboratively with the monitoring team to make those adjustments. Per the Savages’ analysis from March 2021, Basic Correctional Officers (BCOs) should not fill and may not be counted for any armed post, and so-called Correctional Cubicle Operators (CCOs) should not fill and may not be counted for any position other than "secure control room posts with no direct inmate contact." Assessment of Posting Assignments (Doc. 3151-1) at 6, 8.
c. PLRA Findings
The deadlines and benchmarks described above are necessary to correct ADOC's extreme correctional understaffing, which continues to place mentally ill prisoners in ADOC's care at a substantial risk of serious harm for the reasons discussed above. Because these deadlines require only that ADOC fill the positions that its staffing expert Meg Savage credibly testified are necessary for safe, normal prison operations, they are narrowly tailored to correcting the understaffing violation found by the court. And because the benchmarks are not requirements, but merely reference points intended to facilitate the defendants’ compliance with the court's order, they are the least intrusive way of ensuring that the violation is corrected. Accordingly, the court finds that the deadlines and benchmarks set forth above are narrowly drawn, extend no further than necessary to correct the correctional understaffing violation found by the court, and are the least intrusive means necessary to correct that violation. See 18 U.S.C. § 3626(a)(1)(A).
However, while these deadlines and benchmarks are necessary to correct the understaffing violation, the court finds that they are not sufficient to do so. As explained above, ADOC has had four years to fix its correctional officer deficiencies since the court found that ADOC's "severe" understaffing, "combined with chronic and significant overcrowding," was an "overarching issue[ ] that permeate[s] each of the" court's other liability findings. Braggs, 257 F. Supp. 3d at 1268. In that time, the system-wide staffing numbers have barely moved. Less than half of the mandatory and essential posts identified by the Savages are currently filled. ADOC remains far from filling even the mandatory positions, which comprise the vast majority of the mandatory and essential posts described in the Savages’ staffing analysis and which, per that analysis and Meg Savage's testimony, are so critical that facilities should lock down if they are not filled 100 % of the time. See June 15, 2021, R.D. Trial Tr. at 127-29.
The consequences of this extreme understaffing have been catastrophic, just as they were four years ago at the time of the court's liability opinion. Suicide watch hours have shot up more than 4,000 % above the levels anticipated in the mental-health vendor's contract because the absence of security staff causes terrifying conditions to proliferate in the prisons, leading to anxiety, psychological deterioration, and ultimately suicidality. Inmates in celled environments, including treatment environments like the SU and SLU, cannot get out of their cells and are unable to receive necessary mental-health interventions due to a lack of correctional staff. See, e.g., Pls.’ Ex. 3310 at ADOC546882; May 25, 2021, R.D. Trial Tr. at 140-44; see also Pls.’ Ex. 3347 at ADOC553738. The resulting degree of isolation in these units is akin to or worse than segregation is meant to be under ADOC policy and the court's orders—a disquieting irony as the SLU in particular is intended to provide a diversionary unit for mentally ill inmates to avoid subjecting them to the harm caused by segregation. At the same time, dormitory environments are unsafe even in the most intensive treatment units: Tommy McConathy was raped in the grievously understaffed RTU at Bullock, which sometimes operated with no officers whatsoever on the dormitory floor. See Pls.’ Ex. 3403 at ADOC558777; May 28, 2021, R.D. Trial Tr. at 157-58.
Perhaps the most dangerous effects of this severe understaffing are in the restrictive housing units, where most suicides in ADOC facilities occur. Inmates go weeks without any out-of-cell exercise time at all, exacerbating the mental-health effects of isolation. See, e.g., Pls.’ Ex. 3921 at ADOC517730-58. Officers at St. Clair acknowledged that this lack of out-of-cell time was due to insufficient correctional staff. See May 27, 2021, R.D. Trial Tr. at 118; May 28, 2021, R.D. Trial Tr. at 186-87. Units operate without enough officers to get an inmate out of his cell even in the event of a mental-health emergency. See Pls.’ Ex. 4269 at ADOC588534; see also June 16, 2021, R.D. Trial Tr. at 195. This problem was reflected in the death of Charles Braggs, who hanged himself in his cell an hour after a nurse asked correctional officers to bring him to the infirmary. See Pls.’ Ex. 3284 at 5. Mental-health treatment is nearly non-existent, including for inmates with serious mental illness, in part due to the lack of correctional staff. Clinical encounters are missed for lack of correctional officers to bring inmates to appointments. See, e.g., May 25, 2021, R.D. Trial Tr. at 158-59.
Moreover, experts for both parties testified that the only way to operate segregation units safely given the known risk of decompensation and suicide on those units is to have correctional staff perform cell-by-cell security checks twice an hour, 24 hours per day, for every occupied segregation cell to check on the inhabitant. The court explained in the liability opinion that these checks are "necessary to keep prisoners safe from self-harm and suicide," and it based its finding of constitutional deficiencies in segregation in part on Vail's assessment of ADOC logs "that suggested that no segregation checks were done for multiple hours." Braggs, 257 F. Supp. 3d at 1244. Vail credibly testified in the omnibus remedial hearings that this security-check requirement is one of the most important obligations of correctional administration because of how essential it is to keeping inmates safe. See May 27, 2021, R.D. Trial Tr. at 206-07.4
At its current staffing levels, ADOC cannot consistently conduct these checks. As in the liability trial, Vail again found many logs indicating gaps of multiple hours between security checks. See May 27, 2021, R.D. Trial Tr. at 159-61. Audits of ADOC's restrictive housing units have routinely found compliance levels with the required 30-minute security checks below 20 %. The extraordinary degree to which non-compliance with this requirement puts inmates at risk was illustrated by the case of Casey Murphree, who was not found for hours after his death until rigor mortis had begun. Had security checks been conducted as required by ADOC policy and this court's orders, Murphree's attempt to hang himself might have been noticed and interrupted.
Considering the evidence discussed above and the totality of the evidence presented during the 2021 omnibus remedial hearings, the court now finds that--with the exception of the restrictive housing unit at Tutwiler--ADOC's restrictive housing units are unsafe for prisoners with mental-health needs,5 and that while the segregation provisions in the parties’ proposed omnibus remedial orders outline a plausible long-term framework for the operation of restrictive housing units once correctional staffing levels rise, neither proposal is adequate to address the serious risk of harm faced now by inmates in segregation. No matter what provisions the court might order regarding security checks, mental-health evaluations, out-of-cell time, and other areas in which ADOC has failed to provide adequate care, there is a substantial likelihood that ADOC will be unable to comply fully until it hires significantly more correctional staff—an object that, by ADOC's projection, is years away. Until then, ADOC's pattern of past noncompliance offers little reason to expect that ADOC will implement the provisions that the court orders with the consistency that is necessary to protect inmates in restrictive housing, where ADOC's compliance or noncompliance is a matter of life-and-death.
In light of this finding, the court considered ordering the defendants to close some or all the restrictive housing units at its men's facilities until correctional staffing levels improve enough to make it possible for ADOC to operate those units safely. However, in deference to ADOC and to ensure that the remedy intrudes no further into the operations of the prison than is necessary to address the risk of harm to inmates in segregation caused by the system's present staffing levels, the court will instead order that ADOC must take additional precautions to protect against the most severe and immediate dangers to inmates in restrictive housing in the event that ADOC fails to comply with the court's orders regarding security checks, mental-health evaluations, out-of-cell time, and other areas in which ADOC has failed to provide adequate care. This is not to excuse noncompliance; it is simply to be realistic about the extreme risks that ADOC's understaffing poses to inmates in restrictive housing.
At this time, the court will not dictate all of the additional steps ADOC must take. Rather, because the parties were not afforded the opportunity to address this issue during the omnibus remedial hearing, it will allow them to submit proposals as to what interim measures are necessary until correctional staffing increases. Possible measures might include hiring temporary observers to monitor inmates in restrictive housing until ADOC hires a sufficient level of correctional staff, or temporarily reducing the number of inmates that ADOC keeps in restrictive housing.
The parties’ proposals should also consider how the safety needs of prisoners who require protective custody will be addressed, and they should further discuss how ADOC should manage the dangers posed by prisoners who would present a significant safety or security risk in general population. Part of the court's hesitation to order the closure of any of ADOC's male restrictive housing units stemmed from concern over what would happen with these two groups of prisoners—at the moment, ADOC uses restrictive housing for both groups. The proposals should also suggest means of ensuring that any prisoners moved out of the restrictive housing units do not end up in functionally identical units: that is, units that offer equivalently deficient levels of monitoring, out-of-cell time, and treatment. In considering the parties’ proposals, the court will also adopt a plan for how the relief it orders may be modified if ADOC meets the staffing benchmarks set forth above. The goal is for ADOC to obtain sufficient correctional staff to be able to safely run its prisons, including segregation units if it so chooses. If ADOC's staffing levels begin to improve such that it is able to meet the benchmarks, its capacity to oversee restrictive housing units in a way that does not subject those housed there to a serious risk of harm should accordingly improve as well.
11 The court will order, however, that at least until its correctional staffing improves, ADOC must take certain steps to ensure that its stabilization unit, suicide watch, and restrictive housing cells remain suicide-resistant. Specifically, the court will order that ADOC must check such cells for suicide-resistance before they receive new occupants, and that it must conduct a thorough check of all such cells at least once per quarter to verify that they satisfy every element of Lindsay M. Hayes's Checklist for the "Suicide Resistant" Design of Correctional Facilities (Doc. 3206-5), which the court discusses in more detail below, and which the parties previously agreed to use as a means of gauging suicide-resistance. In addition, the quarterly check must be documented.
The court finds this relief necessary given the unfortunate reality that, until correctional staffing improves, there will likely be lapses in the observation of inmates in the stabilization unit, suicide watch, and restrictive housing cells. These inmates already face a heightened risk of decompensation and suicide, and therefore require an additional layer of protection. The checks are also narrowly tailored and minimally intrusive. In recognition of ADOC's limited resources, the court does not require it to conduct a documented check of every element of the Hayes checklist each time a stabilization unit, suicide watch, or restrictive housing cell receives a new occupant; rather, a more cursory examination of the cell for tie-off points, visibility, and potentially dangerous items will suffice.
To be clear, precautionary measures in addition to the segregation provisions proposed by the parties are necessary in light of the specific claims presented in this case and the scope of the court's remedial responsibilities with respect to those claims. That does not mean that such measures are the only adjustments that should be made immediately at this juncture to align ADOC's operations with the staffing levels it has, rather than the levels it hopes to attain. Other claims could require other adjustments; alleviating the risk of harm to inmates with mental-health needs in ADOC's segregation units is only what this court can do to address this vast and multifaceted problem.
This also is the only adjustment that is necessary today. The court takes no position at this point on what further remedies may be necessary in the years to come if ADOC does not improve its correctional staffing. The court emphasizes, however, that, if progress on staffing continues to be elusive, the defendants will have to consider other modifications to ADOC's operations to make the system capable of adequately protecting and treating prisoners with mental illness. When a State incarcerates some of its citizens, it accepts a coordinate obligation to provide them a certain minimum of mental-health care. As experts for both parties testified, there are ultimately two ways to fix the problem of having too few staff to provide this minimal care to an inmate population: staffing can be increased, or the population can be reduced. See May 28, 2021, R.D. Trial Tr. at 198-99; June 17, 2021, R.D. Trial Tr. at 98-100. ADOC has options about how to proceed. But one option it does not have is to throw up its hands and declare the staffing challenges too insurmountable for minimally adequate mental-health care to be possible. The Constitution affords ADOC great latitude in the operation of its prisons, but it does not permit that.
B. Mental-Health Staffing
Although ADOC has made more progress towards remedying mental-health understaffing than it has towards remedying correctional understaffing, its progress is incomplete. According to the staffing ratios developed by ADOC's consultants, which indicate the minimum number of staff needed to treat any given number of inmates, five of ADOC's 15 facilities have enough mental-health staff to treat their current inmate populations. Yet no facility is staffed at the levels called for by the December 2019, mental-health staffing matrix, which the parties developed, using the ratios, to indicate the levels of mental-health staff ADOC could expect to require in the coming years. This discrepancy is the result of the COVID-19 pandemic, in response to which ADOC reduced intake from local jails, thereby reducing its inmate population to abnormally low levels. When intake resumes, ADOC will almost certainly require more staff in each of its facilities to provide a constitutionally permissible standard of care.
Moreover, ADOC's lack of correctional staff has prevented its mental-health staff from treating inmates as efficiently as its consultants assumed when developing the staffing ratios. Therefore, even in those facilities where ADOC has provided the number of mental-health staff called for by the staffing ratios, more mental-health staff are likely needed.
a. The Parties’ Proposed Provisions
In light of ADOC's limited progress in hiring mental-health staff, the plaintiffs propose that ADOC must maintain levels of mental-health staffing consistent with or greater than those called for by its consultants’ staffing ratios, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 2.2.3.2, subject to the following adjustments and qualifications:
• Staffing levels shall not be less than those set forth in ADOC's October 1, 2020, contract with Wexford. See id. at § 2.2.2.
• ADOC must change the staffing ratios for all mental-health positions other than Program Managers and Clerks to ensure that they are filled even when staff are absent on vacations or sick leave. See id. at §§ 2.2.3.2.1-2.2.3.2.2.
• ADOC must keep filled the positions of Clinical Director of Psychiatry, Director of Mental-Health Services, Northern Regional Psychologist, Central Regional Psychologist, Southern Regional Psychologist, and Ombudsman, see id. at § 2.2.1.
• "Each ADOC major facility must have at least one (1) full-time equivalent ("FTE") licensed Professional ("MHP"). Each treatment hub—Bullock Correctional Facility, Donaldson Correctional Facility, and Tutwiler Prison for Women—must have at least two (2) FTE MHPs. Each treatment hub must have two (2) MHPs on-site for at least eight (8) hours per day every business day, and at least one (1) MHP on the weekends and holidays." Id. at § 2.2.3.1.
• "The ratio of CRNPs to psychiatrists must be 1.25:1 on a statewide bases, but not on a facility-by-facility basis." Id. at § 2.2.3.2.3.
• All CRNPs working as mental-health staff must be certified to work in psychiatry. Id. at § 2.2.3.2.4.
• ADOC's mental-health vendor may consider an [associate licensed counselor] as a [qualified mental-health professional] for 18 months after the start of his or her employment, provided that the [associate licensed counselor] is working towards licensure as an [licensed professional counselor]. During that time, the [associate licensed counselor] can participate, as part of her training, in suicide risk assessments conducted by an independently licensed [qualified mental-health professional] or another independently licensed mental-health professional such as a psychiatrist, psychologist, or CRNP. The [associate licensed counselor] cannot, however, complete suicide risk assessments or conduct follow-up examinations alone. The [associate licensed counselor's] progress toward licensure must be assessed every six months. If the [associate licensed counselor] has not reached 600 hours of supervised time toward licensure by the six-month assessment, 1,200 hours by the 12-month assessment, or achieved licensure by the 18-month assessment, the [associate licensed counselor] must no longer be considered or counted as an [qualified mental-health professional]. At all times, no more than 10 % of [qualified mental-health professionals]can be [associate licensed counselors] working towards their licensure as [licensed professional counselors]. See id. at § 2.2.3.2.5.
• All activity technicians to work two shifts per day during the week and at least one shift on weekends, id. at § 2.2.3.2.6.
• "ADOC and its mental-health vendor may substitute [qualified mental-health professionals] for psychologists on a facility-by-facility basis, provided that the total number of [qualified mental-health professionals] and psychologists is equal to or greater than the number would be if applying the consultants’ ratios." Id. at § 2.2.3.2.7.
• "Implementation of the mental-health staffing ratios must be reviewed by appropriately qualified experts agreed upon by the parties or selected by the EMT, with input and participation of the EMT as it deems appropriate. Upon completion of such review, the experts will make recommendations, if necessary, for revising those staffing ratios. The recommendations will be provided to the EMT and to the Parties. The EMT will receive input from the Parties and will determine whether and to what extent the experts’ recommendations are to be implemented." Id. at § 2.2.2.2.
The defendants propose that, because of the progress they have already made, no remedial relief is necessary--including the relief that the court has already ordered--and that "[a]ny oversight of mental-health staffing through reevaluation of mental-health staffing, reporting, and monitoring must also end." Defs.’ Post-Trial Br. (Doc. 3367) at 60–64, 64.
In the alternative, they propose that ADOC's "mental-health vendor will fill the mental-health staffing positions at each ADOC major facility, by program, consistent with the mental-health staffing ratios recommended by [ADOC's consultants], within one hundred [and] twenty (120) days of the Effective Date [of the court's Phase 2A omnibus remedial order]" and that "[b]eginning one (1) year from the initiation of monitoring, the EMT shall review the assigned mental-health staffing ratios for the ADOC major facilities under monitoring ... and make recommendations, if necessary, for revising those staffing ratios." Id. at 60, 64–65.
Finally, both parties propose that ADOC shall continue to submit quarterly mental-health staffing reports to the court, and monthly reports to the plaintiffs, as required by the Phase 2A Order and Injunction on Mental-Health Understaffing. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at §§ 15.1-15.2; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at §§ 2.2.2-2.2.3.
b. The Court's Ordered Relief
12 The court will order, as both sides propose, that ADOC must maintain levels of mental-health staffing consistent with or greater than those called for by its consultants’ staffing ratios. To ensure that the ratios are accurate, the court will order, as the defendants propose, that the EMT must review the ratios beginning one year from the initiation of monitoring and, if necessary, make recommendations for revising them.6 In reviewing ADOC's compliance with the staffing ratios, the court notes that the EMT may allow ADOC to substitute qualified mental-health professionals for psychologists, and associate licensed counselors for qualified mental-health professionals, subject to the conditions that the plaintiffs propose.7 The court credits Dr. Burns's testimony that these substitutions will not hamper the provision of care. See June 4, 2021 R.D. Trial Tr. at 48-51.
The court will also order that ADOC must achieve the staffing levels set forth in the staffing matrix previously approved by the court by June 1, 2025, see Phase 2A Order and Injunction on Mental-Health Staffing Remedy (Doc. 2688), subject to any subsequent modifications. The court orders this relief because, although in some of its facilities ADOC has, according to the staffing ratios, enough mental-health staff to serve its current inmate population, the evidence presented at the omnibus remedial hearings indicates that it will need more when intake returns to pre-pandemic levels, and that it may well need more currently, given its lack of correctional staff.
Finally, in order to provide the defendants with as much flexibility as possible while still providing a meaningful opportunity for oversight, the court will order ADOC to work with the EMT to develop report formats for mental-health staffing, and to submit reports to the court and the EMT on at least a quarterly basis. However, given the paramount importance of adequate mental-health staffing to remedying the violations found in the liability opinion, the court cannot allow ADOC to put oversight on hold as it reformulates its reports. Accordingly, until ADOC and the EMT have finalized a new report format or else concluded that the existing report format is adequate, ADOC shall continue providing mental-health staffing reports as required by the Phase 2A Order and Injunction on Mental-Health Understaffing (Doc. 2301 and Doc. 2301-1).
The court declines to adopt the majority of the plaintiffs’ proposed provisions because it does not find them necessary on the basis of the current record. There is no evidence, for instance, that the staffing ratios fail to account for absences due to vacation or sick leave; that the CRNPs currently working as mental-health staff are not certified to work in psychiatry; that the positions of Clinical Director of Psychiatry, Director of Mental-Health Services, Northern Regional Psychologist, Central Regional Psychologist, Southern Regional Psychologist, and Ombudsman are not currently filled; or that there are not two full-time-equivalent qualified mental-health professionals at each treatment hub. That said, the court takes seriously the concerns that motivate the plaintiffs’ proposals--particularly the concern that there must be sufficient qualified mental-health professionals at each treatment hub to perform mental-health evaluations for all inmates who need them, and the concern that there must be sufficient activity technicians in each facility to facilitate the provision of out-of-cell time--and trusts that should they prove prescient, the EMT will bring the issue to its attention.
c. PLRA Findings
The court finds it necessary to order ADOC to maintain levels of mental-health staffing consistent with or greater than those called for by its consultants’ staffing ratios because those ratios indicate the minimum number of staff required to treat any given inmate population. While ADOC has provided mental-health staffing at the levels called for by the ratios in five of its 15 facilities, its limited progress does not obviate the need for relief, especially because its lack of correctional staff has prevented its mental-health staff from treating inmates as efficiently as ADOC's consultants assumed.
It is not enough, however, that ADOC maintain sufficient staff to treat its current, abnormally low population; it must also take steps to prepare for the increase in its inmate population that will occur when intake resumes to pre-pandemic levels. Therefore, the court finds it necessary to order ADOC to continue to work towards providing mental-health staffing at levels consistent with the staffing matrix, which the parties developed as an estimate of ADOC's long-term mental-health staffing needs.
Finally, the court finds it necessary to order ADOC to submit mental-health staffing reports on at least a quarterly basis so that the court and the EMT can effectively monitor its progress, and reduce the relief ordered today as appropriate.
Each of these provisions is also narrowly tailored and minimally intrusive. While ADOC must comply with the staffing ratios, the court affords it as much leeway as possible in making hiring decisions by allowing it to substitute qualified mental-health professionals for psychologists and associate licensed counselors for qualified mental-health professionals, as the plaintiffs propose. And while ADOC must work towards complying with the staffing matrix, it need not achieve compliance immediately. Finally, while the court requires ADOC to continue to submit quarterly mental-health staffing reports, it allows it the opportunity to work with the EMT to modify the format of those reports.
C. Restrictive Housing
ADOC's use of restrictive housing remains seriously problematic. The department has failed to define clearly the "exceptional circumstances" that, as its own policies require, must exist if an inmate with a serious mental illness is to be kept in restrictive housing. It thereby keeps inmates with serious mental illnesses in segregation under any circumstances it sees fit. Moreover, ADOC lacks a functioning process for identifying inmates as contraindicated for restrictive housing, and even when it does successfully identify signs of contraindication, it fails to take them into account when deciding whether to place inmates in restrictive housing. Then, once inmates are in segregation, it fails to provide sufficient out-of-cell time and does not conduct routine mental-health rounds, security checks, or periodic mental-health assessments as required by court order and internal policy. For all of these reasons, inmates in ADOC's restrictive housing units currently face an unacceptably high risk of decompensation, self-harm, and suicide.
1. Exceptional Circumstances
The concept of so-called "exceptional" or "extenuating" circumstances appears at various points in the parties’ proposals and in the provisions adopted by the court today. Most importantly, it describes the circumstances in which an individual may be placed in segregation directly from suicide watch or despite a clinical contraindication for restrictive housing placement, including a serious mental illness. Beyond the definition of exceptional circumstances, there are further questions as to how long a person may remain in segregation when exceptional circumstances permit such placement and what conditions of confinement are required during that placement; those issues will be discussed below.
a. The Parties’ Proposed Provisions
The parties’ final proposals for the definition of exceptional circumstances are as follows:
Plaintiffs: " ‘Exceptional Circumstance’ refers to a circumstance in which ADOC is unable to provide an appropriate alternative placement to restrictive housing (e.g., an SLU), due to a lack of bed space, for a prisoner with an SMI who needs to be placed in a closed cell for disciplinary, investigative, or preventative reasons, and whose placement in general population would create an unacceptable risk to the safety of any person." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 1.9.
Defendants: " ‘Extenuating circumstance(s)’ means, as an exception to the general rule disfavoring the placement of an inmate with a diagnosed SMI in restrictive housing, a situation where: (a) a safety or security issue exists preventing placement of the inmate in alternative housing (such as a SU, RTU, or SLU); or (b) a non-safety or non-security issue exists and transfer or transportation to alternative housing (such as a SU, RTU, or SLU) is temporarily unavailable. Examples of safety and security issues include an inmate's known or unknown enemies in alternative housing or the inmate's creation of a dangerous environment (to the inmate, other inmates, and/or staff) by his or her presence in alternative housing. An inmate placed in a [restrictive housing unit] for safety and security issues for seventy-two (72) hours or longer will be offered at least three (3) hours of out-of-cell time per day (which may be congregate out-of-cell time) while he or she remains in a [restrictive housing unit]. An inmate placed in a [restrictive housing unit] for non-safety or non-security issues should be removed from the [restrictive housing unit] within seventy-two (72) hours." Defs.’ Revised Definition of "Extenuating Circumstances" (Doc. 3314-1) at 2.
Both parties propose that inmates with serious mental illnesses may not be placed in restrictive housing absent an exceptional circumstance, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 12.2.1; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 12.2, and the plaintiffs offer the following additional provisions:
• "When a prisoner with an SMI is placed in [a restrictive housing unit] due to an Exceptional Circumstance, the person must be transferred to an SLU, or to a mental health inpatient bed (RTU or SU) if clinically indicated, within five (5) calendar days." Id. at § 12.2.2.
• "If a prisoner has an SMI and the need for placement in restrictive housing arises, but no Exceptional Circumstance exists, the prisoner must remain out of restrictive housing or be moved to Mental Health Observation in a crisis cell until transport can be arranged to an SLU, or to a mental health inpatient bed (RTU or SU) if clinically indicated. This transport must occur within five (5) calendar days." Id. at § 12.2.3.
b. The Court's Ordered Relief
13 The court will adopt the defendants’ proposed definition of exceptional circumstances, subject to certain modifications, and will order, as both parties propose, that inmates with a serious mental illness may not be placed in segregation unless an exceptional circumstance applies.
The court reaches this conclusion after considerable discussion with the parties and with defense expert Dr. Metzner, during which it became clear that both parties’ proposed definitions would yield identical results in most instances. When a diversionary bed is available to the inmate at issue--that is, when there is a bed free, when immediate transportation to that bed is possible, and when placing the inmate in that diversionary unit would not present a safety or security risk--both parties’ definitions would require the prisoner to be diverted from segregation. Alternatively, when no safe diversionary placement is readily available and the inmate presents a safety or security risk in his or her current housing, both parties would find that exceptional circumstances exist permitting temporary placement in segregation.
The main point of difference between the definitions would arise when no diversionary placement is available but it is safe to leave the inmate in their current housing—for example, when an inmate has enemies in the only diversionary unit with an available bed but could stay in general population without safety or security risk. In that situation, the plaintiffs’ proposal would have the inmate remain in place until a different diversionary bed became available, while the defendants’ proposal would permit ADOC to place the inmate in restrictive housing during that time. The reason for this disagreement, in Dr. Metzner's view, was the need for "accountability" for prisoners’ misconduct. July 2, 2021, R.D. Trial Tr. at 5-9. As Metzner put it, "I don't think it's acceptable to say, okay. We know you did a rule violation. You just stay in your normal housing until we can get you to alternative housing. That's a free pass." Id. at 8.
An additional distinction is that the defendants’ definition, unlike the plaintiffs’, includes what is in effect an order: It requires that all segregation placements not caused by safety or security issues--for instance, placements resulting from the lack of immediately available transportation to a diversionary unit--be limited to 72 hours. See Defs.’ Revised Definition of "Extenuating Circumstances" (Doc. 3314-1) at 2. Furthermore, ADOC would have to provide three hours of out-of-cell time per day to any inmate placed in segregation for safety- or security-related issues who remained there longer than 72 hours, in effect transforming the conditions of confinement to non-segregation. See id. Dr. Metzner testified that the rationale for these limitations was that he believes 72 hours is the amount of time that a person with serious mental illness can remain in segregation conditions without suffering serious psychological harm, although he also testified that inmates who are otherwise clinically contraindicated for segregation should not be placed there even "for one minute." July 1, 2021, R.D. Trial Tr. at 170-71.
It is difficult to square Dr. Metzner's testimony that inmates with serious mental illness are not harmed by segregation placements up to 72 hours with the circumstances surrounding the death of Casey Murphree, who had a serious mental illness and killed himself within a day of his placement in restrictive housing. The court also notes that plaintiffs’ expert Eldon Vail testified that the accountability that Metzner described would become less important as correctional staff received more training. As he explained, "officers want to see people held accountable for bad behavior," and "[i]f they don't understand what drives that bad behavior in the case of someone who is mentally ill," they may resent diversionary measures and "feel like people aren't being held accountable. But the more they understand what goes on in treatment, which is accountability in some ways at a level that is far more powerful than putting someone in segregation, then they're going [to] ... have a better understanding of what the range of their job has now become." June 1, 2021, R.D. Trial Tr. at 35-36.
14 Still, the court takes seriously Dr. Metzner's concern about ensuring accountability for misconduct. As such, the court will generally adopt the defendants’ proposal, including the 72-hour time limit for placements unrelated to safety concerns and the requirement to offer at least three hours of out-of-cell time to any inmate to whom safety- or security-related exceptional circumstances apply who remains in restrictive housing longer than 72 hours. While this does not place a specific outer limit on the amount of time that a prisoner may stay in segregation under exceptional circumstances, the duration will of course be limited by the nature of the circumstance itself—once the exceptional circumstance is resolved, there is no further justification for keeping the inmate in segregation.
15 In addition, the court will require significant documentation of the out-of-cell time offered to prisoners who remain in restrictive housing longer than 72 hours under exceptional circumstances. Every week, ADOC will be required to file with the court and the monitoring team individual reports on each prisoner who has been in restrictive housing for longer than 72 hours under exceptional circumstances during that week. These individual reports should indicate the amount of out-of-cell time offered to the prisoner each day, the nature of the out-of-cell time (i.e., exercise, group therapy, etc.), the exceptional circumstance justifying the prisoner's continued segregation placement, and the date by which ADOC expects that exceptional circumstance to be resolved. The court frankly has serious doubts about ADOC's ability to offer the three hours of daily out-of-cell time required by the defendants’ proposal given its present level of correctional understaffing, as ADOC is currently unable to consistently offer even the five hours of weekly out-of-cell required for all inmates in segregation. Close observation of this requirement is necessary to ensure that it does not become—like many of ADOC's existing obligations to inmates it houses in segregation—a right enjoyed on paper but not in practice.
The court does not adopt the plaintiffs’ proposal that, "If a prisoner has an SMI and the need for placement in restrictive housing arises, but no Exceptional Circumstance exists, the prisoner must remain out of restrictive housing or be moved to Mental-health Observation in a crisis cell," see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 12.2.3, because it is unnecessary in light of the court's present order that inmates with serious mental illnesses must remain out of restrictive housing absent an exceptional circumstance.
The court also does not adopt the plaintiffs’ proposal that seriously mentally ill prisoners who are placed in restrictive housing due to an exceptional circumstance must be transferred to an SLU within five calendar days, because it is made largely redundant by the defendants’ proposed definition of "exceptional circumstances." Although the defendants’ definition allows seriously mentally ill prisoners who are placed in restrictive housing for exceptional circumstances related to safety to stay there for longer than five days, it also requires those prisoners to receive at least three hours of out-of-cell time per day—an amount of time that, according to Mr. Vail, alleviates the risk of decompensation significantly. See May 28, 2021, R.D. Trial Tr. at 24. Indeed, Vail testified that, when inmates receive more than two hours of out-of-cell time per day, they are not functionally in segregation. See id. at 18–19.
c. PLRA Findings
For all of the reasons discussed above, including ADOC's continued practice of transferring inmates from suicide watch to segregation and placing inmates in segregation when they are clinically contraindicated for such placement due to serious mental illness or otherwise, as well as the role this practice repeatedly played in recent suicides in ADOC facilities, the court finds that this definition and provision are necessary to correct the segregation violations found by the court in its liability opinion. Because the defendants’ definition of "exceptional circumstances" allows segregation placements for the maximum amount of time that the defendants’ expert testified that he believed is safe, the court finds that it is narrowly tailored to correcting these violations. And because the definition and provision allow ADOC to continue placing inmates in segregation for reasons of accountability—again, the only point of disagreement between the parties with respect to the definition of exceptional circumstances—the court finds that the remedy it adopts is the least intrusive means of correcting the violations. Finally, because of the court's grave concerns about whether ADOC can in fact offer the three hours of daily out-of-cell time the defendants propose given the severity of its correctional understaffing, the court finds that the documentation requirement it imposes is necessary to correct the segregation violations, narrowly tailored to correcting those violations, and the least intrusive means of doing so.
2. Screening for Serious Mental Illnesses
a. The Parties’ Proposed Provisions
With respect to ADOC's failure to identify inmates with serious mental illnesses and divert them from restrictive housing, both sides propose that prior to placement in a restrictive housing unit, each inmate must be screened by an RN or LPN who has been trained in the screening process, and that the screening must assess whether the inmate has been flagged as seriously mentally ill; whether the inmate is at imminent risk of suicide or serious self-harm; whether the inmate exhibits debilitating symptoms of a serious mental illness; and whether the inmate requires emergency medical care. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at §§ 12.1.1; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at §§ 12.1.1–12.1.2.
The plaintiffs propose, additionally, that any LPN conducting screening must be supervised by an RN, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 12.1.1; and that mental-health staff must have the authority to veto any inmate's placement in a residential housing unit if such placement is contraindicated by the inmate's screening, id. at § 12.1.3.
The parties agree that the results of the screening must be used to determine whether the inmate can be placed into restrictive housing or must be diverted to another location, and whether the inmate requires a medical and/or mental-health referral. See id. at § 12.1.2; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 12.1.3.
They agree, too, that there should be some mechanism for the removal of inmates who have become contraindicated for restrictive housing since their placement there, or who were put there by mistake. To that end, they propose the following provisions:
Plaintiffs:
• "Mental health staff have the authority to have any prisoner removed from a [restrictive housing unit] if it is determined that continued placement is contraindicated as evidenced by changes in the prisoner's mental state and functioning." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 12.3.1.
• "ADOC will affirmatively inform psychiatrists, psychologists, licensed mental health professionals, certified registered nurse practitioners, and registered nurses, in a manner that is documented, (1) that they have both the authority AND the obligation to inform corrections when they have determined that a prisoner's likelihood of decompensation requires a transfer to an RTU, SLU, or SU; and (2) that such a determination is not merely giving advice to corrections, but that it will trump any decision to the contrary and will be carried out promptly." Id. at § 12.3.2.
• "If a prisoner in a [restrictive housing unit] has a newly diagnosed SMI or a [qualified mental-health professional] determines that continued placement in the [restrictive housing unit] is contraindicated, that prisoner must be removed from the [restrictive housing unit] within 72 hours. Removal must occur sooner if clinically indicated. The prisoner must be placed into housing appropriate to their mental health needs (i.e., RTU, SU, SLU). Placement of a prisoner with an SMI into an SLU must take priority over a prisoner without an SMI." Id. at § 12.3.3.
Defendants:
• "Mental-health staff may advise correctional staff to remove an inmate from the [restrictive housing unit] if mental-health staff determines that continued placement of the inmate in restrictive housing is contraindicated as evidenced by changes in the inmate's mental state and functioning. In this situation, the inmate must be removed from the [restrictive housing unit] within seventy-two (72) or sooner if a psychiatrist, psychologist, CRNP, or counselor determines the need for removal of the inmate from the [restrictive housing unit] is urgent. An inmate removed by mental-health staff from the [restrictive housing unit] as a result of decompensation or contraindication will be transferred to a mental-health setting appropriate for the level of mental-health services required by the inmate." Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 12.5.7.
b. The Court's Ordered Relief
The court will order that, prior to placement in a restrictive housing unit, inmates must be screened by an appropriately trained RN, or an LPN under an appropriately trained RN's supervision, and that the screening must assess the topics proposed by the parties. The court will also order that the results of the screening must be used to determine whether the inmate should be placed in restrictive housing and whether the inmate requires a medical and/or mental-health referral, and that an inmate flagged by mental-health staff as contraindicated for restrictive housing must not be placed in restrictive housing absent documented exceptional circumstances. Finally, the court will adopt the defendants’ proposed provision regarding the removal of inmates from the restrictive housing unit, with the caveat that ADOC need not remove an inmate from restrictive housing if an exceptional circumstance exists.
The court orders that inmates must be screened, and that the screening must assess certain topics, because it is seriously concerned by the evidence that screenings continue to miss signs of contraindication. Granted, ADOC has made progress in ensuring that inmates receive screenings prior to being placed in restrictive housing units. Given the heightened importance of ensuring that inmates with contraindications are not inadvertently placed in restrictive housing, however, and the fact that ADOC's progress, while encouraging, is a recent development, the court finds that it must require ADOC to conduct an adequate screening of each inmate entering restrictive housing. The court agrees that the screening must cover the topics proposed by the parties, because, according to Dr. Burns's uncontradicted testimony, those topics must be covered if the screening is be effective. See June 3, 2021, R.D. Trial Tr. at 171-73. And in light of the evidence that LPNs have been unable to conduct adequate screenings of prisoners entering the general population, where the stakes are much lower, the court agrees with the plaintiffs that LPNs may not conduct screenings of prisoners entering segregation unless supervised. If ADOC sustains its progress with respect to screenings, however, the court may revisit this order at a later time.
The court orders that the results of the screening must be used to determine whether the inmate should be placed in restrictive housing and whether the inmate requires a medical and/or mental-health referral, in light of the evidence, described in the opinion on changed circumstances, that ADOC staff routinely ignore the results of screenings and place inmates in segregation despite documented contraindications. The screenings are intended to keep contraindicated inmates out of restrictive housing, and to ensure that mentally ill inmates receive the care that they need. They can fulfill neither purpose if they are ignored.
Out of deference to ADOC, however, the court will not grant mental-health staff veto power over decisions to place inmates in restrictive housing. Rather, it will order that an inmate flagged by mental-health staff as contraindicated for restrictive housing may nevertheless be placed in restrictive housing, but only if correctional staff determine that an exceptional circumstance exists and document their reasons for reaching that decision. The court orders that such decisions be documented because, given the evidence that correctional staff routinely ignore the results of screenings and the recommendations of mental-health staff, the court finds that it must impose some mechanism for the EMT to monitor decisions by correctional staff to place inmates flagged as contraindicated in restrictive housing.
The court adopts the defendants’ proposed provision regarding the removal of inmates from the restrictive housing unit because it agrees with both parties that, given the heightened risk of decompensation faced by inmates in restrictive housing and the imperfections inherent in even the best screening systems, there must be some mechanism for removing inmates from restrictive housing due to decompensation or an error in the initial screening process. Again, however, in an effort to provide ADOC with maximum flexibility, it will not provide mental-health staff with complete authority to determine the facilities in which inmates may be housed, but will instead order that ADOC may keep an inmate in restrictive housing over the objections of mental-health staff provided that an exceptional circumstance exists. For the same reasons as before, that decision, and the reasons for it, must be documented.
Finally, the court does not adopt the plaintiffs’ proposal that ADOC must affirmatively inform its mental-health professionals that they are required to inform corrections when they determine that a prisoner should be removed from restrictive housing, because there is little evidence that ADOC's mental-health professionals are failing to flag individuals as contraindicated for restrictive housing because they do not understand that they have a duty to do so. Rather, the evidence demonstrates that the ADOC's mental-health professionals are failing to flag individuals as contraindicated for restrictive housing because they do not conduct regular follow-up examinations. If the monitoring team finds that mental-health staff fail to flag inmates as contraindicated for restrictive housing because they do not know that they are supposed to, however, the court may revisit the issue.
c. PLRA Findings
16 The court finds these provisions necessary for the reasons given above: Despite ADOC's progress in ensuring that inmates receive mental-health screening before entering restrictive housing, screenings continue to miss signs of contraindication, and their results are routinely ignored. To remedy these failures, and to account for the inevitable risk of decompensation in restrictive housing, the court finds that it must (1) order that each inmate receive a comprehensive screening that is performed by a competent mental-health professional, (2) order that correctional staff use the results of the screening to determine whether the inmate should be placed in restrictive housing and whether the inmate requires a medical and/or mental-health referral, and (3) order that mental-health staff may recommend the removal of inmates from restrictive housing who were put there by mistake or who have decompensated since their initial screening.
These provisions are narrowly tailored, because each is designed to address only ADOC's failure to screen contraindicated inmates from restrictive housing, and to account for the risk of decompensation. They are also minimally intrusive. While the court requires that each screening address certain topics, it finds that, in light of Dr. Burns's uncontroverted testimony that screenings must address those topics, and the extreme risk that restrictive housing poses to seriously mentally ill inmates, it can order no less. And while the court orders that ADOC must use the results of the screening to determine whether inmates may be placed in restrictive housing, and that it must generally follow recommendations by mental-health staff to remove inmates from restrictive housing, it allows ADOC the flexibility to override recommendations by mental-health staff so long as it can document the existence of an exceptional circumstance.
3. Mental-Health Rounds
a. The Parties’ Proposed Provisions
Both sides propose that mental-health rounds must be conducted by a qualified mental-health professional in each restrictive housing unit at least weekly, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 12.5.1; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 12.4.1, and that the rounds must include the following:
• A discussion with the post officer(s) concerning any behavior changes of an inmate in the restrictive housing unit;
A walk through the restrictive housing unit, stopping at each occupied cell to make visual contact with the inmate inside the cell;
• Attempts to verbally communicate with the inmate, including a brief inquiry into how the inmate is doing and whether the inmate has mental-health needs or a desire to speak with mental-health staff privately; and
• A brief assessment of the inmate's hygiene, behavior, affect, physical condition, and the condition of his or her cell (such as cleanliness, trash, food, bodily fluids, smoke, etc.).
See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at §§ 12.5.3, 12.5.3.2-12.5.3.5; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 12.4.2. The plaintiffs would require, additionally, that the rounds must include a review of duty post logs and segregation unit record sheets for information about prisoners’ participation in recreation, showers, meal consumption and sleep patterns, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 12.5.3.1, and that prior to conducting mental-health rounds independently, new MHPs must shadow a senior MHP, psychiatrist, psychologist, or CRNP for three mental-health rounds in the restrictive housing unit, see id. at § 12.5.2, and receive certain training, see id. at § 13.4.
Both sides also agree that the rounds must be documented, and propose the following provisions:
Plaintiffs:
• "Documentation of Mental Health rounds requires notation of the date and time of entry and exit of the professional conducting the mental health round on the [restrictive housing unit] Correctional Officer Duty Post Log. Mental health professionals must also log a brief notation about each inmate in the [restrictive housing unit] on the Mental Health Rounds Form." Id. at § 12.5.4.
• "If there has been any significant change in the prisoner's condition or additional mental health follow-up is indicated, a brief progress note will also be entered in the specific prisoner's medical record. The mental health rounds forms must be chronologically filed and maintained by the mental health manager." Id. at § 12.5.5.
Defendants:
• "A mental-health round will be documented on ADOC Form MH-038, Mental-Health Rounds Log (as amended), which will contain a notation about any mental-health needs expressed by an inmate in the [restrictive housing unit] or concerns identified by the [qualified mental-health professional] as to any inmate during the mental-health round. Each Mental Health Rounds Log Form completed during a mental-health round will be chronologically filed and maintained by the mental-health manager or other designated mental-health staff member." Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 12.4.3.
b. The Court's Ordered Relief
17 The court will order that mental-health rounds must be conducted by a qualified mental-health professional in each restrictive housing unit at least weekly, and that they should generally include the kinds of interactions, inquiries, and assessments that both sides propose. It will also order, as the plaintiffs propose, that the rounds should include a review of duty post logs and segregation unit record sheets for information about prisoners’ participation in recreation, showers, meal consumption and sleep patterns. Finally, the court will order that the rounds must be accurately and contemporaneously documented, and that that documentation must be filed chronologically and maintained by the mental-health manager or other designated mental-health staff member. Should ADOC continue its progress in conducting mental-health rounds, the court may revisit whether this relief is necessary.
The court orders that mental-health rounds must be conducted at least weekly in light of the heightened need for rounds in ADOC's understaffed facilities, and the fact that ADOC has yet to sustain its recent progress in conducting rounds. The rounds are an essential mechanism for ensuring that inmates receive the care they need in a timely fashion, and for identifying inmates who are deteriorating in segregation. See June 3, 2021, R.D. Trial Tr. at 176-78 (testimony of Dr. Burns); June 30, 2021, R.D. Trial Tr. at 68-69 (testimony of Dr. Metzner). If conducted properly, they can allow ADOC to prevent crises before they occur, and thereby allocate its resources more efficiently.
Although ADOC has made encouraging progress in ensuring that rounds occur regularly, it has yet to sustain that progress for any significant time. Indeed, until quite recently, its provision of mental-health rounds was seriously deficient. When Charles Braggs killed himself in July 2020, for instance, two months had passes since ADOC had conducted mental-health rounds in St. Clair. See Pls.’ Ex. 4119 at 2. The reason given was "Lack of Security Staff." Id. Given the expectation that correctional understaffing will continue to inhibit the performance of mental-health duties in this area as in others, the court finds that it must order the performance of these rounds to ensure that they will, in fact, be conducted.
The court orders that the rounds should generally include the kinds of interactions, inquiries, and assessments that both sides propose, as well as a review of duty post logs and segregation unit record sheets for information about prisoners’ participation in recreation, showers, meal consumption and sleep patterns, in light of Dr. Metzner's testimony that these measures are generally necessary to identify and address an inmate's mental-health needs and to gauge effectively whether an inmate's mental-health has deteriorated. See June 30, 2021, R.D. Trial Tr. at 68-69. It does not order that the rounds must entail these kinds of interactions, inquiries, and assessments, because it credits Dr. Metzner's testimony that the appropriate nature of the interactions involved in the mental-health rounds may vary according to how well the mental-health professional conducting the rounds knows the prisoners she is monitoring, and how familiar the prisoners are with the process. See id. at 68. Dr. Metzner explained, for instance, that, if an inmate who has lived in the segregation unit for some time flashes a thumbs up sign, and the mental-health professional conducting the rounds knows that to be a sign that the inmate does not need assistance, the mental-health professional need not attempt to communicate verbally with the inmate. See id. He also explained, however, that a mental-health round must consist of "more than just walking by the cells and getting the thumbs up." July 2, 2021 R.D. Trial Tr. at 27. That is, if the mental-health provider conducting the rounds decides to forego verbal communication with an inmate, she cannot also forego discussions with post officers, a review of the post log, and observations of the inmate's hygiene, behavior, affect, physical condition.
Finally, the court orders that mental-health rounds must be documented accurately and contemporaneously, and that that documentation be filed chronologically, in order to provide some means of monitoring ADOC's progress, and to ensure that ADOC is able to track inmates’ needs and mental-health statuses over time. Documentation is particularly appropriate in light of its past practice of conducting rounds that did not involve stops at each cell. See June 3, 2021 Trial Tr. at 183 (testimony of Dr. Burns). By tracking the time spent on each round, ADOC will provide the EMT with a means of ensuring that these "drive by" rounds no longer occur.
The court does not order, as the plaintiffs propose, that, "[p]rior to conducting mental health rounds independently, new MHPs must shadow a senior MHP, psychiatrist, psychologist, or CRNP" for three rounds, Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 12.5.2, or that they receive other training related specifically to the conduct of rounds, see id. at § 13.4, because there is no evidence in the record to suggest that the mental-health professionals who conduct mental-health rounds are insufficiently trained. It also declines to adopt the plaintiffs’ proposal that, "[i]f there has been any significant change in the prisoner's condition or additional mental health follow-up is indicated, a brief progress note will also be entered in the specific prisoner's medical record," because it is rendered redundant by the court's order that a progress note be created after every significant clinical encounter.
c. PLRA Findings
The court finds the provisions that it orders necessary because, as explained above, it is particularly important that ADOC conducts regular mental-health rounds, especially while its restrictive housing units remain understaffed, so that it can identify inmates who are decompensating and allocate its scare resources to avert crises before they occur. Although ADOC has made recent progress in conducting rounds, it has yet to sustain its progress for long enough to obviate the need for monitoring. Additionally, the rounds generally must cover the topics proposed by both parties if they are to be consistently effective, and they must be documented so that the EMT can monitor ADOC's progress, and to ensure that ADOC is able to track inmates’ mental-health needs and mental-health statuses over time.
These provisions are also narrowly tailored and minimally intrusive. While the court orders that the rounds should generally entail the kinds of interactions, inquiries, and assessments proposed by both sides, it allows ADOC the flexibility to forego verbal interactions when appropriate, and it does not require that the mental-health professionals conducting the rounds be trained in any particular way.
4. Mental-Health Assessments
a. The Parties’ Proposed Provisions
With respect to ADOC's provision of mental-health assessments, both sides propose that inmates must receive a mental-health assessment by a psychiatrist, psychologist, CRNP, or counselor within seven days of placement in a restrictive housing unit, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 12.6.1; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 12.5.1; that the assessment must be documented on ADOC's Mental-Health Assessment/Report form, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 12.6.1; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 12.5.4; and that the assessments must include a review or examination of the following topics:
• The inmate's past response to restrictive housing;
• The inmate's general appearance or behavior;
• Whether the inmate has a present suicidal ideation;
• Whether the inmate has a history of suicidal behavior;
• Whether the inmate is presently prescribed psychotropic medication;
• Whether the inmate has a current mental-health complaint;
• Whether the inmate is currently receiving treatment for a diagnosed mental illness;
• Whether the inmate has a history of inmate and outpatient psychiatric treatment;
• Whether the inmate has a history of treatment for substance abuse;
• Whether the inmate has a history of abuse or trauma; and
• Whether the inmate is presently exhibiting symptoms of psychosis, depression, anxiety, or aggression.
See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at §§ 12.6.2-12.6.3; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 12.5.5. Both sides also propose that inmates coded as mental-health code A must receive additional assessments at least every 90 days, and that inmates coded as mental-health code B or C must receive additional assessments at least every 30 days. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 12.6.5; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at §§ 12.5.2-12.5.3.
The plaintiffs propose, additionally, that each assessment must include a final disposition of one of the following: "(1) No mental health referral; (2) Routine referral to mental health; (3) Emergency referral requiring assessment within an hour; or (4) Referral for removal from segregation." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 12.6.4. The defendants, by contrast, would simply require that "the psychiatrist, psychologist, CRNP, or counselor [conducting the assessment] will consider the need for a mental-health referral and, if a mental-health referral is made, the priority of such mental-health referral (i.e., emergent, urgent, or routine)." Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 12.5.6.
The plaintiffs also propose that, "[i]f a prisoner's [restrictive housing unit] placement continues after a periodic mental health assessment, then the clinical rationale for his or her continued placement must be documented." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 12.6.6.
b. The Court's Ordered Relief
18 The court will order that inmates must receive a mental-health assessment by a psychiatrist, psychologist, CRNP, or counselor within seven days of placement in a restrictive housing unit; that inmates must receive additional, periodic assessments at intervals consistent with their mental-health codes, as the parties propose; that assessments must be adequately documented; and that they must include a review or examination of the topics that the parties propose. It will also order, as the defendants propose, that the psychiatrist, psychologist, CRNP, or counselor conducting the assessment must consider the need for a mental-health referral and, if applicable, the priority of such referral.
The court orders that ADOC must conduct periodic mental-health assessments because, as it has previously found, "periodic out-of-cell assessments are necessary not only to monitor for decompensation among those identified as mentally ill, but also to identity prisoners not on the mental-health caseload who may develop mental illness while in segregation." Braggs, 257 F. Supp. 3d at 1249. Although mental-health rounds fulfill a similar purpose, it is not true, as Dr. Metzner suggested during the omnibus remedial hearings, that the mental-health assessments and mental-health rounds are duplicitous. See June 30, 2021 R.D. Trial Tr. at 66. Rather, as the court explained in the liability opinion, "while segregation rounds by mental-health staff are crucial for checking for signs of decompensation or crisis, they cannot replace out-of-cell clinical assessments of prisoners’ mental-health status, because it is difficult to observe someone's behavior and accurately assess the prisoner's mental health through cell-front encounters." Id. at 1243 n.72.
Despite this finding, ADOC has persistently failed to provide periodic assessments. As explained in the court's findings on changed circumstances, Charles Braggs received only two assessments in the two years prior to his death, and Gary Campbell went for three years without receiving any. And while Dr. Burns testified that some inmates reported receiving initial mental-health assessments within seven days, see June 23, 2021 R.D. Trial Tr. at 208-09, spot audits in several facilities found that inmates continue to go without initial or follow-up mental-health assessments at alarming rates, see, e.g., Pls.’ Ex. 3258 (Bullock, 57.41 % compliance with 30- and 90-day assessments); Pls.’ Ex. 3270 (Kilby, 68.60 % compliance); Pls.’ Ex. 3276 (St. Clair; 66.29 % compliance); Pls.’ Ex. 3320 (Ventress, 32.08 % compliance); Pls.’ Ex. 3272 (Limestone, 77.19 % compliance; noting that "[f]ollow-up of the 30/90 day assessments and treatment plans for inmates on the caseload need improvement").
The court therefore finds that it must order some relief, and it credits Dr. Burns’ testimony, which accords with the recommendations of the American Correctional Association, that the topics proposed by the parties must be addressed if the assessments are to fulfill their intended purpose, and that the initial 7-day assessments and the periodic 30- or 90-day assessments proposed by both parties are necessary measures to keep inmates safe when they are initially placed in segregation and when they remain in segregation for protracted periods of time. See June 3, 2021 R.D. Trial Tr. at 188-91 (testimony of Dr. Burns).
The court also agrees with both parties that the mental-health assessments must include a determination of whether the inmate requires a referral—and, if so, how urgently—given the evidence that, when inmates do receive referrals based on the periodic mental-health assessments, mental-health staff often fail to follow up on them appropriately. A requirement that the evaluations conclude with clear recommendations will make it harder for mental-health staff to ignore their findings, and easier for the EMT to monitor ADOC's progress in putting the evaluations to good use.
The court declines, however, to order that, if ADOC keeps a prisoner in the [restrictive housing unit] after the prisoner has received a mental-health assessment, it must document its clinical rationale for doing so. Of course, if an inmate is found to be contraindicated for placement in restrictive housing, ADOC must document the existence of an exceptional circumstance if it is to keep him there. But requiring ADOC to provide a clinical rationale for keeping inmates without contradictions in restrictive housing is not necessary to address the violations identified in the liability opinion.
c. PLRA Findings
The court finds these provisions necessary given the evidence that ADOC has largely failed to ensure that inmates in restrictive housing units receive periodic mental-health assessments, despite the court's previous finding that those assessments are essential for preventing decompensation and suicide, and that, when inmates do receive assessments, the results of those assessments are often ignored. Moreover, to provide adequate protection to prisoners with mental-health needs in restrictive housing, including those who develop said needs during their time in segregation, these assessments must address the topics identified by both parties and occur at least as frequently as the parties propose.
These provisions are narrowly tailored and minimally intrusive to ensure that mental-health assessments adequately address the needs of prisoners in segregation. Although the court requires that the assessments cover certain topics and be conducted at certain intervals, it can order no less. As Dr. Burns credibly explained, these topics must be addressed if the assessments are to fulfill their intended purpose, and the intervals represent the minimum frequencies with which inmates can safely go without receiving assessments.
5. Out-Of-Cell Time
a. The Parties’ Proposed Provisions
With respect to ADOC's failure to provide inmates in restrictive housing units with sufficient out-of-cell time, the plaintiffs propose that all inmates in restrictive housing must have the opportunity to exercise outside of their cells for at least five hours per week, during which time they may be shackled only if ADOC can identify a specific threat to institutional safety necessitating the shackling. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at §§ 12.7.2-12.7.2. The plaintiffs also propose that this time must be offered regardless of inclement weather, and that ADOC must document (1) all days and times that out-of-cell time is offered, (2) any prisoner's decision to refuse out-of-cell time, and (3) the specific threat to institutional safety or security necessitating any use of shackles. See id. The defendants propose no provision regarding out-of-cell time for inmates in restrictive housing.
b. The Court's Ordered Relief
The court will order that all inmates in restrictive housing must have the opportunity to exercise outside of their cells for at least five hours per week, and that ADOC must document all days and times that out-of-cell time is offered, and any inmate's decision to refuse out-of-cell time. The court will also order that ADOC may refrain from offering out-of-cell time due to inclement weather, but only if a safe, alternative space for inmates to exercise is unavailable.
19 The court orders ADOC to offer all inmates in restrictive housing at least five hours of out-of-cell time per week because, as experts for both sides testified, five hours per week is the minimum amount of out-of-cell time that must be provided to inmates in restrictive housing to prevent decompensation. See June 4, 2021 R.D. Trial Tr. at 179-180 (testimony of Dr. Burns); June 30, 2021 R.D. Trial Tr. at 175-76 (testimony of Dr. Metzner). It is also the minimum amount of out-of-cell time recommended by the American Correctional Association and currently required by ADOC regulations. See June 4, 2021 R.D. Trial Tr. at 179-180.
Despite the importance of out-of-cell time to preventing decompensation, the evidence indicates that inmates in restrictive housing scarcely receive it. As explained previously, in the six months prior to his death, Charles Braggs was offered out-of-cell time on only four occasions. This was not an isolated occurrence; Dr. Vail testified that in reviewing the records for a total of 412 weeks of segregation time, he found only seven weeks during which an inmate received five hours of out-of-cell time. May 27, 2021 R.D. Trial Tr. at 111-12. The court must therefore order ADOC to comply with its own regulation.
During the omnibus remedial proceedings, the defendants’ counsel suggested that the court may not order ADOC to provide out-of-cell time to all inmates in segregation, but "only to individuals with mental health illness." June 30, 2021 R.D. Trial Tr. at 176. The court rejects this argument, and directs defendants’ counsel to its previous explanation of why it may order relief intended to prevented inmates who are not currently mentally-ill from becoming mentally-ill due to ADOC's failure to provide adequate care. See Braggs v. Dunn , 367 F. Supp. 3d 1340, 1357-58 (M.D. Ala. 2019) (Thompson, J.).
In order to provide ADOC flexibility in responding to the weather, the court does not require ADOC to offer outdoor out-of-cell time when inclement weather makes it impossible to do so safely. But to the extent that ADOC can offer out-of-cell time in alternative, safe spaces—for instance, in a gymnasium—inclement weather will not excuse it from doing so.
Finally, because out-of-cell time is so important to preventing decompensation, and because ADOC has persistently failed to provide it, the court finds that it must order ADOC to document each time it offers out-of-cell time, so that the EMT can effectively monitor its progress. It is also essential that each inmate's treatment team know whether that inmate has not been offered out-of-cell time or, perhaps more importantly, refused it.
The court does not order, as the plaintiffs propose, that inmates may not be shackled during out-of-cell time, because there is insufficient evidence that inmates are currently being shackled.
c. PLRA Findings
The court finds these provisions necessary for the reasons given above: it must order ADOC to offer inmates in restrictive housing a minimum of five hours of out-of-cell time per week because that is the minimum amount of out-of-cell time necessary to prevent decompensation, and it must order ADOC to document its provision of out-of-cell time so that the EMT can monitor its progress, and so that treatment teams can effectively monitor inmates’ mental-health. The court also finds these provisions to be narrowly tailored and no more intrusive than necessary, because they require no more than the minimum among of out-of-cell time necessary, and allow ADOC the flexibility to not offer out-of-cell time when inclement weather makes it impossible to do so.
6. Security Checks
a. The Parties’ Proposed Provisions
With respect to ADOC's failure to provide cell-by-cell security checks, the plaintiffs propose the following provisions:
• "ADOC must ensure that appropriate ADOC staff conduct security checks of every prisoner in restrictive housing by direct observation at least twice per hour, but no more than 40 minutes apart, on an irregular schedule. These security checks must be annotated on the duty post log.
• ADOC must ensure that such security checks are documented accurately and contemporaneously, and that correctional supervisors regularly verify that security checks are being conducted as required.
• The EMT will develop a process for supervisory review and confirmation of security checks, including documentation of such review and confirmation."
See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at §§ 12.9.1-12.9.4. The defendants propose simply that "[a] member of the correctional staff will conduct a security round in a [restrictive housing unit] at least every thirty (30) minutes and document such security round in a duty post log." Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 12.3.
b. The Court's Ordered Relief
20 The court orders that the security checks must be conducted at least twice per hour, but no more than 40 minutes apart, in light of Mr. Vail's testimony that the checks are most effective in preventing suicide and self-harm when conducted on an irregular schedule. See May 27, 2021 R.D. Trial Tr. at 179. It does not order that the checks must be completed on an irregular schedule, because it credits Vail's testimony that "doing them 30 minutes or twice an hour ... is close enough to ... a reasonable standard." May 27, 2021 R.D. Trial Tr. at 154-155. But it encourages ADOC to conduct the checks irregularly, and to that end ADOC will not be found in violation if it allows inmates in restrictive housing to go more than 30 minutes (but less than 40) without receiving a security check.
The court orders that the checks must be documented accurately and contemporaneously, and that correctional supervisors regularly verify that security checks are conducted as required, in light of the ample evidence that ADOC is not conducting the checks as required, and that correctional officers are pre-filling their duty logs. ADOC's own audits reveal that security checks are scarcely conducted in a troubling number of facilities. See May 27, 2021 R.D. Trial Tr. at 154-189 (testimony of plaintiffs’ expert Vail, describing results of audits of Donaldson, Easterling, Holman, Limestone, and St. Clair); see also Pls.’ Exs. 2927, 2972, 3010, 3177, 4067. More worrying still, many of ADOC's duty logs seem to have been pre-filled, and may be inaccurate. See id. at 178-79 (testimony of plaintiffs’ expert Vail). Thus, to the extent that ADOC's audits rely on data from the duty logs, they may have overestimated the frequency with which the check are conducted. Current relief is therefore necessary, and although the court leaves it to ADOC to determine the exact means by which it will ensure that the checks are documented accurately and contemporaneously, it will trusts that the EMT will monitor ADOC's documentation and raise any concerns with the court.
The court does not order the EMT to develop a process for supervisory review and confirmation of security checks, because it has already tasked the EMT with devising procedures for monitoring ADOC's compliance with the court's orders.
c. PLRA Findings
The court finds these provisions to be necessary because, as explained above, ADOC has failed to ensure that security checks are conducted at least twice per hour, or that security checks are accurately and contemporaneously documented, thereby jeopardizing the lives of inmates in every unit that functions as restrictive housing. They are also narrowly tailored and minimally intrusive. The court does not require relief that goes beyond remedying ADOC's failure to provide security checks, and it does not specify the exact means by which ADOC must ensure that the checks are documented accurately and contemporaneously.
7. Restrictive Housing Cells
a. The Parties’ Proposed Provisions
In addition to the provisions discussed above, the plaintiffs also propose several provisions regarding the physical condition of cells in the restrictive housing units. These include a provision that would require ADOC to clean every restrictive housing unit within one month of the entrance of the court's remedial order, to clean restrictive housing cells before they receive new occupants, and to provide individuals in restrictive housing cells with access to cleaning supplies to ensure that the cells are cleaned at least every two weeks, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 12.8.1; a provision requiring the EMT to "evaluate the condition of the [restrictive housing units] with respect to the adequacy of natural light, square footage, ... the need for painting ... [and] the adequacy of access to out of cell exercise space during inclement weather, ... [and to] determine what steps should be taken to correct any deficiencies they identify," id. at § 12.8.2.2; and the following provisions regarding suicide resistance:
• "Within three months of this Order, ADOC must retain a consultant to evaluate whether ADOC's restrictive housing cells qualify as anti ligature and provide sufficient visibility for adequate monitoring as well as to make recommendations for correcting any problems identified, including the existence of tie off points, inadequate visibility, and any other unreasonably dangerous condition identified in the course of the assessment. The consultant's findings and recommendations must be set forth in a written report completed within three months of ADOC's retention of the consultant. ADOC must provide to the court and the plaintiffs the consultant's written report, which must include findings and recommendations regarding the existence of tie off points, inadequate visibility, and any other unreasonably dangerous conditions identified in the course of the assessment." Id. at § 12.8.2.
• "No later than three months after preparation of the consultant's report as required above, ADOC must ensure that there is adequate visibility into restrictive housing cells, that all restrictive housing cells have anti ligature fixtures, that no restrictive housing cell has an open bar door and that any unreasonably dangerous condition identified in the reports has been corrected." Id. at § 12.8.2.1.
The defendants propose only one provision regarding the physical condition of cells in the restrictive housing units: that within one year of the effective date, it must repair or replace any damaged restrictive housing unit cell door or window that materially inhibits the observation of any inmate. Defs.’ Proposed Omnibus Remedial Order (Doc. 3215) at § 12.6.
b. The Court's Ordered Relief
21 The court will order ADOC to clean the cells in the restrictive housing units within three months of the effective date, to clean restrictive housing cells before they receive new occupants, and to provide individuals in restrictive housing cells with access to cleaning supplies to ensure that the cells are cleaned at least every two weeks. It finds this relief necessary in light of its finding in the 2017 liability opinion that cells in the restrictive housing units were "often filled with the smell of burning paper and urine," and "extremely dirty with what appears to be dried excrement on the walls and floors," contributing to "a heightened risk of decompensation for mentally ill prisoners and a heightened risk of developing serious mental health needs for those who were initially healthy." Braggs, 257 F. Supp. 3d at 1238. There is little evidence that ADOC has improved the cleanliness of the cells since then. While the parties stipulated prior to the hearings that, "[a]ccording to Cheryl Price, ADOC's Assistant Deputy Commissioner for Operations, ADOC cleans or allows inmates to clean [restrictive housing units] units ... [and] cleans crisis cells between inmate placements," Joint Stipulation for the Evidentiary Hearing Regarding the Phase 2A Remedial Order (Doc. 3288) at ¶ 45, the plaintiffs refused to stipulate to the accuracy of Ms. Price's assertion, see June 14, 2021, R.D. Trial Tr. at 38, and the court heard no sworn testimony from Ms. Price on this matter. Moreover, at various points during the omnibus remedial hearings the court heard testimony from high level ADOC officials that turned out not to accurately reflect conditions on the ground. It therefore cannot conclude on the basis of Ms. Price's unsupported assertion that there have been any significant changes to the cleanliness of the restrictive housing units, and it finds that it must order ADOC to take steps to ensure that the cells in the restrictive housing units are clean. However, if the EMT determines that ADOC is in compliance with this provision, the court will not hesitate to remove it.
22 The court also agrees with the plaintiffs that something must be done to render cells in the restrictive housing units suicide resistant, including by ensuring that there is adequate visibility into the cells. As the court found in the liability opinion, visibility into the cells in the restrictive housing units is lacking, and "[m]any segregation cells have grates, sprinkler heads, and other structures that could be used as tie off points. Furthermore, during the facility tour, the court saw many segregation prisoners with ropes hanging across their cells as clothes lines." Braggs, 257 F. Supp. 3d at 1244. For inmates in restrictive housing, who already face a heightened risk of decompensation, such conditions can be deadly, especially because ADOC lacks sufficient correctional staff to effectively monitor inmates in segregation. Of the twelve men who recently committed suicide in ADOC facilities, eight did so by hanging themselves in a cell in a restrictive housing unit. See May 27, 2021 R.D. Trial Tr. at 147 149 (testimony of Eldon Vail). At least one of those men had obscured his cell window with paper before doing so. Id. at 150 51.
Rather than ordering ADOC to retain a consultant, however, the court will order that within six months of the effective date, ADOC must ensure that all cells in the restrictive housing units comply with the conditions set forth in the checklist developed by Lindsay M. Hayes (Doc. 3206 5). This checklist, which the parties previously agreed to the use to ensure that cells are suicide resistant, provides for the elimination of tie off points and other structural elements that facilitate suicide attempts, as well as the maintenance of adequate visibility into the cell to allow monitoring. See Suicide Prevention Stipulations (Doc. 2606 1) at 6 (providing 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"); ADA Transition Plan for Programs and Services Provided to Inmates (Doc. 2635 1) at 41 ("All crisis cells ... are to comply with the checklist developed by Lindsay M. Hayes."). The court finds the checklist to provide a sufficient set of criteria for determining whether a cell is suicide resistant, and it finds it necessary to order ADOC to comply with the checklist in light of the heightened risk of suicide in the restrictive housing units. While monitoring and security checks can reduce the risk of suicide, they cannot eliminate it, and additional measures must be taken to ensure that inmates do not kill themselves when observed.
The court declines, however, to order the EMT to "evaluate the condition of the [restrictive housing units] with respect to the adequacy of natural light, square footage, ... the need for painting ... [and] the adequacy of access to out of cell exercise space during inclement weather, ... [and to] determine what steps should be taken to correct any deficiencies they identify." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 12.8.2.2. While fresh paint, additional natural light, square footage, and access to exercise space may be desirable, the plaintiffs have failed to demonstrate that such measures are necessary to correct the constitutional violations identified in the liability opinion. Moreover, requiring such relief would be highly intrusive indeed, it is unclear whether ADOC could provide additional natural light and space in its restrictive housing units without substantial, highly costly modifications to its facilities.
c. PLRA Findings
The court finds these provisions necessary for the reasons given above: ADOC has failed to make the cells in its restrictive housing units suicide resistant, and it has failed to demonstrate any change in their cleanliness. As a result, inmates face an unacceptably high risk of suicide. These provisions are also narrowly tailored and minimally intrusive. ADOC has previously agreed to use the Hayes checklist which indicates that the checklist is not unduly onerous and while the court orders ADOC to clean restrictive housing unit cells, it will not hesitate to rescind this requirement should the EMT conclude that ADOC is, in fact, regularly cleaning the cells.
8. Other Provisions Regarding Segregation
The plaintiffs also propose various provisions designed to ensure that inmates who live in units that function as segregation, but are not designated as such, receive the same care that ADOC is required to provide to inmates living in restrictive housing units. While the court acknowledges the plaintiffs’ concern, it declines to order this relief. Elsewhere in its order, the court requires that inmates in the SU, RTU, and SLU receive 10 hours of structured, therapeutic out-of-cell time and 10 hours of unstructured out-of-cell time per week, unless clinically contraindicated. The court therefore expects that very few inmates outside the restrictive housing units will be in housed in conditions that are functionally equivalent to segregation. Should the its expectation prove wrong, the court trusts that the EMT will say so, and it will take appropriate action at that time.
D. Intake
Like its progress with respect to mental-health staffing, ADOC's progress in reforming its intake system is both commendable and incomplete. As described previously, ADOC has put great effort into ensuring that every inmate receives a mental-health screening at intake, and, as indicated this section, the court has declined to adopt a significant number of the plaintiffs’ proposals for relief. Still, there are three issues remaining that require current relief. First, ADOC has persisted in using LPNs to conduct intake without supervision, despite the court's finding that LPNs are not qualified to conduct intake and have consistently failed to detect mental illnesses in inmates. Second, ADOC has failed to ensure that records of inmates’ intake screenings are made available to mental-health providers within its facilities. And, third, ADOC has failed to ensure that records relating to inmates’ prior mental-health treatment are received and assessed by ADOC mental-health staff in a timely fashion, if at all.
1. Use of LPNs to Conduct Intake
a. The Parties’ Proposed Provisions
With respect to ADOC's continued use of LPNs to conduct intake, the plaintiffs propose that "an RN with mental health training must conduct the screening in accordance with the [National Commission on Correctional Healthcare (NCCHC)] standard M-E-02." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 3.1.5; see also Pls.’ Post-Trial Br. (Doc. 3370-1) at 88. The defendants propose the same, except that it would allow any qualified mental-health professional, and not just an RN, to perform the intake screening. See Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at §§ 3.1.1, 3.1.2; see also Defs.’ Post-Trial Br. (Doc. 3367) at 65.
b. The Court's Ordered Relief
23 The court will order that all intake screening be conducted by qualified mental-health professionals, including RNs with mental-health training, but excluding LPNs. As the experts agreed, intake is a key component of a functioning mental-health care system; "[i]t starts everything," and it is vital that it be done and done well. (Dr. Burns testimony on 6/2, pg. 207-08 of the rough draft). Intake is also a function that, at least at ADOC, LPNS have proven unable to perform. Because ADOC has persisted in using LPNs to conduct intake, the court finds that it must forbid ADOC from doing so in order to correct the violations found in its liability opinion.
The court will not order, however, that only RNs may conduct intake screening, as the plaintiffs suggest. The current NCCHC standards allow screening to be conducted by any qualified mental-health professional. In deference to the NCCHC's judgment, and so as to provide ADOC maximum flexibility in staffing intake, the court will allow any qualified mental-health professional besides an LPN to conduct intake. The court also will not require that intake be conducted according to NCCHC standard M-E-02, or any other standard. In the absence of any evidence indicating that ADOC is not complying with NCCHC standards or is otherwise conducting intake in an inadequate fashion (besides, that is, for its continued use of LPNs), and in light of testimony from Dr. Metzner that NCCHC standards are regularly updated, the court finds that any requirement that ADOC conduct intake according to a particular standard would be unnecessary and, in all likelihood, quickly outdated.
c. PLRA Findings
The court finds this provision necessary for the reasons given above: because intake screening is a critical step in the provision of mental-health care, because LPNs have proven unable to identify inmates with mental illnesses, and because ADOC has proven unable to ensure that LPNs conducting screening are adequately supervised, the court must forbid ADOC from using LPNs to conduct intake screening. The provision is also narrowly tailored and minimally intrusive because it excludes only LPNs from conducting intake, but no other mental-health professionals, and imposes no additional procedural requirements.
2. Documentation of Intake Screening
a. The Parties’ Proposed Provisions
With respect to ADOC's failure to ensure that records of inmates’ intake screenings are made available to mental-health providers within its facilities, the plaintiffs propose that an ADOC Form MH-011 indicating the results of each inmate's intake screening be filed in the inmate's medical record. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 3.1.5.1. The defendants propose that the results of the intake screening be documented on the same form, but would not explicitly require that the form be filed in the inmate's medical record. See Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 3.1.2.
b. The Court's Ordered Relief
24 The court will substantially adopt both parties’ proposed provisions, and order that documentation of each inmate's intake screening--including an interpretation of the results of any psychological assessment--be filed in the inmate's medical record. Without such documentation, mental-health providers who later encounter the inmate cannot utilize the results of the intake screening to provide treatment. The inability of mental-health providers to access the results of intake screenings, including interpretations of any psychological tests, can have fatal consequences. Indeed, Wexford itself identified the failure to incorporate properly the results of intake screenings in inmates’ treatment as a central concern in the autopsies it conducted after the suicides of Laramie Avery and Charles Braggs.
c. PLRA Findings
The court finds this provision necessary for the reasons given above: without documentation of an inmate's intake screening, mental-health providers who later encounter the inmate cannot effectively provide treatment. The provision is also narrowly drawn and minimally intrusive because it does not require mental-health providers to use the results of intake screenings in any particular way, but merely that the results of intake screenings be documented and made available for future use.
3. Inmates’ Previous Records
a. The Parties’ Proposed Provisions
With respect to ADOC's failure to ensure that records relating to inmates’ prior mental-health treatment are received and assessed by ADOC mental-health staff in a timely fashion, the plaintiffs propose the following provision:
"If the inmate reports receiving mental health services, and can correctly report the prior mental health provider, a records request from the prior provider must be made within three working days of the intake screening. If the inmate reports receiving mental health services and cannot remember or correctly identify the prior mental health provider, the mental health staff must reasonably attempt to locate their prior records."
Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 3.1.12. The plaintiffs also propose that all health records from each inmate's prior facility of incarceration be requested within 72 hours if they are not presented at intake. See id. at § 3.1.13. The defendants propose essentially the same provisions, except they do not propose that mental-health staff be required to reasonably attempt to locate the prior records of inmates receiving mental-health services who cannot remember or correctly identify their prior mental-health provider. See Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 3.1.9.
b. The Court's Ordered Relief
The court will adopt the plaintiffs’ first proposed provision with the added requirement that a records request or reasonable effort to obtain records must be made if, either during or after intake, the inmate reports having previously received mental-health services. If the inmate reports having previously received mental-health services after intake, and can correctly report the prior provider, the records request must be made within three working days of the time the intake reported having previously received mental-health services. The court will also adopt the plaintiffs’ second proposed provision--that all health records from each inmate's prior facility of incarceration be requested within three working days if they are not presented at intake.
25 The court adopts the plaintiffs’ first proposed provision because the evidence demonstrates that ADOC is failing to obtain the records of all inmates who have received prior mental-health treatment, and that this failure contributes to the violations found in the liability opinion in two ways. First, it has caused ADOC to fail to identify a substantial number of inmates with mental illnesses, including several who ultimately committed suicide. See June 2, 2021, R.D. Trial Tr. at 204 (testimony of Dr. Burns). Second, it has prevented ADOC from effectively treating those inmates that it has correctly identified as having mental illnesses, because, as Dr. Burns testified, "mental health diagnoses [and] conditions change over time, and you need to look at the longitudinal course of a person's illness to arrive at the correct diagnosis and then subsequently treatment." Id. at 218.
The evidence also demonstrates that inmates do not always report their prior treatment at intake. See, e.g., May 24, 2021, R.D. Trial Tr. at 56–57 (testimony of Dr. Burns, noting that Marquell Underwood, who eventually committed suicide, reported prior treatment for bipolar disorder during a referral after intake). Therefore, the court finds it necessary to require ADOC to request records of an inmate's prior treatment, or to make a reasonable effort to obtain such records, if the inmate reports having received such treatment after intake has already been completed.
The court adopts the plaintiffs’ second proposed provision for essentially the same reasons that it adopts the first. Wexford's own evaluation indicates that it does not consistently ensure that inmates’ health records from the prior facility of incarceration are received and assessed at intake, despite the fact that those records often contain information about inmates’ mental illnesses and mental-health treatment. See Marquell Underwood Psychological Autopsy, P-3316, at 15 (recommending "[i]mproved continuity of care ... between county jail and ADOC for any mental health patients or inmates who may have presented with suicidal ideations or self-harming prior to transport"); June 2, 2021, R.D. Trial Tr. at 220 (testimony of Dr. Burns, explaining the importance of receiving an inmate's records from the prior facility of incarceration). To the extent that such records indicate inmates’ mental illnesses and the "longitudinal course" of inmates’ treatment, June 2, 2021, R.D. Trial Tr. at 218 (testimony of Dr. Burns), they are essential for identifying and treating inmates’ mental illnesses, and ADOC must obtain them in a timely fashion in order to remedy the violations identified in the liability opinion.
c. PLRA Findings
The court finds that the plaintiffs’ first provision--with the added requirement that ADOC request records of an inmate's prior treatment if the inmate reports having received such treatment after intake has already been completed--is necessary for the reasons given above: records of prior treatment, which ADOC is currently failing to obtain, are essential for identifying and treating inmates’ mental illnesses. The provision is also narrowly drawn and minimally intrusive because it merely requires ADOC to seek the outside treatment records where possible. While the three-day time frame is specific, the court finds that it meets the need-narrowness-intrusiveness test because, given ADOC's continued failure to obtain these records within a reasonable time, setting a clear time frame is necessary to ensure compliance. It is also the time frame suggested by the defendants--a strong indication that it is reasonable and not overly intrusive.
The court finds the plaintiffs’ second proposed provision to be necessary, given ADOC's failure to obtain health records from prior facilities of incarceration, despite the fact that those records often pertain to mental-health treatment. Like the first proposed provision, the plaintiffs’ second proposed provision is narrowly tailored and minimally intrusive because it merely requires ADOC to request records. And again, although the three-day time frame is specific, it is necessary, narrowly tailored, and minimally intrusive in light of ADOC's continued failure to obtain these records within a reasonable timeframe. Also, as before, it is the time frame suggested by the defendants.
4. Other Provisions Regarding Intake
The parties propose additional provisions unrelated, or indirectly related, to the three issues identified above. These include the following proposals by the plaintiffs:
• Each inmate entering or returning to ADOC custody must receive a mental-health screening no later than 12 hours after his or her arrival, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 3.1.1;
• Each inmate must receive a mental-health screening before being placed in a housing area that does not provide constant correctional officer observation, see id. at § 3.1.2;
• Mental-health staff conducting intake must review an inmate's transfer documentation before performing any screening evaluation, see id. at § 3.1.3;
• Intake evaluations must cover certain topics, see id. at §§ 3.2.2, 3.2.4;
• Mental-health screenings must be conducted in areas permitting inmate confidentiality and encouraging self-reporting, see id. at § 3.1.4;
• Intake must include a suicide risk screening, see id. at § 3.1.6;
• ADOC must take certain steps to ensure that inmates who are identified at intake as having mental-health needs are referred for treatment and appropriately placed within ADOC institutions, see id. at §§ 3.1.8, 3.1.14, 3.2.2, 3.2.3, 3.2.7, 3.3.1;
• Mental-health staff must report suspected abuse of inmates, see id. at § 3.1.9;
• Inmates arriving with trauma must be referred for appropriate treatment, see id. at § 3.1.10;
• ADOC must take certain steps to ensure that inmates prescribed mental-health medication prior to their arrival at ADOC facilities continue to receive such medication, see id. at § 3.1.11;
• Inmates must be provided at intake with certain information regarding mental-health services available in ADOC, see id. at §§ 3.3.2; 3.4.3; and
• Inmates must not be transferred to another facility before receiving a full intake screening or else must receive a full screening upon transfer, see id. at § 3.4.1, 3.4.2.
The court declines to adopt these provisions because the record does not show them to be necessary at this time. In fact, the record demonstrates that ADOC has made marked progress in preventing certain problems that these provisions are designed to remedy. For instance, Dr. Burns testified that intake staff were performing more comprehensive assessments of incoming inmates’ suicide risk than she believed necessary. See June 7, 2021, R.D. Trial Tr. at 106-07. And, while there are obvious problems, as discussed previously, with the process of referring inmates for more thorough evaluations after intake, there is no evidence that those problems stem from failures by the staff members conducting intake to make referrals where necessary. Indeed, Dr. Burns indicated that she had seen evidence that inmates were being referred upon the identification of potential mental-health needs. See id. at 108.
In declining to adopt these provisions, however, the court assumes that ADOC is prepared to sustain its progress as COVID-19 wanes and thousands of inmates currently housed in city jails enter its facilities. Should that assumption prove unfounded, the court expects the EMT to raise the matter with the court. At that point, the court may consider additional relief.
E. Coding
While ADOC has put great effort into redesigning its coding system in the time since the liability opinion, two problems remain with how that system is used to track inmates. First, the evidence demonstrates that inmates are not always assigned mental-health codes and SMI indicators according to their needs. Second, even when inmates are coded appropriately, their codes are inconsistently and sometimes erroneously documented, making it difficult for providers who encounter inmates to discern accurately their mental-health needs.
1. Assignment of Codes
a. The Parties’ Proposed Provisions
To address the problem of inmates not being assigned mental-health codes and SMI indicators according to their needs, the plaintiffs propose that all inmates on the mental-health caseload must be coded and, if appropriate, assigned SMI flags, as required by the Revised Mental-Health Coding System. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 4.1. The defendants propose two similar provisions. First, they propose that ADOC or its mental-health vendor must assess all inmates through intake and/or through clinical encounters such as counseling sessions and treatment-team meetings and, to the extent clinically indicated, assign them SMI designations. See Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 4.1. Second, they propose that all inmates entering the system must be assigned mental-health codes. See id. at § 4.2. Under this proposal, a code of MH-A may be assigned by a qualified mental-health professional; a code of MH-B or above must be assigned by a psychiatrist, psychologist, or CRNP. See id.
b. The Court's Ordered Relief
26 The court, in substantial agreement with both parties, will order that all inmates be assigned mental-health codes and, if necessary, an SMI flag that is appropriate to address their mental-health needs, as determined by clinical judgment. The court adopts this provision because it is uncontroverted that the coding system must accurately reflect inmates needs if it is to function as an effective way to track mentally ill inmates and facilitate care. Yet, as the court found in the liability opinion, ADOC "fails to classify the severity of mental illnesses accurately." Braggs v. Dunn, 257 F. Supp. 3d 1171, 1204 (M.D. Ala. 2017) (Thompson, J.). This failure manifests in two forms. First, some inmates simply do not receive codes at all. Second, some inmates receive codes that do not reflect clinical judgment. Indeed, Dr. Burns testified that she had seen instances of providers assigning inmates codes based on what the inmate requested or on the inmate's desire to seek employment, rather than on appropriate clinical factors. See May 23, 2021, R.D. Trial Tr. at 19; id. at 74–75. This provision addresses both failures: it ensures that inmates receive codes, and that codes reflect clinical judgment.
The court will not, however, attempt to prescribe the manner in which mental-health providers exercise their judgment when assigning codes. Nor will it dictate which mental-health providers may assign which codes, as the defendants propose, because the record does not suggest that ADOC's failure to code inmates appropriately is related to the professional qualifications of those individuals tasked with assigning codes (except, that is, to the extent that LPNs continue to conduct intake).
c. PLRA findings
The court finds this provision necessary because, as explained above, ADOC has persistently failed to assign inmates codes and to do so according to clinical judgment. The provision is narrowly drawn and no more intrusive than necessary because it simply directs ADOC to ensure that providers are drawing on their clinical judgment to code each inmate appropriately, while leaving it to ADOC to determine how it achieves that result.
2. Documentation of Codes
a. The Parties’ Proposed Provisions
To address the problem of inmates’ mental-health codes and SMI designations being incorrectly and inconsistently documented, the plaintiffs propose that each inmate's mental-health code must be documented in the inmate's medical record. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 3.2.6. The plaintiffs also propose that each inmate be given an SMI designation separate from his or her mental-health code, and that that designation be indicated by a flag, warning signal, or some other type of signal within the electronic system. See id. The defendants propose no provisions addressing the manner in which it documents inmates’ mental-health codes and SMI indicators.
b. The Court's Ordered Relief
Much as the plaintiffs suggest, the court will order that each inmate's mental-health code and SMI designation must be accurately and consistently indicated throughout all documents related to his or her care. The court orders this relief in light of the evidence that inmates’ mental-health codes and SMI designations are often undocumented or inaccurately documented. That failure, in turn, undermines ADOC's entire system of treatment planning and provision; if treatment teams and mental-health providers are to perform their intended functions, they must be aware of inmates’ mental-health statuses. Inmates with serious mental illnesses must also be easily identifiable as such, particularly when they are transferred between facilities, so that appropriate precautions may be taken to avoid self-harm or suicide.
c. PLRA Findings
The court finds this provision necessary for the reasons given above: inmates’ mental-health codes and SMI designations must be accurately documented for ADOC's system of treatment planning and provision to function, and inmates with serious mental illnesses must be easily identifiable as such so that staff will be alert to their needs. Because ADOC has failed to ensure accurate documentation, the court must order relief. This provision is also narrowly drawn and no more intrusive than necessary because it simply directs ADOC to ensure that documentation is done correctly, without mandating a specific process for doing so.
F. Referral
As stated earlier, ADOC has made notable progress implementing a system by which both inmates and staff are equipped to refer inmates for mental-health services. ADOC has made similarly important progress in its development and implementation of a triage process to identify the urgency of requests for care. In light of ADOC's progress with respect to the making and triage of referrals, there are several areas in which the parties propose remedial provisions but the court will order no relief at this time.
At a high level, ADOC's referral process is a chain that begins with the identification of an inmate's need for mental-health services and should result in a clinical assessment or intervention by mental-health staff. Each referral is classified as either emergent, urgent, or routine, depending on the urgency of the inmate's need for responsive care. An "emergent" need means that there is "an imminent risk of injury to the inmate or others" or that mental-health services are "otherwise immediately necessary." Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 1.10; see also Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 1.8. An "urgent" need "means mental-health services should be provided in the near future, but not immediately." Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 1.39; see also Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 1.33. And a "routine" need "means that mental-health services should be provided in the ordinary course of business." Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 1.31; see also Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 1.27.
Despite ADOC's progress, persistent failures in this process deny many inmates access to necessary mental-health care within acceptable timeframes. Sometimes a failure is attributable to errors or delays by the staff member making the referral. Most often, though, a referral is made, its urgency is identified, and then follow-up care is delayed far beyond what is acceptable—indeed, what is required by court order and ADOC's own policy—if it even happens at all. Because a failure at one link in the chain denies inmates access to timely—and in some cases, any—mental-health care irrespective of ADOC's improvements at other stages of the referral process, the court must order relief.
1. Making of Referrals
Both parties propose provisions for inmates to have the ability to complete self-referrals for mental-health services verbally or in writing. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 5.1.1; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 5.2.2. While there is extensive evidence that self-referrals are an essential component of the referral system, see, e.g., June 3, 2021, R.D. Trial Tr. at 18-19 (testimony of Dr. Burns); May 26, 2021, R.D. Trial Tr. at 175-77 (testimony of Mr. Vail); June 29, 2021, R.D. Trial Tr. at 82-83 (testimony of Dr. Metzner), ADOC has already implemented a system for self-referrals, see June 23, 2021, R.D. Trial Tr. at 66-67 (testimony of Dr. Burns). Although Dr. Burns highlighted the troubling report that, in the two weeks prior to Charles Braggs's death, he requested mental-health services without a referral occurring, see May 24, 2021, R.D. Trial Tr. at 119-20, the mental-health records presented to this court reflect that inmates generally have been able to take this initial step toward receiving mental-health care.
This is also the case with respect to the staff-referral system. Both parties propose provisions for non-mental-health staff to refer inmates to mental-health staff for an assessment or intervention when a prisoner has informed the non-mental-health staff of a need for mental-health services or the non-mental-health staff has recognized such a need. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at §§ 5.2.1, 5.2.2, 5.2.3; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at §§ 5.2.1, 5.2.3. As with self-referrals, ADOC has implemented a staff-referral system, and evidence at the omnibus remedial hearings suggested that it is being successfully used. Dr. Burns noted multiple instances in which ADOC staff referred an inmate for mental-health services. See, e.g., May 25, 2021, R.D. Trial Tr. at 177 (testimony of Dr. Burns, noting several recorded staff-referrals of inmate W.S.); June 8, 2021, R.D. Trial Tr. at 56-57 (testimony of Dr. Burns, noting that a warden and a classification specialist had referred Gary Campbell); June 10, 2021, R.D. Trial Tr. at 15-16 (testimony of Dr. Burns, noting that an ADOC employee had referred inmate K.W. for an evaluation). In light of these referrals, the evidence does not presently indicate that ADOC has failed to inform staff of their ability, and indeed responsibility, to refer inmates in need of mental-health services. Whether staff consistently notice and appropriately recognize mental-health needs is a critical but distinct issue, which is not addressed by the parties’ proposed provisions regarding the referral process and may be incapable of being addressed completely until ADOC's understaffing is corrected. As Mr. Vail testified at the omnibus remedial hearings, reaffirming his testimony at the liability trial, without "enough staff to properly supervise the inmates," correctional staff will "miss a lot of behavior, including behavior related to mental illness." See May 26, 2021, R.D. Trial Tr. at 180-81. Presently, the court will not order relief with respect to the staff-referral system.
With respect to written referrals by both inmates and staff, both parties propose provisions requiring blank mental-health referral forms to be available in the healthcare unit, the mental-health unit, and designated shift offices within each ADOC major facility and designating locations for completed mental-health referral forms to be submitted. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 5.2.4; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 5.4. Dr. Burns testified that making the forms available in these enumerated locations is necessary "so that people know where to get them" and "can access them when necessary," and that the plaintiffs’ proposed drop-off location, the box for medical referrals, would "simplif[y] the process ... so there's not different types of mailboxes all over the institution." June 3, 2021, R.D. Trial Tr. at 22. But Dr. Burns acknowledged that placing the forms in any central location would be "helpful" as long as "inmates have access to that central location," June 23, 2021, R.D. Trial Tr. at 69, and there is no evidence that ADOC's current locations for these forms are inadequate. The court finds that there is no need to order the proposed relief at this time.
The plaintiffs also propose multiple provisions specifying the information that must be included in these referral forms, including identifying information for the inmate, the referring individual, and the triage staff, the date and time that the referral form was completed and triaged, and the triage staff's determination as to whether the referral is emergent, urgent, or routine. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at §§ 5.2.5, 5.2.6. However, Dr. Burns acknowledged that this information is already incorporated in the referral form currently used by ADOC. See June 23, 2021, R.D. Trial Tr. at 70. Although Dr. Burns noted "multiple episodes in which the referral forms weren't completed," May 26, 2021, R.D. Trial Tr. at 17, most of the referral forms admitted in evidence did contain the information required by the plaintiffs’ proposed provisions. Should the incomplete referral forms highlighted by Dr. Burns turn out to be, or become, a systemic problem, the court expects that the EMT will be able to flag the issue for the court. But at this point, the court is confident that ADOC will continue to encourage its staff to engage in thorough documentation and ensure that these forms are fully completed.
2. Response to Referrals
a. The Parties’ Proposed Provisions
With respect to all referrals, the defendants propose generally, "[a]n emergent, urgent, or routine referral will result in a timely clinical assessment and/or intervention by a psychiatrist, psychologist, CRNP, or counselor." Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 5.1.
With respect to emergent referrals, the plaintiffs propose that an assessment by a qualified mental-health professional "must occur as soon as possible but no more than 3 hours from the triage staff's determination that the referral is emergent." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 5.3.5.1. In their definition of "emergent," the defendants propose that mental-health services will be provided "typically[ ] within four (4) hours." Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 1.10.
The plaintiffs propose that "[u]rgent referrals must result in a clinical assessment and/or intervention by a [qualified mental-health professional] within 24 hours of referral." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 5.3.5.2. Likewise, the defendants’ proposed definition of "urgent" states that mental-health services should be provided "typically[ ] within twenty-four (24) hours." Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 1.39.
The plaintiffs propose that "[r]outine referrals must result in a clinical assessment and/or intervention by a [qualified mental-health professional] within 14 calendar days of referral." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 5.3.6. Similarly, the defendants’ proposed definition of "routine" states that mental-health services "should be provided in the ordinary course of business—typically, within fourteen (14) days." Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 1.31.
b. The Court's Ordered Relief
27 In light of the parties’ proposals, the court will adopt the following provisions: A referral must result in a timely clinical assessment and/or intervention by a psychiatrist, psychologist, CRNP, or counselor. Emergent referrals must result in a clinical assessment and/or intervention as soon as possible but no more than four hours from the determination that the referral is emergent. Urgent referrals must result in a clinical assessment and/or intervention within 24 hours of the time the referral was made. Routine referrals must result in a clinical assessment and/or intervention within 14 calendar days of the time the referral was made.
The court is concerned with the ongoing pattern of missed or unanswered referrals at all levels of urgency, which delay care and leave inmates to deteriorate without the treatment they need. ADOC's failures have affected inmates waiting on all levels of referrals. See, e.g., May 25, 2021, R.D. Trial Tr. at 118-20 (inmate R.J. was not seen in response to an emergent referral for three days due to lack of staff to bring him out for an assessment); id. at 52 (inmate T.M. was not seen by a CRNP until three weeks after he set himself on fire and received an urgent referral); id. at 27 (inmate A.J. was not seen until May 2020 for a routine referral that was made in February 2020). These failures have persisted since the time of the liability trial in spite of a court order to which the defendants stipulated, see Phase 2A Order and Injunction on Mental-Health Identification and Classification Remedy (Referral), Attachment A (Doc. 1821-2) at §§ 2.1-2.3, and ADOC's own regulations and policies. While ADOC's implementation of a triage system is admirable, it clearly is not sufficient to address the problem if the identified level of urgency does not correspond with the actual time in which responsive care is provided. The court finds it necessary to require that mental-health staff respond to referrals in a timely manner. Moreover, given ADOC's inability to improve even in the face of the liability finding, and in light of the unreasonable delays in care that have persisted in violation of a court order and ADOC's policy, it is necessary for the court to impose specific and concrete timeframes for mental-health staff to respond to referrals.
The court discusses these timeframes that it will impose in its order against the backdrop of the court's general discussion of timeframes in Section II.E of Part II of the Phase 2A Omnibus Remedial Opinion. ADOC's history of noncompliance with these timeframes even after the defendants stipulated to be enjoined to comply with them, together with the testimony of experts for both sides, discussed below, strongly supports the necessity, narrowness, and minimal intrusiveness of these particular timeframes.
With respect to the time to respond to emergent referrals, the court adopts the language of the plaintiffs’ provision but incorporates the defendants’ proposed timeframe. Dr. Burns and Dr. Metzner gave conflicting testimony as to whether a three- or four-hour timeframe for responding to an emergent referral is necessary and reflective of the accepted standard of care. See May 25, 2021, R.D. Trial Tr. at 54 (testimony of Dr. Burns); June 3, 2021, R.D. Trial Tr. at 25, 33 (same); June 29, 2021, R.D. Trial Tr. at 83, 151, 204-05 (testimony of Dr. Metzner). In light of the distinct requirement that mental-health staff still must respond to an emergent referral "as soon as possible," the court will defer to the defendants’ expert, Dr. Metzner, and adopt the four-hour timeframe.
With respect to urgent and routine referrals, Dr. Burns and Dr. Metzner agreed on the appropriate timeframes for mental-health staff to respond: 24 hours for urgent referrals and 14 days for routine referrals. See May 25, 2021, R.D. Trial Tr. at 54 (testimony of Dr. Burns); June 3, 2021, R.D. Trial Tr. at 26, 33 (same); June 29, 2021, R.D. Trial Tr. at 83, 151, 204-05 (testimony of Dr. Metzner). ADOC's continued failures and delays in providing mental-health services in response to these referrals, as well as emergent referrals, necessitate specific timeframes for an assessment or intervention following a referral. The court adopts the timeframes agreed upon by Dr. Burns and Dr. Metzner.
c. PLRA Findings
This relief is necessary to correct a referral process that remains "riddled with delays and inadequacies." Braggs, 257 F. Supp. 3d at 1203. ADOC still is not providing care to inmates in an acceptable timeframe after they have been referred, and the result is that the department's referral process, a cornerstone of its system for providing mental-health care, remains deficient. In light of ADOC's failure to correct this deficiency on its own, specific timeframes are necessary, narrowly tailored, and minimally intrusive to ensure ADOC's compliance and prevent further harms.
ADOC's longstanding violation in this area and the timeframes that the court finds necessary to correct this problem inform the court's consideration of the parties’ other proposed provisions. Although failures to follow up on mental-health referrals appear to be the critical defect in ADOC's referral process, the evidence makes clear that problems earlier in the referral process have the same harmful effect of delaying necessary care, and additional relief is required.
3. Communication of Emergent or Urgent Referrals
a. The Parties’ Proposed Provisions
To ensure that emergent or urgent referrals are communicated to mental-health providers with appropriate speed, the defendants propose that "[a]n emergent or urgent referral must be communicated verbally, in person or by telephone, to the mental-health staff as soon as possible, but in no case longer than (1) hour absent unusual circumstances which detain staff for an extended period of time such as a medical emergency or an incident involving safety or security of staff or inmates." Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 5.1. During a conference call following the omnibus remedial hearings, defense counsel clarified that this provision would apply to a referring staff member who makes a preliminary determination that an inmate's mental-health need is emergent or urgent. At that time, the referring staff would have one hour, absent unusual circumstances, to communicate the referral directly (verbally or in person) to the triage staff.
The plaintiffs propose the following provision regarding the communication of emergent or urgent referrals by triage staff:
"If the triage staff is an RN and they determine that the referral is emergent or urgent, they must initiate contact with the on-call MHP or psychologist within one (1) hour of receipt of the referral. If the triage staff is a [qualified mental-health professional] and is not the on-call MHP or psychologist, they must initiate contact with the on-call MHP or psychologist within one (1) hour of receipt of the referral. The on-call MHP or psychologist must determine whether further referral to the psychiatrist is warranted or whether a change in the status of the referral is warranted."
Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 5.3.5.
b. The Court's Ordered Relief
28 The court will adopt the defendants’ proposed provision and order that an emergent or urgent referral must be communicated verbally, in person or by telephone, to the appropriate mental-health staff as soon as possible, but in no case longer than one hour from the time the referral is first identified as emergent or urgent, absent unusual circumstances which detain staff for an extended period of time such as a medical emergency or an incident involving safety or security of staff or inmates.
The court concludes that it must order compliance with this one-hour timeframe to ensure that emergent or urgent referrals lead to assessments or interventions within the timeframes that it has found necessary. Despite the urgency of these categories of referrals, they are not consistently received, much less responded to, in a timely manner, especially when they are initiated via written referral forms, rather than direct, verbal contact with mental-health staff. For instance, on the day before Jaquel Alexander committed suicide, a medical staff member made a written referral for him after he "[r]equested to be placed in a crisis cell." Pls.’ Ex. 3297 at ADOC518191. The form was not received by the triage nurse for over 12 hours. See id. Although Alexander, due to a previous referral, met with a mental-health provider that morning, the 12-hour delay before triage staff even received a referral that was ultimately identified as urgent and that requested placement on suicide watch is a troubling sign that relief is necessary.
However, while emergent or urgent referrals must be communicated to mental-health staff with urgency, the court finds that it is appropriate for this provision to account for unusual circumstances that may make compliance with a strict one-hour requirement impossible. The court expects that the EMT, in monitoring ADOC's compliance with this provision, will evaluate whether ADOC applies this exception overbroadly.
The court will not order compliance with the plaintiffs’ proposed provision at this time. The evidence presented at the omnibus remedial hearings reflected that, after triage staff received emergent or urgent referrals from the referring staff, they generally triaged the referrals and notified appropriate mental-health staff within the plaintiffs’ proposed timeframe.
c. PLRA Findings
The provision that the court orders is necessary to ensure that mental-health staff are notified promptly about the most time-sensitive referrals in order to provide urgent or emergent care to inmates without inappropriate delay. The evidence at the omnibus remedial hearings made clear that Alexander's referral was not unique in the delay before it was received and triaged. Subjecting emergent or urgent referrals to this delay prior to triage risks leaving inmates in potentially acute distress as they await necessary treatment or intervention for hours or longer. Requiring that such referrals be communicated to mental-health staff directly and with appropriate urgency is narrowly tailored to protect mentally ill inmates from this substantial risk of harm. And, by affording flexibility to staff in the event of unusual circumstances, this relief is the least intrusive means that will address the violation.
4. Communication of Routine Referrals
a. The Parties’ Proposed Provisions
The plaintiffs propose that "[r]outine referrals must be communicated to the mental health staff on the next business day by leaving the referral form in a designated location." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 5.3.6. The defendants’ proposed provision is substantially the same, except that it uses permissive language. See Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 5.1.
b. The Court's Ordered Relief
29 The court will adopt the parties’ proposed provisions with a slight modification and order that routine referrals must be communicated to the mental-health staff by the next shift by leaving the referral form in a designated location. As with emergent or urgent referrals, the court finds that relief is necessary with respect to routine referrals in light of the unreasonable delays in response times. These delays are exacerbated by the fact that referrals are frequently lost or delayed before they are ever communicated to mental-health staff, as Dr. Burns described with respect to the seven-day delay before a referral for Marquell Underwood was even received by mental-health staff. See June 2, 2021, R.D. Trial Tr. at 100. This provision is designed to address the problem by ensuring that referrals are communicated in a timely and reliable fashion.
c. PLRA Findings
As with the court's ordered relief regarding emergent and urgent referrals, this provision is necessary to address another facet of ADOC's deficient referral process. Inmates are not currently receiving responses to their routine referrals in a timely manner, and delays in communicating the referrals to mental-health staff contribute to that deficiency. Although routine mental-health needs generally do not pose the same immediate risks of injury as emergent or urgent needs, the failure to address them—especially over the protracted delays that currently infect ADOC's process for handling routine referrals—subjects inmates with mental-health needs to the risk of worsened symptoms or decompensation. Delays in handling routine referrals are particularly concerning in light of the risk that emergent or urgent needs may initially be misclassified as routine needs, leaving inmates with such needs to suffer without an intervention far longer than is acceptable. Indeed, failures in ADOC's provision of routine care have contributed to the inadequacy of care received by numerous inmates who committed suicide since the court's suicide prevention opinion.
A specific timeframe in which staff must communicate routine referrals is necessary to address the violation, given that ADOC has failed to self-correct in this area. And the timeframe specified provides ADOC with ample time to fulfill the requirement. This provision is narrowly tailored to address only the underlying issue causing the violation. And it is no more intrusive than is necessary to ensure that delays are sufficiently short to ensure timely treatment of emergent or urgent needs that initially may be understood as routine needs. The provision preserves ADOC's flexibility to manage the means by which it will comply with this requirement, including its discretion to decide where routine referrals should be submitted and who should review them.
5. Triage of Referrals
a. The Parties’ Proposed Provisions
Both parties propose a number of provisions relating to the process to triage referrals. The plaintiffs propose a provision requiring that triage not be completed by correctional staff. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 5.3.1. They further propose additional provisions regarding triage responsibility:
• Each ADOC major facility must designate one triage staff per shift, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 5.3.2;
• The triage staff must regularly monitor the designated area for completed mental-health referral forms and check the box for such forms at least once per shift, see id. at § 5.3.3; and
• The triage staff must determine whether each mental-health referral is emergent, urgent, or routine, see id. at § 5.3.4.
The defendants propose similar provisions, with the key distinctions being that their proposal would allow for multiple designated triage staff on a given shift and would require triage staff to check for completed referral forms at least once per business day rather than once per shift. See Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at §§ 5.4, 5.5.1, 5.5.2, 5.5.3.
b. The Court's Ordered Relief
The court will not order that correctional staff cannot triage mental-health referrals, nor will it order that each ADOC major facility must designate one triage staff per shift. There is no evidence that, since ADOC's current triage system was developed, any triage was performed by correctional staff, so this relief is unnecessary. And while Dr. Burns testified that assigning triage responsibility to one person on a shift would avoid the confusion of "having multiple people trying to sort" the referrals, June 3, 2021, R.D. Trial Tr. at 23, the evidence at the omnibus remedial hearings did not reflect that ADOC's current allocation of responsibility for triage has caused such problems.
Similarly, although the parties’ proposals that triage staff must determine whether each mental-health referral is emergent, urgent, or routine undoubtedly reflect a necessary and foundational component of the referral process, see, e.g., June 29, 2021, R.D. Trial Tr. at 152 (testimony of Dr. Metzner, observing that "all referrals need to be triaged to determine whether they're urgent, emergent, or routine"); June 3, 2021, R.D. Trial Tr. at 33 (testimony of Dr. Burns, explaining that "[i]t is the standard of care that there be a triage person, that there be these referral levels"), the mental-health records admitted in evidence at the omnibus remedial hearings tended to show that, when referrals were received, they generally were assigned an urgency level by the triage staff in a timely manner. The more systemic problems were that referrals were not timely communicated and received prior to triage and did not lead to timely follow-up afterward. The court will not order this proposed relief. Even without this provision, the court fully expects that the EMT will review triage of referrals extensively and bring persistent issues to the court's attention if further relief is necessary.
However, the court will adopt the plaintiffs’ proposed provision requiring the triage staff to monitor regularly the designated area for completed mental-health referral forms, at a minimum frequency of once per shift. The court credits Dr. Burns's testimony that that this frequency of monitoring for completed referral forms is necessary to ensure that written referrals, particularly those that may actually be emergent or urgent, are received, classified, and acted upon with appropriate speed. See June 3, 2021, R.D. Trial Tr. at 28. Although Dr. Metzner testified that triaging referrals once per day is sufficient if staff are properly trained that emergent or urgent referrals "ought to be done by phone to alert people," June 29, 2021, R.D. Trial Tr. at 221; see also id. at 151 (testimony of Dr. Metzner, explaining that he would "require that emergent and urgent referrals be transmitted verbally as well as in writing," so that "you are not waiting for someone to pick up the referral slip"), the court finds that ADOC has not yet reached the point at which Dr. Metzner's reasoning is applicable. Because ADOC staff do not yet recognize inmates’ emergent or urgent needs with the consistency to ensure that such referrals are transmitted directly to triage staff, the protection that the plaintiffs propose is necessary to avoid subjecting inmates in need of "immediate" or "urgent care center type" needs, see June 3, 2021, R.D. Trial Tr. at 25-26 (testimony of Dr. Burns), to long delays—longer than the court finds are permissible to go without an assessment or intervention—before their referrals are even picked up by a mental-health staff member.
c. PLRA Findings
Requiring that triage staff monitor the designated area for completed referral forms at least once per shift is necessary to protect inmates whose emergent or urgent needs may be initially misidentified by referring non-mental-health staff members prior to triage. While the court's ordered provision requiring the verbal communication of emergent or urgent referrals, combined with ongoing mental-health training of ADOC staff, may offer partial protection to these inmates, it is not yet sufficient to keep inmates with pressing mental-health needs from falling through the cracks long enough to suffer decompensation, self-injury, or worse. Especially while severe understaffing continues to present the danger that correctional staff will miss or misidentify behavior related to mental illness, this additional safeguard is necessary to ensure that inmates receive timely treatment relative to their mental-health needs. Even this provision may not offer entirely adequate protection for inmates who could require intervention in as little as four hours. For comparison, ADOC's stated policy since 2018 requires triage staff to check for completed forms "a minimum of every hour and at the end of each triage nurse's shift." MH E-05.5 (D-3646) at ADOC475712. In light of ADOC's progress in the development and implementation of its triage process, however, the court will order this less restrictive provision, with the expectation that improvements to staffing, training, and the remainder of ADOC's referral process will all be necessary to provide adequate protection to inmates who experience emergent or urgent needs for mental-health services. The provision that the court orders is narrowly tailored and minimally intrusive to ensure that these inmates receive adequate protection and access to treatment.
6. Observation in Response to Emergent Referrals and Referrals for Suicide Watch
a. The Parties’ Proposed Provisions
The plaintiffs propose that, "[f]ollowing an emergent referral, including referrals for suicide watch, custody or mental health staff must maintain constant, line of sight, observation of the prisoner until assessed by a [qualified mental-health professional]." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 5.3.5.1. In the context of intake, the defendants propose the similar provision that, "[i]f a psychiatrist or CRNP is not available to evaluate an inmate with an emergent need, then the inmate will be placed on constant observation or close watch (as appropriate) until the inmate may be evaluated." Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 3.1.12.
With respect to referrals for suicide watch in particular, the plaintiffs propose the additional provision that, "[w]hen referring prisoners for suicide watch placement, the referring person must ensure that staff maintain constant, line-of-sight observation of the prisoner who is being referred until they are either transferred to appropriate correctional, medical, or mental health staff who takes over the responsibility to ensure an assessment by a triage nurse occurs or the prisoner is assessed by a triage nurse on an emergent referral." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 5.2.2.1.
b. The Court's Ordered Relief
30 The court will adopt the plaintiffs’ first proposed provision. As discussed in the previous sections, ADOC has continued to perform inadequately in providing responsive care to inmates within acceptable timeframes following mental-health referrals. This failure is particularly unacceptable, and particularly dangerous, when the inmate has been identified as having an emergent need for mental-health care, including possible suicidality. To reiterate, an emergent referral indicates that an inmate is at serious and imminent risk of injury or other harm. See June 3, 2021, R.D. Trial Tr. at 25. However, even though the generally accepted standard in these cases is to provide care within three or four hours, there is evidence that these inmates must wait days to be seen—and that some are never seen at all. In at least one case that Dr. Burns identified, the inmate was not put on watch or given any additional support while waiting to be seen. See May 25, 2021, R.D. Trial Tr. at 118-20 (discussing the failure to place inmate R.J. on watch while he waited three days for an assessment following an emergent referral). Leaving inmates in such acute distress without taking any steps to ensure their safety is plainly inadequate. When this failure is combined with delays in responding to the referral, as was the case for Casey Murphree, the result can be deadly. See May 24, 2021, R.D. Trial Tr. at 76-77. The court finds that this provision is necessary to address this grave danger and ensure that inmates remain safe while waiting to receive the basic care that they need.
However, the court will not adopt the plaintiffs’ second proposed provision, which would place initial responsibility for ensuring this observation on the referring individual until the appropriate correctional, medical, or mental-health staff can assume that responsibility. While it is possible that this is an important practice in order to maintain constant supervision of inmates who have been referred for a suicide watch assessment, Dr. Metzner testified that this provision could have the effect of imposing responsibility for maintaining constant watch on an individual without the authority, ability, or qualifications to monitor the inmate properly. See June 29, 2021, R.D. Trial Tr. at 220-21. And there was no evidence presented at the omnibus remedial hearings that this requirement would be effective or necessary to protect inmates beyond the relief that the court does order, which still requires constant line-of-sight observation while preserving ADOC's discretion as to how to comply with this requirement.
c. PLRA Findings
The provision that the court adopts is necessary to address the dangers to inmates with emergent mental-health needs that are neglected, and indeed aggravated, as a result of the unconstitutional delays in ADOC's referral process. It is narrowly tailored to the dangers that ADOC's violations cause; it only imposes a requirement for constant observation until mental-health staff can initiate an assessment or intervention to determine the next steps that are appropriate. While the defendants And it is the least intrusive means to protect the safety of inmates while they are awaiting necessary mental-health services.
7. Other Provisions Regarding Referrals
Finally, both parties propose provisions requiring the maintenance of a log of all mental-health referrals at each ADOC major facility. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at §§ 5.4.1, 5.4.2; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 5.3. The plaintiffs’ proposal further prescribes information that must be included in these mental-health referral logs. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 5.4.2.1. However, Dr. Burns testified that ADOC is already keeping referral logs, and, because she did not review the most recent logs, she was unable to provide evidence as to whether these logs are deficient. See June 23, 2021, R.D. Trial Tr. at 75. Therefore, the court sees no reason to order relief at this time. However, given Dr. Metzner's testimony that these logs would be important to the EMT in fulfilling its monitoring responsibilities, see June 29, 2021, R.D. Trial Tr. at 224; July 1, 2021, R.D. Trial Tr. at 12-13, the court anticipates that the EMT may flag for the court any defects or other concerns regarding how these logs are being maintained should any deficiencies inhibit monitoring or impede the quality or continuity of mental-health care.
G. Confidentiality
As described previously, and as its own audit recognized, ADOC continues to struggle to provide inmates with the confidential treatment that is an "absolutely necessary condition" for the adequate provision of mental-health care. June 3, 2021, R.D. Trial Tr. at 14 (testimony of Dr. Burns). While the evidence shows that some prisoners do receive confidential treatment, too many do not. Out-of-cell spaces for confidential treatment are not always used, even when available. Inmates who refuse to leave their cells are simply not provided confidential treatment, and a lack of staff prevents inmates who do wish to leave their cells from being escorted to confidential-treatment spaces.
a. The Parties’ Proposed Provisions
To remedy ADOC's failure to provide confidential treatment, the plaintiffs propose that "[c]onfidentiality in mental health treatment and assessment must be a priority," Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 6.1, and that "[i]ndividual counseling sessions, medication management encounters, periodic assessments related to placement in an [restrictive housing unit], suicide risk assessments, and therapeutic groups must take place out-of-cell in a setting that provides for confidentiality, unless that is not possible due to safety concerns, based upon clinical determinations," id. at § 6.2. The plaintiffs further propose that, "[i]f confidentiality is not possible, then that fact, the reason, and the actions taken to maximize confidentiality must be documented in the progress note," and that all correctional staff will undergo certain training on confidentiality. Id.
The defendants offer similar provisions. They propose that "assessments, evaluations, examinations, individual counseling sessions, medication management encounters, therapeutic groups, and other mental-health services provided in this Phase 2A Remedial Order will take place out-of-cell in a setting that provides for confidentiality, unless that is not possible due to safety concerns or otherwise not appropriate (for example, psychoeducational groups may not necessarily need to be confidential and mental-health rounds in the [restrictive housing unit] may be appropriately conducted "cell-front"), based upon clinical determinations." Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 6.1. And, like the plaintiffs, the defendants propose that if confidentiality is not possible, "then the [qualified mental-health professional] will document that fact, the reason, and the actions taken to maximize confidentiality in a progress note for that individual counseling session, medication management encounter, or therapeutic group." Id.; see also id. at 8.2.3 ("If a significant clinical encounter is at a cell-front, then the progress note should so indicate.").
Both parties also propose provisions concerning training on confidentiality. The plaintiffs would require all correctional staff members to be trained on confidentiality in a manner consistent with ADOC Administrative Regulation 604. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 6.2. The defendants, too, would require correctional staff to be trained in a manner consistent with Regulation 604, but would limit the requirement to correctional staff members assigned to medical or mental-health units or treatment teams, or who regularly receive protected health information. See Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 6.2. The defendants would also require correctional staff to sign a confidentiality agreement at the conclusion of the training in order to be assigned to a medical or mental-health unit or treatment team, or to receive protected health information. See id.
b. The Court's Ordered Relief
31 In substantial agreement with both parties, the court will order that individual counseling sessions, medication-management encounters, periodic assessments related to placement in restrictive housing, suicide-risk assessments, and therapeutic groups must take place in a setting that provides for confidentiality and that, if applicable, is out-of-cell. These services may be provided in a non-confidential location if confidentiality is not possible due to safety concerns or is otherwise not appropriate. The question whether confidentiality is not appropriate for reasons other than safety concerns must be made answered according clinical determinations. If confidentiality is not possible, then that fact, the reason for it, and the actions taken to maximize confidentiality must be documented in the progress note.
The court orders that mental-health treatment be conducted in confidential settings because, as it found in the liability opinion, such treatment is generally ineffective unless confidential. The court recognizes, however, that it is not always possible to provide mental-health services in a confidential setting. It will therefore allow ADOC to provide mental-health services in a non-confidential setting, but only when it is necessary to do so because of safety needs or other considerations. Such other considerations might arise, for instance, when an inmate refuses to come out of his or her cell, or when the need for mental-health care is urgent and confidentiality cannot be achieved rapidly. Because determinations about the necessity of non-confidential treatment under such circumstances will necessarily involve some analysis of inmates’ mental-health needs, such determinations must be made according to clinical judgment. Finally, the court orders that providers document instances in which confidentiality is impossible, and the reason(s) that it is, because such information is highly relevant to inmates’ care, and must be made available to treatment teams if they are to effectively monitor the course of each inmate's treatment.
The court declines, however, to adopt either of the parties’ proposals concerning training. The evidence simply does not show that ADOC's failure to provide confidential treatment is caused by a lack of training, and so the court cannot find such relief necessary. Moreover, it assumes that ADOC and its mental-health vendor will inform their staff of their obligations regarding confidentiality, and that the EMT will notify it if they do not.
c. PLRA findings
The court finds this provision necessary because, as explained above, confidentiality is essential for the effective provision of mental-health services, and yet at no ADOC facility is treatment consistently provided in confidential settings. The court also finds this provision to be narrowly tailored and no more intrusive than necessary because it focuses specifically on remedying the violation of confidentiality that was described in the liability opinion and continues today, and because it allows ADOC the flexibility to hold sessions in nonconfidential settings when necessary or appropriate.
H. Treatment Teams and Plans
32 Since the court's liability findings, ADOC has made much progress in ensuring that every inmate has a treatment team. However, as discussed previously, treatment teams often do not meet frequently enough, and when they do meet, they lack pertinent information and do not meet for long enough to substantively discuss inmates’ needs and progress. As a result, the treatment plans that those teams are tasked with curating are often nonexistent or so vague as to be insufficient to address inmates’ individual needs. Moreover, treatment plans are often not amended to address changes in inmates’ needs and circumstances, a shortcoming that is exacerbated by the haphazard and poorly documented nature of ADOC's transfer process.
1. Frequency of Treatment-Team Meetings
a. The Parties’ Proposed Provisions
With respect to the infrequency with which treatment teams meet, the plaintiffs propose that "treatment teams must meet at regular intervals as mandated by the patient's assigned mental-health code and appropriate level of psychotherapy in order to formulate/revise the patient's treatment plan, review progress notes, discuss the condition of the patient, and address the patient's progress." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 7.2.1. The defendants propose, similarly, that "treatment team meetings will occur at regular or clinically indicated intervals or after a major clinical event to prepare or to revise the inmate's treatment plan." Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 7.2. Both parties also propose that treatment teams meet according to prescribed timeframes. See id.; Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at App'x A, Table 2.
b. The Court's Ordered Relief
The court will adopt a hybrid of the parties’ proposals, and order that treatment teams meet at regular intervals, to be determined based on the team chair's clinical judgment of what is appropriate given the inmate's assigned mental-health code, housing unit, and level of psychotherapy. As the court found in the liability opinion, treatment planning is essential to the provision of mental-health care, especially in the prison context, and it cannot occur absent regular meetings by treatment teams. See Braggs, 257 F. Supp. 3d at 1206. Because ADOC has failed to ensure that treatment teams meet regularly, the court must do so now to ensure that inmates receive the minimal level of care required by the Constitution.
The court omits from its order the plaintiffs’ language regarding the substance of treatment-team meetings because there is no evidence that meetings fail to address necessary issues when they do occur and last long enough to be productive.
The court also declines to adopt the parties’ proposed timeframes for treatment-team meetings. At this point, such a provision does not appear necessary. ADOC should have the opportunity to comply with the court's order for regular meetings before the court imposes such a granular scheduling requirement. The court is also confident that the EMT will monitor the frequency of treatment-team meetings and will alert the court if meetings continue to occur so infrequently as to prevent effective care.
c. PLRA Findings
The court finds this provision necessary for the reasons given above: treatment planning is vital to the provision of mental-health care, and it cannot occur absent regular meetings. The court also finds that this provision is narrowly tailored and no more intrusive than necessary because it leaves the decision of what to discuss during treatment-team meetings, and the decision of exactly how frequently to hold meetings, up to the chair of the team, thereby ensuring that ADOC maintains maximum flexibility to structure its operations.
2. Length of Treatment-Team Meetings
a. The Parties’ Proposed Provisions
With respect to ADOC's failure to ensure that treatment-team meetings last long enough to be effective, the plaintiffs propose that the length of any given treatment-team meeting must be "based on whether there have been any significant clinical changes in the patient's condition since the last treatment team meeting." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 7.2.4. The defendants propose no provision regarding the length of treatment-team meetings.
b. The Court's Ordered Relief
The court will order simply that each treatment team meeting must last for an adequate period of time, based on the chair's clinical judgment. The court orders this relief in light of the evidence that treatment-team meetings for some inmates are lasting between one and six minutes, despite the fact that, as Dr. Burns testified, a normal follow-up treatment-team meeting, when "there are no changes and things are going just fine," should last at least 15 to 20 minutes. May 25, 2021, R.D. Trial Tr. at 135. Because the evidence also demonstrates that the appropriate length of treatment-team meetings will vary depending on inmates’ needs, however, the court does not prescribe any particular length for treatment-team meetings.
c. PLRA Findings
The court finds this provision necessary because, as explained above, treatment teams are currently meeting for less time than is required to ensure that each inmates’ treatment plan and progress are meaningfully analyzed. It is also narrowly tailored and no more intrusive than necessary because it leaves the decision of exactly how long each meeting should last to the team chair, provided that the decision is based on clinical judgment.
3. Lack of Pertinent Information
a. The Parties’ Proposed Provisions
With respect to treatment teams’ frequent lack of pertinent information, the plaintiffs propose that "[a]ll members [of the treatment team] must have access to clinically relevant documents." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 7.2.6. The plaintiffs define "clinically relevant documents" as "documents related to the current condition of the patient," including the "most recent treatment plan, any treatment plan less than thirty (30) days old, [a] list of currently prescribed medication, documentation showing medication compliance within the last thirty (30) days, progress notes from the last thirty (30) days, and any other clinically relevant document determined necessary by the reviewing individual to inform clinical judgment." Id. at § 1.5. The defendants propose no provision regarding treatment teams’ access to information.
b. The Court's Ordered Relief
The court will order that all members of the treatment team must have access to clinically relevant documents related to the inmate, with "clinically relevant documents" defined as all documents related to the current and past condition of the inmate--including documents related to the inmate's housing status, disciplinary history, and interactions with other inmates--that are necessary to inform clinical judgment. The court orders this relief in light of the evidence that pertinent information about inmates’ statuses has been consistently omitted from the files to which treatment teams have access, including information regarding violent interactions with other inmates and attempts at self-harm that could have alerted treatment teams to the suicidality of several inmates who eventually killed themselves. For treatment teams to function adequately and prepare comprehensive treatment plans, they must remain informed of their patients’ conditions and life circumstances. This provision is therefore needed to ensure that inmates receive adequate care.
To provide ADOC maximum flexibility, however, the court will not enumerate various types of clinically relevant documents, as the plaintiffs propose. Instead, the court will leave it to ADOC's mental-health providers to determine what documents are necessary to inform clinical judgment. The court trusts that the EMT will monitor treatment teams’ access to documents, and that the EMT will alert the court if it becomes apparent that treatment teams are deprived of pertinent information.
c. PLRA Findings
The court finds this provision necessary for the reasons given above: treatment teams cannot function effectively without access to information concerning inmates’ past and current conditions, and yet ADOC has failed to ensure that treatment teams have access to such information. Accordingly, the court must order relief. The provision is also narrowly tailored and minimally intrusive because it simply directs ADOC to ensure that treatment teams have access to clinically relevant documents, while allowing ADOC's mental-health providers the flexibility to determine which particular documents are needed.
4. Nonexistent or Vague Treatment Plans
a. The Parties’ Proposed Provisions
With respect to the nonexistence of treatment plans and the lack of detail and individualization in treatment plans that do exist, the plaintiffs propose that "[e]ach patient on the mental-health caseload must have a treatment plan created within the appropriate timeframe following his or her addition to the caseload, or more frequently if clinically appropriate," Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 7.3.1; see also id. at § 7.7.1, and that "each treatment plan must be individualized to each patient," id. at § 7.3.2. The plaintiffs also propose a list of specific information to be included in each treatment plan. See id. at § 7.3.3–7.3.3.5.
The defendants propose substantially similar provisions. They would require that each inmate have a finalized treatment plan within a prescribed timeframe, see Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 7.4.1, and that treatment plans be "individualized for each inmate," id. at § 7.4.2. And, like the plaintiffs, they propose specific information to be included in each treatment plan. See id.; see also id. at § 7.4.2.1–4 (proposing various categories of information that treatment plans "may" include).
b. The Court's Ordered Relief
The court will order that each inmate on the mental-health caseload must have a treatment plan that is adequately detailed and individualized to address his mental-health needs, based on clinical judgment. The court orders this relief in light of ADOC's ongoing failure to provide treatment plans that are sufficiently detailed and individualized to facilitate treatment. See May 26, 2021, R.D. Trial Tr. at 17–18 (testimony of Dr. Burns, describing letter from ADOC to Wexford indicating that treatment plans available for inspection "were often of poor quality, were left incomplete, or otherwise lacked necessary documentation"); id. at 155 (reporting that a recent audit of Fountain Correctional Facility found that there were only treatment plans for about half of the charts reviewed). This was a major violation identified in the liability opinion, and the court is seriously concerned that it continues today.
Just as it will not attempt to enumerate various types of clinically relevant documents, however, the court will not attempt to dictate the specific contents of treatment plans. Rather, it will leave it to ADOC's mental-health providers to determine the information to be included in each treatment plan. Individual inmates’ treatment plans may differ in their contents, for, as Dr. Metzner testified, "the nature of the individualized treatment plan [and its] comprehensiveness ... is going to significantly vary [based] on the level of care ... assigned." June 29, 2021, R.D. Trial Tr. at 158. Regardless of the level of care assigned to any particular inmate, however, ADOC must ensure that treatment plans are thorough enough to provide comprehensive portraits of inmates’ mental-health needs, treatment history, and treatment goals. The court trusts that the EMT will monitor the contents of treatment plans, and that the EMT will alert the court if it appears that treatment plans continue to lack sufficient detail to fulfill their intended purpose.
Similarly, the court does not order, as the parties propose, that treatment plans be created within certain timeframes. The evidence does not indicate that treatment plans are not created promptly when they are created; rather, it indicates that too often, plans are not created at all. The court trusts that in following its order that each inmate have an individualized treatment plan, that ADOC will ensure that treatment plans are created within a reasonable timeframe, and that the EMT will bring the issue to the court's attention if it fails to do so.
c. PLRA Findings
The court finds this provision necessary given ADOC's ongoing failure to ensure that treatment plans are sufficiently individualized and detailed so as to facilitate the provision of an informed and consistent course of treatment. It is also narrowly tailored and minimally intrusive because it does not mandate the specific contents of treatment plans, nor the timeframe in which treatment plans must be completed.
5. Failure to Update Treatment Plans
a. The Parties’ Proposed Provisions
With respect to ADOC's failure to update treatment plans when needed, the plaintiffs propose several provisions that would require ADOC to ensure that treatment plans are regularly amended to reflect changes in inmates’ needs and circumstances. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 7.3.1 (proposing that each treatment plan must be "amended and updated as necessary until the patient is either removed from the mental health caseload or leaves ADOC custody"); id. at § 7.3.2 (proposing that "[t]reatment plans must reflect changes in goals, plans to achieve goals, changes in mental health status/symptoms, and amended timeframes to reach goals"); id. at § 7.4.2 (proposing that "treatment plans must be reviewed and amended, if necessary, contemporaneously with a change in the patient's mental health code"); id. at § 7.4.3 (proposing that "treatment plans must be amended contemporaneously with the treatment team's decision to pursue involuntary medication, [the] need for emergency administration of psychotropic medications, or [the] decision to discontinue all mental health medication").
The defendants propose that treatment plans must reflect "changes in treatment goals, ... changes in mental-health status or symptoms, and any revised timeframes for reaching treatment goals," Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 7.4.2, and that treatment plans may include information regarding "any effect of recent housing changes on the inmate's mental-health needs," id. at § 7.4.2.4. They also propose that treatment teams review and revise inmates’ mental-health codes as clinically appropriate. See id. at § 4.3.
b. The Court's Ordered Relief
In substantial agreement with both parties, the court will order that treatment teams must review and revise each inmate's mental-health code as clinically appropriate, and must review and amend, if necessary, each inmate's treatment plan after changes in the inmate's mental-health code, transfer to a new housing unit, or any other circumstance resulting from or likely to affect an inmate's mental health in a significant way. The court orders this relief in light of ADOC's internal audits of its own facilities, which reveal that treatment plans were rarely updated after major events, see Bullock RTU and SU Audit Results (P-3260) at 9 (showing 11.39 % compliance on major event movements); Bullock Outpatient Audit Results (P-3263) at 10-11 (2.92 % compliance); St. Clair Audit Results (P-3277) at 7 (7.14 % compliance), and by Dr. Burns's testimony to the same effect, see May 26, 2021, R.D. Trial Tr. at 18 (explaining that according to her review of inmate records, there were "not always [ ] treatment plan changes when there's a significant event, like removal or placement off watch or discharge into outpatient from a residential treatment unit"). In the liability opinion, the court noted that it is vital that treatment plans be regularly updated to address new developments in an inmate's conditions and circumstances. A treatment plan is ineffective if it does not address an inmate's current needs, and "rote repetition" of goals without acknowledgement of changes that have occurred presents a real "hazard[ ] to prisoners with mental illness." Braggs, 257 F. Supp. 3d at 1207. Because ADOC has failed to ensure that treatment plans are appropriately updated the court must order that it do so.
c. PLRA Findings
The court finds this provision necessary for the reasons given above: treatment teams continue to produce plans that do not reflect relevant changes in inmates’ individual circumstances, and therefore cannot fulfill their intended purpose. This provision is also narrowly tailored and minimally intrusive because, for the most part, it leaves it entirely to treatment teams to determine the circumstances under which treatment plans must be updated. While it does require that treatment plans be reviewed under two specific circumstances--changes in housing and changes in mental-health codes--it imposes that requirement only because the evidence demonstrates that treatment planning must address changes in housing and mental-health codes to be effective.
6. Coordination of Transfers and Treatment
a. The Parties’ Proposed Provisions
With respect to ADOC's failure to coordinate the transfer of prisoners among facilities with prisoners’ treatment planning, the plaintiffs propose the following provisions:
• "In order to ensure continuity of care, the patient's mental health code and condition must be considered in making determinations concerning transfer." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 7.5.1.
• "Decisions regarding transfer of outpatient patients (MH Code B and C) will not occur without consultation with the treatment team. The treatment team must weigh the reason for the transfer against concerns about continuity of care. Patients with an SMI flag my only be transferred upon approval of the patient's treatment team. The transfer of patients in the RTU or SU will be permitted to accommodate a patient's change in level of care occasioned by an improvement or deterioration in mental health condition." Id. at § 7.5.2.
• "In the event of a transfer of a patient on the mental health caseload, there must be a transfer note written by the patient's MHP at the transferring facility to the patient's new MHP at the receiving facility. This transfer note will include a discussion of the patient's mental health background, current needs, and the next steps for treatment the transferring facility would have taken if not for the transfer. The transfer not for patients coded MH-D must be sent to the receiving facility prior to the patient's transfer. The transfer note for patients coded MH-B or MH-C must occur within five (5) business days of the patient's transfer." Id. at § 7.5.3.
• "The transfer note must be on the Mental Health Transfer Form. The purpose of the Mental Health Transfer Form is to eliminate, as much as possible, disruption in the patient's care. The Mental Health Transfer Form must include, at a minimum, the following information: (1) Any individualized treatment or compliance strategies that have been successful; (2) Individualized treatment or compliance strategies that have been unsuccessful; (3) Clinically relevant information about the patient's background, such as prior history of abuse, family history, or difficulties in the course of treatment or compliance; and (4) Any other information which may assist a new mental health provider in gaining insight and rapport with the patient." Id. at § 7.5.3.1.
• This transfer note requirement does not apply to patients being moved within the same ADOC facility or from one ADOC facility's holding cell to another ADOC facility's crisis cell. However, if a patient is transferred while on suicide watch, then mental-health staff at the sending facility must communicate with mental-health staff at the receiving facility consistent with the transfer note requirements. Id. at § 7.5.3.2.
The defendants propose no provision regarding coordination of prisoners’ transfers with treatment planning.
b. The Court's Ordered Relief
The court will order, as the plaintiffs propose, that ADOC must consider inmates’ mental-health codes and symptoms in making decisions concerning transfer between facilities. The court orders this provision in light of the evidence that transfer between facilities can be particularly destabilizing for inmates on the caseload, see Braggs, 257 F. Supp. 3d at 1241 n.67, and that such transfers are excessively frequent and disorganized, see May 25, 2021, R.D. Trial Tr. at 36, 39–40, 53 (testimony of Dr. Burns, describing frequent transfers for no apparent or documented reason). While the court recognizes that transfers are vital to the functioning of a prison system--and in some cases even mandated by other provisions of this remedial order--ADOC's current approach demonstrates insufficient consideration of the effect transfers may have on mentally ill inmates. Accordingly, the court must order ADOC to consider inmates’ mental-health codes and conditions when making determinations concerning transfers, so as to ensure that mental-health treatment is effective and not needlessly disrupted.
The court will also largely adopt the plaintiffs’ third proposed provision, and order that in the event of a transfer of an inmate on the mental-health caseload, the staff member in charge of the inmate's care at the transferring facility must send a transfer note to the staff member in charge of the inmate's care at the receiving facility within a reasonable time after the transfer is initiated. The court orders this provision in light of the evidence that mentally ill inmates are frequently transferred between facilities with no notice, or insufficient notice, given to the receiving facilities about the inmates’ diagnoses and treatment. As a result, these inmates do not receive continuous care and they decompensate, sometimes to disastrous effect. When Jaquel Alexander was transferred between facilities, for instance, his transfer form incorrectly indicated that he had no SMI designation, and the staff member who completed Alexander's risk assessment after his transfer, who indicated no familiarity with his prior risk factors, identified him as a "low" risk of harm to self. Alexander Psychological Autopsy, (P-3298) at 6. Days later, he killed himself. Id. Similarly, when inmate TM was sent to the RTU after setting himself on fire and threatening to do so again, there was "no transfer note indicating why" or explaining what kind of treatment he needed. May 25, 2021, R.D. Trial Tr. at 52–53. Thus, while it may be true, as Dr. Metzner testified, that the providers at the receiving facility are supposed to review an inmate's file upon his or her transfer and ask clarifying questions of his or her previous providers, see June 30, 2021, R.D. Trial Tr. at 23–24, that procedure has proven either inadequate or unfollowed. Because ADOC has failed to ensure that pertinent information about mentally ill inmates follows them from facility to facility, the court must order that transfer notes be written and sent.
Because the court orders that transfer notes must be written and sent only in the event that an inmate is transferred from one facility to another, it finds the plaintiffs’ proposal that the "transfer note requirement does not apply to patients being moved within the same ADOC facility" to be unnecessary. The court does not limit its order, however, to exclude transfers from one ADOC facility's holding cell to another ADOC facility's crisis cell, as the plaintiffs suggest. For the reasons given above, it is essential that pertinent information regarding an inmate's mental health follow him or her from facility to facility, regardless of what type of cell he or she is in. The staff in charge of the inmate must be aware of the inmate's needs and vulnerabilities, particularly if the inmate is suicidal.
The court will not order, as the plaintiffs propose, that the treatment team be involved in all discussions concerning transfers or that it have veto power over transfers. Such a provision has not yet proven necessary; so long as ADOC follows the court's order and ensures that inmates’ mental-health codes and conditions are factored into decisions about transfers, the court sees no reason to require that any particular entity make those decisions. However, the court notes that such additional relief may be necessary if the EMT determines that ADOC is continuing to transfer inmates in ways that harm their mental health.
The court also declines to order that transfer notes include any particular information. Rather, the court will leave the decision as to what information to include, which will no doubt vary according to the individual needs of each inmate, to the clinical judgment of ADOC's mental-health providers. Nor will it order that transfer notes be written on Mental Health Transfer Forms. The evidence does not demonstrate that such relief is necessary at this time, and the court trusts that ADOC will be able to determine itself the manner in which transfer notes must be prepared. Again, however, if the EMT finds, after a period of monitoring, that transfer notes continue to contain insufficient information, the court may choose to revisit the issue and order additional relief.
c. PLRA Findings
The court finds that its first ordered provision--that ADOC must consider inmates’ mental-health codes and symptoms in making decisions concerning transfers between facilities--is necessary for the reasons given above: inmates are currently transferred between facilities in a frequent and haphazard fashion, despite the court's previous finding that such transfers can be detrimental to mental-health treatment. This provision is also narrowly tailored and minimally intrusive because it merely mandates that ADOC consider certain factors, but does not control ADOC's ultimate decisions regarding transfers.
The court finds that its second ordered provision--that in the event of a transfer of an inmate on the mental-health caseload, the staff member in charge of the inmate's care at the transferring facility must send a transfer note to the staff member in charge of the inmate's care at the receiving facility within a reasonable time after the transfer is initiated--is necessary because, as described above, ADOC has failed to ensure that pertinent information about mentally-ill inmates follows them from facility to facility, resulting in decompensation and death. This provision, too, is narrowly tailored and minimally intrusive because it asks no more of ADOC than what is necessary to ensure that inmates receive continuous care. It does not, for instance, require ADOC to prepare and send the transfer notes within any particular timeframe, so long as it does so within a reasonable time after the decision to transfer the inmate. And it does not require the transfer notes to include any particular information.
7. Other Provisions Regarding Treatment Teams and Planning
Besides for the provisions discussed above, the plaintiffs propose several other provisions that the court does not adopt because there is insufficient evidence that they are currently necessary.
The first is elemental: the plaintiffs propose a provision requiring each inmate on the mental-health caseload to have a designated treatment team. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 7.1.1. Neither party's experts, however, identified any inmates on the caseload without a treatment team.
Second, the plaintiffs propose that the makeup of each treatment team be determined according to the inmate's assigned mental-health code and appropriate level of psychotherapy, see id. at § 7.1.2, and that, "[w]henever possible, all members of the treatment team must attend each team meeting, either in person or via videoconferencing," id. at § 7.1.2. The record does not indicate, however, that relevant personnel are not assigned to treatment teams, or that treatment-team members fail to attend meetings. To the contrary, ADOC has created new forms for treatment-team meetings that reinforce its policies on who should attend those meetings and appear to have been largely successful in ensuring that relevant staff are included. Also, Dr. Burns's review of treatment-team records indicated that most meetings are attended by all relevant staff members.
The court is concerned, however, by ADOC's contention, at oral argument, that it may be appropriate for the treatment-team coordinator to speak with team members separately instead of convening a meeting. See July 7, 2021, R.D. Trial Tr. at 261. While conditions may sometimes prevent the team from meeting or require a decision before a full meeting can be assembled, this should not be common practice. Indeed, as the court found in the liability opinion, failing to have full treatment-team meetings "creates a risk of different providers having an inconsistent approach or course of treatment for the same patient because some of the treatment team are unaware that a new treatment plan has been put into effect." Braggs, 257 F. Supp. 3d at 1207. Once again, the court is confident that the EMT will carefully monitor the performance of treatment teams and will alert the court if further action appears necessary.
Third, the plaintiffs propose that inmates must be allowed to attend treatment-team meetings barring certain exceptions. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 7.2.5. The record does not indicate, however, that inmates are currently being excluded from their treatment-team meetings, particularly if they want to attend.
Fourth, the plaintiffs propose that "in the event the psychiatrist or CRNP (if applicable), the patient's MHP, or the patient is unable to attend a treatment team meeting, the meeting must be postponed and rescheduled for the next business day on which the prescriber, the patient's MHP, and the patient are available." Id. at § 7.2.7. As explained above, however, the record does not show that either inmates or staff members are absent from meetings.
Fifth, the plaintiffs propose that "[e]ach treatment team must be organized and chaired by the patient's assigned MHP or psychiatrist." Id. at § 7.1.3. While the court remains concerned about ensuring that treatment plans are individualized and carefully compiled, there is no evidence that the identity of the chair of the meeting has any bearing on whether that outcome is achieved.
Sixth, the plaintiffs propose that "[r]ecords of each treatment team meeting must be kept in the respective patient's mental-health record and must consist of the following: (1) The date of the treatment team meeting; (2) The attendees of the treatment team meeting; (3) Notes about each treatment team meeting; and (4) Any changes to the patient's treatment plan as a result of the treatment team meeting." Id. at § 7.2.8. There is insufficient evidence, however, that ADOC is not currently keeping adequate records of treatment-team meetings.
Seventh, the plaintiffs propose that, "[i]f a member of a patient's treatment team, other than correctional staff, provides or is provided fourteen (14) days or more notice of voluntary resignation or involuntary termination, then the employee must, to the extent possible, prepare transfer notes on Mental Health Transfer Form for any patients under their care." Id. at § 7.6.1. While it is true that the departure of mental-health staff can be just as disruptive to an inmate's mental-health care as a transfer, there is insufficient evidence to suggest that staff departures are currently disrupting care. Also, as the defendants note, progress notes should already be written after every encounter, and in the event of a staff member's departure they should equip the replacement provider with enough information to continue the inmate's treatment without unnecessary disruption.
Eighth, and finally, the plaintiffs propose that "[v]acancies in treatment team members due to staff turnover, must be filled on the earlier of: a) thirty (30) days, or b) at least 24 hours before the date and time of the next regularly scheduled treatment team meeting for that patient." Id. at § 7.6.2. Without a doubt, ADOC should make every effort to fill vacant positions as soon as possible. However, while mental-health understaffing in general has an impact on the provision of care, there is no evidence that suggests that vacancies on treatment teams are persisting for excessive lengths of time or interrupting care.
Although it declines to adopt the above provisions, the court trusts that the EMT will be cognizant of the problems that they are meant to address, and will monitor ADOC's performance accordingly.
I. Psychiatric and Therapeutic Care
33 The provision of psychiatric and therapeutic care is one of the areas of liability in which ADOC has made the least progress since the court's 2017 liability opinion. As described previously, ADOC's provision of such care is deficient in at least four respects. First, inmates have insufficient access to treatment. They often do not receive the treatment they are prescribed, and even when they do receive some treatment, group therapeutic sessions are not sufficiently accessible and individual therapeutic sessions are not held frequently enough, or long enough, to be effective. Second, inmates housed in ADOC's inpatient units receive insufficient out-of-cell time. Confined to their cells for extended periods, they decompensate and their social skills atrophy, thereby undermining the efficacy of any treatment they receive. Third, inmates not on the mental-health caseload who report or display symptoms are not given access to treatment. Fourth, progress notes are often incomplete, inconsistent, or nonexistent, making it more difficult for treatment teams to monitor inmates’ progress, and preventing counselors from building on progress made in previous sessions.
1. Access to Treatment
a. The Parties’ Proposed Provisions
With respect to ADOC's general failure to provide inmates with psychiatric and therapeutic care, the plaintiffs propose minimum frequencies with which each inmate must meet with psychiatrists, CRNPs, counselors, and mental-health nurses. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 8.1.3.
In addition to these minimum requirements, the plaintiffs propose that each inmate, including inmates in restrictive housing, must have access to the treatment prescribed by his or her treatment team. See id. at §§ 8.1.2, 8.1.5. To that end, the plaintiffs propose that each outpatient mental-health facility must offer psychoeducational groups, individual therapy, group psychotherapy, and pharmacotherapy, see id. at § 8.1.9.1; that each SU, RTU, and SLU must offer those types of treatment in addition to activity therapy, see id. at § 8.1.9.2; and that "group psychotherapy must be offered on topics such as medication management, cognitive retraining, stress management, social skills, and anger management in sufficient quantity to accommodate the treatment services prescribed for the population of each facility," id. at § 8.1.9.3. The plaintiffs also propose that, "[i]f an intervention or program that is set forth in the treatment plan is not offered in the facility in which the patient is housed, either the patient will be moved to allow the patient to participate in that intervention, or the intervention will be offered in the facility where the patient is housed," provided that "no patient in need of residential care may be moved to a facility not offering residential care." Id. at § 8.1.10.
The defendants contend that, in general, no relief is warranted with respect to the provision of psychiatric and therapeutic care. In support of this position, they point to the fact that ADOC has hired more mental-health staff since the court's liability opinion, see Defs.’ Post-Trial Br (Doc. 3367) at 93; that it has hired qualified staff, see id. at 94; and that Dr. Burns, "in reviewing records and instances of care in advance of the PLR hearing, observed instances of ‘good’ mental-health care," id. at 94-95, and evidence of inmates routinely receiving counseling sessions, see id. at 94.
Alternatively, the defendants propose that the court "approve[ ] [a] mental-health treatment guidance--a term of art in the medial and mental-health communities for a document aimed at guiding decisions and strategies in a particular practice area--[ ] for the provision of mental-health treatment to inmates in ADOC custody." Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 8.1. ADOC includes a model mental-health treatment guidance in its proposed order that suggests certain types and quantities of care for inmates depending on whether they are housed in an SU, RTU, SLU, or whether they are outpatients. See id. at § 8.4. It emphasizes, however, that "[t]he type, time, frequency, and location of any admission, appointment, assessment, discharge, evaluation, length of stay, and psychotherapy or treatment for an inmate by a qualified mental-health professional or treatment team should be determined by clinical judgment based on the needs of the inmate." See id. at § 8.3.2.
b. The Court's Ordered Relief
34 The court will order that each inmate must receive a certain minimal level of treatment according to his or her treatment category (e.g., SU, RTU, etc.) and mental-health code. To that end, the court will adopt the defendants’ proposed mental-health treatment guidance, set forth in Appendix A, establishing minimum frequencies with which inmates must meet with RNs, psychologists, counselors, psychiatrists, and CRNPs. The court will also order that treatment sessions must last for an adequate period of time, to be determined according to the clinical judgment of the inmate's mental-health provider; that, in addition to the minimal levels of treatment described above, each inmate--including those in restrictive housing--must receive any additional care prescribed by his or her treatment team; and that each housing unit must offer appropriate types and numbers of treatment groups. To the requirement that each inmate must receive any additional care prescribed by his or her treatment team, the court will add one caveat: while ADOC must provide inmates in restrictive housing with any medication or individual therapy prescribed by their treatment team, it need not provide inmates in segregation with other forms of care if they cannot be provided safely in the restrictive housing environment.
The court rejects the defendants’ proposal to do nothing because, while ADOC has made encouraging progress in its hiring of mental-health staff, the evidence demonstrates that it is still failing to ensure that inmates have access to the care they need. Although Dr. Burns testified that, in her review of ADOC's records, she observed at least one instance of good mental-health care, see June 7, 2021, R.D. Trial Tr. at 105, she did not testify, as the defendants suggest, that most--or even a substantial number--of inmates who were identified as needing counseling routinely received it. Rather, she testified that "there were progress notes labeled counseling sessions" in some inmates’ records, but that "some of them were really very brief interactions, a matter of moments," id. at 109, and that many inmates who were prescribed psychotherapy did not receive it at all, see May 25, 2021, R.D. Trial Tr. at 82, 87, 90, 192. ADOC itself has also recognized its inadequate provision of treatment; in a February 2020 letter to Wexford, it reported that its own audit of its mental heal units "indicate[d] a pattern of failure of Mental Health staff to meet with their patients at required intervals and to conduct group therapies on a routine bases." P-3322 at 2.
The court orders that each inmate must receive a certain minimal level of treatment, according to the guidance proposed by the defendants, because the evidence indicates that across ADOC facilities inmates are, in the words of Dr. Burns, "falling through the cracks." June 3, 2021, R.D. Trial Tr. at 106–107 (testimony of Dr. Burns). This provision ensures that even if an inmate does not have a treatment plan (perhaps because the inmate has only recently been placed on the mental-health caseload), or has a treatment plan that does not specify the exact frequency with which the inmate must receive counseling, he will receive enough care to protect him from bodily injury or death. It also ensures that ADOC is able to provide care in a predictable and consistent fashion, thereby further reducing the risk that inmates are inadvertently deprived of life-saving treatment. As Dr. Metzner explained, "guardrails"--i.e., set treatment frequencies--are necessary to provide the mental-health staff in each unit "a clear expectation of what's required of them ... [and] how to prioritize their time," and to allow ADOC to effectively create staffing plans. June 2, 2021, R.D. Trial Tr. at 173-174; see also June 23, 2021 R.D. Trial Tr. at 130-31. At the same time, this provision does not deprive treatment teams of their discretion to set the level of care that each inmate receives. Should a treatment team determine that an inmate needs less care than what his or her treatment category requires under the guidance, the treatment team need only adjust the inmate's mental-health code, or recommend that the inmate be moved to a different treatment category, to reduce his or her level of care.
The court orders that treatment sessions must last for an adequate period of time, to be determined according to the clinical judgment of the inmate's mental-health provider, because the evidence demonstrates that, when inmates do receive counseling sessions, many of them are extremely short, lasting only a few minutes. Experts for both sides agreed that such truncated meetings prevent the effective provision of care. See May 25, 2021, R.D. Trial Tr. at 135-36; July 1, 2021, R.D. Trial Tr. at 168. Because this pattern persisted throughout the sessions reviewed in the omnibus remedial hearing, and because ADOC shows no signs of being able or willing to correct it, the court must order this relief to ensure that sessions last long enough to provide substantive treatment.
Finally, the court orders that each inmate must receive any additional care prescribed by his or her treatment team in light of the evidence that numerous inmates, including several who eventually killed themselves, were not receiving some or all of the care ordered by their treatment teams. The court is particularly concerned by evidence that, across different facilities and units, inmates continue to be deprived of access to group therapeutic treatment. Accordingly, it specifies that ADOC must ensure that it offers the different types of treatment groups that the treatment teams deem necessary, and that it offers them with sufficient frequency so that all inmates who need them can attend.
It is especially important that inmates in restrictive housing receive the care prescribed by their treatment teams because, as Dr. Metzner testified, the effects of isolation make the need for continuous therapeutic treatment all the more urgent. See July 2, 2021 R.D. Trial Tr. at 10. At the same time, however, the court credits Dr. Metzner's testimony that it may be impossible to provide inmates in restrictive housing with certain kinds of care, like group therapy or extended periods of exercise time. See id. at 12-13; June 30, 2021 R.D. Trial Tr. at 18. The court will therefore order that ADOC must provide inmates in restrictive housing with any medication or individual therapy prescribed by their treatment team, but that it need not provide other forms of care prescribed by an inmate's treatment team if those kinds of care cannot be provided safely in the restrictive housing environment. That is not to imply, however, that ADOC may reflexively deny care to inmates in restrictive housing; rather, ADOC must provide the care prescribed by each inmate's treatment team to the fullest extent possible.
c. PLRA Findings
The court finds this provision necessary given ADOC's failure to provide psychiatric and therapeutic care in a timely manner (or, in some cases, at all); to provide counseling that last long enough to be effective; and to provide group therapeutic sessions. The court also finds this provision to be narrowly tailored and minimally intrusive. While the court requires ADOC to provide inmates with certain minimal levels of care, it does not infringe on the discretion of treatment teams to prescribe treatment--if an inmate's treatment team wishes to decrease his or her level of care, it can do so by altering the inmate's mental-health code or recommending that the inmate be moved to a different treatment location. And, while the court requires treatment sessions to last for an adequate amount of time, it leaves the question of exactly how long each session should last to the inmate's mental-health provider. Finally, while the court orders that ADOC must provide inmates with the care prescribed by their treatment team, it does not dictate the manner in which ADOC does so, and it orders no more care than what each inmate's treatment team determines to be necessary.
2. Insufficient Out-Of-Cell Time
a. The Parties’ Proposed Provisions
To remedy ADOC's failure to ensure that inmates housed in its inpatient units receive sufficient out-of-cell time, the plaintiffs propose that inmates in the SU, SLU, and RTU Level One and Two must receive 10 hours of structured, therapeutic out-of-cell time and 10 hours of unstructured out-of-cell time per week, unless clinically contraindicated; and that inmates in the RTU Level Three must receive 10 hours of structured, therapeutic out-of-cell time and 10 hours of unstructured out-of-cell time per week, or the same amount of unstructured out-of-cell time as other inmates of the same security level who are not mentally ill, whichever is greater. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at §§ 8.3.1, 8.3.2. The plaintiffs would make an exception to this requirement for inmates in the RTU Level Three who are housed in open dormitories rather than cells, and therefore cannot receive in-cell treatment. See id. at § 8.3.2. Those inmates, the plaintiffs propose, must receive the same amount of time outside their dormitory as inmates of the same security level who are not mentally ill. See id. The plaintiffs would also require that, for inmates arriving in the SLU, the provision of unstructured out-of-cell time must begin immediately. See id. at § 8.3.1.
The defendants propose no required amount of out-of-cell time of any type, but their proposed mental-health treatment guidance suggests that inmates in the SU and inmates in the RTU and SLU who are confined to a celled environment for more than 22.5 hours per day should receive 10 hours of structured and 10 hours of unstructured out-of-cell time per week, unless clinically contraindicated. See Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 8.4.
Both sides agree that an inmate's out-of-cell appointments with his or her treatment team, psychiatric provider, counselor, or a therapeutic group will count towards the applicable structured, therapeutic out-of-cell time. See id.; Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 8.3.3.
b. The Court's Ordered Relief
35 The court will order that inmates in the RTU, SU, and SLU must have 10 hours of structured, therapeutic out-of-cell time and 10 hours of unstructured out-of-cell time per week, unless clinically contraindicated. Inmates in the RTU Level Three who are housed in open dormitories rather than cells, however, need not receive 10 hours of unstructured out-of-cell time per week. Also, as both sides agree, an inmate's appointments with his or her treatment team, psychiatric provider, counselor, or a therapeutic group will count as structured, therapeutic out-of-cell time.
The court orders this provision in light of ADOC's continued failure to provide inmates in the RTU, SU, and SLU with either structured or unstructured out-of-cell time. As Dr. Burns testified, and as the court has previously recognized, inmates in the RTU, SU, and SLU must receive both kinds of out-of-cell time if those units are to fulfill their intended therapeutic purposes. Structured out-of-cell time provides inmates with necessary support in managing their symptoms, and a respite from idleness. See Braggs, 257 F. Supp. 3d at 1214-15 ; May 25, 2021, R.D. Trial Tr. at 84-85. Unstructured out-of-cell time alleviates the intense pressure and stress that a highly regimented, celled environment can impose on mentally-ill inmates. See id. And both provide inmates the opportunity to practice socializing. See id. Without sufficient amounts of either type of time, inmates in the RTU, SU, and SLU are warehoused rather than treated, and face an unacceptable risk of decompensation. See Braggs, 257 F. Supp. 3d at 1214. The court therefore finds that it must order some relief, and it is convinced by Dr. Burns's testimony that 10 hours of each type of out-of-cell time is the minimum amount necessary--a recommendation bolstered by ADOC's mental-health treatment guidance, as well as the evidence presented at the liability hearing (by ADOC's mental-health expert, Dr. Patterson) that 10 hours of each type of out-of-cell time is standard practice in prisons throughout the country, see Braggs, 257 F. Supp. 3d at 1215.
The court recognizes that Dr. Metzner did not agree with the recommendations of Dr. Burns, Dr. Patterson, and ADOC's mental-health treatment guidance. He testified that inmates in the SLU should not be required to receive 10 hours of structured out-of-cell time because the SLU is an outpatient, rather than inpatient, facility, see June 30, 2021, R.D. Trial Tr. at 48, and that inmates in the SU should not be required to receive 10 hours of structured out-of-cell time because they are seldom in the SU long enough to benefit significantly from such treatment, and because they are often experiencing acute mental-health crises, and therefore may be unable to participate safely in structured group activities, see June 29, 2021, R.D. Trial Tr. at 163; June 30, 2021, R.D. Trial Tr. at 60-61.
While the court takes these concerns seriously, it does not find them convincing. As to Dr. Metzner's first concern, while the SLU is not an inpatient unit, the court finds that it should nevertheless be included in this provision. If inmates in the SLU were to receive only minimal out-of-cell time, there would be no practical distinction between the SLU and restrictive housing, despite the fact that the SLU is designed to be a diversionary space for the treatment of inmates with mental-illnesses. As to Dr. Metzner's second concern, the court agrees that 10 hours of structured out-of-cell time may be inappropriate for some inmates in the SU. In light of the other experts’ testimony that 10 hours is generally the minimum amount of structured out-of-cell time necessary for the effective treatment of inmates in the SU, however, it finds that the best way to address the problem by allowing ADOC to provide less than 10 hours of structured out-of-cell time if 10 hours is clinically contraindicated.
The court does not order that inmates arriving in the SLU must be provided with unstructured out-of-cell time immediately, as the plaintiffs propose, because there is no evidence that, when ADOC does provide inmates with unstructured out-of-cell time, it provides it too late. Nor does it order that inmates in the RTU Level Three must receive the same amount of unstructured out-of-cell time as other inmates of the same security level who are not mentally ill, if that amount is greater than 10 hours; or that inmates in the RTU Level Three who are housed in open dormitories must receive the same amount of time outside their dormitory as other inmates of the same security level who are not mentally ill. The evidence indicates that 10 hours of unstructured out-of-cell time is necessary for effective treatment, but not more, and there is no evidence that inmates must receive a particular amount of time outside their dormitories. The court therefore cannot conclude that such relief is warranted.
c. PLRA Findings
The court finds this provision necessary for the reasons given above: despite its finding that "ADOC's mental-health units often fail to serve their therapeutic purpose due to insufficient out-of-cell time and scarce programming for their patients," see Braggs, 257 F. Supp. 3d at 1213-14, ADOC has done nothing to ensure that inmates in the RTU, SU, and SLU receive the out-of-cell time they need. In light of this failure, the court finds that it must order ADOC to provide inmates with some amount of structured and unstructured out-of-cell time, and it defers to the view of the majority of the experts that 10 hours of structured out-of-cell time and 10 hours of unstructured out-of-cell time is the minimum amount necessary to protect inmates from decompensation, self-harm, and suicide. This provision is also narrowly tailored and minimally intrusive, because although it makes 10 hours of structured out-of-cell time and 10 hours of unstructured out-of-cell time the default requirement, it allows ADOC to provide less out-of-cell time to inmates on a case-by-case basis, based on clinical judgement. Also, ADOC's own Mental Health guidance proposes that inmates in the RTU, SU, and SLU receive 10 hours of structured out-of-cell time and 10 hours of unstructured out-of-cell time--a strong indication that the provision is not overly intrusive.
3. Monitoring of Inmates Not on the Mental-Health Caseload
a. The Parties’ Proposed Provisions
With respect to ADOC's failure to provide treatment to inmates not on the mental-health caseload who report or display symptoms, the plaintiffs propose that "[p]atients who are not on the mental health caseload must be seen by mental health staff (either ADOC staff or vendor staff) in the event of a mental health crisis, after receipt of a mental health referral, or for follow up, as clinically indicated." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 8.1.1. The defendants propose no corresponding provision.
b. The Court's Ordered Relief
The court will order, as the plaintiffs propose, that inmates who are not on the mental-health caseload must be seen by mental-health staff in the event of a mental-health crisis or after receipt of a mental-health referral, as clinically indicated. The court orders this relief in light of Dr. Burns's testimony that ADOC has persistently failed to respond to requests for mental-health care by inmates in the general population, see May 25, 2021, R.D. Trial Tr., and the evidence that several of the recent suicides in ADOC facilities were by inmates in the general population who had exhibited warning signs but received no attention from mental-health staff.
c. PLRA Findings
36 The court finds this provision necessary because deterioration is a risk for all inmates, and because there are undoubtedly inmates in ADOC's general population who should be on the mental-health caseload but were missed at intake. ADOC must therefore ensure that inmates in the general population have access to care when they need it. This provision is also narrowly tailored and minimally intrusive. It simply orders ADOC to respond to inmates’ demonstrated mental-health needs, but does not require it to follow any particular process or provide any particular care.
4. Inadequate Progress
a. The Parties’ Proposed Provisions
With respect to ADOC's failure to provide adequate progress notes, the parties propose that after "significant clinical encounters," progress notes must be created and placed in inmates’ mental-health record. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at §§ 8.4.1, 8.4.2; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 8.2.1.
The parties agree that a clinical encounter is significant, and therefore requires a progress note, if it consists of a "communication or interaction ... involving an exchange of information used in the treatment of the inmate, excluding any causal exchanges, administrative communications, or other communications which do not relate to the patient's mental condition or the ongoing mental health treatment." See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 1.29; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 1.33.
They disagree, however, as to whether the encounter must be between an inmate and a qualified mental-health professional--i.e., a mental-health professional who is qualified to provide therapy, counseling, or psychiatric services--to count as significant. The plaintiffs would define the term "significant clinical encounter" to include encounters between inmates and any mental-health staff, qualified mental-health professional or not. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 1.29. In their view, if a nurse interacts with an inmate while conducting routine charting duties and receives information implicating the inmate's treatment, that information should be recorded. The defendants, wary that the plaintiffs’ approach would result in a deluge of unnecessary progress notes and disrupt the provision of care, would define the term to include only encounters between inmates and mental-health staff who are qualified mental-health professionals. See Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 1.33.
Both sides also propose that the progress note must be written in one of two specified formats, and that it include several specific pieces of information, including the name and signature of its author. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at §§ 8.4.3, 8.4.4; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 8.2.2. The plaintiffs propose, additionally, that "[t]he note must be sufficiently detailed so that a treating mental health provider would be able to continue treatment using the information provided in the note," see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 8.4.5, and that it address one or more problems identified in the inmate's treatment plan, see id. at § 8.5.
b. The Court's Ordered Relief
37 The court will adopt the defendants’ definition of significant clinical encounter, and will order, as the defendants propose, that for each significant clinical encounter between an inmate and a qualified mental-health professional, a progress note must be created and placed in the inmate's mental-health record. It will also order that the note must be sufficiently detailed to facilitate treatment and ensure continuity of care.
The court orders ADOC to create progress notes and file them in inmates’ medical records because ADOC has persistently failed to do so, despite the fact that documentation of inmates’ care and symptoms is essential for treatment planning, which, in turn, is essential for the effective provision of care. It adopts the defendants’ definition of significant clinical encounter because it anticipates that progress notes documenting interactions between inmates and qualified mental-health professionals, who both treat inmates and monitor their symptoms, will provide a sufficient bases for treatment planning. Although inmates might occasionally provide information about their symptoms to mental-health staff members who are not qualified mental-health professionals, the plaintiffs have presented no evidence that they do so frequently, or that, when they do so, the information is not relayed to a qualified mental-health professional. (Should the EMT discover such evidence, the court trusts that it will bring it to its attention.)
The court declines to order that progress notes be written in a particular format or contain particular information. Such a provision has not yet been proven necessary; so long as ADOC ensures that progress notes are sufficiently detailed so as to fulfill their intended purpose, the court need not dictate their precise contents. The court trusts that the EMT will monitor the contents of progress notes, and that the EMT will alert the court if ADOC continues to pre-write progress notes, or to produce progress notes that are so inaccurate and incomplete as to stymie the effective provision of care.
c. PLRA Findings
The court finds these provisions necessary for the reasons given above: thorough documentation of inmates’ care and symptoms is essential for the effective provision of care, and yet ADOC has failed to provide it. To remedy that failure, the court must order that ADOC create progress notes that document inmates’ care and symptoms, that the notes contain a minimal level of detail, and that the notes be filed in inmates’ mental-health records, where they can be found and utilized. These provisions are also narrowly tailored and minimally intrusive. They do not require ADOC to document encounters between inmates and all mental-health staff, but only encounters between inmates and qualified mental-health professionals, and they allow ADOC flexibility to determine the exact information contained in each progress note.
5. Other Provisions Regarding Psychiatric and Therapeutic Care
The plaintiffs also propose additional provisions that the court declines to adopt. These include the following:
• The relative timing of appointments with the psychiatric provider and the counselor must be determined by clinical judgment based on the needs of the inmate, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 8.1.4;
• Placement in a restrictive housing unit must not be a basis for denying or delaying the inmate's access to the interventions prescribed in his or her treatment plan or for deferring prescription of such interventions until after the inmate is released from the restrictive housing unit, see id. at § 8.1.5;
• Mental-health treatment services must be tailored to adequately meet the clinical needs of each inmate considering the functional level, readiness for treatment, insight into mental illness, and motivation for treatment, see id. at § 8.1.6;
• Treatment for inmates on suicide watch must consider and factor in the dynamic risk factors identified in the suicide risk assessment, along with any other relevant clinical factors, see id. at § 8.1.7;
• A psychiatric provider treating an inmate via telepsychiatry must be provided clinically relevant documents, as defined in this document, in advance of the telepsychiatry session, see id. at § 8.1.8;
• Placement of any inmate in the RTU or SU must be based on clinical judgment. Inmates assigned to restrictive housing who are not in need of RTU or SU level care are prohibited from being placed in the RTU or SU, see id. at § 8.2.1;
• Determinations regarding admissions to the RTU, SU, and SLU, lengths of stay, and discharge must accord with certain restrictions, see id. at §§ 8.2.2, 12.4.1; and
• Initial mental-health assessments must be conducted according to certain timeframes, see id. at § 8.2.3.
The court declines to adopt the provisions regarding the provision of treatment to inmates in restrictive housing units (§ 8.1.5), tailoring of mental-health services (§ 8.1.6), and treatment for inmates on suicide watch (§ 8.1.7), because the problems that these provisions are meant to address are dealt with in the sections of the court's omnibus remedial order concerning treatment planning, psychiatric and therapeutic care, and suicide prevention.
The court declines to adopt the remaining provisions because the evidence does not show them to be necessary. There is no indication that counselors and psychiatrists are not coordinating their care (§ 8.1.4); that providers of telepsychiatry are not currently provided with clinically relevant documents (§ 8.1.8); that inmates are currently being placed in the RTU, SU, or SLU for disciplinary, rather than clinical, reasons (§§ 8.2.1, 12.4.1), or otherwise admitted inappropriately (§§ 8.2.2, 12.4.1); that ADOC is failing to promptly assess inmates upon their arrival in treatment unit (§ 8.2.3); or that inmates are being kept in the RTU or SU for inappropriate periods of time, or discharged to inappropriate locations (§ 8.2.2).
In its liability opinion, the court found that ADOC routinely placed inmates without mental-health needs in its residential treatment units instead of placing them in restrictive housing. See Braggs , 257 F. Supp. 3d at 1212-13. According to Dr. Burns, ADOC has ceased this practice. See June 23, 2021, R.D. Trial Tr. at 170. The court commends it for doing so.
Under the relief ordered today, inmates with serious mental illnesses may not be discharged from the RTU or SU into a restrictive housing unit absent an exceptional circumstance.
J. Suicide Prevention
Suicide prevention is one of the areas in which failures to provide constitutionally adequate care and protection inflict the most drastic and visible harm on inmates with serious mental-health needs. Under the court's order requiring compliance with the parties’ interim suicide prevention agreement (Doc. 2560-1), ADOC has made important progress in this area. ADOC's more consistent use of constant observation and close watch represents a critical improvement in its system for immediate suicide prevention. Likewise, ADOC's development and implementation of suicide risk assessments is an important step to identify inmates whose risk of self-harm requires intervention.
Where ADOC's system remains grievously inadequate is in the provision of care outside the relatively narrow windows of constant observation or close watch. Inmates’ serious mental-health needs do not materialize and vanish with their placement on suicide watch and subsequent discharge. Neither should their mental-health care. Suicide risk assessments, discharge evaluations, and follow-up examinations are vital steps to ensure that inmates who have been placed on suicide watch are not then haphazardly (or worse, as a matter of course) thrown into circumstances that neglect their continued mental-health issues. And, when clinically indicated, referrals to higher levels of care and placements on the mental-health caseload are necessary to facilitate treatment that is commensurate with the seriousness of inmates’ needs. ADOC's deficiencies in each of these processes inflict needless suffering on inmates with serious mental-health needs and effectively gamble that those who have demonstrated risk factors for suicidal behavior will not decompensate or attempt suicide or other self-injurious behavior during gaps between episodes of crisis treatment.
1. Immediate Response to Suicide Attempts
a. The Parties’ Proposed Provisions
Both parties propose similar provisions that, if staff observe an inmate who is attempting suicide or who is unresponsive after apparently attempting or completing suicide, the staff must "immediately call for assistance." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.1.1; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at §§ 9.6.2.1, 9.6.2.2. They additionally propose that staff must "immediately respond" to an observed suicide threat or attempt "with efforts to interrupt the behavior or attempt." Id. The plaintiffs clarify these provisions with the proposed requirement that "[i]mmediate life-saving measures" must begin "as soon as there are two (2) correctional officers present and must continue until either paramedics arrive and assume care, or a physician declares such measures are no longer necessary." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.1.2. The defendants’ proposal sets the same endpoint for the performance of life-saving measures but would leave discretion for staff to start performing these measures "as soon as it is deemed safe by correctional staff to do so (typically, when at least two (2) correctional officers are present)." Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 9.6.2.3.
To facilitate immediate responses to attempted hangings, the most commonly attempted suicide method in the evidence before the court, see June 7, 2021, R.D. Trial Tr. at 143, both parties propose provisions requiring the maintenance of cut-down tools, bladed instruments that can cut down individuals who have attempted to hang themselves and that are designed to be "safe but effective" in correctional facilities. May 28, R.D. Trial Tr. at 121 (testimony of Mr. Vail). The plaintiffs propose the requirement that a cut-down tool be maintained in each housing unit of each ADOC major facility, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.1.3, whereas the defendants would limit this requirement to each restrictive housing unit, stabilization unit, residential treatment unit, structured living unit, and crisis unit of each ADOC major facility, see Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 9.6.2.4.
The plaintiffs also propose that, "[u]nless medically contraindicated, and when ADOC staff may safely proceed, after intervention during a suicide attempt, the prisoner must be moved to the medical or healthcare unit at the ADOC major facility for access to appropriate medical equipment and privacy." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.1.4. They further propose that, "[i]f a prisoner dies as [a] result of a suicide, his or her body must be moved to a private area outside of any occupied housing unit and outside the view of other prisoners as soon as possible." Id. at § 9.1.5.
b. The Court's Ordered Relief
3839 In substantial agreement with both parties’ proposals, the court will order that, if staff observe an inmate who is attempting suicide or who is unresponsive after apparently attempting or completing suicide, the staff must immediately call for assistance, and, if staff observe a suicide threat or attempt, the staff must immediately respond with efforts to interrupt the behavior or attempt. The most recent suicides at ADOC facilities reflect systemwide failures to take necessary steps in the first minutes after discovering suicide attempts—minutes that are crucial to life-saving efforts. When Laramie Avery was discovered hanging in his cell, there was a 12-minute delay before CPR was initiated. See Incident Report (P-3299) at ADOC0504208. When a nurse and a correctional officer discovered Jamal Jackson hanging during a pill call, the nurse was dismissed from the scene before being called back three minutes later, contributing to a 12-minute delay before Jackson was even cut down. See Pls.’ Ex. 3274. In both instances, correctional staff delayed cutting down the individual in order to take pictures. See May 24, 2021, R.D. Trial Tr. at 49; Pls.’ Ex. 3274. And when ADOC staff cut down Gary Campbell, nursing staff subsequently arrived to find that the officers had not removed the ligature from his neck or initiated CPR. See Gary Campbell Psychological Autopsy (P-3292) at ADOC0546324. ADOC's failures in this regard are too widespread and longstanding to be dismissed as failures by individual staff, rather than a systemic problem. See, e.g., Braggs v. Dunn, 383 F. Supp. 3d 1218, 1231 (M.D. Ala. 2019) (in January 2019, correctional officers waited minutes for medical staff to arrive before removing the noose from around Daniel Gentry's neck and initiating CPR); id. at 1233-34 (in January 2019, 11 minutes passed between when staff discovered Roderick Abrams hanging in his cell and when staff cut him down); id. at 1238 (in March 2018, ADOC staff waited more than 30 minutes to cut down Robert Martinez after he was found hanging).
With respect to the initiation and performance of life-saving measures, the court will order compliance with the defendants’ proposed provision with a minor alteration. While every moment of delay carries monumental significance in responding to a suicide attempt, the court recognizes that it cannot predict all immediate safety risks that could require delay even after two correctional officers are present. With the understanding that the EMT will intently scrutinize ADOC's responses to any suicide attempts and its justifications for any delays due to immediate safety risks, the court will adopt ADOC's language that life-saving measures must begin as soon as possible, typically, rather than always, once two correctional officers are present. With respect to the duration of life-saving measures, Mr. Vail observed that specifically requiring "paramedics" to assume care may not be appropriate in all instances. May 28, 2021, R.D. Trial Tr. at 118. With that in mind, the court substitutes the less restrictive term "paramedics or other appropriate medical personnel" in its adoption of the defendants’ proposed provision.
The court will also order that each ADOC major facility must maintain an appropriate cut-down tool in each restrictive housing unit, stabilization unit, residential treatment unit, structured living unit, and crisis unit. Because the risk of suicide is most serious for inmates in these units, the court will limit relief to these units. Although the evidence does not indicate whether facilities currently lack cut-down tools, Dr. Burns and Mr. Vail both testified that maintenance of these tools is vital to saving the lives of inmates who attempt suicide by hanging. May 28, 2021, R.D. Trial Tr. at 121-22; June 4, 2021, R.D. Trial Tr. at 68-69. Due to the special importance of this issue and the fact that ADOC is still struggling with the procedure for interrupting suicides in progress, it is necessary to require ADOC to maintain these tools. That said, the evidence suggests that ADOC's compliance with this provision should be a straightforward process. The court expects that monitoring this will be a minimal burden if ADOC maintains these tools where they are needed.
The court will adopt a modified version of the plaintiffs’ proposal regarding the movement of inmates after suicide attempts. The court will order that, when continued medical care is necessary, an inmate who has attempted suicide must be moved to the medical or healthcare unit for continued medical care as soon as ADOC staff may safely move them, unless medically contraindicated. Dr. Burns testified that inmates in need of continued care should be moved to the infirmary, where there is greater access to medical equipment. See June 4, 2021, R.D. Trial Tr. at 69. However, Dr. Metzner noted that not all suicide attempts may require medical interventions. See June 30, 2021, R.D. Trial Tr. at 151. In light of his testimony, the court narrows the plaintiffs’ proposed provision to tailor relief to the circumstances in which this measure is needed, when an inmate requires such care.
The court will adopt the plaintiffs’ proposed provision that, if an inmate dies as a result of a suicide, his or her body must be moved to a private area outside of any occupied housing unit and outside the view of other inmates as soon as possible. Tommy McConathy's body remained in his cell within the stabilization unit for nearly five hours after he was pronounced dead. See May 24, 2021, R.D. Trial Tr. at 169; Incident Report (P-3308) at ADOC546330. This was "long enough that the rest of the institution knew that he was there, dead in his cell, and that he was being taken out by the coroner's office." June 22, 2021, R.D. Trial Tr. at 79 (testimony of Dr. Burns). Dr. Burns credibly testified that allowing a deceased inmate's body to remain longer than necessary in the same unit with inmates who may have known that individual risks "traumatizing" those other inmates. June 4, 2021, R.D. Trial Tr. at 70. Requiring the body to be moved to a more private area as soon as possible is necessary to mitigate this risk of inflicting needless psychological harm and potentially prompting other suicidal behavior.
c. PLRA Findings
In addition to constant and close watch, quick intervention in suicide attempts is one of the most critically needed procedures to prevent suicides. Relief is necessary to correct ADOC's unjustifiable delays in performing potentially life-saving actions with appropriate urgency. Although Dr. Burns identified several attempted interventions that appeared appropriate based on the available documentation, see June 7, 2021, R.D. Trial Tr. at 188-89; June 8, 2021, R.D. Trial Tr. at 159, this is not something that ADOC can afford to get right only some of the time, let alone with ADOC's current level of inconsistency.
The relief that the court orders is necessary and narrowly tailored to correct persistent problems in ADOC's immediate responses to suicide attempts. The ordered provisions narrowly address procedures in which the evidence reflects persistent delays: cutting down prisoners who have attempted suicide by hanging, initiating life-saving measures such as CPR, and moving prisoners or their bodies to locations that will facilitate medical care as needed and greater privacy. These provisions are the least intrusive means that can protect the life and safety of prisoners with serious mental-health needs when they or prisoners around them attempt suicide or other serious self-injurious behavior.
2. Suicide Watch Placement
a. The Parties’ Proposed Provisions
In order to evaluate the needs of inmates who are placed on suicide watch, both parties propose that, following an inmate's initial placement on constant observation, the inmate must be evaluated using a suicide risk assessment to determine whether the individual is acutely suicidal, nonacutely suicidal, or not suicidal. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.2.3; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 9.1.3.2. The plaintiffs further propose the requirement that inmates admitted to suicide watch must be considered for placement on the mental-health caseload and that, if they are not placed on the caseload, their medical chart must document the clinical rationale for that determination. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.2.1.
With respect to the procedure for placing inmates on suicide watch, both parties propose the restriction that a suicidal inmate must not (or should not, in the defendants’ proposed provision) be handcuffed before such placement, unless the inmate's security level requires it or the inmate is engaged in "serious disruptive and dangerous activity" that requires the use of mechanical restraints. Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.2.4; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 9.1.3.1. The plaintiffs propose the additional requirement that, "[b]efore a prisoner is placed on suicide watch, a nurse must examine the prisoner and complete a body chart." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.2.2.
b. The Court's Ordered Relief
In agreement with the parties’ proposals, the court will order that after each inmate's initial placement on constant observation, he or she must be evaluated using a suicide risk assessment. These assessments are a critical component of a functional system for suicide prevention. As Dr. Burns explained, they are necessary to place an inmate on a level of watch corresponding to his or her level of risk. See June 3, 2021, R.D. Trial Tr. at 201. Dr. Metzner emphasized that it is "too dangerous" not to complete these assessments or to conduct them poorly. July 1, 2021, R.D. Trial Tr. at 158.
40 Yet ADOC's completion of these suicide risk assessments is inconsistent, even in the face of a court order requiring compliance. Completed suicide risk assessments were not found in the mental-health records of Jaquel Alexander for all 11 of his placements on suicide watch. See May 24, 2021, R.D. Trial Tr. at 69-71; Jaquel Alexander Psychological Autopsy (P-3298) at ADOC0539039. Travis Jackson was not placed on suicide watch and did not receive a suicide risk assessment after he set his cell on fire. See May 24, 2021, R.D. Trial Tr. at 137; Travis Jackson Mental-Health Records (P-3314) at ADOC0547155; Travis Jackson Psychological Autopsy (P-3315) at ADOC0547208. The same was true for inmate T.M. after he set himself on fire. See May 25, 2021, R.D. Trial Tr. at 52, 54. Coupled with the failure to place inmates on constant observation prior to completion of the assessment, the problem of inconsistent, incomplete, or delayed suicide risk assessments permits inmates to be placed and remain in clinically inappropriate environments. In the absence of a suicide risk assessment after he set his cell on fire, Jackson was placed in segregation several days later, where he committed suicide the next month. See May 24, 2021, R.D. Trial Tr. at 144-46. And when Alexander verbalized suicidal ideation and mental-health staff decided to assess him the following morning, he was returned to his cell without any precautions, and he committed suicide hours later. See id. at 65-67. In light of the expert testimony and the harms that have resulted from delays and failures in this process, the court finds it necessary to order the completion of suicide risk assessments to address ADOC's failures to provide adequate protection to inmates with serious mental-health needs.
The court will also adopt the plaintiffs’ proposed provision requiring that inmates admitted to suicide watch must be considered for placement on the mental-health caseload and that, if he or she is not placed on the caseload, the clinical rationale must be documented in his or her medical chart. Just as the court found in the suicide prevention opinion, see Braggs, 383 F. Supp. 3d at 1281, ADOC persists in its failure to consider suicidal inmates for placement on the mental-health caseload. Dr. Burns highlighted multiple inmates who were not placed on the caseload, even temporarily, after multiple placements on suicide watch. Marquell Underwood was placed on acute suicide watch twice in the 6 months before he committed suicide, without any indication that he was considered for placement on the mental-health caseload. See May 24, 2021, R.D. Trial Tr. at 57. Travis Jackson was never placed on the caseload despite multiple suicide watch placements and the attempt to set fire to his cell. See June 2, 2021, R.D. Trial Tr. at 126-27. Jaquel Alexander was not added to the caseload until his fifth or sixth placement on suicide watch. See May 24, 2021, R.D. Trial Tr. at 68. Dr. Burns credibly testified that requiring the documented consideration of suicidal inmates for placement on the mental-health caseload is necessary to minimize the risk that inmates’ serious mental-health needs will be neglected, despite potentially repeated mental-health crises. See June 3, 2021, R.D. Trial Tr. at 197-98.
The court will order compliance with the plaintiffs’ proposal that, before an inmate is placed on suicide watch, a nurse must examine the inmate and complete a body chart. This examination is necessary to identify and address the immediate medical needs, as well as the mental-health needs, of an inmate who is placed on suicide watch. As Dr. Burns testified, inmates placed on suicide watch may be experiencing a number of medical issues that require attention, including overdose, substance use, or injuries from self-harm. See id. at 199. Completion of a body chart is necessary both to treat any such issues and to identify them for consideration in the inmate's mental-health care. Absent a body chart, the evidence reflects that these issues sometimes go undocumented for prisoners placed on suicide watch. For instance, Dr. Burns testified that a body chart completed the day after Danny Tucker was released from nonacute suicide watch identified a wrist laceration that had required 10 staples, which was not reflected in any prior mental-health records. See May 24, 2021, R.D. Trial Tr. at 193-94. Because it is dangerous not to complete these body charts consistently, the court finds that relief is necessary.
The court will not order compliance with the parties’ proposed provisions limiting the handcuffing of inmates prior to placement on suicide watch. While it is important to avoid punishing mentally ill inmates for accurately reporting their suicidality, which may discourage them from seeking appropriate care and protection, see June 3, 2021, R.D. Trial Tr. at 202 (testimony of Dr. Burns), the evidence presented to the court does not indicate what ADOC's current practice is or whether it is harming inmates with mental-health needs.
c. PLRA Findings
The ordered relief is necessary to ensure that inmates expressing suicidality are safely placed on suicide watch, that the level of monitoring and treatment they receive is sufficient to meet their risk of self-harm, and that they are considered for more regular mental-health care to address the risk of recurrent self-harmful behaviors. This relief is narrowly tailored and minimally intrusive to correct ADOC's failures to address adequately inmates’ immediate suicidality and underlying mental-health needs.
3. Suicide Watch Cells
a. The Parties’ Proposed Provisions
With respect to the physical condition of suicide watch cells, the plaintiffs propose the requirement that ADOC must make all suicide watch cells suicide-resistant. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.7.1. They propose the same requirement for cells in stabilization units. See id. at § 10.4. Under their proposal, the EMT would have the discretion to determine whether cells are suicide-resistant, but cells that satisfy the conditions specified in Lindsay M. Hayes's Checklist for the "Suicide-Resistant" Design of Correctional Facilities (Doc. 3206-5) would necessarily meet this requirement. See id. at § 9.7.1. They further propose that ADOC must physically inspect all suicide watch cells on a quarterly basis to ensure that they remain suicide-resistant, see id. at § 9.7.3, and that, between inmate admissions, ADOC must clean and inspect these cells to eliminate biohazards and confirm that no contraband is present, see id. at § 9.7.5. The defendants propose no provisions regarding the condition and maintenance of suicide watch cells.
To ensure the availability of a sufficient number of suicide watch cells, the plaintiffs propose that ADOC must determine the appropriate number of suicide-resistant cells for each ADOC major facility and submit its numbers to the EMT for approval. See id. at § 9.7.2. To accommodate the possibility that more cells will be needed than are available, the plaintiffs propose that "ADOC may designate areas or cells where a prisoner could be temporarily placed when a suicide watch cell is unavailable, provided that the prisoner is on ‘constant observation,’ regardless of level of watch." Id. at § 9.7.4. The defendants similarly propose that ADOC may designate areas or cells for this temporary placement when a suicide watch cell is unavailable, except that constant observation would only be required for acutely suicidal inmates and close watch would be required for non-acutely suicidal inmates. See Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 9.1.2.
b. The Court's Ordered Relief
41 The court will order that all suicide watch and stabilization unit cells must be suicide-resistant. As explained in the court's discussion of ADOC's chronic understaffing, this will require that ADOC must physically inspect these cells for suicide-resistance prior to each use and conduct a more comprehensive inspection every three months to ensure that the cells remain suicide-resistant. Cells shall be deemed suicide-resistant if they meet the requirements set forth in Lindsay M. Hayes's Checklist for the "Suicide Resistant" Design of Correctional Facilities (Doc. 3206-5).
It is effectively axiomatic that suicide watch and stabilization unit cells must be suicide-resistant. Suicide watch cells house individuals who are acutely or non-acutely suicidal. Stabilization units are designed to house "patients who are suffering from acute mental-health problems," including "conditions causing an acute risk of self-harm," and who "have not been stabilized through other interventions." Braggs, 257 F. Supp. 3d at 1183. The failure to ensure that these cells are suicide-resistant poses a grave danger to individuals who are experiencing suicidality or other serious mental-health issues.
In the absence of any proposal by ADOC to define what it means for cells to be suicide-resistant, the court finds that compliance with the conditions contained in the checklist developed by Lindsay M. Hayes (Doc. 3206-5) is sufficient for a cell to be considered suicide-resistant. This checklist provides for the elimination of tie-off points and other structural elements that facilitate suicide attempts, as well as the maintenance of adequate visibility into the cell to allow monitoring. The parties previously agreed to the use of this set of conditions to ensure that cells are suicide-resistant. See Suicide Prevention Stipulations (Doc. 2606-1) at 6 (providing 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"); ADA Transition Plan for Programs and Services Provided to Inmates (Doc. 2635-1) at 41 ("All crisis cells ... are to comply with the checklist developed by Lindsay M. Hayes.").
The death of Tommy McConathy makes clear that suicide-resistance is not a one-time task. Roughly seven months after ADOC certified that it had "effectively retrofitted all [stabilization unit] cells to ensure suicide resistance," Resp. to Phase 2A Order on Inpatient Treatment (Doc. 2880) at 4, McConathy hanged himself from the ventilation grate above the sink in his stabilization unit cell, see May 24, 2021, R.D. Trial Tr. at 153-54. Although Dr. Metzner testified, based on information reported to him by an ADOC official, that the grate had been suicide-resistant but for the fact that it was broken, creating a tie-off point, he could not say how long the grate was broken prior to McConathy's death. See July 1, 2021, R.D. Trial Tr. at 2-4. Even if McConathy broke the grate himself, it is deeply troubling that ADOC could place him in a cell that was required to be suicide-resistant without affirmative confirmation that there were no existing tie-off points. Moreover, even if prior inspection of the cell might not have prevented his death, it could have provided ADOC with crucial information about what happened and helped it to take remedial measures that would appropriately address the problem in the future.
With this evidence in mind, the court credits Dr. Burns's testimony that quarterly inspections are necessary to ensure that suicide watch and stabilization unit cells remain suicide-resistant over time and that changes that jeopardize the safety of the cell are addressed. See June 4, 2021, R.D. Trial Tr. at 78-79. But the court also agrees with Mr. Vail: "[E]very time" an occupant is changed out, an inspection prior to the next placement is the only way "to make sure that the last person didn't somehow compromise that cell" by creating a tie-off point or introducing another potential hazard. May 28, 2021, R.D. Trial Tr. at 131. Independently, neither inspection is sufficient to correct the systemic problem that ADOC and this court must confront: At least with ADOC's continued severity of understaffing, preplacement inspections cannot feasibly occur with the necessary completeness, and quarterly inspections inherently do not occur with the necessary frequency.
Due to the nature of these inspections, the court will order that the quarterly inspections, but not the preplacement inspections, must be documented. Documentation of quarterly inspections, beyond verifying that the inspections occur, will enable ADOC and the EMT to track the hazards that are detected—hazards which, the court expects, may be less readily apparent than those that can be identified immediately prior to a placement.
With respect to preplacement inspections, the court will further order that, before placing an inmate in a stabilization unit or suicide watch cell, ADOC must clean the cell and remove any contraband. During the omnibus remedial proceedings, the court heard evidence of inmates in suicide watch cells who had access to contraband with which they could harm themselves. After cutting his arm and receiving sutures for the laceration, inmate M.H. was able to use a razor blade to reopen the wound while on acute suicide watch. See May 25, 2021, R.D. Trial Tr. at 43-44. Similarly, inmate M.W. cut himself with a razor blade that he brought into his crisis cell when he was placed on nonacute suicide watch. See May 25, 2021, R.D. Trial Tr. at 38. Dr. Burns also testified that multiple inmates informed her that they had been placed in crisis cells that contained the bodily fluids of previous inhabitants. See June 22, 2021, R.D. Trial Tr. at 90. This evidence reflects the need for ADOC to ensure that suicide watch and stabilization unit cells do not contain contraband with which an individual could engage in self-injurious behavior or unclean conditions that are dangerous or could otherwise cause adverse clinical consequences for an occupant's mental health.
The court will not order relief with respect to the quantity of suicide-resistant cells in each ADOC major facility. While it is necessary for suicide-resistant cells to be available at every ADOC major facility, see June 4, 2021, R.D. Trial Tr. at 77-78 (testimony of Dr. Burns), current evidence does not reflect the "chronic shortage of crisis cells" that the court found in the liability opinion, Braggs, 257 F. Supp. 3d at 1222. As with the issue of inspections, the court is open to revisiting this area if ADOC stops having enough suicide-resistant cells to accommodate the need for them or if the monitoring team finds that prisoners are not being placed in safe suicide watch cells when they need to be. But the evidence before the court does not necessitate relief at this time.
The court will adopt the plaintiffs’ proposal allowing ADOC to designate areas or cells where an inmate could be temporarily placed when a suicide watch cell is unavailable, provided that the inmate remains on constant observation during this time. For the most part, this provision is permissive rather than constraining. Consistent with both parties’ proposals, the provision preserves ADOC's discretion in the temporary placement of an inmate awaiting the availability of a suicide-resistant cell. Where the parties disagree is whether inmates who are not acutely suicidal may be left in these areas on only close watch, rather than constant observation. For many of the same reasons that constant observation is necessary to protect inmates awaiting responses to emergent referrals, the court agrees with the plaintiffs that constant observation is necessary here as well. Even the temporary placement of a suicidal inmate in an environment that is not suicide-resistant is "quite dangerous." Braggs, 257 F. Supp. 2d at 1225. Until the inmate can be placed in a cell that is suicide-resistant, constant observation is essential to protect the inmate's safety in the event that he or she decompensates or his or her mental-health needs prove more serious than initially assessed. See June 4, 2021, R.D. Trial Tr. at 79-80 (testimony of Dr. Burns).
c. PLRA Findings
Suicide watch cells and stabilization unit cells house inmates when they are particularly vulnerable and in need of heightened protection. The relief that the court orders is necessary to protect the safety of these inmates when they are suicidal or otherwise at a serious risk of self-harm. Before an inmate is placed in a suicide watch or stabilization unit cell, ADOC must be able to state confidently that the cell is, and remains, safe and suicide-resistant. The court finds that comprehensive quarterly inspections, coupled with visual preplacement inspections, are necessary to ensure that suicide watch and stabilization unit cells are suicide-resistant when they need to be. And, because potential hazards to an inmate's safety and mental health extend beyond the physical features of the cell itself to also its contents, including the presence of contraband or unsanitary conditions, preplacement cleaning and removal of contraband is necessary as well. The provisions that the court adopts are narrowly tailored to correct ADOC's failures to protect inmates against this range of dangers, from decompensation and self-harm through suicide attempts and death. These provisions are the least intrusive means that will sufficiently address these dire needs.
When an inmate is awaiting placement in a suicide-resistant cell, constant observation is necessary to protect against the same dangers that suicide-resistant cells are meant to protect against. Requiring constant observation is narrowly tailored to protect the inmate's safety until structural safeguards may permit a lower degree of monitoring as appropriate. This requirement is the least intrusive means that will suffice to keep inmates who may be experiencing varying levels of suicidality safe in a space that has not been specifically designed to be suicide-resistant.
4. Observation
a. The Parties’ Proposed Provisions
Both parties propose that any inmate determined to be acutely suicidal must be monitored through a "constant observation" procedure, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 1.3 (defining "acutely suicidal"); Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 9.1.4.1, and that any inmate determined to be nonacutely suicidal must be monitored through a "close watch" procedure that ensures monitoring at staggered intervals not to exceed 15 minutes, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 1.20 (defining "nonacutely suicidal"); Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 9.1.4.2. In addition to these provisions, the defendants specify that mental-health observation "will not be used as an alternate placement for inmates who should be placed on suicide watch." Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 9.1.1.
Both parties propose that constant observation and close watch must be contemporaneously documented at staggered intervals not to exceed 15 minutes and that, upon an inmate's discharge from suicide watch, these observation records must be included in the inmate's medical record. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.3.1; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 9.2. Additionally, the defendants’ proposal provides for the creation of a "post-suicide watch summary" based on these records. See Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 9.2.
Both parties also propose that the mental-health staff must ensure the routine oversight of observers. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.3.2; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 9.1.4.3. The plaintiffs’ proposal further specifies that the mental-health staff must evaluate the equipment that is available to observers to ensure that appropriate observation can occur. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.3.2.
b. The Court's Ordered Relief
42 The court will order that acutely suicidal inmates must be monitored through constant observation and non-acutely suicidal inmates must be monitored through close watch at staggered intervals not to exceed 15 minutes. Observation is the last line of defense to protect inmates in crisis from attempting suicide or serious self-harm. Unequivocally, failure at this stage can be a matter of life or death. Consequently, as Dr. Metzner testified, it is "too risky" for these observation procedures not to happen "100 percent of the time." June 29, 2021, R.D. Trial Tr. at 142; see also July 2, 2021, R.D. Trial Tr. at 134-35.
Evidence presented at the omnibus remedial hearings reflects that ADOC has made improvements to the consistency of its observation practices. Internal audits of multiple facilities reflected positive changes in the area of "suicide watch monitoring," and the court received numerous observation logs that reflected observations on close watch at appropriately staggered intervals, see June 8, 2021, R.D. Trial Tr. at 90-92 (testimony of Dr. Burns). Even so, it remains necessary for the court to order compliance with these provisions to address the failures that do occur and to prevent reversion of ADOC's relatively recent progress. ADOC's progress in the area of observation is relatively recent, and, applying the compliance measure of ADOC's own expert, it remains incomplete. Moreover, according to Wexford, the improvements that have been made in this area have required it to divert resources away from the routine treatment of inmates with less acute needs, "disrupt[ing] all routine mental health caseload activities." Pls.’ Ex. 3323 at 3 (emphasis omitted). While this tradeoff may be necessary in the short-term to avert some of the most severe harms, it surely does not reflect that ADOC has "completely and irrevocably eradicated" the constitutional violation of failing to protect suicidal prisoners. Thomas v. Bryant, 614 F.3d 1288, 1321 (11th Cir. 2010) (quoting LaMarca v. Turner, 995 F.2d 1526, 1542 (11th Cir. 1993) ). In light of the need for ADOC reliably to apply constant observation and close watch procedures and the risk that ADOC's progress will not be sustained in the absence of a court order, the court finds that relief remains necessary.
The court need not, however, order compliance with the defendants’ proposed provision barring the use of mental-health observation as a substitute for suicide watch. Although ADOC's misuse of mental-health observation was a significant problem previously, Dr. Burns testified that she had not seen recent instances in which inmates in crisis were placed on mental-health observation instead of suicide watch. See June 8, 2021, R.D. Trial Tr. at 166. Moreover, this proposed provision is effectively redundant with the provisions that the court does order requiring suicidal prisoners to be monitored via constant observation or close watch.
Consistent with the parties’ proposals and with the overall importance of ensuring that these observation procedures are followed, the court will order that both constant observation and close watch must be contemporaneously documented. In addition to confirming that these procedures are followed, contemporaneous documentation that is included in an inmate's medical file is necessary to ensure that information about the inmate's behavior can be factored into clinical decisions about treatment and appropriate levels of care. See June 3, 2021, R.D. Trial Tr. at 204-05 (testimony of Dr. Burns). However, the court will not order that this contemporaneous documentation must be accompanied by a post-watch summary, as the defendants propose. These proposed summaries may prove useful to both the monitoring team and inmates’ treatment teams, but the court does not find that ordering completion of these summaries is necessary.
Finally, the court will order that ADOC must take appropriate steps to ensure that observers who monitor inmates on suicide watch perform their duties as required. In the suicide prevention opinion, the court found that, "[i]n none of the facilities" visited by experts for both sides "were the ‘watchers’ positioned appropriately to permit full visibility into the safe cells or constant visibility of the inmates being observed." Braggs, 383 F. Supp. 3d at 1259 (internal quotation marks omitted). While the court expects that continued training of observers will help to address this concern the court will also order that ADOC take other appropriate steps—such as routine oversight, see June 8, 2021, R.D. Trial Tr. at 93 (testimony of Dr. Burns, noting that "direct supervision of the observers" contributed to improvements in the consistency of staggered watches at the facilities she toured), or examination of the equipment available to observers, see June 3, 2021, R.D. Trial Tr. at 205 (testimony of Dr. Burns, noting that the chairs available to observers at some facilities she toured did not provide observers with "an unobstructed view" into the cells)—to ensure that observation is performed correctly.
c. PLRA Findings
Consistently applied constant observation and close watch procedures are fundamental to constitutionally adequate crisis-level care. Current relief is necessary to bring ADOC into full compliance with these essential requirements and to ensure that ADOC sustains compliance as it addresses the constitutional violations that have persisted throughout other facets of its system of mental-health care. Requiring ADOC to apply and document these procedures is narrowly tailored and minimally intrusive to protect suicidal inmates’ immediate safety and to ensure their access to adequately informed treatment and care.
5. Suicide Watch Conditions
a. The Parties’ Proposed Provisions
The plaintiffs propose the requirement that, unless clinically indicated otherwise, inmates on suicide watch must be provided with shower shoes or other footwear, socks, suicide-resistant toothbrushes, other specified hygiene products, and regular or sack meals with approved nutritional content and suicide-resistant eating utensils. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.3.3. They further propose that inmates on suicide watch must receive the same privileges, such as visits, phone calls, or mail, afforded by their most recent housing assignment, as clinically appropriate. See id. at § 9.3.4. Finally, they propose that inmates housed in crisis cells or medical units must be provided appropriate out-of-cell activity after 72 hours, unless such activity is contraindicated and the clinical rationale is documented in the medical record. See id. at § 9.3.5.
b. The Court's Ordered Relief
43 The court will order that inmates on suicide watch must receive suicide-resistant footwear, hygiene products, and nutritionally appropriate meals as clinically appropriate. During facility tours prior to the suicide prevention trial, experts for both parties saw that some inmates on suicide watch were not provided shower shoes for out-of-cell movement, forcing them to walk around prisons with bare feet. See June 3, 2021, R.D. Trial Tr. at 210 (testimony of Dr. Burns). Dr. Burns also noted that inmates on suicide watch were provided the same sack meal, or in some cases one of two sack meals, for every daily meal. Id. at 211. As Dr. Burns explained, these deprivations caused extended placements on suicide watch to be "frankly, punitive." Braggs, 383 F. Supp. 3d at 1270 (internal quotation marks omitted).
Requiring that inmates on suicide watch receive appropriate footwear, hygiene products, and meals as clinically indicated is necessary to prevent conditions in suicide watch cells from harming inmates’ mental health during an important crisis intervention. The court credits Dr. Burns's testimony that these items are an important part of the "therapeutic" care that inmates on suicide watch receive. June 3, 2021, R.D. Trial Tr. at 211. Rather than require the provision of specific items, however, the court orders simply that the mental-health providers who are better positioned to assess an inmate's mental-health needs and risks must exercise appropriate clinical judgment with respect to the items that are provided.
44 For the same reasons, the court finds it necessary to order that inmates on suicide watch must receive the same privileges afforded by their last housing assignment as clinically appropriate. As Dr. Burns explained, these privileges may have therapeutic value in the treatment of inmates who are placed on suicide watch, or they may have the potential to be harmful. See June 3, 2021, R.D. Trial Tr. at 211-12; June 23, 2021, R.D. Trial Tr. at 216-17. By assigning the determination of which privileges an inmate should and should not receive to the clinical discretion of treating mental-health staff, this provision ensures that the treatment of inmates on suicide watch will be adequately responsive to their individual mental-health needs.
45 The court will also order that inmates housed in crisis cells, medical cells, or the infirmary must be provided appropriate out-of-cell activity after 72 hours, unless such activity is clinically contraindicated. As observed in the context of restrictive housing, the experts for both parties, the American Correctional Association, and ADOC's own regulations all recognize the importance of out-of-cell time to prevent decompensation and other harms to prisoners’ mental health. When crisis cells are functioning as designed, placements are generally short in duration, reducing the need for out-of-cell time. As experts for both sides explained at the liability trial, "crisis-cell placement is meant to be temporary and should not last longer than 72 hours, because the harsh effects of prolonged isolation in a crisis cell can harm patients’ mental health." Braggs, 257 F. Supp. 3d at 1226. However, ADOC's use of crisis cells and medical cells frequently runs beyond 72 hours, amplifying the potential adverse effects of isolation. See id. During the suicide prevention trial, experts for both sides identified many inmates who remained on suicide watch for longer than 72 hours, in spite of an ADOC policy requiring referral to a higher level of care. See Braggs, 383 F. Supp. 3d at 1269. In such situations where an inmate remains on suicide watch for longer than 72 hours, as in the context of restrictive housing, the court credits Dr. Burns's testimony that out-of-cell activity is a necessary component of the inmate's mental-health care, except when it is clinically contraindicated. See June 3, 2021, R.D. Trial Tr. at 212-13. However, the court will not order compliance with the plaintiffs’ proposed requirement to document the clinical rationale when activity is not provided. The court finds that there is insufficient evidence to impose this additional requirement at this time.
c. PLRA Findings
Relief regarding the conditions of prisoners placed on suicide watch is necessary in light of the length of time that many inmates remain on suicide watch without being referred to a higher level of care and the potential for adverse mental-health consequences when inmates experiencing mental-health crises are subjected to clinically inappropriate conditions for extended periods of time. Some restriction on inmates’ access to items and activities is appropriate, and indeed necessary, for suicide watch to function properly. Indiscriminate deprivation is not. The provisions that the court orders are necessary to redress the inadequate treatment of inmates with serious mental-health needs during crisis placements, when they have been identified as experiencing a heightened risk of self-harm. By deferring to the clinical judgment of mental-health staff, the provisions are narrowly tailored to require that inmates receive these basic items and privileges only to the extent that mental-health staff determine to be clinically appropriate. These provisions are the least intrusive means that will address the problem, as they avoid intruding on the details of prison administration beyond what is necessary to ensure that inmates on suicide watch receive adequate treatment.
6. Referral to Higher Level of Care
a. The Parties’ Proposed Provisions
The plaintiffs propose the requirement that an inmate on suicide watch must be considered for referral to a higher level of care, such as a residential treatment unit, stabilization unit, or inpatient hospitalization, after remaining on watch for 72 hours and again after remaining on watch for 168 hours. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.4.1. They further propose, "If a patient remains on watch for 240 hours or longer and does not meet the criteria for discharge to outpatient mental health care, then the patient must be referred to a higher level of care as clinically appropriate." Id. The defendants propose similar provisions, except that they would limit these requirements to inmates on constant observation, rather than suicide watch generally. See Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at §§ 9.3.1, 9.3.2, 9.3.3. Their proposal also uses the phrase "different or higher level of care." Id. (emphasis added). Both parties propose that the clinical rationale for a decision not to refer an inmate to a higher level of care at each of these stages must be documented. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.4.1; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at §§ 9.3.1, 9.3.2, 9.3.3. The defendants further propose that documentation of a decision not to refer an inmate after 240 hours must be submitted to the mental-health vendor's director of psychiatry for review and evaluation. See Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 9.3.3.
Both parties additionally propose that any inmate who returns to suicide watch within 30 days of discharge from a previous watch or who receives 3 watch placements within 6 months must be considered for referral to a higher level of care. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.4.2; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 9.3.4. If the inmate is not referred to a higher level of care, documentation of the clinical rationale must be provided to OHS immediately, under the plaintiffs’ proposal, or within 72 hours, under the defendants’ proposal. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.4.2; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 9.3.4.
b. The Court's Ordered Relief
46 The court will adopt provisions requiring that inmates be considered for referral to a different or higher level of care at the times identified by both parties. As noted previously, ADOC's placement of inmates on suicide watch for extended periods of time without consideration for referrals to a higher level of care has been a longstanding problem. In the liability opinion, the court found that inmates were considered for transfer to treatment units "only in a small fraction of the crisis placements that last longer than 72 hours." Braggs, 257 F. Supp. 3d at 1226. This problem continued to the time of the suicide prevention trial, where experts for both sides identified "multiple instances in which people remained on suicide watch for longer than 72 hours without any indication that they were considered for a higher level of care." Braggs, 383 F. Supp. 3d at 1269. More recently, Dr. Burns and Dr. Metzner interviewed one inmate who spent almost a week on crisis placement in December 2020 without any indication that he was considered for referral to a higher level of care; he reported that 3 or 4 other inmates were housed in the crisis cell with him during that time. See May 25, 2021, R.D. Trial Tr. at 87-88; see also Pls.’ Ex. 3943 at ADOC0540559.
Dr. Burns explained that this failure to consider referring inmates to a higher level of care contributes to long stays in "very restrictive" settings that may be clinically inappropriate to treat inmates’ mental-health needs. June 3, 2021, R.D. Trial Tr. at 214. It also inhibits inmates’ access to more meaningful, longer-term interventions that may be required to treat adequately their serious mental-health needs. See id. at 214-15.
To address this inadequate treatment of inmates on suicide watch, the court will order that, if an inmate remains on suicide watch for 72 hours, and again after 168 hours and 240 hours, he or she must be considered for referral to a different or higher level of care. In each instance, the clinical rationale for a decision not to refer the inmate to a different or higher level of care must be documented in the medical chart and tracked in the crisis utilization log or a similar tracking mechanism. The court will also adopt the defendants’ proposal that such decisions after 240 hours must also be sent to the mental-health vendor's director of psychiatry for evaluation.
In most respects, the plaintiffs’ and defendants’ proposals impose identical obligations. Both proposals preserve clinical discretion at each of the three milestones for consideration of referral to a different or higher level of care and require documentation of decisions not to make this referral. The most substantial distinction is that the plaintiffs’ proposal measures time on suicide watch, whereas ADOC's proposal measures time on constant observation. Because constant observation and close watch both place inmates in restrictive settings, and because long-term placement on suicide watch in either form signals that an inmate may have substantial mental-health needs that are not being adequately addressed, the court finds that the plaintiffs’ broader requirement is necessary.
Although the defendants use "different or higher level of care" and the plaintiffs specify "higher level of care," both parties offer the same three examples for their respective proposals—the residential treatment unit, the stabilization unit, and inpatient hospitalization or hospital-level care.
The court will also adopt the provision proposed by both parties that any inmate who returns to suicide watch within 30 days of discharge from a previous watch or who receives 3 watch placements within 6 months must be considered for referral to a different or higher level of care, and that the clinical rationale for a decision not to refer an inmate to a higher level of care must be documented. This provision is necessary to address ADOC's failure to identify and adequately treat suicidal prisoners. As Dr. Burns explained, repeated crisis placements are a warning sign that an inmate's current level of care may be insufficient to meet his or her mental-health needs. See June 3, 2021, R.D. Trial Tr. at 216-17. Currently, however, this warning all too often goes unheeded. For instance, in addition to the delays in placing Jaquel Alexander on the mental-health caseload, he was never referred for a higher level of care despite his 11 crisis placements within a period of 6 months. See May 24, 2021, R.D. Trial Tr. at 68-70. Similarly, Marquell Underwood, Travis Jackson, and Danny Tucker also experienced multiple placements on suicide watch in the months before their deaths, without any indication that they were considered for referral to a higher level of care.
In ordering this provision, the court will adopt the defendants’ language requiring that the clinical rationale for a decision not to refer an inmate to a different or higher level of care must be provided to ADOC's Office of Health Services within 72 hours of the decision. The court finds that there is insufficient evidence to impose the plaintiffs’ proposed requirement for documentation to be provided immediately.
c. PLRA Findings
Current relief is necessary to correct the inadequate treatment of inmates who are placed on suicide watch, often repeatedly or for long periods of time. Suicide watch is an essential component of crisis intervention for suicidal inmates, but it is not a substitute for adequate mental-health treatment. Evidence since the liability trial reflects that failures to consider referring suicidal inmates for a different or higher level of care have contributed to the inadequate treatment of many mentally ill inmates, including some who later committed suicide.
The provisions that the court orders are necessary to address this violation. The ordered provisions mirror the proposals of both parties with respect to the events that trigger the need to consider referral to a higher level of care. At the suicide prevention trial, experts for both parties agreed that these same events—placement on suicide watch for 72, 168, and 240 hours and two placements within 30 days or three placements within six months—necessitate consideration of referral to a higher level of care. See Braggs, 383 F. Supp. 3d at 1268-70. The court agrees. And in light of ADOC's history of violations and the need for continuity of care, the court finds that the requirement to document decisions not to refer is necessary as well. By requiring only that mental-health staff exercise their clinical discretion in response to these concrete warning signs that an inmate in crisis may require more intensive treatment and care, the ordered provisions are narrowly tailored and minimally intrusive to correct the ADOC's failure to provide adequate treatment to inmates on suicide watch.
7. Discharge
a. The Parties’ Proposed Provisions
The plaintiffs propose the provision, "Each patient placed on constant watch must be reduced to a close watch prior to release from suicide watch unless a clinician determines and documents the propriety of discharging a patient to a less restrictive setting to avoid unnecessarily continuing the confinement of the patient." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.5.1.1. They further propose that, prior to an inmate's discharge from suicide watch, the inmate must receive a confidential, out-of-cell evaluation or, if such an evaluation is not possible due to documented clinical concerns, mental-health staff must consider whether referral to a higher level of care is appropriate. See id. at § 9.5.1.2. The defendants propose the similar provision, "An inmate may be discharged from suicide watch after an out-of-cell, confidential evaluation by a psychiatrist, psychologist, CRNP, or counselor, unless such evaluation is not possible due to documented clinical concerns which may result in the inmate being discharged from suicide watch to a different or higher level of care." Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 9.4.1.
The plaintiffs propose that an inmate discharged from suicide watch must not be transferred to a restrictive housing unit unless there is a documented exceptional circumstance. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.5.2.1. Both parties propose that any such transfer must be approved by either the Deputy Commissioner of Operations for male-designated facilities, the Deputy Commissioner of Women's Services for female-designated facilities, or their designee. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.5.2.2; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 9.4.2.
b. The Court's Ordered Relief
47 The court will order that, prior to discharge from suicide watch, an inmate must receive a confidential, out-of-cell evaluation by a psychiatrist, psychologist, CRNP, or counselor, or, when such an evaluation is not possible due to documented clinical concerns, the evaluating mental-health staff must consider whether referral to a different or higher level of care is appropriate. At the liability trial, experts for both parties explained that "suicidal prisoners should be released only with the approval of a psychiatric provider (psychiatrist or nurse practitioner) who has made a face-to-face assessment that their condition was sufficiently stabilized to warrant it." Braggs, 257 F. Supp. 3d at 1230. As with the initial suicide risk assessment, this evaluation is necessary to identify continued suicide risks and inform decisions regarding treatment and monitoring. See June 3, 2021, R.D. Trial Tr. at 218 (testimony of Dr. Burns).
ADOC's completion of this assessment prior to discharge remains a problem. Internal audits of numerous ADOC major facilities indicate that these assessments still are not completed for many prisoners. See, e.g., Pls.’ Ex. 3558 at 1, 25 (audit of Bullock, noting that 4 out of 16 inmates reviewed in March 2020 and 1 of 10 in November 2020 did not receive a discharge evaluation before release from suicide watch); Pls.’ Ex. 3562 at 1 (audit of Hamilton, noting that 2 out of 6 inmates reviewed in March 2020 did not receive this evaluation); Pls.’ Ex. 3626 at 1 (spot audit of Ventress, noting that the facility's compliance rate in the area of "suicide watch discharge" dropped from 76.5 % in December 2020 to 31.1 % in March 2021). While numerous audits reflect recent progress, see, e.g., Pls.’ Ex. 3559 at 1, 18, 28 (audit of Donaldson, finding that 7 of 20 inmates reviewed in March 2020 did not receive a discharge evaluation, but all inmates in the November 2020 and March 2021 samples did), the court remains concerned about the failures that have occurred despite a court-ordered obligation to conduct these evaluations. In light of the importance of these evaluations to ensure the adequate treatment of recently suicidal inmates and to prevent their placement in inappropriate settings, the court finds that it must continue to order that these discharge evaluations occur.
The court will not, however, order compliance with the plaintiffs’ provision for the stepdown of inmates from constant observation to close watch before discharge. Dr. Metzner testified that, while this stepdown process is "generally a good practice," it is not necessary in all cases. June 30, 2021, R.D. Trial Tr. at 79. Dr. Burns similarly emphasized that the purpose of the provision is not to set a hard rule, but to "allow clinical discretion on whether a patient needs to be stepped down ... before being discharged." June 3, 2021, R.D. Trial Tr. at 217. Because there is no evidence that mental-health staff do not recognize or exercise their clinical discretion in the decision to discharge an inmate from suicide watch, the plaintiffs’ proposed provision is unnecessary.
48 With respect to the discharge of inmates directly from suicide watch to segregation, the court will adopt both of the plaintiffs’ provisions, one of which the defendants also propose. The court will order that inmates discharged from suicide watch must not be transferred to segregation unless there is a documented exceptional circumstance and the transfer has been approved by the applicable ADOC official or a designee. Whatever may be said of ADOC's progress in the performance of discharge evaluations, in this area, ADOC persists in its unflinching failure to follow the court's order and its own policy, both of which already prohibit the discharge of inmates from suicide watch to a segregation unit absent an exceptional circumstance. After each of Travis Jackson's placements on suicide watch in 2019 and 2020, ADOC returned him directly to the restrictive housing unit without any documented exceptional circumstance. See May 24, 2021, R.D. Trial Tr. at 139-40. The psychological autopsy found that Jackson's depression and suicidal thoughts "appeared to coincide with [restrictive housing unit] placements" until he ultimately committed suicide in a restrictive housing unit in February 2021. Travis Jackson Psychological Autopsy (P-3315) at ADOC0547209. In a sample of emails approving discharge directly to segregation for 23 out of 24 inmates, Dr. Burns found that almost none of the emails included mention of purported exceptional circumstances or consideration of alternative placements. See May 26, 2021, R.D. Trial Tr. at 81. Many of these emails approved transfers to segregation within minutes of the request. Current evidence vindicates the assessment of a provider at Ventress: Inmates are transferred from suicide watch to segregation as "a matter of course." Pls.’ Ex. 3320 at 1. ADOC's practice since the liability trial makes clear that nothing short of a court order, coupled with aggressive monitoring, will suffice to obtain ADOC's compliance with these necessary protections.
c. PLRA Findings
Discharge from suicide watch represents a critical juncture in inmates’ mental-health treatment. If handled without appropriate regard for their mental-health needs, discharge throws still vulnerable inmates into dangerous settings without adequate treatment or monitoring. The risk posed by these failures is at its apex when suicidal inmates are discharged directly to segregation, where most suicides occur. See June 29, 2021, R.D. Trial Tr. at 101 (testimony of Dr. Metzner, noting the nationwide trend).
The ordered provisions are necessary and narrowly tailored to correct ADOC's continued failures to provide adequate treatment to inmates being released from suicide watch and to avoid discharging inmates from suicide watch to restrictive housing in the absence of exceptional circumstances. Requiring that discharge evaluations occur is the least intrusive means that will ensure the adequate placement and treatment of inmates who are discharged from suicide watch. And the combined protection of requiring that exceptional circumstances justifying placement in restrictive housing must be documented and approved is the least intrusive means that will correct ADOC's persistent failures to divert recently suicidal inmates away from segregation and toward safer alternatives.
8. Follow-Up
a. The Parties’ Proposed Provisions
The plaintiffs propose that, upon an inmate's discharge from suicide watch, mental-health staff must conduct a follow-up examination with the inmate on each of the first three days after discharge, followed by a fourth follow-up on the tenth day. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.6.1.1. The defendants propose that the inmate will receive follow-up mental-health examinations as clinically indicated. See Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 9.5.1. Both parties propose that these follow-up examinations must not take the place of other scheduled mental-health appointments but "may occur in connection with or contiguous with such appointments." See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.6.1.2; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 9.5.2. They further propose that these follow-up examinations must assess whether the inmate released from suicide watch is showing signs of ongoing crisis, whether he or she needs further follow-up examinations, and whether he or she should be added to the mental-health caseload or assigned a different mental-health code. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.6.1.3; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 9.5.2. The plaintiffs propose the further requirement that these examinations "must be conducted out-of-cell in a confidential setting, unless such an examination is not possible due to documented clinical concerns resulting in the patient being transferred to a higher level of care." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.6.1.1.
With respect to the transfer of inmates following suicide watch, the plaintiffs propose that, for 10 days following an inmate's discharge, ADOC may not transfer the inmate to another institution, except to return him or her from suicide watch to his or her sending institution prior to the commencement of follow-up examinations, without restarting the four follow-up examinations. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.6.1.4. After the four follow-up examinations have been completed, the plaintiffs propose that ADOC may transfer the inmate to any ADOC facility without the requirement for further follow-up examinations, unless clinically indicated. See id.
b. The Court's Ordered Relief
49 The court will order that, upon an inmate's discharge from suicide watch, mental-health staff must conduct a follow-up examination on each of the first three days after discharge, unless there is a documented clinical determination that the inmate was not suicidal at the time he or she was placed on suicide watch and did not become suicidal during the watch placement. These follow-up examinations must assess the substantive issues identified by the parties’ proposals. They must occur in a confidential, out-of-cell setting, unless such an examination is not possible due to documented clinical concerns. And, consistent with the parties’ proposals, the court will order that these examinations must not take the place of other scheduled mental-health appointments, although they may occur in connection with or contiguous with such appointments.
ADOC's current crisis-management approach to suicide prevention frequently neglects this crucial component of treatment for inmates with acute mental-health needs. For instance, inmate M.W. waited four days after his transfer from suicide watch before he received his first follow-up examination. See June 9, 2021, R.D. Trial Tr. at 39-40. Inmate J.B. received no follow-up at all after he attempted to overdose on antidepressants he had stockpiled, was placed on acute suicide watch with multiple identified suicide risk factors, and was taken off suicide watch the next day. See May 25, 2021, R.D. Trial Tr. at 50-52. Similar failures plagued the experiences of inmates who subsequently committed suicide. See, e.g., May 24, 2021, R.D. Trial Tr. at 140-41 (Travis Jackson missed numerous follow-up examinations after his multiple crisis placements). In recognition of this problem, ADOC observed in a February 2020 letter to Wexford that "follow-up examinations were not conducted consistently at the required intervals." See Pls.’ Ex. 3322 at 3.
These failures pose serious dangers to inmates who are discharged from suicide watch. An inmate's mental-health needs do not dissipate the moment he or she is discharged from suicide watch. Much to the contrary, as Dr. Burns testified, the initial transition period following suicide watch is a "dangerous" time for inmates who must adapt to more infrequent contact with mental-health staff. June 3, 2021, R.D. Trial Tr. at 222-23; see also Braggs, 383 F. Supp. 3d at 1267 (noting consistent testimony of ADOC's mental-health expert, Dr. Perrien, at the suicide prevention trial that "the period post watch is a vulnerable time"). Dr. Burns credibly testified that ADOC's persistent failures to provide follow-up examinations contributed to the inadequate treatment of inmates who later committed suicide. See id. at 152 (testimony of Dr. Burns, connecting these failures to the inadequacy of mental-health care received by Travis Jackson).
Current conditions mandate relief to ensure that inmates discharged from suicide watch receive constitutionally adequate care. The court finds that the specificity of the plaintiffs’ proposal is necessary to address ADOC's continued failures to conduct follow-up examinations consistently. Even under a court order requiring compliance with the same timeframes proposed by the plaintiffs—timeframes which originated in the joint recommendations of both parties’ experts at the suicide prevention trial, see Braggs, 383 F. Supp. 3d at 1266-67 —ADOC has continued to allow inmates being discharged from suicide watch to fall through the cracks at a particularly "dangerous" and "vulnerable" time. As the court observed in its suicide prevention opinion, it "cannot simply trust that ADOC will provide an adequate number of follow-ups without a court order." Id. at 1268. Requiring follow-up examinations in the days immediately following an inmate's release from suicide watch is necessary to correct ADOC's continued violations.
Still, the court's ordered relief narrows that requested by the plaintiffs in two ways. First, the court incorporates Dr. Metzner's testimony that a documented clinical determination that an inmate was not and is not suicidal obviates the need for follow-up examinations. See June 30, 2021, R.D. Trial Tr. at 75-76. Second, the court does not order compliance with the requirement to conduct a fourth follow-up examination on the tenth day after discharge. Although Dr. Burns credibly testified that a follow-up examination after the immediate transition period is important to ensure that the inmate is "stable" after adjusting to a different environment, June 21, 2021, R.D. Trial Tr. at 63-64, she conceded that the "days immediately after release" from suicide watch present the most serious risk, June 23, 2021, R.D. Trial Tr. at 220. In light of this testimony, as well as the relatively limited evidence to support the requirement to conduct a follow-up examination specifically on the tenth day following discharge, the court leaves the provision of additional follow-up care after the first three examinations to the clinical judgment of ADOC's mental-health staff.
50 The court will further adopt the plaintiffs’ proposal that an inmate's transfer from suicide watch to another institution prior to the completion of the three ordered follow-up examinations restarts the requirement to complete follow-up examinations on each of the three days following the transfer. ADOC's frequent transfers of prisoners with serious mental-health needs may be disruptive in any case, but the dangers are most pronounced immediately following an inmate's discharge from suicide watch. See Braggs, 383 F. Supp. 3d at 1267 (noting ADOC's expert's testimony that, when "someone is being moved, that increases the stress that an already vulnerable person experiences"). Transfers between facilities continue to jeopardize the continuity of mental-health care received by inmates immediately following their discharge from suicide watch. For example, Dr. Burns testified that many of Travis Jackson's post-suicide watch follow-up examinations were missed as a result of his transfers between prisons. See May 24, 2021, R.D. Trial Tr. at 140-41. To address the dangers to inmates with serious mental-health needs when their follow-up care is interrupted, the court must require that ADOC's obligation to provide the three ordered follow-up examinations is reset when an inmate is transferred to another facility prior to completion of these examinations.
c. PLRA Findings
Meaningful follow-up care is a critical element of the protection and treatment of inmates who have expressed suicidality. The follow-up examinations that the court orders are necessary to protect vulnerable inmates in the dangerous transition period after their release from suicide watch into an environment in which their contacts with mental-health staff are more infrequent and there are fewer safeguards in place to prevent them from attempting suicide or other self-harm. By excluding inmates who are clinically determined not to have been suicidal, the ordered provisions are narrowly tailored to correct ADOC's ongoing failures to provide this necessary follow-up care to the inmates who require it. This relief is the least intrusive means that will ensure that inmates who are discharged from suicide watch receive adequate follow-up examinations to evaluate and treat any continued mental-health needs and to ensure that they remain stable following discharge.
9. Other Provisions Regarding Suicide Prevention
Both parties propose that suicide watch cells must not be designated as restrictive housing unit cells. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.2.5; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 9.1.1. The placement of segregation inmates in designated mental-health units was a "recurring" problem at the time of the liability opinion, undermining the usefulness of these units to treat prisoners with serious mental-health needs. Braggs, 257 F. Supp. 3d at 1212-13. Recently, however, there is not evidence that ADOC has continued this harmful practice. Consequently, this relief is unnecessary.
Consistent with § V.J of ADOC Administrative Regulation 629, the plaintiffs propose the requirement that "ADOC and/or its vendor must debrief staff and prisoners after a completed suicide or self-injurious behavior that would have resulted in death if there had been no intervention." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.1.6. There is evidence to support the importance of this practice. Dr. Burns explained that suicides are "traumatic" for inmates and responding staff alike. June 22, 2021, R.D. Trial Tr. at 80. However, ADOC has already adopted this policy as a regulation, and there is evidence that ADOC has implemented this policy in its responses to at least some completed suicides. See id. The court will not order this relief at this time.
The defendants propose the provision that, after intake and after an inmate is transferred from one ADOC major facility to another, "the inmate will be provided any facility-specific information concerning mental-health services and the way to access those services for himself/herself or for another inmate." Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 9.6.1. The court agrees that dissemination of this information is fundamental to inmates’ ability to request and receive adequate mental-health care. However, given the lack of evidence that ADOC has not meaningfully informed inmates regarding access to mental-health services, the court need not order this relief.
The plaintiffs propose the provision that qualified mental-health professionals "may conduct suicide risk assessments, discharge evaluations, and follow-up examinations either in person or by telehealth." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.8. When these examinations are conducted by telehealth, the plaintiffs propose that an RN must be in the room with the inmate. See id. While the court is sensitive to the limitations of telehealth, see June 3, 2021, R.D. Trial Tr. at 229-30 (testimony of Dr. Burns), there is no evidence that, to the extent ADOC uses telehealth, its practice is inappropriate. Requiring a mental-staff member to be in the room with an inmate during telehealth sessions may be an important measure to prevent mental-health providers from missing important observations of an inmate's behavior or lacking information from an inmate's medical chart, but the court will not order this relief at this time.
The plaintiffs further propose that associate licensed counselors working toward licensure may not conduct suicide risk assessments or follow-up examinations on their own, although they may participate in suicide risk assessments conducted by qualified mental-health professionals. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 9.8. ADOC's mental-health vendor at the time of the liability trial employed mental-health providers who were not independently licensed, see June 4, 2021, R.D. Trial Tr. at 47-48. However, there is insufficient evidence as to whether ADOC or its current vendor employs associate licensed counselors and, if so, what tasks these associate licensed counselors currently perform to warrant relief at this time.
K. Higher Levels of Care
As described previously, ADOC has made progress in its provision of hospital-level care in general, although problems with timely access to care remain. Its progress with respect to inpatient units, however, is less encouraging; its supply of inpatient beds has decreased since the court's May 2020 inpatient treatment opinion, and it has failed to address the issue of heat management in inpatient facilities.
1. Timely Access to Hospital-Level Care
a. The Parties’ Proposed Provisions
To remedy the lack of timely access to hospital-level care, the plaintiffs propose that the ADOC must comply with its own regulation regarding access to hospital-level care, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 10.1.1; that in the event a hospital refuses to admit an inmate referred for care, ADOC must attempt to obtain admission of the inmate at an alternative hospital, see id. at § 10.1.4; and that, until the EMT conducts its first audit, ADOC must notify the plaintiffs’ counsel when there are delays in the provision of hospital-level care, see id. at § 10.1.4.
The ADOC regulation to which the plaintiffs refer--AR 640, Advanced Inpatient Mental Healthcare (Doc. 3206-6)--imposes a series of deadlines for the provision of hospital-level care, including, but not limited to, the following: if an inmate is identified as possibly requiring hospital-level care, his treating physician must complete a certain form and send it to the director of psychiatry within one working day of completion; within 72 hours of receiving the form, a separate administrator--the director of psychiatry services--must review the inmate's medical record and assessment; if the director of psychiatry services determines that hospital-level care is in the inmate's best interests, she must prepare a request for admission within eight hours, or document a recommendation of postponement of admission for an additional 48 hours; if the director of psychiatry prepares a request for admission, the inmate must be transported to a hospital within three business days. The regulation also requires ADOC to complete, in writing, an annual reassessment of its need for hospital beds, and to contract for more beds if necessary. The plaintiffs propose that ADOC must provide them with a copy of this annual reassessment. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 10.1.2.
The defendants propose no provision concerning the lack of timely access to hospital-level care.
b. The Court's Ordered Relief
51 The court will order that ADOC must ensure that inmates who require hospital-level care receive it within a reasonable period of time, as determined by clinical judgment. The court orders this relief in light of the evidence that since its liability opinion, ADOC has failed to ensure that inmates who require hospital-level care receive it promptly enough to prevent them from harming or killing themselves. Tommy McConathy's case provides a particularly stark example of this failure. In the last few months of his life, he found respite from acute suicidality only during the few weeks he spent in Citizens Hospital. Prior to his transfer to Citizens, McConathy had been on repeated suicide watches since December 2019, and saw no improvements in his mental health even in the most intensive care units offered in ADOC's facilities. He reported his "adamant ... desire to die" while in Bullock's SU, see Pls.’ Ex. 3310 at ADOC546648, and he was sexually assaulted in Bullock's RTU and reported that he could not function there, see id. at ADOC546690. ADOC was not ignorant of McConathy's needs--after his sexual assault in Bullock, a mental-health provider assessed McConathy as "at high risk for continued suicide watch until [his] safety needs are addressed," and indicated that he would be considered for referral to Citizens. See id. Yet it took 30 days after that for McConathy to be transferred to Citizens. Inmate M.H. experienced a similar delay--he was referred to Citizens after cutting himself repeatedly and spending several stints in the Bullock SU, but waited 10 days before he was actually transferred to the hospital. See May 25, 2021, R.D. Trial Tr. at 43–44. For inmates whose mental-illnesses are so acute as to require hospital-level care, such prolonged delays pose a needless and grave danger.
The court will not order, however, that ADOC must comply with the requirements of its own regulation regarding access to hospital-level care. While the detailed timing requirements imposed by the regulation might be desirable, the evidence does not show them to be necessary. As long as ADOC can ensure that inmates who require hospital-level care receive it promptly enough so that their health and lives are not jeopardized, the court need not dictate the precise manner in which it does so. The court also trusts that if ADOC proves unable to ensure timely access to hospital-level care, the EMT shall bring the matter to its attention.
As for the requirement that ADOC reassess its need for hospital beds, there is little evidence that ADOC's failure to provide timely access to hospital-level care is caused by a shortage of beds--indeed, as described previously, the plaintiffs agree that the 14 beds ADOC currently maintains at Citizens are adequate for the system's mental-health caseload. Rather, the problem seems to lie with ADOC's failure to ensure that inmates who require hospital-level care are timely transferred to available beds.
Nor will the court order that, in the event that a hospital refuses to admit an inmate referred for care, ADOC must attempt to admit the inmate to an alternative hospital. The record does not show that inmates whom ADOC has referred for hospital-level care are regularly turned away.
Finally, the court will not order that, until the EMT conducts its first audit, ADOC must notify the plaintiffs’ counsel when there are delays in the provision of hospital-level care. Although prompt access to hospital-level care is a matter of utmost urgency that cannot be neglected prior to the EMT's first audit, the court trusts that ADOC will comply with the terms of its order.
c. PLRA Findings
The court finds this provision necessary for the reasons given above: ADOC has failed to ensure that inmates who require hospital-level care receive it in a timely fashion, despite the fact that without such care, those inmates are at serious risk of harming or killing themselves. This provision is also narrowly tailored because it is exclusively focused on the problem of unreasonable delays in care, and minimally intrusive because it leaves it entirely to ADOC to determine how it ensures that there are no unreasonable delays.
2. Inpatient Beds
a. The Parties’ Proposed Provisions
To remedy ADOC's lack of inpatient beds, the plaintiffs propose that at all times ADOC must maintain enough beds to accommodate 15 % of its mental-health caseload, measured initially against the June 2020 caseload numbers. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 10.2.1. The plaintiffs also propose that ADOC must add new beds annually, if necessary, to reflect changes in its mental-health caseload, see id.; that it must provide new treatment space if it is needed to accommodate additional beds, see id. at § 10.3.1; and that all treatment spaces used to house inpatient beds must provide for confidentiality, see id.
The defendants maintain that no relief is necessary in light of Dr. Metzner's testimony that between 10 and 15 % of inmates on the mental-health caseload can be expected to require inpatient beds, and the fact that ADOC currently has 433 beds available--enough to accommodate nearly 10 % of its June 2020 mental-health caseload. See Defs.’ Post-Trial Br. (Doc. 3367) at 105-106.
The defendants claim that ADOC's inpatient beds, combined with the 14 hospital beds available to it at Citizens Hospital, are enough to accommodate 10.2 % of its June 2020 mental-health caseload. The beds at Citizens, however, are not among ADOC's inpatient beds, and should not be counted towards the 10 % target set by Dr. Metzner.
In the alternative, the defendants propose that within 180 days of the effective date ADOC must have enough beds to accommodate 10 % of its June 2020 caseload, and that within one year of the effective date it must reassess whether it needs more beds. See Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at §§ 10.2-3. The defendants also propose that ADOC's reassessment be based on the mental-health caseload as it existed at the end of the sixth month after the effective date, and that, if ADOC or any third-party has started construction on any prison facilities that will house mental-health beds, the EMT will take that fact into account in reassessing the need for more beds. See id. at § 10.3.
b. The Court's Ordered Relief
52 The court will order that ADOC must initially supply enough beds to accommodate 10 % of its mental-health caseload at the time of the effective date. However, ADOC must, on at least an annual basis, collaborate with the EMT to reassess (1) the number of inmates on its mental-health caseload, and (2) whether 10 % is in fact an accurate estimate of the percentage of the mental-health caseload requiring inpatient treatment. If ADOC determines that more than 10 % of the inmates on the mental-health caseload require inpatient beds, or that the mental-health caseload has grown, or both, it must adjust its number of inpatient beds accordingly. It must also ensure that inpatient beds are housed in treatment spaces that allow for confidentiality, including by creating new treatment spaces if necessary.
The court orders ADOC to ensure that it has enough beds to accommodate 10 % of the inmates on its mental-health caseload in light of Dr. Metzer's testimony that, at any given time, ADOC should expect at least 10 % of the inmates on its mental-health caseload to require access to inpatient beds. See June 30, 2021, R.D. Trial Tr. at 165. Despite this testimony from its own expert, ADOC has yet to provide enough beds to accommodate 10 % of the inmates on its mental-health caseload. Nor is it progressing towards that goal. When the court issued its remedial opinion, ADOC had 504 inpatient beds available for a caseload of 4,151 inmates. See Braggs v. Dunn, No. 2:14cv601-MHT, 2020 WL 2789880 at *6 n.4, *7 (M.D. Ala. May 29, 2020) (using December, 2019 caseload numbers). Since then, ADOC has allowed the number of inpatient beds to decrease, from 504 to 433. See Defs.’ Post-Trial Br. (Doc. 3367) at 105. Meanwhile, as predicted, ADOC's mental-health caseload has grown, from 4,151 in December 2019, see Joint Report (Doc. 2705), to 4,564 in March 2021, see Defs.’ Ex. 4079 at 43-44. That growth can be expected to continue, both because ADOC's capacity to recognize inmates who should be on its mental-health caseload will improve as it implements the court's orders regarding intake, and because admissions are expected to increase as the COVID-19 pandemic wanes. The need for more beds is therefore even more urgent today than it was at the time of the court's remedial opinion.
The court orders ADOC to use the caseload numbers at the time of the effective date as an initial reference point, as opposed to the June 2020 caseload numbers, to ensure that ADOC begins to make progress immediately. ADOC's March 2021 caseload was significantly larger than its June 2020 caseload (which, according to ADOC's estimates, was approximately 4,382, see Defs.’ Post-Trial Br. (Doc. 3367) at 105), and its caseload is only expected to grow. Were the court to allow ADOC to use its June 2020 caseload as an initial reference, it would allow ADOC to continue its insufficient provision of inpatient beds for up to a year. That will not do. At the same time, however, the court suspects that its order will be significantly more manageable for ADOC than the plaintiffs’ proposal--that ADOC be required to provide enough beds to accommodate 15 % of its June 2020 caseload. The plaintiffs estimate that their proposal would require ADOC to add 222 beds initially. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 10.2.1. The court cannot say how many beds its order will require ADOC to add initially, because the mental-health caseload at the time of the effective date has yet to be determined. But it will almost certainly be fewer than 222 by a large margin. To accommodate 10 % of its March, 2021 caseload, for example, ADOC would have to add only 23 beds. The number of additional beds needed to accommodate 10 % of ADOC's caseload at the time of the effective date will likely be far closer to 23 than 222.
While ADOC may convert its SLU beds to serve as inpatient beds, it bears repeating that the SLUs do not currently help meet ADOC's need for inpatient beds, and ADOC may not double-count them as both inpatient units and outpatient diversionary units in the event that it converts them to inpatient units. Rather, if it chooses to convert the SLUs to inpatient units, it must find alternative facilities for outpatient diversion.
The court orders ADOC to regularly reassess the adequacy of its supply of inpatient beds because, although it orders today that ADOC need only provide enough beds to accommodate 10 % of the inmates on its mental-health caseload, it is seriously concerned that ADOC may in fact require more beds to correct the constitutional violations found in the court's 2017 liability opinion. Experts for both parties previously testified that approximately 15 % of inmates on the mental-health caseload will require inpatient beds at any given time. See Braggs, 2020 WL 2789880 at *4. Only Dr. Metzner testified otherwise. The court now defers to his expertise, but given the conflicting testimony on the number of beds needed, it finds that ADOC must be prepared for the possibility that more than 10 % of its mental-health caseload will require inpatient beds. ADOC must also be cognizant of its historic failure to identify mentally ill inmates and place them on the mental-health caseload, and the high likelihood that as it implements the provisions of the court's present order regarding intake, its mental-health caseload will grow. Whatever number of beds are sufficient to accommodate ADOC's mental-health caseload at the time of the effective date may therefore soon prove inadequate.
Finally, the court orders that inpatient beds are housed in treatment spaces that allow for confidentiality because mental-health treatment must be confidential if it is to be effective. Indeed, the defendants themselves propose that treatment must take place in a setting that provides for confidentiality, see Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 6.1, and their expert testified as to his agreement with this provision, see June 30, 2021, R.D. Trial Tr. at 168 (testimony of Dr. Metzner); his only reservation was that he found it to state the obvious, see id. Because of the importance of this issue and the longstanding problems with confidential treatment space, however, the court finds it necessary to make clear what should be self-evident.
c. PLRA Findings
The court finds this provision necessary given the pivotal importance of the inpatient-bed supply to ADOC's entire mental-health system. As described in the liability opinion and reiterated in the remedial opinion, ADOC's lack of inpatient beds has "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, 2020 WL 2789880 at *38 (quoting Braggs, 257 F. Supp. 3d at 1206 ). Ensuring adequate beds is therefore foundational to remedying the constitutional violations identified in the liability opinion, and, as described above, to the extent that beds are used for mental-health treatment, they must be housed in spaces that allow for confidentiality if that treatment is to be effective. This provision is also narrowly tailed and minimally intrusive because it requires ADOC to provide only the absolute minimum number of beds necessary, according to the lowest estimate given by any of the parties’ experts.
3. Temperature Regulation
a. The Parties’ Proposed Provisions
To remedy ADOC's failure to ensure that its inpatient treatment units are suitably temperature-regulated, the plaintiffs propose that "ADOC must create a year-round heat management plan to address the risk of overheating by inmates in inpatient treatment units who are on psychotropic medications." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 10.2.1. The defendants propose no provision concerning temperature regulation.
b. The Court's Ordered Relief
53 In agreement with the plaintiffs, that court will order that ADOC must devise a plan and procedures to address the serious risk posed by high temperatures in the mental-health units, which it must submit to the court by May 2, 2022. In its May 2020 remedial opinion and order, the court imposed the same requirement, which it found to satisfy the requirements of the PLRA. See Braggs, 2020 WL 2789880 at *15. In a July, 2020 filing, the defendants purported to have complied with the court's requirement by installing HVAC systems in all of ADOC's mental-health treatment units. See Doc. 2880 at 4–5. Since then, however, Tommy Lee Rutledge died of hyperthermia in his cell in the Donaldson RTU, where the temperature reached 104 degrees. See May 25, 2021, R.D. Trial Tr. at 144–45. Plainly, ADOC has not done enough to ensure that temperatures in its inpatient treatment units do not become dangerously high. The court therefore must reiterate its May, 2020 order.
ADOC should specifically address how it happened that Rutledge's cell reached 104 degrees, causing him to die of hyperthermia, in a unit that was supposedly air conditioned, and how it will prevent that from ever occurring again. The latter inquiry will require ADOC to address, additionally, how it plans to determine whether a particular cell has reached dangerously high temperatures, and should such a finding be made, what measures it will take to ensure its occupant's safety. Because Rutledge died in a unit that was supposedly air conditioned, these inquiries must pertain to all mental-health units, regardless of whether they are airconditioned. (In this respect, the court's present order differs from its May 2020 order, which did not require ADOC to address heat management in the air conditioned mental-health units in Tutwiler and Bullock. See Braggs, 2020 WL 2789880 at *15.)
c. PLRA Findings
The court finds this provision necessary because addressing the risk of overheating is essential to ensuring the safety of inmates in inpatient units. See Braggs, 2020 WL 2789880 at *15. ADOC itself recognizes as much--its own regulations require the Director of Treatment and Wardens to "ensure that measures to reduce sun/heat exposure risks for inmates taking psychotropic medication are initiated and maintained at all ADOC institutions." Joint Ex. 118, Admin. Reg. § 619 (Doc. 1038-141). This provision is also narrowly drawn and minimally intrusive, because it does not require ADOC to adopt any particular plan or implement any particular procedure. So long as ADOC can mitigate the risk of overheating, the manner in which it does so shall remain completely within its discretion. Finally, although the order requires ADOC to devise a heat management plan for facilities that are currently air conditioned, it extends no further than necessary, because as Rutledge's death illustrates, overheating remains a risk in all units, air conditioned or not.
4. Other Provisions Regarding Higher Levels of Care
In addition to the provisions described above, the plaintiffs propose two provisions that the court will not adopt, but will address briefly below.
The plaintiffs also propose that all stabilization unit cells must be suicide-resistant. The court addresses this provision in its discussion of the parties’ proposed provisions regarding suicide prevention.
First, the plaintiffs propose that, if an inmate under a sentence of death is determined to be a candidate for hospital-level mental-health care, ADOC must notify the plaintiffs’ counsel, who must then notify the attorney responsible for that inmate's post-conviction appeal, if one exists. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 10.1.3. The court will not order this relief because the record does not show it to be necessary to remedy ADOC's failure to provide inmates with timely access to hospital-level care. To the extent the provision is intended to provide external oversight of ADOC's provision of care, it is redundant; oversight is the bailiwick of the EMT. To the extent the provision is intended to facilitate the development of post-conviction legal claims, it is beyond the scope of the Phase 2A omnibus remedial order.
Second, the plaintiffs propose that "ADOC must ensure that any new facilities are designed to include adequate mental health treatment space, including an adequate number of inpatient beds and confidential treatment space," and that in designing new facilities, ADOC should solicit input from "the health services staff, the [mental-health] vendor, and the EMT." See id. at § 10.3.2. The court will not order the first part of this provision, concerning treatment space in new facilities, because it is redundant. As explained above, the court will order that ADOC must maintain enough inpatient treatment beds to accommodate 10 % of its mental-health caseload, and that those beds must be housed in spaces that allow for confidential treatment. That order applies to future and existing facilities alike--if ADOC chooses to house inpatient beds in a new facility, it must ensure that those beds are housed in such a manner so as to allow for confidential treatment. The court will not order second part of the plaintiffs’ proposed provision--that ADOC be required to consult the health services staff, its mental-health vendor, and the EMT when designing new facilities--because the plaintiffs have not shown it to be necessary. Absent evidence that ADOC cannot comply with the court's order, the court finds that whom ADOC consults regarding the construction of new facilities should be entirely up to ADOC.
L. Discipline
Despite some progress, ADOC continues to discipline inmates without due regard for their mental-health needs. While ADOC appears to have curtailed its unacceptable practice of punishing inmates for self-harm, its continued failure to obtain remotely meaningful mental-health consultations to the disciplinary process subjects inmates with serious mental-health needs to inappropriate sanctions that create the substantial risk of decompensation, worsened symptoms, and restricted access to necessary care.
ADOC's August 20, 2020, revision of Administrative Regulation 403 (Doc. 3206-7), regarding the procedures for handling rule violations, and Administrative Regulation 626 (Doc. 3206-8), regarding mental-health consultations to the disciplinary process, represents one important step toward correcting ADOC's deficiencies. The plaintiffs propose a provision requiring ADOC to comply with both updated regulations. See Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 11.1. However, the court declines to follow the plaintiffs’ approach. Considered in their entirety, the two regulations address numerous issues that are disconnected from the constitutional violations before the court and contain provisions for which there is not sufficient evidence to find that ordering compliance would comply with the PLRA.
Instead of requiring across-the-board compliance, the court will consider relief that requires ADOC to comply with specific provisions of these regulations. By reviewing individual provisions, the court will better account for changed circumstances pertaining to inmate discipline and order relief that is necessary, narrowly tailored, and minimally intrusive in light of those conditions.
1. Mental-Health Consultations to the Disciplinary Process
a. The Relevant Provisions
Section V.B.2 of ADOC Administrative Regulation 626 provides:
"A mental health consultation may be sought at the time of the rule or regulation violation or after review of the disciplinary report. A mental health consultation must be sought if the inmate is on the mental health caseload and has a mental health code of C or higher and/or an SMI designation; or, even if the inmate has a lower mental health code or is not on the mental health caseload, where the inmate has an intellectual or developmental disability, or the inmate's behavior at the time of the alleged actions giving rise to the disciplinary or at any time prior to or during the disciplinary process demonstrates signs of psychological distress or mental impairment."
Section V.C.3.a lists the matters that the consulting mental-health staff must evaluate, including the inmate's current and then-existing mental state, the inmate's mental-health diagnosis or the presence of mental illness, the inmate's recent treatment history and medication, the inmate's recent crisis placements, whether the inmate's violative behavior directly resulted from or is related to mental illness, the likely impact of confinement to restrictive housing and whether such confinement is contraindicated, the potential impact of other disciplinary sanctions and whether any such sanctions are contraindicated, alternative sanctions that are not contraindicated, and the need for mental-health staff to be present during the disciplinary hearing. And § V.C.3.d requires the documentation of the evaluation and its recommendations, including disciplinary sanctions that are contraindicated and alternative sanctions that are appropriate, to be provided to the disciplinary hearing officer and the inmate's treatment team.
b. The Court's Ordered Relief
54 The court will order that ADOC must comply with these provisions of Administrative Regulation 626. The mental-health consultation process remains badly broken, and the court finds this relief necessary in light of ADOC's longstanding use of mental-health consultations as rubber stamps for the disciplinary process, to the grave detriment of inmates with serious mental-health needs.
Just as the court found in the liability opinion, the mental-health consultations are still limited to the point of meaninglessness. In the overwhelming majority of the hundreds of disciplinary reports that Mr. Vail reviewed, input by mental-health staff consisted of four yes/no answers: whether the inmate was competent, whether mental-health issues affected the inmate's behavior, whether mental-health issues needed to be considered in the disposition, and whether mental-health staff would be present at the hearing (always answered "no," see May 26, 2021, R.D. Trial Tr. at 203). See, e.g., Pls.’ Ex. 2953 at ADOC492463.
These formalities are sufficiently perfunctory that consulting mental-health staff routinely fail to ensure that basic (and critical) information, such as whether the inmate is on the mental-health caseload, what the inmate's mental-health code is, and whether the inmate has an SMI, is actually reported. As noted in the section on current conditions, the box on the consultation form to indicate whether an inmate is on the mental-health caseload is frequently marked with an error code, and there is no designated space to indicate that an inmate has a serious mental illness. Even when an inmate's mental-health status is appropriately noted, the cursory comment rarely offers the slightest indication of how the inmate's mental-health issues may be affected by possible sanctions, much less an affirmative recommendation that specific sanctions are appropriate or inappropriate. As Vail described one comment that "[inmate] has an SMI flag and has recently engaged in self-injurious behavior," such a comment "doesn't give the hearing officer sufficient information to really know what to do." May 26, 2021, R.D. Trial Tr. at 213-14.
Furthermore, discrepancies and omissions continue to plague these consultations, causing real harms to inmates by exposing them to sanctions that are inappropriate in light of their mental-health needs. In "one of the better comments" that Vail reviewed, May 26, 2021, R.D. Trial Tr. at 220, a consulting mental-health staff member noted, "[Inmate] has a serious mental illness diagnosis. Long-term restrictive housing assignment contraindicated." Pls.’ Ex. 2953 at ADOC492423. While this "better" comment still suffers from a lack of specificity as to the meaning of "long-term," see May 26, 2021, R.D. Trial Tr. at 220, the inmate was not sentenced to disciplinary segregation for the corresponding disciplinary report, see Pls.’ Ex. 2953 at ADOC492425. Less than a month later, however, a consultation to a subsequent disciplinary proceeding for that inmate answered that there were no mental-health issues to consider, see Pls.’ Ex. 2953 at ADOC492463, and the inmate was sentenced to 45 days in disciplinary segregation, see id. at ADOC492465.
The gravity of this issue is perhaps most apparent in the case of Jaquel Alexander, whose consultation had nothing to say about his serious mental illness, his previous contraindications for restrictive housing, see Jaquel Alexander Mental-Health Records (P-3297) at ADOC518254, ADOC518487, or his suicide attempt one month earlier, see id. at ADOC518247. See Jaquel Alexander Institutional File (P-3296) at ADOC517817. As Vail observed, the consultation contained "no indication that this was anything out of the ordinary other than the fact that the person was on the caseload." May 27, 2021, R.D. Trial Tr. at 15. This consultation, identical to countless others in all but name and date, gave the hearing officer a green light to sentence Alexander to segregation, where he committed suicide.
ADOC's adoption of revised regulations is no answer to this sustained dysfunction. Even at the time of the liability opinion, ADOC had regulations in place pertaining to these consultations. ADOC has failed to improve this process at all in the four years since the liability opinion. As Vail testified, "[t]his process is far from being fully implemented." June 1, 2021, R.D. Trial Tr. at 44. Because ADOC has shown itself to be incapable of following its own regulations—it failed to do so in 2017 and it is failing to do so today—it is necessary for the court to order ADOC to comply with the central provisions of its regulations regarding the provision of adequate mental-health consultations to the disciplinary process. This area should be monitored especially closely by the EMT.
c. PLRA Findings
The provisions that the court orders are necessary to ensure that mental-health consultations are adequately informative to facilitate consideration of inmates’ mental-health issues in the disciplinary process. Substantive mental-health consultations must occur, and they must provide the hearing officer with the necessary context of an inmate's mental-health status and history. A sequence of checkboxes that are filled out with variable accuracy is no substitute for meaningful deliberation and documentation by the consulting mental-health staff, including comments and recommendations regarding appropriate and inappropriate punishments.
This relief is narrowly drawn to correct ADOC's continued deficiencies in the protection of inmates with the most serious mental-health needs in the disciplinary process. And it is the least intrusive means that will ensure that hearing officers are aware of necessary information regarding inmates’ mental-health issues and their implications.
2. Consideration of Mental-Health Consultations
a. The Relevant Provisions
Section V.D.3 of Administrative Regulation 626 provides that "the disciplinary officer must consider the mental health consultation, including any evaluation, comments, or recommendations, in deciding an inmate's guilt or innocence and, if guilty, in imposing any disciplinary sanctions." Section V.D.6 further requires that the hearing officer must document this consideration of the mental-health consultation.
With respect to determinations of guilt, § V.A.1.a of Administrative Regulation 403 prohibits the discipline of an inmate "for symptoms directly related to his or her mental illness, including but not limited to issuing disciplinaries or applying disciplinary sanctions to inmates for engaging in conduct directly related to self-injurious behavior." Both parties propose provisions defining "symptoms directly related to [an inmate's] mental illness" to include "behaviors that would otherwise give rise to disciplinary proceedings or behavior citations but for the fact that they were directly caused by the inmate's mental illness," such as "violence toward other people, defiance of correctional staff, destruction of property, self-harm, and possession of contraband for the purpose of self-harm." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 11.2.1; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 11.2. They likewise propose provisions defining "conduct directly related to self-injurious behavior" to include "engaging in self-harm; attempting suicide; possessing tools or instruments, such as razors, other sharp objects, and rope, for the purpose of using them to engage in self-harm; and destroying property, such as ripping apart a mattress or causing fire damage to a cell, in the process of self-harming or attempting suicide." Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 11.2.2; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 11.3. Additionally, § V.D.3.a of Administrative Regulation 626 specifies that, "[i]f the mental health staff member performing the mental health consultation concludes that the rule or regulation violation was a direct result of the inmate's mental illness, then the disciplinary hearing officer must find the inmate not guilty of the disciplinary action."
With respect to punishment, § V.D.3.b of Administrative Regulation 626 provides that, "[i]f the mental health staff member performing the mental health consultation concludes that the rule or regulation violation was related to, but not the direct result of, the inmate's mental illness, then the disciplinary hearing officer must take that conclusion into consideration in imposing any disciplinary sanctions." Section V.D.4 adds, in relevant part, that, "if the mental health staff member who conducted the mental health consultation determined that any specific disciplinary sanction is clinically contraindicated for the inmate, including confinement to restrictive housing for a medium- or high-level rule or regulation violation, then the decision of the mental health staff member who performed the mental health consultation will be outcome-determinative and binding on the disciplinary hearing officer, except where exceptional circumstances exist."
b. The Court's Ordered Relief
55 The court will order that ADOC must comply with §§ V.D.3 and V.D.3.b, and the provision of § V.D.4 quoted above, of Administrative Regulation 626. With respect to the punishment of disciplinary violations, Dr. Burns, Dr. Metzner, and Mr. Vail all stressed the importance of considering an inmate's mental illness and mental-health needs. See June 4, 2021, R.D. Trial Tr. at 135-36, 154-56 (testimony of Dr. Burns); May 26, 2021, R.D. Trial Tr. at 207 (testimony of Mr. Vail); June 29, 2021, R.D. Trial Tr. at 178, 180-81 (testimony of Dr. Metzner). As explained previously, robust mental-health consultations are a necessary step in communicating this information to the hearing officers tasked with determining sanctions. But without meaningful consideration by hearing officers, mental-health consultations accomplish nothing, and mentally ill inmates are left without protection from inappropriate disciplinary sanctions.
Currently, hearing officers continue to discipline inmates without due regard for their mental illnesses and mental-health needs. While the continued inadequacy of the mental-health consultations that are provided plays a considerable role in perpetuating these violations, the evidence also indicates that hearing officers’ consideration of the consultations that are provided is insubstantial. Vail testified that he has not seen documentation that a hearing officer ever contacted mental-health staff with any questions about the consultation, even when the consultation identifies relevant mental-health issues, see May 27, 2021, R.D. Trial Tr. at 14; the only documentation that a consultation was considered is an unexplained "yes," see id. at 15-16. The absence of any documented reasoning tying hearing officers’ decisions to the mental-health consultations raises serious concerns that the consultations are received and promptly disregarded.
The need for meaningful consideration of the mental-health consultation is at its most dire when mental-health staff have determined that certain sanctions, most notably segregation, are clinically contraindicated. Dr. Burns testified that, in light of the mental-health staff's understanding of "the impact that disciplinary sanctions might have on [an inmate's] mental health" and "the impact of restrictive housing on persons with mental illness," it is necessary for mental-health staff to have the clear authority to divert inmates with serious mental-health needs from contraindicated punishments, particularly segregation. June 4, 2021, R.D. Trial Tr. at 135. Dr. Metzner similarly endorsed the ability for mental-health staff to veto placements in segregation. See June 29, 2021, R.D. Trial Tr. at 116 (testimony of Dr. Metzner). Currently, however, as Dr. Burns and Mr. Vail testified, the evidence reflects that mental-health staff do not recognize or do not exercise this authority in the disciplinary context. See May 26, 2021, R.D. Trial Tr. at 214-15 (testimony of Vail, stating the general conclusion); May 27, 2021, R.D. Trial Tr. at 6-7, 57 (testimony of Vail, noting the absence of any unequivocal contraindications of segregation in the consultations he reviewed); May 25, 2021, R.D. Trial Tr. at 41-42, 203-04 (testimony of Dr. Burns, discussing this lack of meaningful input by mental-health staff generally and with respect to the repeated failure to divert inmate T.C. from disciplinary segregation, despite her diagnosis with bipolar disorder ); June 22, 2021, R.D. Trial Tr. at 124 (testimony of Dr. Burns, noting the absence of any recommendations for alternative sanctions in the consultations she reviewed). One incident outside of the consultation process that ADOC cites to rebut this testimony is telling. A progress note reviewed by Dr. Burns and Vail reported that, when two mental-health staff did determine that placement in segregation was contraindicated for an inmate, a captain responded that the inmate would be placed in the restrictive housing unit anyway. See May 25, 2021, R.D. Trial Tr. at 27, 204; May 27, 2021, R.D. Trial Tr. at 58-60. That the mental-health staff ultimately succeeded in diverting the inmate by placing him on suicide watch is not, as ADOC contends, evidence that diversion is functioning properly. If anything, the incident is a sign that correctional staff are resistant to the few attempts to divert inmates from contraindicated punishments that do occur.
The current superficiality of the consultation process necessitates relief with respect to the conduct of both consulting mental-health staff and hearing officers. For mental-health consultations not to be useless, the court must order that they be considered as well as provided. And for clinical contraindications of sanctions not to be toothless, the determination of mental-health staff regarding contraindicated sanctions must be outcome-determinative in the absence of exceptional circumstances, see supra at 1269–72 (defining "exceptional circumstances").
At this time, however, the court will not order relief with respect to § V.A.1.a of Administrative Regulation 403 or § V.D.3.a of Administrative Regulation 626 regarding the conduct that may not be disciplined. Although there is evidence that ADOC continued to discipline inmates for self-injurious behavior after the liability opinion, see, e.g., May 25, 2021, R.D. Trial Tr. at 38 (inmate M.W. lost 6 months of good time for cutting himself in November 2018), ADOC has more recently taken concrete steps toward correcting this problem. ADOC removed the Rule 505 violation that explicitly provided for the discipline of inmates who engaged in self-harm, and it asserts without contradiction that it has expunged such violations from the records of inmates with serious mental illnesses or intellectual disabilities. See June 9, 2021, R.D. Trial Tr. at 34 (testimony of Dr. Burns, noting that she was unaware of any inmate who received a Rule 505 violation after it was eliminated); June 22, 2021, R.D. Trial Tr. at 126-28 (testimony of Dr. Burns, noting that she had not seen evidence that undermines ADOC's assertion that expungement is occurring). In itself, this change does not prevent the use of other rules to punish conduct related to self-injurious behavior; shortly after the Rule 505 violation was removed, an officer initiated a disciplinary action for failure to obey an order against an inmate who was standing on his toilet with a piece of sheet tied around his neck and refused to untie the sheet and step down. See Pls.’ Ex. 4181 at ADOC529996-ADOC529998; see also May 27, 2021, R.D. Trial Tr. at 47-49 (testimony of Vail, characterizing the disciplinary action as a "back handed way of punishing someone for a self harm attempt"). And it also does not address discipline for other behaviors directly related to an inmate's mental illness; Vail discussed one disciplinary report against an inmate for not taking her mental-health medication. See May 26, 2021, R.D. Trial Tr. at 217. But generally, it appears that ADOC's recent progress in this area is meaningful. Even without ordering relief with respect to these provisions, the court is confident that the EMT, in its review of the ongoing problems in mental-health consultations to the disciplinary process, will be able to flag for the court whether ADOC fails to adhere to its policy consistently moving forward.
Although Vail highlighted the hollowness of the current practice of documenting the hearing officer's consideration of the mental-health consultation in a single-word answer, always "yes," see May 27, 2021, R.D. Trial Tr. at 15-16, the court will not order compliance with § V.D.6 of Administrative Regulation 626. Instead, in light of Vail's testimony that such documentation will be "critical" to the EMT, June 1, 2021, R.D. Trial Tr. at 47, the court will leave to the EMT the task of determining what documentation is necessary to monitor ADOC's compliance with the relief that the court does order regarding the provision and consideration of substantive consultations.
c. PLRA Findings
The relief that the court orders is necessary to avoid imposing inappropriate and dangerous sanctions on inmates with serious mental-health needs. Absent meaningful consideration of the mental-health consultations, hearing officers will continue to make disciplinary decisions affecting the placement and punishment of vulnerable inmates without appropriate regard for or understanding of their mental-health needs. And when the consulting mental-health staff concludes that certain sanctions are contraindicated by an inmate's mental-health issues, it is critical to the mental health and safety of the inmate that the hearing officer abide by that determination in all but exceptional circumstances. This relief, which preserves ADOC's discretion in such exceptional circumstances, is narrowly tailored to ensure that the disciplinary sanctions imposed on inmates are not medically inappropriate and do not subject them to the substantial risk of decompensation and worsened symptoms of mental illness. Ordering ADOC to comply with these regulations is the least intrusive means that will afford this necessary protection to inmates with serious mental-health needs in the disciplinary context.
3. Other Provisions Regarding Discipline
Administrative Regulations 403 and 626 include a number of other provisions addressing the consideration of mental-health issues in the disciplinary process.
Administrative Regulation 403 contains provisions for low-level rule violations by certain inmates to be addressed outside of the formal disciplinary process or behavioral citation process. Sections V.E.4 and V.F.3 provide that such violations by inmates in a stabilization unit, residential treatment unit, or crisis placement "shall be handled in the mental health treatment planning process." Sections V.E.5 and V.F.4 provide that such violations by inmates in a structured living unit "may be handled through the [formal disciplinary process or behavior citation process] unless the mental health staff member performing the mental health consultation determines that the use of [that process] is clinically contraindicated," in which case the violation will be addressed through the mental-health treatment planning process. However, there is no evidence that ADOC has failed to follow these procedures. Accordingly, the court will not order compliance with these provisions.
Section V.B.2.i of Administrative Regulation 403 and § V.D.1 of Administrative Regulation 626 provide that mental-health staff may attend the disciplinary hearing to assist the inmate. Although mental-health staff never attended the disciplinary hearings in the cases that Vail reviewed, see May 26, 2021, R.D. Trial Tr. at 203, there is no evidence that mental-health staff are prevented from attending. Rather, the evidence reflects that in the cursory mental-health consultations, the consulting mental-health staff routinely, if not always, decide that they will not be attending. Thus, to the extent that the failure of mental-health staff to attend disciplinary hearings contributes to the harms suffered by inmates with serious mental-health needs, these provisions do not address the root cause of these harms, so the court will not order compliance.
Other provisions of Administrative Regulation 403 that specifically address inmates with mental-health needs include:
• Sections V.A.1.e and V.A.1.f, which state when and how inmates with certain mental-health issues shall be provided notice of a disciplinary report;
• Section V.A.7.b, which states when disciplinary hearings must be postponed for inmates on suicide watch or other crisis placements; and
• Sections V.B.2.n and V.C.2.c, which state when and how inmates with certain mental-health issues shall be notified of the outcome of a disciplinary proceeding.
Dr. Burns and Vail credibly testified that these provisions protect inmate safety by involving mental-health staff in the disciplinary process to minimize the risk that aspects of the process will exacerbate an inmate's mental-health issues. See June 4, 2021, R.D. Trial Tr. at 117-21, 125-26 (testimony of Dr. Burns); May 27, 2021, R.D. Trial Tr. at 18-21, 25-28, 33-34 (testimony of Vail). However, there is limited evidence that ADOC is currently failing to apply these provisions. See June 1, 2021, R.D. Trial Tr. at 54-57, 73-74 (testimony of Vail, conceding that he was unaware of recent violations of multiple of these provisions); June 22, 2021, R.D. Trial Tr. at 107-10 (testimony of Dr. Burns, noting that she had not seen recent violations of several of these provisions). Accordingly, the court will not order this additional relief.
M. Training
ADOC's recent work with Dr. Burns and Dr. Perrien to implement numerous trainings represents a significant improvement over prior conditions. Since ADOC developed training curriculums in coordination with its consultants, Dr. Burns confirmed that it has provided comprehensive mental-health training, suicide prevention training, and suicide risk assessment training to current and newly hired staff. See June 22, 2021, R.D. Trial Tr. at 48, 50-51, 53-55; June 23, 2021, R.D. Trial Tr. at 225-26. However, despite its major strides to ensure that current and newly hired staff are adequately trained, the evidence presented during the omnibus remedial hearings reflects lingering problems that require redress.
First, there is some evidence that ADOC's provision of training is incomplete. ADOC's Assistant Deputy Commissioner for Operations Cheryl Price testified in a deposition that she personally had not received the comprehensive mental-health training that stipulated remedial orders have required since 2018 for all staff who have any direct contact with inmates. See June 1, 2021, R.D. Trial Tr. at 42; Phase 2A Order and Injunction on Mental-Health Identification and Classification Remedy, Attachment A (Doc. 1821-1) at § 1.1. Moreover, as recently as March 2021, a spot audit of Ventress reflected that the facility's site program manager, who, as Dr. Burns testified, is "in charge of mental health services at [the] facility," May 26, 2021, R.D. Trial Tr. at 54, had not received the suicide risk assessment training. See Pls.’ Ex. 3626 at ADOC565532.
Second, and more to the point, ADOC's failure to document its provision of training consistently renders it virtually impossible to know the extent of ADOC's progress. During her deposition, Assistant Deputy Commissioner of Operations Price further conceded that she did not know if everyone who required the comprehensive mental-health training had received it. See June 1, 2021, R.D. Trial Tr. at 42. Even Wexford, has acknowledged that its documentation of court-ordered trainings has been inconsistent. See Pls.’ Ex. 3323 at 4-5. This lack of dependable documentation poses a challenge for ADOC in providing necessary training to new and current staff, and it suggests that the EMT may face similar challenges in monitoring ADOC's provision of this training.
As with nearly every area of liability, ADOC's provision of training and its related challenges are inseparable from its chronic correctional understaffing. To come into compliance with the court's omnibus remedial order and provide a constitutionally adequate standard of mental-health care, ADOC will need to hire significantly more correctional officers in the next three-and-a-half years. More officers means more training, more documentation, and more opportunities for staff to fall through the cracks. ADOC's slapdash approach to tracking which staff receive which trainings will not do. The trainings that ADOC has implemented in coordination with its consultants are the foundation for much of the relief that the court orders today, from adequate identification of inmates’ mental-health needs at intake and through referrals, to appropriate placement of inmates with mental-health needs, to proper monitoring of inmates in segregation and crisis placements. They also represent a means of bridging the persistent gap between ADOC's policies and on-the-ground practice. The court, the EMT, the men and women in ADOC's facilities, and ADOC itself must be sure that they are being carried out.
1. Documentation of Training
a. The Parties’ Proposed Provisions
As an initial matter, the defendants assert that no relief is necessary with respect to training. See Defs.’ Post-Trial Br. (Doc. 3367) at 134. The plaintiffs propose, and the defendants propose in the alternative, the following provisions requiring ADOC to provide training on:
• The Comprehensive Mental Health Training Curriculum, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 13.1; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 14.1;
• Suicide prevention, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 13.2; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 14.3.5;
• Confidentiality, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at §§ 13.3.1, 13.3.1.1; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 6.2;
• Mental-health rounds in restrictive housing units, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 13.4; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 14.3.5.1;
• Emergency preparedness, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 13.5; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 14.3.6;
• Discipline, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 13.6; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 14.2.1;
• Suicide risk assessments, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at §§ 13.7.1-13.7.3; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at §§ 14.3.1, 14.3.2;
• Correctional risk factors, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 13.8; Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 14.3.5.2; and
• Observation on suicide watch, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 13.9.
The defendants further propose that, within six months of the effective date, "ADOC and/or its mental health vendor will create or revise, as appropriate, any training materials required by this Phase 2A Remedial Order," subject to the approval of the compliance team. Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 14.4.
b. The Court's Ordered Relief
56 The court will order that ADOC must document its provision of training. Even though some evidence reflects that ADOC has implemented these trainings and provided them to current and new staff, the department's recent, and still-imperfect, implementation of these trainings does not provide assurance that ADOC will provide these trainings as it hires additional staff. Documenting these trainings is critical to facilitate monitoring of the steps that ADOC takes to train its staff to comply with the omnibus remedial order, and to gauge the extent to which ADOC's successes and failures in implementing certain provisions provide reason for the court to revisit them.
c. PLRA Findings
Requiring ADOC to document the training that it provides is necessary to enable the EMT to monitor training adequately and to ensure that the department actually does what it says it will do and trains new staff as they are hired. Without this documentation, the extent to which ADOC has implemented these trainings--trainings that form the foundation for much of the other relief the court orders--will be unknowable.
The court cannot simply rely on the fact that ADOC has conducted these trainings recently to conclude that it will continue to do so in the absence of monitoring. In light of ADOC's grievous understaffing, and the fact that adding new staff will actually increase rather than decrease the initial demands on current staff in this area, ADOC's contention that it has achieved compliance is illusory until its practices reflect that it can sustain compliance. The court must also make sure that training does not fall victim to the ADOC's practice of "robbing Peter to pay Paul," that is, the practice that, due to severe staffing shortage, it must divert staff from one remedy to address another.
Requiring merely that ADOC document the trainings that it says it will conduct is narrowly tailored to monitor ADOC's provision of training and to ensure that ADOC's staff are adequately and appropriately trained to implement the other relief that the court orders, all of which is necessary, narrowly tailored, and minimally intrusive to correct ADOC's violations. Moreover, this documentation requirement preserves ADOC's discretion in the manner by which it conducts these trainings, and so is the least intrusive means that will monitor that these trainings occur.
2. Emergency Preparedness Drills
a. The Parties’ Proposed Provisions
With respect to emergency preparedness drills for suicide prevention, the plaintiffs propose the following provision:
"For training purposes, on a quarterly basis, ADOC and/or its mental-health vendor must conduct emergency preparedness drills at each ADOC major facility, including scenarios involving self-injury and suicide attempts. During the emergency preparedness drills, the trainers must evaluate the correctional and medical staff response time to the emergency code and their preparedness for the emergency code (including, as appropriate, presence of an emergency bag, automatic external defibrillator (AED), and cut-down tool). Additionally, the emergency preparedness drill must include role-playing for participants to practice the response to an emergency, including, for example, using a cut-down tool, rendering first aid, and performing cardiopulmonary resuscitation (CPR)."
Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 13.5. The defendants propose essentially the same provision, except that they propose that these drills be required on an annual, rather than quarterly, basis and that the provision apply only to ADOC major facilities where the plaintiffs have proved that the emergency preparedness drills are necessary. See Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 14.3.6.
b. The Court's Ordered Relief
57 The court will adopt the plaintiffs’ proposed provision. As emphasized in the court's discussion of relief for suicide prevention, ADOC's immediate responses to suicide attempts continue to be plagued by delays in taking vital, potentially life-saving measures. ADOC's recurrent failures pose a grave danger to the life and safety of inmates with acute mental-health needs.
To address these problems, it is not enough for the court to order that ADOC's immediate responses to suicide attempts be carried out correctly. An adequate response to suicide attempts begins not in the moment that an attempt is detected, but well before that, when staff are trained and retrained on how to respond appropriately in an emergency situation. See May 28, 2021, R.D. Trial Tr. at 138 (testimony of Mr. Vail). Training is the foundation for immediate responses to suicide attempts, and overwhelming evidence supports the necessity of emergency preparedness, or "man-down," drills to prepare staff for these critical interventions. Dr. Burns testified that these drills are necessary to respond appropriately to suicide attempts in progress. See June 4, 2021, R.D. Trial Tr. at 64-65. Vail elaborated that performing these drills regularly is "very important" because "the training doesn't really take until you're in a role playing situation." May 28, 2021, R.D. Trial Tr. at 138. The testimony of both experts echoes the recommendations in several recent psychological autopsies for inmates who committed suicide in ADOC facilities; the psychological autopsy of Jamal Jackson, for instance, recommended that "[a]ll correctional and healthcare staff must be trained on this vital issue and training must be reinforced frequently through education and ‘Man-Down’ drills." Jamal Jackson Psychological Autopsy (P-3295) at ADOC0518575; see also Laramie Avery Psychological Autopsy (P-3302) at ADOC0518581; Casey Murphree Psychological Autopsy (P-3281) at ADOC0518572.
Citing to records of emergency preparedness drills dating back to October 2020, the defendants argue that ADOC's implementation of these drills obviates the need for a court order. See Defs.’ Response to Pls.’ Post-Trial Br. (Doc. 3378) at 281. The court disagrees. While these recent efforts represent an important step for ADOC, they do not undermine the need for relief to address the years of failures that the court has found in ADOC's immediate responses to suicide attempts. See May 25, 2021, R.D. Trial Tr. at 8, 11 (testimony of Dr. Burns, noting connections between the failures in the immediate responses to suicides that occurred before and after the suicide prevention opinion). Because effective training depends on regularity and consistency, relief remains necessary not only to bring ADOC into compliance, but to sustain compliance as ADOC contends with the continued challenges of understaffing.
c. PLRA Findings
ADOC's persistent failure to respond appropriately to suicide attempts in progress is a systemic problem, and it demands systemic relief. Requiring ADOC to conduct regular emergency preparedness drills is necessary to correct this longstanding threat to the safety of inmates who attempt suicide or other serious self-injurious behavior.
In light of the magnitude of this problem and the severity of its consequences, the court finds that quarterly, rather than annual, drills are necessary to address the violation. Vail credibly testified that a quarterly frequency provides "reasonable" time to plan these drills, see May 28, 2021, R.D. Trial Tr. at 138-39, and the court finds that quarterly drills are narrowly tailored and the least intrusive means that will correct ADOC's widespread failures in this area. Finally, and again, the court must also make sure that the emergency drills requirement does not fall victim to the ADOC's practice of "robbing Peter to pay Paul," that is, the practice that, due to severe staffing shortage, it must divert staff from one remedy to address another.
3. Training for Mental-Health Observers
a. The Parties’ Proposed Provisions
With respect to the training of observers who conduct constant observation and close watch of inmates who are on suicide watch, the plaintiffs propose the follow provision:
"Observers must receive additional training related to observation obligations; access to medical, mental health, and correctional staff; conflict resolution; and facility-specific processes and procedures (including how to access assistance in an emergency, obtain observation relief for a break, and communicate with supervisory staff during nontypical work hours)."
Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 13.9. The defendants propose no equivalent provision.
b. The Court's Ordered Relief
58 The court will order that observers must receive additional training related to their observation obligations--including where they are to stand and sit--and how to obtain assistance if an inmate requires medical care or in the event of an emergency. The court finds this relief necessary in light of Dr. Burns's and Dr. Perrien's finding, upon inspecting ADOC facilities in 2019, that "[i]n none of the facilities ... were the ‘watchers’ positioned appropriately to permit full visibility into the safe cells or constant visibility of the inmates being observed." Braggs, 383 F. Supp. 3d at 1259 (quoting Report and Recommendations on Suicide Prevention in the Alabama Dep't of Corrections (Doc. 2416-1) at 26). Rather, the experts noted that observers were "seated far removed from the crisis cell, ... obscuring their view into the cell and of the inmate. This occurred even though the door and food/cuff port were closed and there was no apparent risk to the observer." Report and Recommendations on Suicide Prevention in the Alabama Dep't of Corrections (Doc. 2416-1) at 10. They further found that inmates on suicide watch reported having trouble accessing medical care and that "mental health staff ... were not notified timely when a serious suicide attempt or suicide occurred." Id. at 28. The court finds it troubling that these practices continued to occur well after its finding, in 2017, that ADOC's monitoring of suicidal prisoners was "woefully inadequate." Braggs, 257 F. Supp. 3d at 1229.
c. PLRA Findings
The court finds this provision necessary because it is dangerous not to provide adequate monitoring of inmates on suicide watch. Observers do not fulfill their purpose to protect the safety of inmates experiencing mental-health crises if they cannot actually see the inmates they are tasked with monitoring. Furthermore, inmates on suicide watch are denied adequate treatment and protection when observers fail to notify mental-health staff when inmates who they are monitoring require medical attention, especially when the event giving rise to the need for medical attention is a suicide or serious suicide attempt. This provision is narrowly tailored and minimally intrusive, requiring only that observers receive training specifically to address the problems that Dr. Burns and Dr. Perrien identified in ADOC's current monitoring of inmates on suicide watch. Finally, and again, the court must make sure that the observers requirement does not fall victim to the ADOC's practice of "robbing Peter to pay Paul," that is, the practice that, due to severe staffing shortage, it must divert staff from one remedy to address another.
III. GLOBAL PLRA FINDINGS
Just as the areas of inadequacy identified in the court's 2017 liability opinion are interconnected, see Braggs, 257 F. Supp. 3d at 1192-93, so too are the remedial provisions the court enters today. Each addresses a failure that compounds with other failures; often, absent one provision, other provisions will not function adequately to protect prisoners’ safety.
The experiences of the men who committed suicide since the court's liability opinion exemplify the multifaceted character of ADOC's deficiencies. For many of these individuals, the timeline of their incarceration reflects not a single moment in which ADOC failed them, but a string of serial failures that cumulatively denied them access to minimally adequate mental-health treatment and care and culminated in their tragic loss of life. No single provision could have saved them. An appropriate mental-health referral accomplishes nothing when it does not result in follow-up care. A clinical contraindication of placement in restrictive housing offers no protection if it is disregarded without exceptional circumstances. And without adequate correctional and mental-health staffing, the whole system collapses in on itself. Because of this interdependence, no provision that the court adopts today necessarily renders any other provision unnecessary, and no subset of the provisions offers a constitutionally sufficient substitute for the ordered relief.
ADOC's severe shortage of correctional staff further underscores the need for the entirety of the relief that the court orders today. As explained previously, ADOC's lack of staff has reduced it and its mental-health vendor to a constant state of "robbing Peter to pay Paul"; to implement relief in one area, it must divert staff from another, all with the goal of triaging--that is, maximizing the number of surviving inmates. Given this history, the court finds that, despite ADOC's progress in some areas, it is an open and critical question whether it can not only achieve but also sustain adequate compliance in various areas simultaneously, and that all of the provisions it orders today are therefore necessary.
Thus, taken as a whole, as well as individually, and set against the backdrop of what ADOC is doing and failing to do to meet its constitutional obligations overall, the court finds that the provisions it enters today are necessary, narrowly tailored, and the least intrusive means to correct ADOC's systemic violations of the constitutional rights of prisoners with serious mental-health needs.
IV. CONCLUSION
Four years ago, this court found the mental-health care provided by the Alabama Department of Corrections "horrendously inadequate" for seven independent but interrelated reasons. Braggs, 257 F. Supp. 3d at 1267. It further found that "persistent and severe shortages of mental-health and correctional staff, combined with chronic and significant overcrowding, are the overarching issues that permeate each of the above-identified contributing factors of inadequate mental-health care." Id. at 1268.
Since then, ADOC's mental-health staffing has improved. Its correctional staffing has not. What was true four years ago is no less true today: ADOC does not have enough correctional staff to provide constitutionally adequate mental-health care to prisoners who need it.
The continued dearth of correctional staff is the fault at the heart of ADOC's system of mental-health care. The absence of security staff prevents people who need treatment from accessing it, stops those whose mental health is deteriorating from being caught before they lapse into psychosis or suicidality, and fosters an environment of danger, anxiety, and violence that constantly assaults the psychological stability of people with mental illness in ADOC custody.
It is therefore imperative that ADOC work with the EMT to develop realistic benchmarks for the level of correctional staffing it will attain in each of the next four years, with the goal of achieving in four years the level of staffing necessary to conduct normal operations safely. ADOC must also create its agency staffing unit and work with the Savages to update its staffing analysis as quickly as it can, and it must develop a proposal for its restrictive housing to function safely until it hires more correctional staff. These steps cannot wait. So long as ADOC's current staffing levels persist, people with serious mental-health needs are not safe in Alabama's prisons, but are at daily serious risk of deprivation, decompensation, and death.
With respect to the other constitutional violations identified in the court's liability opinion, ADOC's track record is mixed. In certain areas it has made great progress; in others, less. The critical question is whether it can sustain that progress, given its severe shortage of correctional staff, as it implements relief in other areas.
On the whole, though, the court is hopeful that in the not too distant future many, if not all, of the provisions it orders today may prove unnecessary. As ever, the endgame for everyone should be both achieving and sustaining adequate compliance and bringing this phase of the litigation to a close as soon as is reasonably possible. Towards this end, the court will hold status conferences about every four months with the parties to discuss their progress and to make sure nothing falls through the cracks. As stated, when the amount of work ADOC must now put into achieving and sustaining adequate compliance is considered, the July 2025 deadline--when the department must meet the critical and core correctional staffing deadline--is just around the corner. Time is of the essence.
DONE, this the 27th day of December, 2021.
Appendix A
The Defendants’ Mental-Health Treatment Guidance
| Treatment Category | Initial Assessment | Subsequent Care |
| SU | An RN will assess the inmate on an emergent basis after arrival to the SU and make any necessary arrangements on an emergent, urgent, routine, or another basis for a psychiatric assessment and/or counseling assessment. | Typically, structured, out-of-cell activities during each week will include a daily interaction with a RN, psychologist, or counselor and more than one clinical encounter with a psychiatrist or CRNP. |
| RTU (Levels 1-3) | An RN will assess the inmate on an urgent basis after arrival to the RTU and make any necessary arrangements on an emergent, urgent, routine, or another basis for a psychiatric assessment and/or counseling assessment. | Typically, structured, out-of-cell activities during each week will include multiple interactions with an RN, psychologist, or counselor and a clinical encounter with a psychiatrist or CRNP. |
| SLU | An RN will assess the inmate on an urgent basis after arrival to the SLU and make any necessary arrangements on an emergent, urgent, routine, or another basis for a psychiatric assessment and/or counseling assessment. | Typically, structured, out-of-cell activities during each week will include multiple interactions with an RN, psychologist, or counselor and a clinical encounter with a psychiatrist or CRNP based on clinical judgment. |
| Outpatient | A treatment team member will assess the inmate on a routine basis. | Psychiatrist or CRNP: Every 90 days, unless otherwise clinically indicated. |
| Psychologist or counselor: Every 90 days, unless otherwise clinically indicated. |
PHASE 2A OMNIBUS REMEDIAL OPINION PART III SUPPLEMENT
The court inadvertently omitted two subsections--one discussing the degree to which the EMT shall consider unexpected circumstances in monitoring the defendants’ compliance with the court's omnibus remedial order, and the other discussing the defendants’ promulgation of policies--from the third part of its Phase 2A Omnibus Remedial Opinion. These two subsections should have come after the subsection entitled "M. Training" in the section entitled "II. REMEDIAL PROVISIONS AND PLRA FINDINGS." These two subsections should have been subsections "N." and "O." These omitted subsections now follow:
N. Unforeseen Circumstances
Informed by the COVID-19 pandemic, the parties each propose provisions as to how, if at all, the remedial order and monitoring should be modified to accommodate unforeseen circumstances. In determining how unforeseen circumstances will affect the monitoring and measurement of compliance with the remedial order, the court need not make PLRA findings. The remedial order satisfies the PLRA's requirements, and this provision to accommodate unforeseen circumstances imposes no remedial obligations on the defendants.
The defendants propose to define "unforeseen circumstances" to mean "a situation in which an event or series of events (such as a natural disaster, fire, medical epidemic, pandemic, or outbreak, and lockdown) make performance under this Phase 2A Remedial Order inadvisable, impracticable, illegal, impossible, detrimental to the health and/or safety of inmates and/or staff, or detrimental to the public interest." Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 1.38. The plaintiffs agreed that this definition is reasonable, provided that the EMT retains the discretion to monitor how the definition is applied. See July 7, 2021, R.D. Trial Tr. at 134-35. The court adopts the defendants’ definition of "unforeseen circumstances."
As to how unforeseen circumstances will affect the remedial order, the plaintiffs propose:
"Remedial orders will not be modified to anticipate unforeseen circumstances, such as COVID-19. However, the EMT can evaluate reasons for not complying with this remedial order as well as ... any attempt to mitigate noncompliance in determining noncompliance."
Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 14.1.
The defendants propose separate provisions regarding COVID-19 and other unforeseen circumstances. With respect to COVID-19 specifically, they propose:
"The Court anticipates COVID-19 and potentially other unforeseen circumstances affecting performance of a variety of aspects of this Phase 2A Remedial Order as it affected performance of a variety of aspects of the Remedial Orders.... Consistent with the process identified in Section 13.2 below, during the development of audit tools related to this Phase 2A Remedial Order, the Compliance Team, in collaboration with OHS and ADOC's Resumption Committee, will evaluate the remedial measures in this Phase 2A Remedial Order affected by COVID-19, the propriety of waiving or adjusting performance of such remedial measures, and the anticipated timeframe for such waiver or adjustment of performance. For example, the Compliance Team may evaluate the impact of COVID-19 on mental-health group activities, out-of-cell time, and other mental-health services (including any activities and services continued by this Phase 2A Remedial Order that the State previously identified as ‘unworkable’ ...). Along with the audit tools ... the Compliance Team will submit an initial written report to the Court consistent with Section 13.2 below."
Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 13.1. And with respect to unforeseen circumstances generally, they propose:
"To ensure the durability of this Phase 2A Remedial Order, the Court authorizes the Compliance Team to temporarily waive or adjust performance of one (1) or more remedial measures provided in this Phase 2A Remedial Order. Before waiving or adjusting performance of any remedial measure in this Phase 2A Remedial Order, the Compliance Team, in collaboration with OHS and any other necessary person or entity such as the Alabama Department of Public Health, must evaluate the unforeseen circumstance and the effect on performance under this Phase 2A Remedial Order. The Compliance Team will submit a written report to the Court identifying the unforeseen circumstance, the remedial measures affected by the unforeseen circumstance, the reasons for the decision to waive or adjust performance of such remedial measures, and the anticipated timeframe for such waiver or adjustment of performance."
Id. at § 13.2.
The parties’ proposals are similar in that both would have the EMT take circumstances like COVID-19 into account when measuring compliance. The court agrees with this approach. However, the court will not prescribe the manner in which the monitoring team must do so. Rather, the court will order that, in monitoring the defendants’ compliance with the remedial order, the EMT shall consider unforeseen circumstances, their effects on the defendants’ ability to comply with the remedial order, and the defendants’ efforts to mitigate the effects of those circumstances. This approach is consistent with the recommendation of the defendants’ expert, Dr. Metzner. See June 30, 2021, R.D. Trial Tr. at 195-97 (recommending that the remedial order should remain unchanged and that the EMT should determine whether there is a "valid reason" for noncompliance and whether the defendants have conducted "reasonable mitigation"). This will afford the EMT the discretion to evaluate the defendants’ performance in the context of unforeseen circumstances, without moving the goalposts fixed by the remedial order.
To the extent the defendants propose that the EMT should have the authority to waive performance of the court's orders, the court disagrees. Elsewhere in these proceedings, the defendants argued that it would be unlawful for the court to grant the EMT the authority to modify the court's orders, and the court agrees that giving that level of power to the EMT would be inappropriate.
Moreover, COVID-19 and similar conditions do not change what constitutes minimally adequate mental-health care. It may be the case that a failure to provide such care that would be deemed noncompliance under non-pandemic conditions should not be so while a prison system is adjusting to a pandemic. But the constitutional floor did not shift when the pandemic struck.
O. Policies
The plaintiffs contend that, if the court's omnibus remedial order is to have any effect, ADOC staff and inmates must know its contents--the staff so that they can follow its dictates, and the inmates so that they can hold the defendants to account if they fail to comply. To that end, they propose provisions requiring ADOC to (1) publish a single, comprehensive set of policies and procedures related to ADOC's provision of mental-health services to its inmate population, see Pls.’ Updated Proposed Omnibus Remedial Order (Doc. 3342) at § 16.1; (2) update its Inmate Handbook to summarize the court's omnibus remedial order and make a complete copy of the court's order available for review in the law library of each major facility, see id. at § 16.2; and (3) require its mental-health vendors to comply with its policies and procedures, see id. at § 16.3.
The defendants dispute the necessity of this relief, pointing to the fact that ADOC has previously updated its policies to reflect the terms of the courts’ orders as evidence of its "readiness to develop and implement appropriate policies related to the provision of mental-health care without a court order requiring it to do so." Defs.’ Post-Trial Br. (Doc. 3367) at 140. In the alternative, they offer a provision requiring ADOC to update its policies and procedures to reflect the terms of the court's omnibus remedial order. See Defs.’ Proposed Phase 2A Remedial Order (Doc. 3215) at § 16.
While the court agrees with the plaintiffs that ADOC would be prudent to publish a single, comprehensive set of policies and procedures related to its provision of mental-health services, and to summarize at least certain provisions of the court's omnibus remedial order in its Inmate Handbook, and while the court would strongly encourage ADOC to do such, it declines to enmesh itself in the process of ongoing and detailed review of the adequacy of ADOC's published policies and handbooks. Rather than order the plaintiffs’ requested relief, it simply notes that, if the EMT determines that ADOC is failing to inform inmates, its staff, or its mental-health vendor's staff of the contents of the court's omnibus remedial order, and that that failure impedes implementation of the order, it should work with ADOC to resolve the problem, and bring it to the court's attention if necessary.
DONE, this the 28th day of December, 2021.
PHASE 2A OMNIBUS REMEDIAL ORDER
In accordance with the three remedial opinions entered today, it is the ORDER, JUDGMENT, and DECREE of the court that defendants Jefferson S. Dunn and Deborah Crook, in their official capacities, are ENJOINED and RESTRAINED from failing to do the following:
1. Definitions
1.1. "ADOC" refers to the Alabama Department of Corrections. While the court refers to the ADOC often in this order, its order is directed to the defendants; thus, when the court says that "ADOC" shall take a certain action, it means that the defendants must ensure that it takes that action.
1.2. "ADOC major facility" refers to one or more of the major adult correctional facilities operated by or on behalf of ADOC, excluding any community-based facilities and community work centers. ADOC major facilities presently include Bibb County Correctional Facility, Bullock Correctional Facility, Donaldson Correctional Facility, Draper Correctional Facility, Easterling Correctional Facility, Elmore Correctional Facility, Fountain Correctional Facility, Hamilton Aged and Infirmed Center, Holman Correctional Facility, Kilby Correctional Facility, Limestone Correctional Facility, St. Clair Correctional Facility, Staton Correctional Facility, Tutwiler Prison for Women, and Ventress Correctional Facility.
1.3. "Effective date" refers to 42 days after the entry of this omnibus remedial order.
2. Staffing
2.1. Correctional Staffing
2.1.1. In accordance with the court's previous order (Doc. 1657) directing it to comply with the recommendations of Margaret and Merle Savage (Doc. 1813-1), ADOC must create an agency staffing unit that will "write policy, enforce the staffing decisions mandated by the court's order, and take steps so that another staffing analysis can be conducted for every facility," Doc. 1813-1 at 100.
2.1.2. ADOC must work with the Savages to update its staffing analysis.
2.1.3. Within 21 days of the effective date, the defendants are to submit to the court a proposal for specific dates by which each of the above two provisions can be accomplished.
2.1.4. By July 1, 2025, ADOC must fill all mandatory and essential posts at the level indicated in the most recent staffing analysis at that time.
2.1.5. By May 2, 2022, the defendants must develop in collaboration with the Savages, and submit to the court, realistic benchmarks for the level of correctional staffing ADOC will attain by December 31 of 2022, 2023, and 2024. These benchmarks must prioritize filling mandatory posts and staffing the mental-health hubs and intake facilities, and must put ADOC on track to fill all mandatory and essential posts by July 1, 2025.
2.1.6. ADOC must submit correctional staffing reports to the court and the EMT on at least a quarterly basis. It may work with the EMT to develop the format of these reports. However, until ADOC and the EMT have finalized a new report format or else concluded that the existing report format is adequate, ADOC shall continue to provide mental-health staffing reports according to the format currently in place.
2.1.7. Ameliorating the Effects of Understaffing
2.1.7.1. ADOC must check SU, suicide watch, and RHU cells for suicide resistance whenever such cells receive new occupants.
2.1.7.2. ADOC must conduct a thorough check of all SU, suicide watch, and RHU cells at least once per quarter to verify that they satisfy every element of the Hayes checklist (Doc. 3206-5). These checks must be documented.
2.1.7.3. By May 2, 2022, the parties must submit proposals that will allow ADOC's RHUs--with the exception of the RHU at Tutwiler--to function safely with the correctional staff that ADOC currently employs. These proposals must address the following:
2.1.7.3.1. How ADOC shall address the serious risk of harm to inmates in restrictive housing caused by correctional staffing deficits so severe that the consistent provision of security checks, out-of-cell time and mental-health treatment is simply impossible.
2.1.7.3.2. How ADOC will ensure that any inmates moved out of the RHUs do not end up in functionally identical units--that is, units that offer equivalently deficient levels of monitoring, out-of-cell time, and treatment.
2.1.7.3.3. How ADOC will ensure the safety of inmates in the RHUs who require protective custody, and, if it chooses to reduce the number of inmates in the RHUs, how it will manage the dangers posed by inmates who would present a significant safety or security risk in general population.
2.1.7.3.4. How this relief may be modified if ADOC meets the benchmarks for correctional staffing set forth above.
2.1.8. Correctional Staff Positions
2.1.8.1. Basic Correctional Officers (BCOs) cannot staff positions requiring firearms training, including, but not limited to, tower posts, perimeter posts, perimeter patrol posts, transportation posts, and armory posts.
2.1.8.2. Cubicle Correctional Operators (CCOs) cannot staff any position other than secure control room posts with no direct inmate contact.
2.2. Mental-Health Staffing
2.2.1. ADOC must maintain levels of mental-health staffing consistent with or greater than those called for by the staffing ratios developed by its consultants, subject to any subsequent modifications.
2.2.2. The EMT shall review the staffing ratios beginning one year from the initiation of monitoring and, if necessary, make recommendations for revising them.
2.2.3. ADOC must achieve the staffing levels set forth in the staffing matrix previously approved by the court, see Phase 2A Order and Injunction on Mental-Health Staffing Remedy (Doc. 2688), subject to any subsequent modifications, June 1, 2025.
2.2.4. ADOC must submit mental-health staffing reports to the court and the EMT on at least a quarterly basis. It may work with the EMT to develop the format of these reports. However, until ADOC and the EMT have finalized a new report format or else concluded that the existing report format is adequate, ADOC shall continue to provide mental-health staffing reports according to the format currently in place.
3. Restrictive Housing Units
3.1. Exceptional Circumstances
3.1.1. Inmates with serious mental illnesses may not be placed in the RHUs unless a documented exceptional circumstance applies.
3.1.1.1. An "exceptional circumstance" exists where: (a) a safety or security issue prevents placement of the inmate in alternative housing (such as a SU, RTU, or SLU); or (b) a non-safety or non-security issue exists and transfer or transportation to alternative housing is temporarily unavailable. Examples of safety and security issues include an inmate's known or unknown enemies in alternative housing or the inmate's creation of a dangerous environment (to the inmate, other inmates,
and/or staff) by his or her presence in alternative housing.
3.1.2. An inmate placed in a RHU for safety or security issues for 72 hours or longer will be offered at least three hours of out-of-cell time per day (which may be congregate out-of-cell time) while he or she remains in the RHU.
3.1.3. An inmate placed in a RHU for non-safety or non-security issues must be removed from the RHU within 72 hours.
3.1.4. Every week, ADOC must file with the court and the monitoring team reports on each prisoner who has been in restrictive housing for longer than 72 hours under exceptional circumstances during that week. These reports must indicate the amount of out-of-cell time offered to the prisoner each day, the nature of the out-of-cell time (i.e. , exercise, group therapy, etc.), the exceptional circumstance justifying the prisoner's continued segregation placement, and the date by which ADOC expects that exceptional circumstance to be resolved.
3.2. Screening for Serious Mental Illnesses
3.2.1. Before being placed in a RHU, each inmate must be screened by an RN, or an LPN under an RN's supervision. The screening must assess whether the inmate has been flagged as seriously mentally ill; whether the inmate is at imminent risk of suicide or serious self-harm; whether the inmate exhibits debilitating symptoms of a serious mental illness; and whether the inmate requires emergency medical care. The results of the screening must be used to determine whether the inmate should be placed in restrictive housing and whether the inmate requires a medical and/or mental-health referral.
3.2.2. If mental-health staff determine that an inmate who has yet to be placed in restrictive housing is contraindicated for restrictive housing, that inmate must not be placed in restrictive housing absent a documented exceptional circumstance.
3.2.3. If mental-health staff determine that an inmate who has already been placed in restrictive housing is contraindicated for continued placement there, as evidenced by changes in the inmate's mental state and functioning, that inmate must be removed from restrictive housing within 72 hours--or sooner, if a psychiatrist, psychologist, CRNP, or counselor determines that the need for removal of the inmate from restrictive housing is urgent--absent a documented exceptional circumstance.
3.3. Mental-Health Rounds
3.3.1. Mental-health rounds must be conducted by a qualified mental-health professional in each RHU at least weekly, and should generally include a discussion with the post officer(s) concerning any changes in the behavior of inmates in the RHU; a review of duty
post logs and segregation unit record sheets for information about inmates’ participation in recreation, showers, meal consumption and sleep patterns; a walk through the RHU, with stops at each occupied cell to make visual contact with the inmate inside the cell; attempts to verbally communicate with each inmate, including a brief inquiry into how the inmate is doing and whether the inmate has mental-health needs or a desire to speak with mental-health staff privately; and a brief assessment of each inmate's hygiene, behavior, affect, and physical condition, and the condition of his or her cell.
3.3.2. Mental-health rounds must be appropriately documented. Such documentation must contain a notation of any mental-health needs expressed by inmates, or concerns identified by the qualified mental-health professional conducting the round as to any inmate. Documentation of rounds must be chronologically filed and maintained by the mental-health manager or other designated mental-health staff member.
3.4. Mental-Health Assessments
3.4.1. Each inmate must receive a mental-health assessment by a psychiatrist, psychologist, CRNP, or counselor within seven days of his or her placement in restrictive housing. Inmates coded as mental-health code A must receive additional assessments at least every 90 days, and inmates coded as mental-health code B or C must receive additional assessments at least every 30 days.
3.4.2. Each mental-health assessment must be appropriately documented.
3.4.3. Each mental-health assessment must include an examination or discussion of the following topics: the inmate's past response(s) to restrictive housing, if applicable; the inmate's general appearance or behavior; whether the inmate has a present suicidal ideation ; whether the inmate has a history of suicidal behavior; whether the inmate is presently prescribed psychotropic medication; whether the inmate has a current mental-health complaint; whether the inmate is currently receiving treatment for a diagnosed mental-illness; whether the inmate has a history of inpatient or outpatient psychiatric treatment; whether the inmate has a history of treatment for substance abuse; whether the inmate has a history of abuse and/or trauma; and whether the inmate is presently exhibiting symptoms of psychosis, depression, anxiety, and/or aggression.
3.4.4. Each mental-health assessment must include a determination of whether the inmate requires a referral and, if so, how urgently.
3.5. Out-Of-Cell Time
3.5.1. All inmates in RHUs must have the opportunity to exercise outside of their cells for at least five hours per week, subject to the following exception:
3.5.1.1. ADOC may refrain from offering out-of-cell time due to inclement weather, but only if a safe, alternative space for inmates to exercise--such as a gymnasium--is unavailable.
3.5.2. The days and times that out-of-cell time is offered, and any inmate's decision to refuse out-of-cell time, must be documented.
3.6. Security Checks
3.6.1. ADOC must perform security checks in RHUs at least twice per hour, but no more than 40 minutes apart.
3.6.2. Security checks must be documented accurately and contemporaneously.
3.6.3. Correctional officers must regularly verify that security checks are conducted as required.
3.1. Restrictive Housing Cells
3.1.1. Within three months of the effective date, the cells in the RHUs must be cleaned.
3.1.2. Cells in the RHUs must always be cleaned before they receive new occupants, and inmates must be provided access to cleaning supplies at least every two weeks.
3.1.3. Within six months of the effective date, all cells in the RHUs must comply with the conditions set forth in the checklist developed by Lindsay M. Hayes (Doc. 3206-5).
4. Intake
4.1. Each intake screening must be conducted by a qualified mental-health professional.
4.2. Documentation of each inmate's intake screening--including an interpretation of the results of any psychological assessment--must be filed in the inmate's medical record.
4.3. Inmates’ Previous Records
4.3.1. If, either during or after intake, an inmate reports having previously received mental-health services and can correctly report the prior mental-health provider, a records request to the prior provider must be made within three working days of the time the inmate reported having previously received mental-health services. If the inmate reports having previously received mental-health services and cannot remember or correctly identify the prior mental-health provider, the mental-health staff must reasonably attempt to locate records of the inmate's prior treatment.
4.3.2. All health records from each inmate's prior facility of incarceration must be requested within three working days of intake if they are not presented at intake.
5. Coding
5.1. Each inmate must be assigned a mental-health code and, if necessary, an SMI flag, that is appropriate to address his or her mental-health needs, as determined by clinical judgment.
5.2. Each inmate's mental-health code and SMI flag must be accurately and consistently indicated throughout all documents related to his or her care.
6. Referral
6.1. A referral must result in a timely clinical assessment and/or intervention by a psychiatrist, psychologist, CRNP, or counselor. Emergent referrals must result in a clinical assessment and/or intervention as soon as possible but no more than four hours from the determination that the referral is emergent. Urgent referrals must result in a clinical assessment and/or intervention within 24 hours of the time the referral was made. Routine referrals must result in a clinical assessment and/or intervention within 14 calendar days of the time the referral was made.
6.2. Communication of Referrals
6.2.1. An emergent or urgent referral must be communicated verbally, in person or by telephone, to the appropriate mental-health staff member or members as soon as possible, but in no case longer than one hour from the time the referral is identified as emergent or urgent, absent unusual circumstances which detain staff for an extended period of time such as a medical emergency or an incident involving safety or security of staff or inmates. The mental-health staff member or members to whom the referral should be communicated will be determined by the mental-health staff.
6.2.2. Routine referrals must be communicated to the appropriate mental-health staff member or members, as indicated above, by the next shift by leaving the referral form in a location that ADOC has designated to the correctional and mental-health staff, and inmates, as appropriate. The monitoring team may alert the court if ADOC fails to clearly designate the location.
6.3. An appropriate triage or mental-health staff member or members must regularly monitor any designated location for completed referral forms. Said staff must review and triage the completed referral forms at least once per shift.
6.4. After an inmate has received an emergent referral, including a referral for suicide watch, correctional or mental-health staff must maintain constant, line-of-sight observation of the inmate until the inmate has been assessed by an appropriate mental-health provider.
7. Confidentiality
7.1. Individual counseling sessions, medication-management encounters, periodic mental-health assessments of inmates in RHUs, suicide-risk assessments, and therapeutic group sessions must take place in settings that provide for confidentiality and that, if applicable, are out-of-cell, subject to the following exception:
7.1.1. Such services may be provided in a non-confidential setting if confidentiality is not possible due to safety concerns or is otherwise not appropriate.
The question whether confidentiality is otherwise not appropriate must be answered according to clinical determinations.
7.1.2. If confidentiality is not possible, then that fact, the reason for it, and any actions taken to maximize confidentiality must be documented in a progress note.
8. Treatment Teams and Plans
8.1. Treatment teams must meet at regular intervals, to be determined based on the team chair's clinical judgment, taking into account each inmate's assigned mental-health code, housing unit, and level of psychotherapy.
8.2. Each treatment team meeting must last for an adequate period of time, based on the team chair's clinical judgment.
8.3. All members of each inmate's treatment team must have access to clinically relevant documents.
8.3.1. Clinically relevant documents are all documents related to the current and past condition of the inmate--including documents related to the inmate's housing status, disciplinary history, and interactions with other inmates--that are necessary to inform clinical judgment.
8.4. Each inmate on the mental-health caseload must have a treatment plan that is adequately detailed and individualized to address his or her mental-health needs, based on clinical judgment.
8.5. Treatment teams must review and revise each inmate's mental-health code as clinically appropriate, and must review and amend, if necessary, each inmate's treatment plan after changes in the inmate's mental-health code, transfer to a new housing unit, or any other circumstance resulting from or likely to affect an inmate's mental-health in a significant way.
8.6. Coordination of Transfers and Treatment
8.6.1. ADOC must consider inmates’ mental-health codes and symptoms in making decisions concerning transfer between facilities.
8.6.2. In the event of a transfer of an inmate on the mental-health caseload, the staff member in charge of the inmate's care at the transferring facility must send a transfer note to the staff member in charge of the inmate's care at the receiving facility within a reasonable time after the transfer is initiated.
9. Psychiatric and Therapeutic Care
9.1. Access to Treatment
9.1.1. ADOC must comply with the Mental-Health Treatment Guidance set forth in Appendix A.
9.1.2. In addition to the Mental-Health Treatment Guidance set forth in Appendix A, each inmate must receive any additional care prescribed by his or her treatment team, subject to the following exception:
9.1.2.1. While ADOC must provide each inmate in restrictive housing with any medication or individual therapy prescribed by his or her treatment team, it need not provide
other forms of care prescribed by an inmate's treatment team if those kinds of care cannot be provided safely in the restrictive housing environment.
9.1.3. Each treatment session must last for an adequate period of time, according to clinical judgment.
9.1.4. Each housing unit must offer appropriate types and numbers of therapeutic groups to accommodate the inmates housed there.
9.2. Out-Of-Cell Time
9.2.1. Inmates in the RTU, SU, and SLU must receive ten hours of structured, therapeutic out-of-cell time and ten hours of unstructured out-of-cell time per week, unless clinically contraindicated, subject to the following exception:
9.2.1.1. ADOC need not provide ten hours unstructured out-of-cell time per week to inmates in the RTU Level Three who are housed in open dormitories rather than cells.
9.2.2. An inmate's out-of-cell appointments with his or her treatment team, psychiatric provider, counselor, or therapeutic group will count as structured, therapeutic out-of-cell time.
9.3. Inmates who are not on the mental-health caseload must be seen by mental-health staff in the event of a mental-health crisis or after receipt of a mental-health referral, as clinically indicated.
9.4. Progress Notes
9.4.1. For each significant clinical encounter between an inmate and a member of his or her treatment team, or any qualified mental-health professional, a progress note must be created and placed in the inmate's mental-health record.
9.4.1.1. A significant clinical encounter consists of a communication or interaction between an inmate and qualified mental-health professional involving an exchange of information used in the treatment of the inmate, excluding any casual exchanges, administrative communications, or other communications which do not relate to the inmate's mental condition or ongoing mental-health treatment.
9.4.2. Progress notes must be sufficiently detailed to facilitate treatment and ensure continuity of care
10. Suicide Prevention
10.1. Immediate Response to Suicide Attempts
10.1.1. If ADOC or mental-health vendor staff observe an inmate who is attempting suicide or who is unresponsive after apparently attempting or completing suicide, the staff must immediately call for assistance.
10.1.2. If ADOC or mental-health vendor staff observe a suicide threat or attempt, the staff must immediately respond with efforts to interrupt the behavior or attempt.
10.1.3. Immediate life-saving measures must be performed by ADOC or vendor staff as soon as it is deemed safe by correctional staff to do so (typically, when at least two correctional officers are present), and must continue until paramedics
or other appropriate medical personnel arrive and assume care or a physician declares such measures are no longer necessary.
10.1.4. Each ADOC major facility must maintain an appropriate cut-down tool in each RHU, SU, RTU, SLU, and crisis unit.
10.1.5. When continued medical care is necessary, an inmate who has attempted suicide must be moved to the medical or healthcare unit at the ADOC major facility for continued medical care as soon as ADOC staff may safely move the inmate, unless medically contraindicated.
10.1.6. If an inmate dies as a result of a suicide, the inmate's body must be moved as soon as possible to a private area outside of any occupied housing unit and outside the view of other inmates.
10.2. Suicide Watch Placement
10.2.1. After each inmate's initial placement on constant observation, the inmate must be evaluated using a suicide risk assessment to determine if the inmate is not suicidal or is either acutely suicidal or non-acutely suicidal.
10.2.2. An inmate who is admitted to suicide watch must be considered for placement on the mental-health caseload.
10.2.3. If an inmate admitted to suicide watch is not placed on the mental-health caseload, the clinical rationale for that decision must be documented in the inmate's medical chart.
10.2.4. Before an inmate is placed on suicide watch, a nurse must examine the inmate and complete a body chart.
10.3. Suicide Watch Cells
10.3.1. All suicide watch and stabilization unit cells in ADOC major facilities must be suicide-resistant. On a quarterly basis during the term of this order, all suicide watch cells in ADOC major facilities must be physically inspected to determine whether they remain suicide-resistant.
10.3.1.1. Cells shall be deemed suicide-resistant if they meet the requirements set forth in Lindsay M. Hayes's Checklist for the "Suicide Resistant" Design of Correctional Facilities (Doc. 3206-5).
10.3.1.2. Before an inmate is placed in an SU or suicide watch cell, the cell must be cleaned and any contraband must be removed from the cell.
10.3.2. ADOC may designate areas or cells where inmates could be temporarily placed when a suicide watch cell is unavailable, provided that the inmate remains on constant observation during this time.
10.4. Observation
10.4.1. Any inmate determined to be acutely suicidal must be monitored through a constant observation procedure.
10.4.2. Any inmate determined to be non-acutely suicidal must be monitored through a close watch procedure that ensures monitoring at staggered intervals not to exceed 15 minutes.
10.4.3. During constant observation or close watch, an observer must contemporaneously document his or her observations at staggered intervals not to exceed 15 minutes. Upon an inmate's discharge from suicide watch, his or her observation records must be maintained in his or her medical record.
10.4.4. ADOC must take appropriate steps to ensure that observers perform their duties as required.
10.5. Suicide Watch Conditions
10.5.1. Unless clinically contraindicated, inmates on suicide watch must be provided adequate suicide-resistant implements for hygiene and eating as clinically appropriate.
10.5.2. Inmates on suicide watch must receive the same privileges afforded by their last housing assignment as clinically appropriate.
10.5.3. Inmates housed in crisis cells, medical cells, or the infirmary must be provided appropriate out-of-cell activity, unless clinically contraindicated, after 72 hours.
10.6. Referrals to Higher Levels of Care
10.6.1. If an inmate remains on suicide watch for 72 hours, then he or she must be considered for referral to a different or higher level of care based on clinical judgment. If the inmate is not referred to a different or higher level of care, then the clinical rationale must be documented in the inmate's medical chart and tracked in the crisis utilization log or a similar tracking mechanism.
10.6.2. If an inmate remains on suicide watch for 168 hours, then the he or she must be considered for referral to a different or higher level of care based on clinical judgment. If the inmate is not referred to a different or higher level of care, then the clinical rationale must be documented in the inmate's medical chart and tracked in the crisis utilization log or a similar tracking mechanism.
10.6.3. If an inmate remains on suicide watch for 240 hours or longer and does not meet the criteria for discharge to outpatient mental-health care, then he or she must be considered for referral to a different or higher level of care based on clinical judgment. If the inmate is not referred to a different or higher level of care, then the clinical rationale must be documented in the inmate's medical chart and tracked in the crisis utilization log or a similar tracking mechanism, and documentation of the decision must be sent to the mental-health vendor's director of psychiatry for review and evaluation.
10.6.4. Any inmate who is returned to suicide watch within 30 days of discharge from a suicide watch and/or who has three suicide watch placements within six months must be considered for referral to a different or higher level of care based on clinical judgment.
If the inmate is not referred to a different or higher level of care, the clinical rationale must be documented, and mental-health staff must notify OHS of the decision and provide the clinical rationale to OHS within 72 hours.
10.7. Discharge
10.7.1. Discharge Evaluation
10.7.1.1. Prior to being discharged from suicide watch, an inmate must receive an out-of-cell, confidential evaluation by a psychiatrist, psychologist, CRNP, or counselor, unless such evaluation is not possible due to documented clinical concerns.
10.7.1.2. If an out-of-cell, confidential evaluation is not possible due to documented clinical concerns, staff must consider whether referral to a different or higher level of care is appropriate.
10.7.2. Discharge to RHU
10.7.2.1. An inmate discharged from suicide watch must not be transferred to an RHU, unless there is a documented exceptional circumstance.
10.7.2.2. Any transfer of an inmate from suicide watch to an RHU must be approved by the Deputy Commissioner of Operations (for male facilities) or Deputy Commissioner of Women's Services (for female facilities) or their designee.
10.8. Follow-Up
10.8.1. After an inmate's discharge from suicide watch, mental-health staff must conduct a follow-up mental-health examination with the inmate on each of the first three days following discharge, unless there is a documented clinical determination that the inmate was not suicidal at the time the inmate was placed on suicide watch and did not become suicidal during the watch placement.
10.8.2. Follow-up mental-health examinations must not take the place of other scheduled mental-health appointments, although they may occur in connection with or contiguous with such appointments.
10.8.3. Follow-up mental-health examinations must occur in a confidential, out-of-cell setting, unless such examination is not possible due to documented clinical concerns.
10.8.4. During the follow-up mental-health examinations, the mental-health staff conducting such follow-up mental-health examinations must assess whether the inmate released from suicide watch is showing signs of ongoing crisis, whether the inmate needs further follow-up mental-health examinations, and whether the inmate should be added to the mental-health caseload or assigned a different mental-health code.
10.8.5. An inmate's transfer from suicide watch to another institution prior to the completion of the three ordered follow-up examinations restarts the requirement to complete a follow-up mental-health examination on each of the three days following the transfer.
11. Higher Levels of Care
11.1. ADOC must ensure that inmates who require hospital-level care
receive it within a reasonable period of time, as determined by clinical judgment.
11.2. Inpatient Beds
11.2.1. ADOC must supply enough beds to accommodate 10 % of its mental-health caseload at the time of the effective date.
11.2.2. In collaboration with the EMT, ADOC must, on at least an annual basis, reassess (1) the number of inmates on ADOC's mental-health caseload, and (2) whether 10% is in fact an accurate estimate of the percentage of the mental-health caseload requiring inpatient treatment. If ADOC determines that more than 10 % of the inmates on the mental-health caseload require inpatient beds, or that the mental-health caseload has grown, or both, it must adjust its number of inpatient beds accordingly.
11.2.3. At all times, ADOC must ensure that inpatient beds are housed in treatment spaces that allow for confidentiality, including by creating any new treatment spaces if necessary.
11.3. ADOC must devise a plan and procedures to address the serious risk posed by high temperatures in the mental-health units, which it must submit to the court by May 2, 2022. The plan and procedures must address, specifically, how it happened that Tommy Lee Rutledge's cell reached 104 degrees, causing him to die of hyperthermia, in a unit that was supposedly air conditioned, and how the ADOC will prevent that from ever occurring again. The plan and procedures must also address how ADOC plans to determine whether cells in each of its facilities have reached dangerously high temperatures, and should such a finding be made, what measures ADOC will take to ensure their occupants’ safety.
12. Discipline
12.1. ADOC must comply with §§ V.B.2, V.C.3.a, and V.C.3.d of ADOC Administrative Regulation 626, all of which are set forth in Appendix B.
12.2. ADOC must comply with §§ V.D.3 and V.D.3.b, and the excerpted provision of § V.D.4, of ADOC Administrative Regulation 626, all of which are set forth in Appendix B.
13. Training
13.1. ADOC must document its provision of training regarding the Comprehensive Mental-Health Curriculum, suicide prevention, confidentiality, mental-health rounds in restrictive housing units, emergency preparedness, discipline, suicide risk assessments, correctional risk factors, and observation on suicide watch.
13.2. For training purposes, on a quarterly basis, ADOC and/or its mental-health vendor must conduct emergency preparedness drills at each ADOC major facility, including scenarios involving self-injury and suicide attempts. During the emergency preparedness drills, the trainers must evaluate the correctional and medical staff response time to the emergency code and their preparedness for the emergency code (including, as appropriate, presence of an emergency bag, automatic external defibrillator (or AED), and cut-down
tool). Additionally, the emergency preparedness drills must include role-playing for participants to practice the response to an emergency, including, for example, using a cut-down tool, rendering first aid, and performing cardiopulmonary resuscitation (or CPR).
13.3. Observers must receive additional training related to their observation obligations, including where they must be positioned and how to access assistance if an inmate requires medical care or there is an emergency.
14. Unforeseen Circumstances
14.1. "Unforeseen circumstances" refer to a situation in which an event or series of events (such as a natural disaster, fire, medical epidemic, pandemic, or outbreak, and lockdown) make performance under this omnibus remedial order inadvisable, impracticable, illegal, impossible, detrimental to the health and/or safety of inmates and/or staff, or detrimental to the public interest.
14.2. In monitoring ADOC's compliance with this omnibus remedial order, the EMT shall consider unforeseen circumstances, their effects on ADOC's ability to comply with the remedial order, and ADOC's efforts to mitigate the effects of those circumstances.
15. This order is not final and remains open in that the parties must still submit proposals for further and/or different relief and monitoring may warrant consideration and reconsideration of issues. The court also retains jurisdiction.
DONE, this the 27th day of December, 2021.
Appendix A
The Defendants’ Mental-Health Treatment Guidance
| Treatment Category | Initial Assessment | Subsequent Care |
| SU | An RN will assess the inmate on an emergent basis after arrival to the SU and make any necessary arrangements on an emergent, urgent, routine, or another basis for a psychiatric assessment and/or counseling assessment. | Typically, structured, out-of-cell activities during each week will include a daily interaction with a RN, psychologist, or counselor and more than one clinical encounter with a psychiatrist or CRNP. |
| RTU (Levels 1-3) | An RN will assess the inmate on an urgent basis after arrival to the RTU and make any necessary arrangements on an emergent, urgent, routine, or another basis for a psychiatric assessment and/or counseling assessment. | Typically, structured, out-of-cell activities during each week will include multiple interactions with an RN, psychologist, or counselor and a clinical encounter with a psychiatrist or CRNP. |
| SLU | An RN will assess the inmate on an urgent basis after arrival to the SLU and make any necessary arrangements on an emergent, urgent, routine, or another basis for a psychiatric assessment and/or counseling assessment. | Typically, structured, out-of-cell activities during each week will include multiple interactions with an RN, psychologist, or counselor and a clinical encounter with a psychiatrist or CRNP based on clinical judgment. |
| Outpatient | A treatment team member will assess the inmate on a routine basis. | Psychiatrist or CRNP: Every 90 days, unless otherwise clinically indicated. |
| Psychologist or counselor: Every 90 days, unless otherwise clinically indicated. |
Appendix B
ADOC Administrative Regulation 626, § V.B.2 :
"A mental health consultation may be sought at the time of the rule or regulation violation or after review of the disciplinary report. A mental health consultation must be sought if the inmate is on the mental health caseload and has a mental health code of C or higher and/or an SMI designation; or, even if the inmate has a lower mental health code or is not on the mental health caseload, where the inmate has an intellectual or developmental disability, or the inmate's behavior at the time of the alleged actions giving rise to the disciplinary or at any time prior to or during the disciplinary process demonstrates signs of psychological distress or mental impairment."
ADOC Administrative Regulation 626, § V.C.3.a :
"A mental health staff member performing the mental health consultation will evaluate: (1) an inmate's current and then-existing (at the time of the incident) mental state, including the inmate's capacity to proceed with a disciplinary hearing; (2) an inmate's mental health diagnosis or, for an inmate not previously diagnosed, the presence of mental illness; (3) an inmate's treatment and medication (including any compliance issues) over the past six (6) months; (4) any crisis placements over the past six (6) months; (5) whether the inmate's behavior resulting in an ADOC rule or regulation violation is the direct result of or related to his or her mental illness; (6) the likely impact of confinement to restrictive housing on an inmate's mental health and, based on the likely impact, if confinement to restrictive housing for a medium- or high-level rule violation is contraindicated; (7) the potential impact of other disciplinary sanctions on the inmate's mental state, including whether any specific disciplinary sanction is clinically contraindicated for the inmate and, in such instances, what alternative sanctions are not clinically contraindicated; and (8) the need for mental health staff to be present during the disciplinary hearing."
ADOC Administrative Regulation 626, § V.C.3.d :
"The mental health staff member performing the mental health consultation will document his or her evaluation and provide any comments, notes, and recommendations in the ADOC computer module. A mental health staff member may identify disciplinary sanctions that are contraindicated for the inmate and any appropriate alternative disciplinary sanctions. A copy of the mental health consultation evaluations and recommendations will be (a) provided to the disciplinary hearing officer for consideration and to maintain with the inmate's disciplinary action file, and (b) placed in the inmate's mental health record to ensure the inmate's treatment team may receive and review it."
ADOC Administrative Regulation 626, § V.D.3 :
"During the disciplinary hearing and/or before the disciplinary officer adjudicates the disciplinary action, the disciplinary officer must consider the mental health consultation, including any evaluation, comments, or recommendations, in deciding an inmate's guilt or innocence and, if guilty, in imposing any disciplinary sanctions."
ADOC Administrative Regulation 626, § V.D.3. b:
"If the mental health staff member performing the mental health consultation concludes that the rule or regulation violation was related to, but not the direct result of, the inmate's mental illness, then the disciplinary hearing officer must take that conclusion into consideration in imposing any disciplinary sanctions."
ADOC Administrative Regulation 626, § V.D.4 :
"[I]f the mental health staff member who conducted the mental health consultation determined that any specific disciplinary sanction is clinically contraindicated for the inmate, including confinement to restrictive housing for a medium- or high-level rule or regulation violation, then the decision of the mental health staff member who performed the mental-health consultation will be outcome determinative and binding on the disciplinary hearing officer, except where exceptional circumstances exist."