Braggs et al v. Dunn et al, No. 2:2014cv00601 - Document 2824 (M.D. Ala. 2020)

Court Description: PHASE 2A OPINION AND ORDER ON NEXT STEPS FOR A PROCESS TO IDENTIFY FUNCTIONAL SEGREGATION, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 6/1/2020. (kh, )

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Braggs et al v. Dunn et al Doc. 2824 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION EDWARD BRAGGS, et al., ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiffs, v. JEFFERSON S. DUNN, in his official capacity as Commissioner of the Alabama Department of Corrections, et al., Defendants. CIVIL ACTION NO. 2:14cv601-MHT (WO) PHASE 2A OPINION AND ORDER ON NEXT STEPS FOR A PROCESS TO IDENTIFY FUNCTIONAL SEGREGATION After an on-the-record hearing on December 6, 2019, this court solicited the views of defense expert Dr. Mary Perrien about how “to determine when a cell or unit is functioning as segregation.” Braggs v. Dunn, No. 2:14-cv-601, 2019 WL 7041620, at *2 (M.D. Ala. Dec. 19, 2019) “note[d] (Thompson, several J.). At the significant time, the court methodological disagreements that, as a preliminary matter, would need to be resolved to develop such a process.” short, these disagreements were about Id. (1) In how Dockets.Justia.com out-of-cell time should be documented; (2) how out-of-cell time should be averaged; and (3) whether certain out-of-cell activities should be excluded from the calculation. See id. Dr. Perrien’s proposal (doc. no. 2772-1) clearly addresses two of the three significant methodological disagreements. In short, as to (1), how out-of-cell time should be documented, Dr. Perrien proposes that the Alabama Department of Corrections (ADOC) create a written schedule of planned out-of-cell time in a unit, and have officers document deviations from the schedule; and, as to (2), how out-of-cell time should be averaged, she proposes to determine the average weekly out-of-cell time for the unit over the course of a quarter. A unit providing less than an average of 11 hours per week of out-of-cell time would be determined to be proposal functioning does not as segregation. specifically address Dr. Perrien’s (3), whether certain out-of-cell activities should be excluded from the calculation. However, 2 Dr. Perrien previously explained any out-of-cell activity, if it were practical to do so. See Braggs, 2019 that WL she would 7041620, count at *2 (citing to the both the suicide-prevention trial). The court plaintiffs proposal. also and the sought the defendants views as to of Dr. Perrien’s The plaintiffs agree with the premise of the proposal but ask this court specifically to modify it in part. 2 (“The See, e.g., Pls.’ Response (doc. no. 2805) at premise of Dr. Perrien’s proposal is that celled housing units should adhere to out-of-cell time schedules to ensure that such units do not function as segregation.... Plaintiffs agree with this concept and find it to be consistent with expert testimony.”). As to (1), how out-of-cell time should be documented, the plaintiffs weekly agree schedule with of Dr. Perrien’s planned proposal out-of-cell of a activity. However, the plaintiffs request that the documentation specifically include a count of the number of inmates who participate and who refuse to participate in each 3 activity. As to (2), how out-of-cell time should be averaged, the plaintiffs request that the average weekly out-of-cell time be averaged over a month rather than a quarter. out-of-cell And, activities calculation, the as to should plaintiffs (3), be whether excluded request certain from that the certain activities, such as showers, haircuts, pill calls, sick calls, diabetic finger sticks, vital sign checks, and picking up meal trays not be counted, given the prior testimony of the plaintiff expert Dr. Kathryn Burns. Beyond the preliminary methodological disagreements, the plaintiffs additionally propose to apply this measurement process to any units that plaintiffs “in good faith believe to be operating as segregation.” Pls.’ Response (doc. no. 2805) at 9. Further, Dr. while Perrien proposes that any relief provided for units found to be operating as segregation be determined on a unit-by-unit basis by ADOC “with input Report from (doc. the no. External 2772-1) 4 Compliance Team,” at the 4 n.2, Perrien plaintiffs instead “ask the Court to order relief for segregation-like units that is consistent with relief that has already been ordered for officially designated segregation units ... and ... re-assert their request for additional segregation relief that remains pending before the Court.” Pls.’ Response (doc. no. 2805) at 11. The defendants view Dr. Perrien’s proposal as “an acceptable process in large measure,” though they did not comment on its specifics. Defs.’ Notice Regarding Proposal (doc. no. 2772) at 7-8 ¶ 8. Nonetheless, the defendants the request function ask to as this extend court relief segregation, to deny to units for reasons plaintiffs’ that which allegedly will be discussed later. The court scheduled generally. oral is cognizant argument on of this the issue fact was that the continued In order to continue moving forward on this issue in the interim, and for the reasons that follow, the court will order limited additional briefing prior 5 to the oral argument to clarify the pending proposal as it relates discussed to the above. methodological The court will disagreements also deny the defendants’ broad request to deny any relief to units found to be functioning as segregation, regardless of the specific process for tracking out-of-cell time. The court will address the extent of appropriate relief as part of the pending segregation opinion, which will encompass relief for units that are both formally labelled as segregation and found to be functionally operating as segregation. I. DR. PERRIEN’S PROPOSAL AND PLAINTIFFS’ RESPONSE The requests court to will adopt in first part detail and the modify plaintiffs’ in part Dr. Perrien’s proposal, explaining the views that motivate the order for additional briefing. 6 A. Documentation of Out-of-Cell Time In order to calculate the amount of out-of-cell time provided per week, Dr. Perrien has proposed that “ADOC will develop a schedule for all Contested Units with celled housing that provides for at least two (2) hours of out-of-cell activity per inmate per day,” or 14 hours of out-of-cell activity per inmate per week. Perrien Report (doc. no. 2772-1) at 2. each shift, deviations the from the unit officer unit’s [would] scheduled “sign[ing] [the] daily schedule.” “At the end of note activities” any by Id. at 2-3 & n.1. Because “[t]he signatures of officers [would] mean that the activity, unless otherwise noted, occurred,” id. at 2-3 n.1, the documentation would allow ADOC to calculate the “weekly provided out-of-cell time” for each unit as the “sum of [scheduled] activity hours minus program shutdown activity hours.” Id. at 3. “Program shutdown activity hours” are presumably the hours for which an activity was scheduled but did not occur. 7 The plaintiffs additionally that ask the this court officer to “document require how many prisoners participated in [each] activity and how many refused,” Pls.’ Response (doc. no. 2805) at 8, for two distinct reasons. First, the plaintiffs are concerned that not all scheduled activities may be offered to all prisoners in a unit. housing units,” For example, “in some celled according to the plaintiffs, “activities like yard are not offered to the entire unit at once but rather to a portion of the unit (also known as a ‘tier’ or ‘side,’ depending on the unit).” Id. at 7. Second, the plaintiffs are concerned that even if activities are offered to all prisoners in a unit, they may be “offered at times or in manners that discourage participation.” Id. While these concerns are valid, the court does not believe necessary. that As such the additional court has documentation previously noted, is any system to identify function segregation must “balance[] the importance of identifying cells or units for which 8 relief may be appropriate with the goals of creating a manageable, not overly burdensome, and yet objectively verifiable process.” Braggs, 2019 WL 7041620, at *2. Dr. Perrien balanced these goals by proposing a system that is focused on the unit-level, however defined, rather than the individual-level. is unwilling this stage. in which to upset that balance, that is The court particularly at The plaintiffs’ concern about the manner activities are offered would be better addressed as part of a broad monitoring scheme rather than transforming Dr. Perrien’s proposal requirement for very detailed paperwork. into a Otherwise, the court would risk enmeshing itself in the operation of ADOC and overburdening the defendants. On a practical level, the additional documentation would also not affect the proposed calculation of the “weekly provided out-of-cell time” for each unit, which is the “sum of [scheduled] activity hours minus program shutdown 2772-1) activity at 3. hours.” Neither Perrien the 9 number Report of (doc. no. persons who participate in an activity nor the number of persons who refuse are factored into the number of scheduled avidity hours or the number “program shutdown activity hours.” Importantly, the plaintiffs do not disagree with this proposed method. See Pls.’ Response (doc. no. 2805) at 2 (“The premise of Dr. Perrien’s proposal is that celled housing units out-of-cell time scheduled.... should adhere to Plaintiffs agree with this concept.”); id. at 3 (“Plaintiffs agree with Dr. Perrien posted that compliance schedule signatures on should the with be and deviation documented schedules, along with with from the officers’ a written explanation for any deviation.”); id. at 4 (“Plaintiffs agree with Dr. Perrien that out-of-cell time ... should be documented daily and calculated weekly.”). Nonetheless, the court agrees with the plaintiffs’ first concern that not all scheduled activities may be offered to all prisoners in a unit to the extent it is alternatively understood as a concern that the unit may not always be the right level 10 of measurement for identifying functional segregation. Instead, some units may be better tracked as separate tiers. Dr. Perrien’s proposal, while sparse, does not suggest it would be appropriate to count time offered to one tier as time for the entire unit. Instead, it suggests that the scheduled activities are intended to be offered to each inmate. See Perrien Report (doc. no. 2772-1) at 3 (“It will not be necessary to track out-of-cell hours by inmate because the schedule’s purpose is to provide sufficient hours for each inmate within the unit.”). As a result, the court believes that a more practical way to accommodate the plaintiffs’ concern would be to make explicit that scheduled activities in Dr. Perrien’s proposal are required to be offered to each inmate and that, as a result, tracking tiers separately will be necessary when different tiers receive different access to out-of-cell activities. Finally, Dr. Perrien also stated that, “To the extent that the schedule deviates from [the] goal of 11 or more hours of out-of-cell time per week, there may 11 need to be alternative or additional documentation.” Id. at 3. This does not warrant a different outcome. First, plaintiffs the statement. meant by did not address Dr. Perrien’s Second, it is not clear what Dr. Perrien the concerned statement. about documentation any of In general, resulting out-of-cell the uncertainty time, court about particularly is the in light of the parties’ previous dispute about whether duty logs were a comprehensive source of out-of-cell time. See, e.g., Defs.’ Notice (doc. no. 2772) at 4 ¶ 3 (“Plaintiffs offered nothing more than criticisms of the thoroughness of ADOC’s documentation.”). B. Averaging of Out-of-Cell Time Dr. Perrien proposes that the defendants average the amount of out-of-cell time each week “over the course of a quarter,” Perrien Report (doc. no. 2772-1) at 3, such that there is a determination about whether or not a unit is functioning as segregation four times a year. In contrast, the plaintiffs propose averaging 12 the amount course of of a out-of-cell month, such time that each week over the there is instead a determination about whether a unit is functioning as segregation twelve times a year. See Pls.’ Response (doc. no. 2805) at 4-5. Dr. Perrien selecting has quarters offered as her no explanation proposed for period of measurement. Further, the plaintiffs have only pointed to to the need remove persons with serious mental illnesses (SMI) from segregation-like settings as soon as possible to justify the alternative monthly measure. See id. at 5. But this is only a partial justification, as the plaintiffs’ requested relief is much broader than extending protections for SMIs. See id. at 10-11 (plaintiffs’ request for relief). C. Counting of Out-of-Cell Activities In prior testimony, plaintiff expert Dr. Burns explained that she would not count activities such as showers, haircuts, pill call, 13 sick call, diabetic finger sticks, the taking of vital signs, or the picking up of meal trays as out-of-cell time. See Braggs, the 2019 WL 7041620, suicide-prevention trial). at *2 In (citing to contrast, the defendants’ expert Dr. Perrien explained that she would count these activities, if it were practical to do so. See id. (emphasis added). Dr. Perrien’s proposal, however, does not address whether or not it would be practical to do so. As a result, the plaintiffs ask this court to credit Dr. Burns’ prior testimony and find that these brief activities “should not be counted,” regardless of whether it is practical to do so. Pls.’ Response (doc. no. 2805) at 7. The plaintiffs, however, are presuming that the defendants believe it would be practical to count such activities and intend to do so. not comment on Dr. Perrien’s But the defendants did proposal with such specificity as to know how they intend to implement it. 14 D. Nomination of Housing Units for Time-Tracking The court solicited the above-discussed proposal from Dr. Perrien in order to determine whether a cell or unit should be covered by remedial orders related to ADOC’s use of segregation. See generally Braggs, 2019 WL 7041620. The court thus intended for the proposal to be flexible enough to be applied during the duration of any relief ordered. As the plaintiffs point out, “units within ADOC’s major facilities frequently change purpose and use, and segregation-like eliminated at units are Defendants’ created, sole Response (doc. no. 2805) at 9. moved, discretion.” and Pls.’ In anticipation of this, the plaintiffs ask this court to “permit them to request time-tracking of any additional units that Plaintiffs in good faith believe to be operating as segregation.” Id. Dr. Perrien’s proposal, however, does not clearly address how the plaintiffs should nominate a unit for time-tracking. On the one hand, Dr. Perrien’s proposal 15 explicitly “only addresses” those housing units alleged by the plaintiffs to function as segregation during the suicide-prevention 2772-1) at 2. trial. Perrien Report (doc. no. On the other hand, the proposal is also forward-looking, explaining that it generally “addresses a process to identify housing units that may function like restrictive housing units (RHUs) based upon limited out-of-cell time.” Id. Relatedly, the proposal explains that “ADOC will develop a schedule for all Contested (emphasis added). Units with celled housing.” Id. Because the court understands that each of the units currently identified as “Contested Units” appears are celled to housing, contemplate additional units. the future additional language allegations about The proposal also specifies that it would apply only to celled housing units and not to either the mental-health units or “any cell or housing unit used for isolation/quarantine.” purposes Id. at 4. 16 of medical Because the plaintiffs agree that the inquiry should be limited in this way,* they suggest that “the universe of units that could be segregation-like is * The plaintiffs agree with Dr. Perrien that the inquiry would be limited to celled housing units and will not apply to units already designated by ADOC as formal segregation. See Perrien Report (doc. no. 2772-1) at 4 (process “does not apply to any housing unit designated as a formal RHU”); Pls.’ Response (doc. no. 2805) at 3 (“Plaintiffs agree ... that [process] should not apply to formally designated segregation”). The process would also not apply to mental-health units, which are already required to provide a minimum amount of out-of-cell time; units used for purposes of medical isolation/quarantine, at least as long as medical isolation does not become commonplace during COVID-19; and crisis cells, which will be subject to a different arrangement. See Perrien Report (doc. no. 2772-1) at 4 (process “does not apply to ... any housing unit for which ADOC may otherwise be required to provide a minimum of out-of-cell time, for example the Stabilization Units, Residential Treatment Units, or the Structured Living Unit,” and, further, “inmates housed in crisis cells or medical cells/infirmary ... will be provided appropriate out of cell activity after 72 hours unless contraindicated”); Pls.’ Response (doc. no. 2805) at 3-4 (“Plaintiffs agree ... that [process] should not apply to ... medical isolation/quarantine, stabilization, residential treatment, and structured living units”); id. at 3 n.5 (“Plaintiffs reserve the right to reassess whether medical isolation cells should be subject to segregation remedies if prolonged medical isolation becomes a more common practice within ADOC” given COVID-19); id. at 4 (“Plaintiffs agree ... that it is appropriate to provide out-of-cell time to people in crisis ... cells after 72 unless a clinical contraindication is documented”). 17 relatively small.” 12 n.10. Pls.’ Response (doc. no. 2805) at The court, however, does not have a housing unit is sufficient factual record to verify this. E. Remedy Dr. Perrien proposes that if a considered functional segregation, then it “may become subject to some of the requirements applicable to [formal segregation] as determined on a unit-by-unit basis.” Perrien (emphasis Report added). (doc. no. However, 2772-1) “many of at the 3-4 ... requirements might not be applicable to certain types of housing units or cells.” the “ADOC, Team,” with would input “determine from Id. at 4 n.2. the which Ultimately, External requirements appropriate on a unit-by-unit basis.” Compliance might be Id. Because “there is currently no External Compliance Team ... in place,” the plaintiffs “request that any unit-by-unit exceptions be approved by Dr. Perrien and 18 ... Dr. Kathryn Burns.” Pls.’ Response (doc. no. 2805) at 4. But the plaintiffs also “ask the Court to order relief for segregation-like units that is consistent with relief officially re-assert that has designated their already segregation request for been ordered for units ... ... additional and segregation relief that remains pending before the Court.” Id. at 11. It is not exactly clear to the court how the plaintiffs’ multiple requests are compatible with one another or what would constitute “consistent” relief. Further, the court is concerned though that not all remedial relief for segregation already ordered or pending before the court would be appropriate for all segregation-like units, primarily because such units can change their status over time, transforming from functional providing segregation enough in one out-of-cell quarter. 19 month time the or quarter next month to or Finally, the court is also cognizant about the different nature of the evidence presented during the liability trial segregation. reviewed created as formal and functional During the liability trial, this court evidence by to on the segregation in “risks of general segregation units in particular.” decompensation and by ADOC’s Braggs v. Dunn, 257 F. Supp. 3d 1171, 1240 (M.D. Ala. 2017) (Thompson, J.) (emphasis added). The risks of decompensation by segregation in general would apply to both formal and functional segregation because the risks flow form the shared lack of out-of-cell time. decompensation particular may by only ADOC’s be But the risks of segregation directly relevant units to in formal segregation. II. DEFENDANTS’ OBJECTIONS TO RELIEF In general, the defendants object to extending any relief to units functioning as segregation, regardless of the ultimate process for tracking out-of-cell time. 20 The defendants offer five arguments, none of which are persuasive: (1) the lack of evidence in the suicide-prevention trial; (2) the lack of a “current, ongoing constitutional violation”; (3) the “justified reasons for limiting inmates’ out-of-cell time”; (4) the fact that the plaintiffs “cannot rewrite the remedial stipulations and orders regarding restrictive housing”; and (5) the “conflict[] with the PLRA’s need-narrowness-intrusiveness requirements,” because of the lack of a liability finding. Id. at 3 ¶ 2. The defendants’ first two claims are both related to the evidence trial. First, evidence before presented the the at the defendants Court suicide-prevention claim that disproved “[t]he Plaintiffs’ allegations concerning the allegedly ‘segregation-like’ settings.” Defs.’ Notice (doc. no. 2772) at 3 ¶ 2.a, 3 ¶ 3 (emphasis added). Second, the defendants claim that the plaintiffs “fail to show a current, ongoing constitutional violation” because “the record contains no evidence regarding the current 21 use or conditions within the Contested Units.” (emphasis added). misconceive the presented. But role of Id. at 3 ¶ 2.b, 4 ¶ 4 both related arguments the evidence previously During the suicide-prevention trial “both experts ... jointly recommended that the court extend certain relief to units functioning as even if not formally labelled as such.” WL 7041620, provided at the *1. The foundation evidence for segregation, Braggs, 2019 presented thus inquiry into further precisely how to best determine when and where units are currently operating as functional segregation. In fact, when the court solicited Dr. Perrien’s proposal, it explained methodological cells or that it proposal units was for function “interested how as to in determine segregation, a which not an evaluation of the specific evidence presented during the suicide-prevention 7041620, at *2 trial.” (emphasis Braggs, added). 2019 Because WL the determination of whether or not a unit is functioning as segregation will be based 22 on the time-tracking method proposed argument about by the Dr. Perrien, evidence or the lack defendants’ of evidence presented during the suicide-prevention trial is not a basis for denying all relief. The defendants’ third, fourth, and fifth claims all relate to the potential relief. The defendants’ third claim is that that any relief would be “overly broad” because it would “ignore the necessary, justified reasons for limiting inmates’ out-of-cell time,” such as when an inmate is “placed on suicide watch or other crisis placement” or is “subject to restrictions and observation by members of the medical staff.” 3 ¶ 2.c, 5 ¶ 5. Fourth, applying “the regarding restrictive the remedial defendants stipulations housing” to Id. at claim and that orders segregation-like settings would be inappropriate because the defendants “never agreed that the ... [s]tipulations applied to the Contested Units or ‘segregation-like’ setting.” any other allegedly Id. at 3 ¶ 2.e, 6—7 ¶ 7. Fifth, the defendants claim that “[t]he relief sought 23 by the Plaintiffs related to the Contested Units conflicts with the PLRA’s need-narrowness-intrusiveness requirements” because “the Court made no liability finding with respect to the Contested Units.” Id. at 3 ¶ 2.d, 6 ¶ 6. Both the third and fourth claims are now moot. Both Dr. Perrien and the plaintiffs have agreed that cells or units used for suicide watch, crisis placement, or medical isolation will not be considered functional segregation, out-of-cell time, defendants. See for supra plaintiffs have segregation remedies regardless the reasons note clarified apply of *. that only the cited of by the Further, the “[t]he to lack stipulated units ADOC has officially designated as segregation units” and that they “do not now seek to undermine [the remedial stipulations] by asking that they be read to include segregation-like units.” 2805) at 10 & n.8. Pls.’ Response (doc. no. Instead, the plaintiffs “ask the [c]ourt to order relief for segregation-like units that 24 is consistent with relief that has already been ordered for officially “re-assert designated their request segregation for additional units” and segregation relief that remains pending before the [c]ourt... which should apply to both segregation and segregation-like units.” Id. concerns, at as 11. As reflected a in result, their the third defendants’ and fourth arguments, are adequately addressed and are not a basis for denying relief. The flaw with the defendants’ fifth claim related to the PLRA is that it misconceives the nature of the violation found in the liability opinion. found that Eighth one Amendment segregation, ill of factors violation including prisoners circumstances the in and was contributing to the use “[p]lacing segregation for This court State’s seriously without prolonged the of mentally extenuating 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 25 inadequate treatment and monitoring in segregation.” Braggs v. Dunn, 257 F. Supp. 3d 1268 ¶ 7 (M.D. Ala. 2017) (Thompson, J.). 1171, It is true that the appropriate relief for units functioning as segregation may be different than for units formally designated as segregation, because the violation found in the liability opinion stemmed from both the general lack of out-of-cell time and the particular conditions of formal segregation units. Nonetheless, “[t]he court heard significant evidence that extended segregation— even absent consideration of the conditions at ADOC— poses a substantial risk of harm to all mentally ill prisoners.” Id. at 1245 (emphasis added). The court cannot be at the mercy of defendants’ nomenclature as to what is and what is not segregation. As a result, determining whether units function as segregation—based on the limited amount of out-of—cell time provided—is necessary to remedying contributed to the Nonetheless, the court one Eighth will 26 of the factors Amendment consider the that violation. extent of appropriate relief in light of both its liability finding and the PLRA. *** Accordingly, it is ORDERED as follows: (1) As to the documentation of out-of-cell time, the court needs the Perrien is following additional information: (a) Dr. to clarify whether the “provided activity hours” are actually the scheduled activity hours and whether the “program shutdown activity hours” are the hours for which an activity was scheduled but did not occur. 1. Perrien Proposal (doc. no. 2772-1) at The court believes it would benefit from an example. (b) Dr. Perrien is to address additionally (1) whether scheduled activities are required to be offered to each inmate and (2) whether, as a result, necessary tracking when tiers separately different 27 tiers will be receive different access to out-of-cell activities. If scheduled be activities are not required to offered to each inmate, Dr. Perrien is to also address (3) how such a system will ensure that there are “sufficient [out-of-cell] hours for each inmate within the unit.” Id. at 1. Again, the court believes it would benefit from an example of a possible schedule. (c) Dr. Perrien is to finally clarify what she meant by the statement that, “To the extent that the schedule deviates from [the] goal of 11 or more hours of out-of-cell time per week, there may need to be alternative or additional documentation,” id. at 3, in light of the parties’ previous dispute about whether duty logs were a comprehensive source of out-of-cell time. (d) The defendants may address Dr. Perrien’s response in their commentary. The plaintiffs need not address this issue further. 28 (2) As to the averaging of out-of-cell time, the court needs the following additional information: (a) Dr. Perrien is to explain the basis for her decision to use a quarterly measure. (b) for The plaintiffs are to explain the basis their decision to propose a monthly measure, beyond the basis already provided. (c) Both Dr. Perrien and the plaintiffs are also to address whether a monthly measure may be appropriate for enforcing protections for SMIs while a quarterly measure may be appropriate for other forms of relief. (d) The defendants may also address this in their commentary. (e) Finally, whether the they defendants agree or are to disagree explain with the plaintiffs’ proposal that (1) a warden should be responsible for calculating the average amount of out-of-cell time and that (2) these 29 numbers should be provided to plaintiffs within a specified period of time. (3) As to the counting of out-of-cell activities, the court needs the following additional information: (a) The defendants are to explain whether they intend to schedule showers, haircuts, pill call, sick call, diabetic finger sticks, the taking of vital signs, or the picking up of meal trays as out-of-cell time when implementing Dr. Perrien’s proposal. (b) If the defendants do intend to schedule any of these activities as out-of-cell time, the defendants are to additionally explain precisely how they will implement Dr. Perrien’s proposal and fulfill its purpose of “provid[ing] sufficient [out-of-cell] hours for each inmate within the unit,” Perrien Proposal (doc. no. 2772-1) at 3, particularly if the activities will not be offered to every inmate. 30 For example, while showers presumably are offered to each inmate, diabetic finger sticks are not. from The court believes it would benefit an activities example that about the the defendants out-of-cell intend to schedule. (4) As to the time-tracking, nomination the court of future needs units the for following additional information: (a) Dr. Perrien is to address the plaintiffs’ counter-proposal. (b) If Dr. Perrien does not agree with the plaintiffs’ counter-proposal, Dr. Perrien is to additionally propose an alternative method by which the plaintiffs will be able to nominate additional units for future time-tracking. (c) the Further, in order to evaluate the scope of plaintiffs’ defendants are to counter-proposal, supply this court the with information on the universe of celled housing 31 units which are not officially designated as restrictive treatment housing units, units, residential stabilization units, or structured living units, including the number of such units; the number of cells in such units; and, for comparison purposes, the number of total units and number of total cells across ADOC’s major facilities. choose gathered to rely as on part The defendants may information the Savages’ may also previously staffing analysis, if relevant. (d) The defendants address the plaintiffs’ counter-proposal or Dr. Perrien’s response in their commentary. (e) The plaintiffs need not address this issue further. (5) As to the remedy, the court needs the following additional information: (a) The plaintiffs are to address how the request that “any unit-by-unit exceptions be 32 approved by Dr. Perrien ... and Dr. Kathryn Burns,” Pls.’ Response (doc. no. 2805) at 4, is compatible with their “[ask]ing the Court to order relief for segregation-like units that is consistent with relief that has already been ordered for officially designated segregation units ... and ... re-assert[ing] their request for additional segregation relief that remains pending before the Court.” plaintiffs are to Id. at 11. additionally The clarify what would constitute “consistent” relief. (b) each The plaintiffs aspect already of been segregation are the also relief stipulated units or to that to that address has why either for formal remains pending before the court for the segregation opinion under submission is appropriate for units found to be functioning as segregation, in light of two factors: (1) segregation-like units can, by definition, change 33 their status over time, transforming from functional segregation in one month or quarter to providing enough out-of-cell time the next month or quarter; and (2) while liability the court opinion made findings about the in its risks of decompensation created by both the practice of segregation in general segregation units in and ADOC’s particular, former may be relevant here. formal only the The court is particularly interested in whether each aspect of the requested relief is justified in light of these facts and whether some forms of relief should be prioritized over others, such as enforcing protections for SMIs or implementing security checks. (c) The defendants may address this in their commentary. (6) The defendants are to file with the court, by noon on July 13, 2020, a response by Dr. Perrien to the portion of court’s order directed towards her, 34 along with any commentary the defendants deem appropriate. (7) The defendants are to additionally file with the court, by noon on July 13, 2020, a response to the portion of the court’s order directed towards them. The defendants may include these responses along with their commentary or separate from their commentary, whichever they prefer. (8) The plaintiffs are to file with the court, by noon on July 13, 2020, a response to the portion of court’s order directed towards them. (9) If the court desires any counter-responses, the court will let the parties know at a later date. DONE, this the 1st day of June, 2020. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

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