United States District Court, M.D. Alabama, Northern Division
PHASE 2A OPINION AND ORDER ON A PROCESS TO IDENTIFY
H. Thompson United States District Judge.
plaintiffs have twice asked this court, as part of both the
segregation remedial trial and the suicide-prevention
remedial trial, to extend relief to units that allegedly
function as segregation, even though the defendants do not
formally label them as such. While this court explained in
its liability opinion that segregation “generally
refers to the correctional practice of keeping a prisoner in
a cell for 22.5 hours or more a day, ” Braggs v.
Dunn, 257 F.Supp.3d 1171, 1235 (M.D. Ala. 2017),
calculating the amount of out-of-cell time has proven more
difficult than the definition might suggest. As a result,
during a subsequent on-the-record hearing on December 6,
2019, the court asked both parties how to determine whether a
cell or unit is functioning as segregation. See Dec.
6, 2019 Status Conference Tr. (doc. no. 2686) at 88:21-25.
plaintiffs and defendants each argued that the court should
adopt their expert's recommendations. See id. at
88:21-90:12 (plaintiffs' argument), 92:11-16
(defendants' argument). During the suicide-prevention
trial, both plaintiffs' expert Dr. Burns and
defendants' expert Dr. Perrien agreed with the
court's use of a functional definition of segregation
based on the amount of out-of-cell time a person receives.
See Apr. 9, 2019 Rough Draft (R.D.) Trial Tr. at
165:20-166:7. [*] As the court pointed out, both
experts also jointly recommended that the court extend
certain relief to units functioning as segregation, even if
not formally labelled as such. In response to questions about
where to apply their recommendation for “30-minute
custody rounds in segregation, ” Immediate Relief
Recommendations (doc. no. 2416-4) at 4, the plaintiffs'
expert explained that such rounds “should happen in any
place that's functioning as a segregation unit or a
segregation-like unit, ” Apr. 9, 2019 R.D. Trial Tr. at
193:6-11. The defendants' expert agreed that her
“understanding was [that their recommendation
particular rough applied to] units that are segregation or
functioning as segregation.” Id. at 193:13-14.
In Dr. Perrien's view, the two experts made this joint
recommendation in order to address the acute risk of suicide
in these settings. See id. at 193:17-194:1.
the suicide-prevention trial, the court ordered the
defendants to conduct security checks every 30 minutes in
formal segregation, see Braggs v. Dunn, 383
F.Supp.3d 1218, 1273-74 (M.D. Ala. 2019), but reserved the
issue of whether to extend such relief to functional
segregation, for the simple reason that if the court were to
extend relief to certain cells or units functioning as
segregation, there would need to be a process for how to
identify such cells or units, see Id. at 1228. To
that end, the court notes several significant methodological
disagreements that, as a preliminary matter, would need to be
resolved to develop such a process. For example, since the
court initially suggested that the defendants could use the
average amount of out-of-cell time per day as a way
to identify functional segregation, see Order (doc.
no. 2282) at 2 n.* (emphasis added), there has been a
question whether the average should be calculated over the
course of a week, month, quarter, or some other period of
time, see, e.g. Defs.' Br. on
‘Segregation-Like' Issue (doc. no. 2646) at 20.
Further, although the defendants initially represented that
“[d]etermining the average out-of-cell time would
require ADOC to review the duty post logs for each
individualized cell for the relevant period of time, ”
Defs.' Mot. for Recons. (doc. no. 2300) at 14, they later
challenged the plaintiffs' reliance on duty post logs as
evidence of out-of-cell time, pointing to Warden Christopher
Gordy's testimony that “there's several logs,
other logs, that are attached to the duty post logs that
reflects inmates' out-of-cell time, ” Apr. 5, 2019,
R.D. Trial Tr. at 224:16-22. Finally, the parties also
disagreed about whether to count time spent in all
out-of-cell activities or only particular out-of-cell
activities. The experts disagreed too, at least in part.
Based on their testimony, the court understands that Dr.
Burns would not count activities such as 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. See Apr. 8, 2019 R.D. Trial Tr. at
118:2-119:2; see also Apr. 10, 2019 R.D. Trial Tr.
at 143:12-19. In contrast, the court understands that Dr.
Perrien would, at least if it were practical to do so.
See Apr. 10, 2019 R.D. Trial Tr. at 143:20-25.
Dr. Burns and Dr. Perrien suggested that they would count
out-of-cell time differently, the plaintiffs proposed that
the court give the defendants an opportunity to come up with
a complete process to determine when a cell or unit is
functioning as segregation; the defendants agreed to that
idea and that Dr. Perrien should be allowed to develop the
proposal. See Dec. 6, 2019 Status Conference Tr.
(doc. no. 2686) at 90:17-24 (plaintiffs' proposal),
95:15-17 (defendants' acceptance), 95:22-23
(plaintiffs' acceptance). As Dr. Perrien herself
explained, “there needs to be a way to track who
received what ... out-of-cell time.” Apr. 10, 2019 R.D.
Trial Tr. at 143:23-24. With that understanding, and with the
parties' agreement, the court will give Dr. Perrien an
opportunity to find a way.
clear, the court is interested in a methodological proposal
for how to determine which cells or units function as
segregation, not an evaluation of the specific evidence
presented during the suicide-prevention trial. For example,
the proposal could address on which form defendants should
record out-of-cell activities, for which types of cells or
units, and with what specificity. In addition, the proposal
could distinguish between out-of-cell activities based on the
length of the activity (brief versus extended), as was
discussed during the latest status conference, see
Dec. 6, 2019 Status Conference Tr. (doc. no. 2686) at
91:22-92:2, as well as the frequency of the activity (regular
versus irregular), the purpose of the activity (social or
not), or some other characteristic of the activity.
generally, regardless of the specifics, the proposal should
address how it balances the importance of identifying cells
or units for which relief may be appropriate with the goals
of creating a manageable, not overly burdensome, and yet
objectively verifiable process.
it is ORDERED that the defendants are to file with the court,
by noon on Friday, January 24, 2020, a report by Dr. Perrien
proposing a process for the defendants to determine when a
cell or unit is functioning as segregation, accompanied by
any commentary the defendants deem appropriate. The
plaintiffs are to respond by noon on Friday, February 7,
The court has previously
cited to rough drafts of transcripts not yet docketed,
including this draft of testimony from the suicide-prevention
remedial trial. See, e.g., Braggs v. Dunn,
383 F.Supp.3d 1218, 1229 (M.D. Ala. 2019) (citing the same
rough draft of the April 9, 2019 testimony). As a general
matter, the rough drafts cited in this opinion and order and
throughout this litigation accurately reflect the court's
independent memory of the testimony. Further, both the
plaintiffs and the defendants have also specifically cited to
rough drafts of the suicide-prevention trial and do not
contest their accuracy. See, e.g. Pls.' Br. on
Segregation-Like Units (doc. no. 2645) at 3 (citing the same
rough draft of the ...