United States District Court, M.D. Alabama, Northern Division
PHASE 2A OPINION AND ORDER ON VITEK ISSUE
H. THOMPSON UNITED STATES DISTRICT JUDGE
before the court is the issue of whether the transfer of
prisoners from the Alabama Department of Corrections (ADOC)
to outside hospitals for mental-health care requires the due
process protections outlined in Vitek v. Jones, 445
U.S. 480 (1980). The court has concerns that this issue is
properly before it for resolution. This opinion sets forth
Vitek issue arose in the process of determining a
remedy for the court's finding that ADOC fails to provide
hospital-level mental-health care to those who need it, in
violation of the Eighth Amendment. See Braggs v.
Dunn, 257 F.Supp.3d 1171, 1217 (M.D. Ala. 2017). The
State first proposed a plan to remedy this issue, which
included transferring prisoners in need of hospital-level
care to an outside private hospital. See State's
Proposed Remedial Plan on Hospital-Level Care (doc. no. 1514)
at 3. The plaintiffs then raised concerns about the
State's failure to include in its plan procedural due
process protections for prisoners transferred to outside
hospitals against their wishes, which the plaintiffs contend
are required by Vitek v. Jones, 445 U.S. 480 (1980).
Since that time, the parties have negotiated and entered into
stipulations regarding the provision of hospital-level care,
see Stipulations Regarding Hospital-Level Care (doc.
nos. 2383-1 and 2383-2), which the court recently entered as
a temporary injunction, see Interim Injunction
Regarding Hospital-Level Care (doc. no. 2717). These
stipulations exclude the issue of the applicability of
Vitek, as the parties previously jointly requested
that the court decide that issue and stated that they would
negotiate to develop a Vitek-compliant procedure if
the court determines that Vitek applies.
See Joint Proposal (doc. no. 2308) at 1-2. In the
meantime, the State has also contracted with a private
hospital to provide hospital-level care, see
Contract Review Report (doc. no. 2289-2), and prisoners have
already been transferred there for such care.
hearing on the applicability of Vitek is now set for
January 24, 2020. However, upon review of the procedural
history of this issue and the parties' arguments, the
court has a threshold concern of whether it can properly
decide the applicability of Vitek in this case.
the court questions whether, in the current posture of the
case, it can decide the issue. Relying solely on the Eighth
Amendment, the court found the defendants were liable because
ADOC provided virtually no hospital-level care, despite the
presence of prisoners in need of such intensive treatment.
See Braggs, 257 F.Supp.3d at 1217. The court held
that “hospital-level care or hospitalization should be
available when patients pose a danger to self or others and
interventions in the [stabilization unit] do not improve
their condition.” Id. The court then turned to
the issue of a remedy for this Eighth Amendment violation. A
due process claim was neither pleaded nor addressed in the
liability opinion. The court has serious doubts about its
ability to order a remedy for which it did not find any
violation in its liability opinion.
court is also concerned whether any due process remedy it
might order would satisfy the requirements of the Prison
Litigation Reform Act (PLRA), 18 U.S.C. § 3626(a)(1)(A).
The PLRA provides that a “court shall not grant or
approve any prospective relief unless the court finds that
such relief is narrowly drawn, extends no further than
necessary to correct the violation of the Federal right, and
is the least intrusive means necessary to correct the
violation of the Federal right.” Id. The court
has made no finding that the State has violated the due
process rights of individuals in need of hospital-level care
by transferring them to a hospital against their wishes and
without adequate procedure. How can the court fashion a
remedy that is no more than necessary to address a violation
where no violation has been found?
no prisoner has complained that ADOC is involuntarily
providing him with hospital-level care in violation of due
process. Indeed, since the court found liability, the Alabama
Disabilities Advocacy Program (ADAP) has conferred with a
number of prisoners who were transferred to receive
hospital-level care, and none has objected. This lack of a
complaining prisoner has practical implications. It is
conceivable that no prisoner will object in the reasonably
foreseeable future, for it is reasonable to conclude that
prisoners would likely view staying in a hospital as much
more preferable to residing in one of Alabama's prisons.
And, if and when a prisoner does complain, it is unclear what
the nature of the circumstances would be then. The State
might simply yield to a prisoner's objection and not
provide such care. (The court is not sure how the plaintiffs
would respond to such a circumstance.) Or, if the State
should decide to seek to provide such care in the face of a
prisoner's objection, the liability opinion left open the
possibility that the State could provide hospital-level care
in an actual hospital or in a hospital-like setting.
Braggs, 257 F.Supp.3d at 1218. At that time, the
State might be able to provide hospital-level care either in
one of the prisons it says it plans to build or otherwise in
a hospital-like setting in one of its current prisons,
circumventing a situation arguably triggering Vitek
protections. See Plaintiffs' Brief (doc. no.
2289) at 4 (describing the Vitek case as requiring
protections where “ADOC cannot provide the level of
care necessary to treat that patient within the walls of an
ADOC facility”). In short, the applicability of
Vitek could vary based on many facts that could
arise in the future. Without concrete facts, the court is
concerned that it could do no more than offer a hypothetical
the court is raising this threshold matter for the first
time, an on-the-record conference call will be scheduled to
discuss how to proceed.
it is ORDERED that an on-the-record conference call is set
for January 15, 2020, at 2:00 p.m., to discuss how to ...