Case 2:14-cv-00601-MHT-TFM Document 1374 Filed 10/09/17 Page 1 of 40

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

EDWARD BRAGGS, et al., )

)
Plaintiffs, )
)
v. ) Case No. 2:14-cv-00601-MHT-TFM
)
JEFFERSON DUNN, et al., )
)
Defendants. )

THE STATES PHASE 2A PROPOSED REMEDIAL PLAN ON

CORRECTIONAL AND MENTAL HEALTH STAFFING
Defendants JEFFERSON DUNN (Commissioner Dunn) and RUTH

NAGLICH (Naglich and, collectively with Commissioner Dunn, the State)

hereby submit this Phase 2A Proposed Remedial Plan on Correctional and Mental

Health Staffing (the Plan), pursuant to the Courts Phase 2A Revised Remedy

Scheduling Order on Eighth Amendment Claim (Doc. No. 1357).1

1
The State expressly preserves any and all objections to the Courts Liability Opinion and Order
as to Phase 2A Eighth Amendment Claim (Doc. No. 1285, the Liability Order) and nothing
contained in this Plan shall be construed as an admission by the State or a waiver of any
objection the State may have to the Liability Order. Nothing in this Plan shall be construed as an
admission of any kind by the State that the Alabama Department of Corrections (ADOC)
current or historical staffing in any area (including correctional, medical, mental health, or dental
staffing) is unconstitutional or deficient in any way.
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I. INTRODUCTION
In this Plan, the State proposes a concise, measured process to address

correctional and mental health staffing within ADOC facilities. This Plan is based

upon two (2) fundamental objectives:

(1) To define the requisite level of correctional and mental

health staffing; and

(2) To establish a plan for ADOC to achieve comprehensive

staffing in its security and mental health operations.

If ADOC successfully fulfills these two (2) objectives and executes this Plan to

achieve comprehensive correctional and mental health staffing, it is axiomatic that

no Eighth Amendment violation can exist as it pertains to correctional and/or

mental health staffing.

As it relates to staffing, ADOC values and appreciates the employees and

contractors2 who valiantly perform their jobs on a daily basis under demanding

conditions. ADOC remains committed to ensure that every officer receives the

necessary support and resources to ensure a safe, secure, and healthy environment.

Like other correctional systems across the United States, ADOC and its contractors

face challenges recruiting and retaining employees for demanding jobs in a

correctional setting, especially in the rural facilities across Alabama.3 Much like

2
Contractor(s) means one or more persons who, or business entities which, provide services
on a recurring basis pursuant to a contractual agreement with the State of Alabama and/or
ADOC, including all medical and mental health providers.
3
See, e.g., Max Londberg & Hunter Woodall, Ive never seen anything like this issues at

2
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ADOC, public and private correctional institutions nationwide are experiencing

challenges in recruiting and retaining qualified correctional personnel and for

similar reasons.

ADOCs efforts to address correctional and mental health staffing began

long before the entry of the Liability Order. ADOC already developed a series of

action items over the course of many months (reflected in this Plan) to address the

demand for correctional staff4 and mental health staff.5 For example, ADOC

evaluated its systems for recruiting, onboarding, developing, and retaining

employees to ensure ADOC and its mental health contractor maintain a skilled and

well-trained workforce. ADOC continues to address the need for correctional and

mental health staff from multiple points in the employee life cycle. A number of

ADOCs ongoing efforts to employ a competent, qualified workforce are contained

Kansas prisons alarm lawmakers, workers, The Kansas City Star (July 29, 2017), available at
http://www.kansascity.com/news/politics-government/article164309512.html; Josh Hicks, Md.
correctional officers say staffing shortage putting them at risk, The Washington Post (July 21,
2017), available at https://www.washingtonpost.com/local/md-politics/md-correctional-officers-
say-staffing-shortage-putting-them-at-risk/2017/07/21/2fe60bec-6d69-11e7-96ab-
5f38140b38cc_story.html?utm_term=.9bc4864ae96f; Jen Fifield, Many States Face Dire
Shortage of Prison Guards, The Pew Charitable Trusts, Stateline (March 1, 2016), available at
http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2016/03/01/many-states-face-
dire-shortage-of-prison-guards.
4
Correctional staff means all persons employed by or retained by ADOC, irrespective of job
title, whose regular duties include the supervision and control of inmates and/or other operational
and security administrative duties at any major ADOC facility. (See footnote 8 below for
definition of facilities).
5
Mental health staff means all ADOC employees and contractors, irrespective of job title,
whose regular duties include the provision of mental health care at a major ADOC facility,
including all mental health providers.

3
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in this Plan and will be detailed for the Court during the November 13, 2017

hearing.

Recently, ADOC retained the nations leading experts on security staffing

analyses, Merle (Russ) Savage and Margaret (Meg) Savage (collectively, the

Savages). As of this date, the Savages have completed staffing analyses for

three (3) major ADOC facilities and, with the Courts blessing, will finish the

remaining eleven (11) ADOC facilities in short order. However, this Plan

exceeds a simple staffing analysis and employment of correctional and mental

health staff to meet the minimum facility- and position-related staffing metrics.

ADOC presents the Court with additional staffing-related efforts (including, for

example, provisions related to compensation, benefits, recruitment, and retention

of correctional officers).6

ADOC fully appreciates its obligations to inmates, employees, and

contractors. Consistent with these obligations and applicable law (as described

below), and regardless of Plaintiffs protestations, ADOC retains its authority to

operate and administer the Alabama prison system without obstruction or

interference from Plaintiffs. ADOC is committed to executing this Plan and

6
ADOC presents these additional staffing-related efforts for informational purposes only
because ADOC maintains that those activities do not and should not constitute part of any
constitutional mandate. Notwithstanding anything to the contrary in this Plan, the
implementation of all or any portion of this Plan is subject to currently available, budgeted
ADOC funds and, as necessary, approval of additional funds and an increased budget by
Alabamas legislature and Governor pursuant to Alabama law.

4
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realizing full employment of correctional and mental health staff. Based upon the

information included in this Plan and upon the evidence to be presented at the

upcoming hearing, ADOC requests that the Court accept this Plan or, alternatively,

because of the past, present, and future implementation of this Plan and ADOCs

demonstrated commitment to the Plan, the Court should consider declining to enter

a remedial order at all.

II. CORRECTIONAL STAFFING

Commissioner Dunn and ADOC remain committed to employing, retaining,

and deploying adequate numbers and types of correctional staff or contractors to

reasonably provide for the well-being of its inmates, employees, and contractors, to

conduct security operations (including transport, supervision, and monitoring), and

to secure correctional, medical, and mental health services, programs, and

activities. However, neither Commissioner Dunn nor ADOC can undertake

actions or carry out measures designed to address ADOCs staffing needs without

the requisite funding. In the event ADOC receives such funding, the on-going and

proposed actions set forth in this comprehensive, multifaceted Plan should allow

ADOC to obtain comprehensive correctional staff within two (2) years of the

Effective Date.7 As set forth below, ADOCs correctional staffing plan proposes

the following:

7
Effective date means (i) the date this Plan is entered by the trial court in this action, or (ii) if
there is an appeal of the trial courts Liability Order, the Plan, or any other order in this action,

5
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(a) A continuation of ADOCs on-going recruitment and

retention efforts, which have shown promise;

(b) A prompt, comprehensive staffing analysis of all major

ADOC facilities8 by the Savages; and

(c) An opportunity for ADOC to submit a plan to achieve

comprehensive correctional staffing based upon the
results of the staffing analysis.

ADOC firmly believes these measures will fully address the Courts concerns and

ADOCs long-term staffing needs.

Finally, as discussed during the Phase 2A trial and as the evidence will show

during the upcoming hearing, the necessary or adequate level of correctional

staffing remains a fluid measurementnot a rigid, inflexible calculation.

Moreover, there is no legal basis for any claim or argument that the Eighth

Amendment mandates that ADOC employ a certain number or type of officers or

including any appeal of any award of attorneys fees to Plaintiffs, the date of final affirmance of
the final judgment on an appeal, the date of dismissal of such appeal, the expiration of the time
for a petition for review of such appeal by the United States Supreme Court of the final
judgment, and, if review is granted, the date of final affirmance of that final judgment following
review pursuant to that grant.
8
Facility(ies) means one or more of the major adult correctional facilities operated by or on
behalf of ADOC (including Bibb 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), but excludes any community-based facilities and community
work centers and, to the extent the Consent Decree in the action styled United States of America
v. State of Alabama, Case No. 2:15-cv-368-MHT-TFM, in the United States District Court for
the Middle District of Alabama (the Tutwiler action) already addresses all or any portion of
this Plan, excludes Tutwiler Prison for Women. To be clear, because the Consent Decree in the
Tutwiler action addresses staffing for that facility, the State does not intend to perform a separate
staffing analysis in this action.

6
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employees. Nevertheless, ADOC is committed to this Plan, which provides a path

towards a comprehensive security workforce within each ADOC facility.

A. ON-GOING RECRUITMENT AND RETENTION EFFORTS

Since the Phase 2A trial, ADOC implemented a number of different

measures designed to address correctional staffing. ADOC currently employs

three (3) recruiters and a recruiting coordinator who are devoted exclusively to the

recruitment of new correctional officers. These four (4) individuals actively recruit

correctional staff throughout Alabama and in surrounding states. Using an

increased advertising budget specifically allocated to recruiting new correctional

officers, ADOC significantly increased its advertising efforts on television, radio,

and other media. In fact, ADOC recently began airing commercials during

University of Alabama and Auburn University football games, seeking to attract

potential employees within ADOCs correctional staff demographics.

Additionally, ADOC recently granted each ADOC facility more autonomy

as it relates to recruiting, especially within the community where that facility is

located. ADOCs efforts have borne fruit. By way of example, class sizes at the

training academy have approximately doubled in the last six (6) months, and

ADOC realized significant staffing gains at Ventress Correctional Facility and

Easterling Correctional Facility attributable to recruiting efforts in the communities

around those facilities. In short, ADOCs on-going recruitment and retention

7
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efforts demonstrate both its commitment to maintaining its correctional staff, but

also the effectiveness of those efforts.

B. STAFFING ANALYSES BY THE NATIONS LEADING

EXPERTS
As soon as the mediation process concluded in this case, ADOC

immediately retained the two (2) individuals who literally wrote the book on the

process for completing a staffing analysis in a correctional setting. It is

indisputable that the Savages are the most qualified individuals to complete the

staffing analysis mandated by the Court. The Savages respective experience,

credentials, and expertise in this area is overwhelming and unmatched.

Meg Savage possesses over forty (40) years of experience in prison

management and staffing, beginning with her work as a correctional officer in the

Florida Department of Corrections in 1976, where she continued serving until

1992. Subsequently, Meg Savage transitioned to Arizona Department of

Corrections (AZDOC), serving from 1992 to 2005, in order, as Deputy Warden,

Warden, Assistant Director for Human Resources, and as the Southern Regional

Operations Director. She holds a Bachelors Degree in Criminal Justice and a

Masters Degree in Public Administration from Florida International University.

Like his wife, Russ Savage possesses over forty (40) years of experience in prison

management and staffing, including a tenure from 1979 to 2005 at the AZDOC as,

in order, Unit Deputy Warden, Deputy Warden of Operations, Operations Officer

8
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for Security, Facilities Activation Bureau Administrator, and Deputy Warden of

Programs. He holds a Bachelors Degree in Criminal Justice from Arizona State

University.

Together, the Savages provided consulting work for correctional systems

since 1999. In particular, they collaborated to create the Prison Staffing Analysis

and the Incident Command for System Corrections programs for the National

Institute of Corrections (NIC) in the U.S. Department of Justice. The NIC

provides training and technical assistance, as well as policy and program

development, to federal, state, and local correctional systems. The Savages

conceptualized and implemented the original 40-hour NIC program presented in

Longmont, Colorado, including reviewing correctional staffing plans and leading

training workshops for correctional staff. In addition, Meg Savage spent fifteen

(15) years serving as the Lead Instructor for the NIC Wardens Program from 2000

to 2015, while Russ Savage served as a subject matter expert for NIC learning

courses in 2014 and designed train-the-trainer courses for a variety of state

correctional agencies from 2008 to 2016. The Savages have conducted numerous

correctional staffing analyses for a variety of correctional systems, including in

Arizona, Delaware, Florida, Georgia, Maryland, Michigan, Minnesota, Montana,

Nebraska, Nevada, North Carolina, Oklahoma, Texas and the Virgin Islands. The

Savages curriculum vita are attached hereto as Exhibit A. In sum, ADOC has not

9
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been able to identify any individual or any group of individuals with depth and

breadth of staffing experience equal to or greater than that possessed by the

Savages.

As demonstrated above, the Savages are the preeminent experts on the

manner and method of performing correctional staffing analyses. In order to avoid

any further delay in the process of conducting the staffing analysis, Commissioner

Dunn directed the Savages to immediately begin the staffing analysis process

even prior to the submission of this Plan. As of this date, the Savages have

visited and performed a comprehensive staffing analysis at Bibb Correctional

Facility, Donaldson Correctional Facility, and the Hamilton Aged and Infirmed

Center. A true and correct copy of the Savages staffing analyses pertaining to

these three (3) facilities is attached hereto as Exhibit B. If accepted by the Court,

the Savages plan to visit and complete a comprehensive staffing analysis for each

ADOC facility. A proposed schedule9 for completion of a staffing analysis at the

remaining eleven (11) ADOC facilities is attached hereto as Exhibit C.

After completing a staffing analysis for each ADOC facility, the Savages

will make short-term and long-term recommendations to ADOC concerning

9
Inherent in any proposed schedule is a variety of factors that could impact the schedule such as
emergencies, inclement weather, personnel conflicts, and other unavoidable and/or unforeseeable
events that might prevent the completion of all of the staffing analyses within the time frames
contemplated under the Savages proposed schedule. Therefore, ADOC suggests that the Court
accept the Savages proposed schedule with the caveat that the Savages be afforded sufficient
flexibility to reschedule any visits upon the occurrence of any unavoidable and/or unforeseeable
event.

10
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correctional staffing. These short-term and long-term recommendations will allow

ADOC to develop and to maintain post plans, scheduling patterns, shift relief

factors, and master and daily rosters, as well as calculate the number of full-time-

equivalent (FTE) positions required to maintain a full complement of

correctional staff to operate each ADOC facility safely and securely without the

use of substantial overtime. Upon receipt of the recommendations of the Savages,

ADOC will likely require an opportunity to interface with the Savages relative to

their long-term and short-term recommendations and to propose alternative

approaches to certain issues, which may be necessary due to barriers and/or

impediments unknown to the Savages. Stated differently, ADOC believes that the

implementation of the Savages recommendations will likely require a

collaborative approach to ensure that ADOC assumes staffing obligations which

fall within ADOCs departmental authority, including its departmental budget,

and/or which can be the subject of prospective budget requests by ADOC.

Within thirty (30) days of the Savages completing their staffing analysis

report with short-term and long-term recommendations, the State will submit the

Savages report to Plaintiffs and the Court, along with an identification of any

alternative approaches approved by the Savages and/or other recommendations

which ADOC determines to be impossible, impractical, or infeasible and the

reasons therefor. If Plaintiffs disagree with the Savages recommendations for

11
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correctional staffing and/or the States response to those recommendations, then

the State and Plaintiffs must attempt to resolve their disagreement through

conciliation efforts. To the extent any disagreement exists after the States and

Plaintiffs conciliation efforts, then the State and Plaintiffs will submit the

disagreement to a Special Master for resolution in accordance with the dispute

resolution procedures proposed in Section II.D. below.10

Subject to Section III.D. below, ADOC intends to implement the policies,

practices, and procedures recommended by the Savages and to increase its

correctional staffing within two (2) years of the Effective Date. The Savages will

oversee the implementation of the correctional staffing portion of this Plan. They

will provide ADOC with advice and assistance concerning implementation-related

issues during the two-year time period, as and when needed.

C. OTHER INDEPENDENT EFFORTS TO INCREASE

CORRECTIONAL STAFF
ADOC is currently engaged in other efforts (independent of this action or

this Plan) to increase correctional staff. Two (2) of the most significant efforts

include: (a) a comprehensive analysis of ADOCs policies, practices, and

10
The law unquestionably authorizes this Court to appoint a Special Master with the duties and
responsibilities outlined in this Plan. See Fed. R. Civ. P. 53; 28 U.S.C. 636(b). As further
described below in Section II.D., this Plan submits United States Chief Magistrate Judge John E.
Ott (Judge Ott) as the Special Master to arbitrate any disputes which may arise regarding
implementation of this Plan. This Courts prior use of Judge Ott in this action to oversee
discovery disputes and mediate settlement discussions with the Parties not only utilized him as a
special master, in effect if not title, but also demonstrated his effectiveness in handling the
complex issues presented in this action.

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procedures relating to or affecting recruitment, employment, and retention of

correctional staff, and (b) a comprehensive analysis of the compensation and

benefits offered by ADOC to correctional staff. Brian Bateh (Bateh), along with

his team at the accounting and consulting firm of Warren Averett, have been

retained by ADOC to conduct a comprehensive analysis of ADOCs policies,

practices, and procedures relating to or affecting the recruitment, employment, and

retention of correctional staff. Bateh will make short-term and long-term

recommendations for ADOC concerning recruiting, hiring, and retention of

correctional staff.11

Troy Universitys Center for Public Service (Troy) and Stephen Condrey,

Ph.D. (Dr. Condrey), will conduct a comprehensive analysis of the compensation

and benefits offered by ADOC to correctional staff, including a comparison of

11
ADOC retained Bateh and Warren Averett to provide analysis and recommendations for the
recruitment of qualified correctional staff for ADOC. Bateh is an expert in recruiting and
retention, and is qualified by his training, education, and experience to provide expert
conclusions and recommendations for the recruiting, employment, and retention of correctional
staff for ADOC facilities. Bateh obtained his Bachelor of Science in Finance from the
University of Montevallo and possesses over twelve (12) years of experience related to staffing,
recruiting, business development, management, operations, and accounting practices for large
entities and employers across Alabama and the United States. He maintains an active
membership in the American Staffing Association.
Prior to joining Warren Averett, Bateh worked for one of the nations top staffing and search
firms. His experience at Warren Averett includes crafting recruitment and staffing plans for
entities with multiple facilities across the state, employers facing geographical hurdles to
recruitment and hiring, and entities with budgetary constraints on staffing. Bateh developed
strategies for these entities to overcome these and other challenges, including a limited talent
pool. Bateh specializes in postulating and formulating timelines for the acquisition of staff, in
addition to conceptualizing screening processes to ensure qualified staff procurement. A number
of large entities for which Bateh created staffing and recruitment strategies worked with annual
staffing budgets in excess of $3 million.

13
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ADOC compensation and benefits for correctional staff to the compensation and

benefits afforded by law enforcement agencies at the state, county, and local level.

Dr. Condrey will make short-term and long-term recommendations for ADOC

concerning compensation and benefits of correctional staff.12

Neither an analysis or recommendations concerning recruitment,

employment, and retention of correctional staff, nor an analysis or

recommendations concerning compensation and benefits for correctional staff, is a

part of this Plan or necessary to maintain a constitutionally adequate correctional

staff. Indeed, there is nothing unconstitutional about a prison systems failure or

refusal to re-evaluate its policies, practices, and procedures relating to

compensation, benefits, recruitment, employment, and retention of correctional

12
ADOC reached a memorandum of understanding with Troy, which in turn retained Dr.
Condrey, to provide analysis and recommendations for the compensation and benefits offered by
ADOC to correctional staff. Dr. Condrey founded and is the president of Condrey and
Associates, a national human resources consulting firm specializing in public sector
compensation and organizational assessment. He completed his Doctor of Philosophy in Public
Administration at the University of Georgia, where he subsequently served as the Program
Director of Human Resources Management Technical Assistance in the Carl Vinson Institute of
Government from 1986 to 2010. In his academic and private consultant roles, Dr. Condrey has
completed dozens of projects in twenty-five (25) states regarding compensation and personnel /
human resource management. From February of 2012 to the present, he has also worked as an
academic consultant, including with the United Nations Development Programme and a USAID-
funded project in Lahore, Pakistan. Prior to entering academia, Dr. Condrey worked as a
personnel officer with the Personnel Board of Jefferson County, Alabama from 1980 to 1984 and
a program evaluator for the State of Tennessees Comptroller of the Treasure, Division of State
Audit, from 1979 to 1980. He has written or edited three (3) books, including Handbook of
Human Resource Management in Government, and numerous articles. Dr. Condrey is a member
of the American Society for Public Administration, of which he is past-president, and the
International Personnel Management Association for Human Resources. He currently serves as
chairman of the Federal Salary Council, which he was appointed to by President Barack Obama
in 2010.

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staff. Instead, ADOC includes these two (2) measures, directed at recruiting,

employing, and retaining correctional staff, for informational purposes only so that

the Court obtains a full picture and complete understanding of ADOCs

comprehensive, multi-faceted approach to correctional staffing.

Although ADOC retained Bateh and enlisted the expertise of Dr. Condrey

and they have just begun their analyses related to these two (2) tasks, Batehs and

Dr. Condreys final recommendations will be provided after they are able to

consider and incorporate the Savages staffing analysis and the plan for

implementation of the correctional staffing changes into their recommendations.

The State reasonably anticipates that Batehs and Dr. Condreys recommendations

related to compensation, benefits, recruitment, and retention of correctional staff

will be complete within one hundred twenty (120) days after the State submits the

Savages staffing analysis report to Plaintiffs and the Court. Subject to Section

III.D. below, ADOC intends to implement the policies, practices, and procedures

recommended by Bateh and Dr. Condrey to the extent feasible. Even after Bateh

and Dr. Condrey submit their recommendations to ADOC, they will provide

ADOC with advice and assistance concerning implementation-related issues, as

and when needed.

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III. MENTAL HEALTH STAFFING

While ADOCs plan regarding correctional staffing proposes the prompt

completion of staffing analyses, its plan on mental health staffing takes a slightly

different, but faster approach to reach the same result. Immediately following trial,

Commissioner Dunn retained a team of consultants to advise the department on its

mental health operations after a review of the current mental health operations. As

a result of this process, these consultants with nationwide expertise have recently

proposed initial staffing ratios to ensure the provision of comprehensive mental

health services. Additionally, more than two (2) months ago, ADOC initiated the

process to nearly double its mental health staff when it solicited bids on a Request

for Proposal. These two (2) measures, i.e. the pending RFP for increased mental

health staff and the recommendation of ADOCs mental health consultants, serve

as the centerpiece of ADOCs proposed plan for mental health staffing. Like

ADOCs plan on correctional staffing, the process for fulfilling the proposed

mental health staffing needs entails both (a) on-going efforts, and (b) future

measures for which ADOC does not currently possess funding. Both are discussed

below.

Even prior to entry of the Liability Order, ADOC increased its mental health

staffing, and it continues to implement increases in mental health staffing on both a

short-term and long-term basis. During the period of time between January 1,

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2017, and October 1, 2017, ADOC increased its spending on mental health staff by

approximately $5 million and added approximately sixty (60) FTEs to the mental

health staff. These additional FTEs include additional staffing of certified

registered nurse practitioners (CRNPs)0.5 FTE; psychologists1.0 FTE;

licensed mental health professionals (MHPs)18.60 FTE; registered nurses

(RNs)2.0 FTE; and suicide watch observers21.00 FTE, among other

positions. Moreover, for the mental health positions added since January 1, 2017,

ADOC imposed strict payback penalties for any position which its contractor

(MHM Correctional Services, Inc.) failed to fully staff.

In July of 2017, ADOC released a Request for Proposal (RFP) for a new

mental health services contractor under a comprehensive health care services

contract which will add approximately 125 additional FTEs to the mental health

staff. The RFP nearly doubles the number of psychiatrists, psychologists, CRNPs,

MHPs, and RNs, respectively, from staffing levels of as October 1, 2017, as well

as adds FTEs for other positions. ADOC expects that the cost for this additional

mental health staffing will increase by more than $10 million annually. Under the

terms of the RFP, the comprehensive health care services contract will consolidate

medical and mental health care services into a single contractor. After ADOC

completes its review of the proposals in response to the RFP and selects a

contractor, the new contractor will begin implementing its services in ADOC

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facilities under the terms of the RFP during 2018. Pursuant to the terms of the RFP

and the contract with the new contractor, ADOC will require the contractor to fully

staff the positions and will impose strict financial penalties if the contractor fails to

do so, except for certain delineated support positions.

Before the mediation process ended, ADOC retained three (3) subject matter

consultants to evaluate ADOCs mental health staffing and to recommend

improvements concerning mental health staffing at ADOC facilities: (1) Jeffrey L.

Metzner, M.D. (Dr. Metzner);13 (2) Mary Perrien, Ph.D. (Dr. Perrien);14 and

13
ADOC retained Dr. Metzner as an expert in clinical psychiatry. He received his Bachelor of
Science Degree from the University of Maryland, College Park, and obtained his Medical
Degree from the University of Maryland Medical School, Baltimore. Dr. Metzner completed the
residency program in psychiatry at the University of Colorado Health Sciences Center where he
was a Chief Resident and has been a Clinical Professor of Psychiatry for many years. Dr.
Metzner has worked in clinical psychiatry for approximately forty (40) years.
Since 1980, Dr. Metzner has held numerous consulting and/or monitoring positions within the
field of correctional psychiatry, including consulting to the National Prison Project, the U.S.
Department of Justice, Civil Rights Division, the Civil Rights Division of Homeland Security, as
well as serving as an expert monitor in correctional psychiatry for class action litigation and
Civil Rights of Institutionalized Persons Act (CRIPA) involving the U.S. Department of
Justice, a variety of advocacy organizations and many state prisons. Dr. Metzner has extensively
published with a focus on correctional psychiatry, which has included being a co-editor of a
comprehensive textbook on correctional psychiatry. He has been a member of two (2) of the
three (3) American Psychiatric Associations taskforces/workgroups that has published
guidelines for the psychiatric services in correctional facilities. Over the course of his career, Dr.
Metzner has provided expert opinions in hundreds of civil and criminal matters.
14
ADOC retained Dr. Perrien as an expert in correctional mental health care. Dr. Perrien is
qualified by her training, education, and experience as a psychologist to serve as an expert in this
action. She received her Bachelor of Arts in Psychology from San Jose State University, and
then obtained her Masters Degree and Doctor of Philosophy in Clinical Psychology from the
University of Hawaii, Manoa.
Dr. Perrien is licensed as a psychologist in California and Idaho, and has worked in correctional
mental health care for over twenty (20) years. She began in the Hawaii Department of Public
Safety, practicing as a Masters-level clinical in 1994. Dr. Perrien served as a Staff Psychologist
at the Butner Federal Correctional Institution from 1998 to 2000. She then began a tenure at

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(3) Catherine Knox, M.S.N., R.N., CCHP-RN (Knox).15 There is no question

that these consultants are qualified by their training, experience, and education to

provide recommendations regarding mental health staffing at ADOC facilities.

Prior to the initiation of the recently concluded mediation process, and continuing

California State Prison in Corcoran, California, working from 2000 to 2005 as, in turn, a Clinical
Psychologist, Senior Psychologist Supervisor, and then finally the Chief Psychologist and
Director of Mental Health Services. Dr. Perrien subsequently held a number of positions in the
Idaho Department of Corrections (IDOC) from 2005 to 2010, including the Chief Psychologist
and Director of Mental Health, and then subsequently as the Chief of the Education and
Treatment Division. Dr. Perrien was charged with budgetary management, clinical supervision,
staff administration, and contract monitoring over the course of her career.
Since 2006, Dr. Perrien has served as an expert consultant on mental health care, including
providing expert consulting to the Idaho, Illinois, and Ohio Departments of Corrections. Dr.
Perrien has performed consulting work and provided expert witness testimony in five (5)
different cases, involving trial and/or deposition testimony regarding the standard of mental
health care in correctional settings and assessments of inpatient units at correctional facilities.
Dr. Perrien has published five (5) articles and technical reports on correctional mental health care
and offered approximately thirty (30) presentations in this area. Dr. Perrien maintains
memberships in a variety of national associations, including the American Psychology
Association and the National Commission on Correctional Health Care.
15
The Court is familiar with Knox. Knox has been, and continues to be, an integral part of the
States expert team. Nevertheless, Knox is committed to assisting ADOC with her subject matter
expertise to implement quality improvements across the Alabama prison system.
Knox possesses approximately forty (40) years of experience in the administration of health care
services, with more than thirty (30) years specifically dedicated to correctional health care.
Knox received both her Bachelor of Science Degree in Nursing and her Master of Nursing
Degree with a concentration in Psychiatric Mental Health from Oregon Health Sciences
University. Currently, and for the past sixteen (16) years, Knox has practiced exclusively as a
consultant in the field of nursing in the correctional context, providing expert advice in the
delivery of health care in correctional facilities with respect to governance, budgetary, staffing,
and scheduling related issues. Prior to her tenure as a nursing consultant, Knox served as the
Director of Nursing for the Washington Department of Corrections (WDOC) for four (4) years
where she supervised all practicing nurses in WDOC, implemented measures to curb the spread
of infectious disease, and established policies on medical and mental health responses to inmates
with a history of abuse. Knox also served for seventeen (17) years as the Health Services
Administrator for the Oregon Department of Corrections where she conceptualized and
implemented a nationally recognized mental health program. Knoxs publications include over
fifteen (15) articles and books in the field of correctional nursing, including Essentials of
Correctional Nursing.

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since that time, two (2) of these consultants (Dr. Perrien and Knox) analyzed the

mental health services provided by ADOC by, among other things, conducting site

visits, interviewing ADOC and contractor personnel and reviewing extensive

documentation. Dr. Metzner, Dr. Perrien, and Knox utilized this information to

develop provisional staffing ratios16 both by position and type of service. A true

and correct copy of the provisional staffing ratios developed by Dr. Metzner, Dr.

Perrien, and Knox is attached hereto as Exhibit D.

The ratios developed by Dr. Metzner, Dr. Perrien, and Knox remain, and

will foreseeably remain, provisional in nature. ADOC and its mental health

consultants cannot develop and propose final staffing ratios until ADOC learns

what, if any, additional mental health program requirements may be imposed by

the Court in this matter.17 Stated differently, it is impossible at this stage to fully

evaluate the mental health staffing within ADOC until all of the necessary

programmatic elements have been defined, and ADOC understands from its

reading of the Courts Liability Order that changes to ADOCs programming are

likely. Once these mental health consultants determine that Phase 2A has
16
Staffing ratios provide advantages in determining adequate staffing for mental health services
that prove less useful for analyzing correctional staffing. For example, mental health staffing
depends much less on facility-specific factors such as the physical layout of a facility, the
custody level of the facility, etc. As illustrated in Exhibit D, mental health staffing ratios rest on
factors such as staff position and type of mental health service, which depend much less on the
characteristics of a particular facility.
17
The Court may impose other requirements in addition to programming which impact mental
health staffing. ADOC merely provides programming as an obvious illustration of a potential
future development in this action likely to affect mental health staffing ratios.

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progressed to the point where they can, with some certainty, provide final mental

health staffing ratios, they will do so.

Within fourteen (14) days of Dr. Metzner, Dr. Perrien, and Knox submitting

their finalized mental health staffing ratios, ADOC will submit their staffing ratios

to Plaintiffs and the Court, along with an identification of any mental health

staffing ratios ADOC determines are impossible, impractical, or infeasible. If

Plaintiffs disagree with Dr. Metzners, Dr. Perriens, and Knoxs mental health

staffing ratios, then the State and Plaintiffs must attempt to resolve their

disagreement through conciliation efforts. To the extent any disagreement exists

after the States and Plaintiffs conciliation efforts, then the State and Plaintiffs will

submit the disagreement to a Special Master for resolution in accordance with the

dispute resolution procedures proposed in Section II.D. below.

Subject to Section III.D. below, ADOC intends to implement the mental

health staffing ratios developed by Dr. Metzner, Dr. Perrien, and Knox and to

achieve employment of adequate mental health staff. Dr. Metzner, Dr. Perrien, and

Knox will oversee the implementation of the mental health staffing portion of this

Plan. Upon fulfillment of the mental health staffing ratios18 for a period of twelve

(12) months, the mental health consultants will review implementation of this Plan,

which will include an assessment of mental health staffing needs. Subject to

18
Fulfillment of the mental health staffing ratios means ADOC and/or its contractor met
85% of the mental health staffing ratios with respect to each mental health staffing position.

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Section III.D. below, ADOC intends to fully implement the mental health staffing

portion of this Plan within two (2) years of the Effective Date. Dr. Metzner, Dr.

Perrien, and Knox will provide ADOC with advice and assistance concerning

implementation-related issues, as and when needed.

IV. STASTICAL REPORTING REGARDING STAFFING

At this stage, formal monitoring or other intrusive oversight is

unnecessary with respect to the manner in which ADOC staffs its facilities. As a

more practical matter, there is nothing that a formal monitor could undertake that

could not be achieved more effectively and less intrusively through statistical

reporting. As such, ADOC proposes a process for submitting written reports to the

Court and/or Special Master (as discussed below) on a quarterly basis (January 1,

April 1, July 1, and October 1), describing the steps taken by ADOC to implement

this Plan.

Each proposed quarterly report will provide: (1) the number of correctional /

mental health staff assigned by each ADOC facility; (2) the number of correctional

/ mental health staff employed by each ADOC facility at the end of the quarter; (3)

the turnover rate (number of voluntary and involuntary terminations during the

quarter divided by the total number of correctional / mental health staff at the end

of the quarter); (4) the retention rate (total number of correctional / mental health

staff at an ADOC facility who have worked for ADOC for twelve (12) months or

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longer divided by the total number of correctional staff at the end of the quarter);

and (5) the vacancy rate (number of vacant positions at the end of the quarter

divided by the total number of correctional / mental health staff and vacant

positions at the end of the quarter). No quarterly report should be admissible

against the State, ADOC, its employees, contractors, or contractors employees in

any civil action or other proceeding. If ADOC fails to achieve substantial

compliance19 with the substantive provisions of this Plan by the Effective Date,

then the State and Plaintiffs must attempt to resolve any compliance-related

problem through conciliation efforts. To the extent any disagreement exists after

the States and Plaintiffs conciliation efforts, then the State and Plaintiffs will

submit the disagreement to the Special Master for resolution in accordance with

the dispute resolution procedures set forth below.20

V. DISPUTE RESOLUTION PROCEDURE

If, after exhaustion of conciliation efforts, a dispute exists concerning or

relating to the recommendations submitted by ADOCs correctional and mental

health consultants, ADOCs implementation of their recommendations, or

ADOCs compliance with this Plan, then ADOC proposes that any such dispute be

19
Substantial compliance means ADOC and/or its contractor implemented and complied
with a significant majority (i.e. more than 75%) of the substantive provisions of this Plan.
20
Notwithstanding anything to the contrary in this Plan, this Plan will terminate two (2) years
after the Effective Date and, at any time, ADOC may seek to terminate this Plan with the Court
consistent with the provisions of the Prison Litigation Reform Act, 18 U.S.C. 3626(b).

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resolved by the Special Master, Judge Ott. See Fed. R. Civ. P. 53; 28 U.S.C.

636(b). Within fourteen (14) days after the State and Plaintiffs end conciliation

efforts (or another date and time mutually agreeable to the State and Plaintiffs),

Plaintiffs will submit to the Special Master a notice of dispute, identifying the

dispute, explaining in detail Plaintiffs position as to the recommendation-,

implementation-, or compliance-related dispute, and describing in detail the relief

they seek from the Special Master. The State will respond to Plaintiffs notice of

dispute within fourteen (14) days (or another date and time mutually agreeable to

the State and Plaintiffs), explaining in detail the States position as to the

recommendation-, implementation-, or compliance-related dispute and the relief

sought by Plaintiffs. The Special Master will decide the dispute within fourteen

(14) days (or another date and time mutually agreeable to the State and

Plaintiffs).21 To prevail, consistent with applicable law (including the PLRA, as

defined below), Plaintiffs must prove that the topic of dispute addresses an ongoing

constitutional violation from the Courts Liability Order and that their proposed

relief is narrowly drawn, extends no further than necessary to correct such

constitutional violation, and constitutes the least intrusive means necessary to

correct such constitutional violation. ADOC will comply or initiate efforts to

21
Alternatively, the Special Master should be afforded sufficient authority to manage the dispute
resolution process, including the authority to reset, extend, or re-establish any deadlines in his
discretion.

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comply with the decision of the Special Master within the time designated by the

Special Master.

VI. RESERVATION OF RIGHTS AND LIMITATIONS TO

REMEDIAL RELIEF

A. THE STATE RESERVES ALL RIGHTS, INCLUDING

ITS OBJECTIONS TO THE COURTS CONCLUSIONS
REGARDING LIABILITY.
The State denies, objects to, and disputes the Courts finding that Plaintiffs

established with competent evidence deliberate indifference as to any of the

policies, practices, and procedures on which the Court certified a Phase 2A class,

including (1) mental health staffing; (2) custodial staffing; (3) identification and

classification; (4) counseling; (5) crisis care; (6) segregation; and (7) discipline.

Braggs v. Dunn, 317 F.R.D. 634, 640-41 (M.D. Ala. 2016).22

In the Liability Order, the Court did not require Plaintiffs to establish actual

harm, instead concluding that plaintiffs must show that they have been subjected

to the harmful policies and practices at issue, not (necessarily) that they have

already been harmed by these policies and practices. (Doc. No. 1285 at 42)

(quoting Dunn v. Dunn, 219 F. Supp. 3d 1100, 1123 (M.D. Ala. 2016)). The Court

further held that, [i]n the class-action context, the plaintiff class must show that it,

as a whole, has been subjected to policies and practices that create a substantial
22
The Court also certified a class based on ADOCs medication management policies. Braggs v.
Dunn, 317 F.R.D. 634, 640-41 (M.D. Ala. 2016). The Court found, however, that Plaintiffs did
not present sufficient evidence to establish that ADOCs medication management practices are
inadequate. (Doc. No. 1285 at 239).

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risk of serious harm. (Doc. No. 1285 at 42) (citing Braggs v. Dunn, 317 F.R.D. at

654).

The State objects to the Courts finding of liability generally and based on a

risk of harm to the Plaintiff class. Although Plaintiffs need not wait until they

actually are harmed to prevail, Helling v. McKinney, 509 U.S. 25, 33-34 (1993),

the Supreme Court and the Eleventh Circuit have repeatedly held that, for an

inmate to have an Eighth Amendment claim based on alleged exposure to a risk,

the conditions presenting the risk must be sure or very likely to cause serious

illness and needless suffering, and give rise to sufficiently imminent dangers.

Baze v. Rees, 553 U.S. 35, 50 (2008) (quoting Helling, 509 U.S. at 33, 34-35). To

permit an Eighth Amendment claim based on a less imminent risk of harm would

threaten to transform courts into boards of inquiry charged with determining best

practices. Id.; see also Wellons v. Commr Ga. Dept of Corr., 754 F.3d 1260,

1264 (11th Cir. 2014) (quoting Baze 533 U.S. at 50, and citing Helling, 509 U.S. at

34-35).

The Supreme Court addressed the issue of risk in Lewis v. Casey, 518

U.S. 343 (1996). In Lewis, the Court stated:

It is the role of courts to provide relief to claimants, in

individual or class actions, who have suffered, or will
imminently suffer, actual harm; it is not the role of
courts, but that of the political branches, to shape the
institutions of government in such fashion as to comply
with the laws and the Constitution.

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518 U.S. at 349 (emphasis supplied). The Lewis Court further stated, the two

roles briefly and partially coincide when a court, in granting relief against actual

harm that has been suffered, or that will imminently be suffered, by a particular

individual or class of individuals, orders the alteration of an institutional

organization or procedure that causes the harm. Id. at 350. Warning of the

implications of a general risk standard, the Court admonished:

But the distinction between the two roles would be

obliterated if, to invoke intervention of the courts, no
actual or imminent harm were needed, but merely the
status of being subject to a governmental institution that
was not organized or managed properly.

Id. (emphasis added). The Court then went on to make an instructive observation

about a hypothetical scenario:

If to take another example from prison life a healthy

inmate who had suffered no deprivation of needed
medical treatment were able to claim violation of his
constitutional right to medical care, see Estelle v.
Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290, 50 L. Ed.
2d 251 (1976), simply on the ground that the prison
medical facilities were inadequate, the essential
distinction between judge and executive would have
disappeared: it would have become the function of the
courts to assure adequate medical care in prisons.

Id.

The subjective component therefore requires evidence of an officials

awareness of the substantial risk of imminent, serious harm not just a general

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risk. Farmer v. Brennan, 511 U.S. 825, 829 (1994). For example, in Robinson

v. Conner, No. 2:12-cv-397-TMH, 2012 WL 2358955 (M.D. Ala. May 31, 2012),

this Court rejected an inmates Eighth Amendment claim that the defendants had

denied him access to adequate medical care because the jail did not have a 24-hour

emergency medical infirmary and did not have an adequate policy for screening

new inmates for infectious and sexually transmitted diseases. Id. at *5 (Plaintiff

has not alleged that the matters about which he complains have resulted in any

detrimental effect to his health or well-being.); see also Driskell v. Price, No.

2:13-cv-01541, 2015 WL 545382, *8 (N.D. Ala. Feb. 10, 2015) (dismissing

inmates Eighth Amendment claim where inmate complained that correctional

facility had no testing, diagnosis or treatment for such conditions as dementia,

Alzheimers disease, senility, or other mental health problems, because plaintiff

did not allege that he suffered from any of those medical conditions).

Plaintiffs failed to meet this standard with respect to any of the policies on

which the Court certified the class. Accordingly, the State does not waive, but

instead expressly preserves, its objections to and right to appeal the Courts

Liability Order and the findings and conclusions regarding the States Phase 2A

liability. To be clear, the State does not agree with or concede the validity of the

Courts Liability Order and nothing in this Plan is, or may be deemed to be, an

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admission of any kind by or against the State. Nevertheless, in compliance with

the Courts directives (Doc. No. 1357), the State submitted this Plan.

B. ADOC IS ENTITLED TO OPERATE AND

ADMINISTER ITS CORRECTIONAL SYSTEM
WITHOUT OBSTRUCTION OR INTERFERENCE
FROM PLAINTIFFS.

Supreme Court precedent makes clear that this Court may not become the de

facto manager and/or administrator of the Alabama prison system. Under this

Plan, the administration of ADOC remains in the hands of its leadership. Three (3)

reasons exist for this line of demarcation between the Courts jurisdiction and the

administration of the prison system. First, this Court (like all courts) lacks

expertise in the administration and operation of a prison system. As such, it must

avoid second-guessing the decision of those with such expertise. Second (and

relatedly), the responsibilities of prison administration and operation have been

allocated to the executive branch, not the judiciary, so the appropriate separation of

powers requires limited involvement by this Court. Third, the rules of comity limit

the involvement of federal courts in state-operated prison systems. See Turner v.

Safley, 482 U.S. 78, 85 (1987); Meachum v. Fano, 427 U.S. 215, 229 (1976);

Procunier v. Martinez, 416 U.S. 396, 405 (1974).

With regard to the first issue, the Supreme Court routinely directs courts to

defer to prison administrators, especially concerning matters within their discretion

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and expertise. In Turner v. Safley, the Supreme Court cautioned against judicial

intervention in a prison system:

A principle identified in Martinez, however, is the

recognition that courts are ill equipped to deal with the
increasingly urgent problems of prison administration
and reform. Id., at 405, 94 S.Ct., at 1807. As the
Martinez court acknowledged, the problems of prisons
in America are complex and intractable, and, more to the
point, they are not readily susceptible of resolution by
decree. Id., at 404-405, 94 S.Ct., at 1807. Running a
prison is an inordinately difficult undertaking that
requires expertise, planning, and the commitment of
resources, all of which are peculiarly within the province
of the legislative and executive branches of government.
Prison administration is, moreover, a task that has been
committed to the responsibility of those branches, and
separation of powers concerns counsel a policy of
judicial restraint.

482 U.S. at 84-85 (quoting Martinez, 416 U.S. at 404-405). The Eleventh Circuit

expressed a similar view in Newman v. Alabama, in which it held, A federal

court, when fashioning a remedy to redress constitutional violations in a prison,

must recognize that it is ill-equipped to involve itself intimately in the

administration of the prison system. 683 F.2d 1312, 1320 (11th Cir. 1982). Thus,

courts must avoid substituting their judgment for those of prison administrators.

Bell v. Wolfish, 441 U.S. 520, 554 (1979); Mitchell v. Rouse, 2:11-cv-1101-WHA,

2015 WL 893262 (M.D. Ala. Mar. 2, 2015) (granting summary judgment to

defendants on retaliation claim and acknowledging prison officials are entitled to

deference); Broadhead v. Canty, 2:10-cv-808-MHT, 2013 WL 5347358 (M.D. Ala.

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Sept. 23, 2013) (Thompson, J.) (same); Hope v. Allen, 2:07-cv-210, 2009 WL

1688177 (M.D. Ala. Jun. 16, 2009) (same).

With regard to the second issue, courts recognize that prison administration

is a legislative and executive function, not a judicial one. [J]udicial deference is

accorded not merely because the administrator ordinarily will, as a matter of fact in

a particular case, have a better grasp of his domain than the reviewing judge, but

also because the operation of our correctional facilities is peculiarly the province of

the Legislative and Executive Branches of our Government, not the Judicial.

Bell, 441 U.S. at 548. Thus, the courts role is limited to determining whether a

particular system violates any prohibition of the Constitution.... The wide range of

judgment calls that meet constitutional and statutory requirements are confided to

officials outside of the Judicial Branch of Government. Id. at 562. The rationale

for deference on these issues therefore is based upon both a lack of expertise in

prison issues and an acknowledgement of the limits of judicial authority.

With regard to the third issue, the need for deference is heightened for

federal courts when a state prison system is at issue. The federal courts do not sit

to supervise state prisons, the administration of which is of acute interest to the

States. Meachum, 427 U.S. at 229; see also Turner, 482 U.S. at 85 (Where a

state penal system is involved, federal courts have, as we indicated in Martinez,

additional reason to accord deference to the appropriate prison authorities.) (citing

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Martinez, 416 U.S. at 405). Thus, federal courts must tread particularly carefully

when a state prison system is involved. Accordingly, this Plan leaves the

administration of Alabamas prisons in the hands of its prison officials.

C. THE PLRAS RESTRICTIONS ON REMEDIAL RELIEF

The Prison Litigation Reform Act (PLRA) imposes clear limitations upon

the scope and extent of any relief following entry of the Liability Order. The

PLRA states:

Prospective relief in any civil action with respect to prison

conditions shall extend no further than necessary to correct the
violation of the Federal right of a particular plaintiff or
plaintiffs. The 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. The court shall give
substantial weight to any adverse impact on public safety or the
operation of a criminal justice system caused by the relief.

18 U.S.C. 3626(a)(1)(A) (emphasis added). Therefore, the relief is not tailored

to best practices, national standards, or other industry-created norms, but must

narrowly address the issues alleged in the Liability Order.

To this end, courts conducting these remedial procedures individually assess

each requirement imposed by the relief to determine whether it meets this

standard. U.S. v. Secy, Fla. Dept of Corr., 778 F.3d 1223, 1228 (11th Cir. 2015);

see also Cason v. Seckinger, 231 F.3d 777, 785 (11th Cir. 2000) (identical

language in section 3626(b)(3) requires particularized findings, on a provision-by-

32
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provision basis, that each requirement imposed by the consent decree satisfies the

need-narrowness-intrusiveness requirement). The State structured this Plan so

that each requirement meets this standard. To go any further runs afoul of the

PLRAs need-narrowness-intrusiveness requirement.

D. LEGISLATIVE APPROVAL AND FUNDING

ADOC is currently operating under a budget for fiscal year 2017-2018,

approved by the Alabama legislature and Governor. The Alabama legislature and

Governor possess the sole authority to establish the budget for ADOC. Ala. Code

41-4-91 and 41-19-8 (1975). This Plan will necessarily require the expenditure

of funds, which do not currently exist within ADOCs fiscal year 2017-2018

budget. Therefore, in the event that the Court adopts all or any portion of ADOCs

Plan (or any derivation thereof), ADOC cannot begin performance of any such

requirements until submission and approval of budgetary requests by the Alabama

legislature and Governorneither of whom are parties to this action.

ADOC submits this Plan expressly contingent upon receipt of adequate

funds from the Alabama legislature to fund the efforts and activities set forth this

Plan. ADOC hereby reserves the right to depart from, or terminate, this Plan if

adequate funds are not appropriated to implement all or any portion of the Plan.

This Section III.D. shall not be deemed to be, or construed as, an admission or

33
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stipulation by ADOC that any budgetary request to the Alabama legislature is

adequate to comply with or implement this Plan.

VII. CONCLUSION

The State disagrees with the Courts opinion that correctional or mental

health understaffing individually or collectively with other purported problems or

deficiencies resulted in or contributed to any single or systemic constitutional

violation. Nevertheless, pursuant to the Courts Phase 2A Revised Remedy

Scheduling Order on Eighth Amendment Claim (Doc. No. 1357) and without

waiving any right to appeal the Liability Order and without admitting anything in

the Liability Order, the State proposes this Plan to address correctional and mental

health staffing. If any remedy is afforded Plaintiffs, then this Plan constitutes the

outer limits on any such remedy.

Based upon the ADOCs proposed Plan and the evidence to be presented at

the hearing beginning on November 13, 2017, the State submits that the Courts

remedial order (if any) should direct the following:

(a) Judge Ott to preside as a Special Master for resolving disputes among

the parties and/or for addressing administrative issues that arise during

the execution of the Courts orders;

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(b) The Savages to complete the staffing analyses to the best of their

ability within the time frame set forth in their proposed schedule

attached hereto as Exhibit C;

(c) The Savages to report to the Special Master every thirty (30) days as

to their progress in completing the staffing analyses, as well as any

unforeseen delays which may impact the issuance of a final report;

(d) The Savages to provide their final staffing analysis report to the Court

on or before May 1, 2018;

(e) Within thirty (30) days after the Savages submit their final staffing

analysis report to the Court, consistent with Section II.B. above,

ADOC to submit its response to the Savages final staffing analysis

report, including any objections or opposition to the staffing

recommendations proposed by the Savages and/or any plan as to the

manner in which ADOC will achieve the staffing levels identified by

the Savages;

(f) ADOC to start implementing the mental health staffing

recommendations set forth in the Request for Proposal:

Comprehensive Inmate Healthcare Services (the relevant portions of

which are attached hereto as Exhibit E) within ninety (90) days of the

date of any order from the Court;

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(g) ADOC to start implementing the mental health staffing ratios

proposed by ADOCs mental health consultants (Dr. Metzner, Dr.

Perrien and Knox) within one hundred eighty (180) days of the date of

any order from the Court;

(h) ADOC to submit to the Court under seal a Correctional Staffing

Report and Mental Health Staffing Report on a quarterly basis

(January 1, April 1, July 1, and October 1) consistent with Section IV

above, with the first Correctional Staffing Report and Mental

Health Staffing Report being due no earlier than the first quarterly

date at least ninety (90) days after the entry of any order from the

Court;

(i) After the ADOC has filled 85% of the positions contemplated by the

mental health staffing ratios proposed by ADOCs mental health

consultants, then ADOCs mental health consultants to conduct the

necessary assessment of the delivery of mental health care within the

ADOC system for the purpose of re-evaluating mental health staffing

and report to the Court their recommendations; and

(j) Within thirty (30) days after the ADOCs mental health consultants

submit their findings regarding mental health staffing to the Court,

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 Case 2:14-cv-00601-MHT-TFM Document 1374 Filed 10/09/17 Page 37 of 40

ADOC to submit its response, including any objections or opposition

to the recommendations proposed by its mental health consultants.

Dated: October 9, 2017.

/s/ William R. Lunsford

William R. Lunsford
One of the Attorneys for the Commissioner
and Associate Commissioner

William R. Lunsford
Matthew B. Reeves
Michael P. Huff
Melissa K. Marler
Stephen C. Rogers
MAYNARD, COOPER & GALE, PC
655 Gallatin Street
Huntsville, AL 35801
Telephone: (256) 512-5710
Facsimile: (256) 512-0119
blunsford@maynardcooper.com
mreeves@maynardcooper.com
mhuff@maynardcooper.com
mmarler@maynardcooper.com
srogers@maynardcooper.com

Luther M. Dorr, Jr.

Mitesh B. Shah
Evan P. Moltz
MAYNARD, COOPER & GALE, PC
1901 Sixth Avenue North
2400 Regions Harbert Plaza
Birmingham, AL 35203
Telephone: (205) 254-1178
Facsimile: (205) 714-6438
rdorr@maynardcooper.com
mshah@maynardcooper.com
emoltz@maynardcooper.com

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 Case 2:14-cv-00601-MHT-TFM Document 1374 Filed 10/09/17 Page 38 of 40

/s/ John G. Smith

John G. Smith
One of the Attorneys for the Commissioner
and Associate Commissioner

John G. Smith
David R. Boyd
BALCH & BINGHAM LLP
Post Office Box 78
Montgomery, AL 36101-0078
Telephone: (334) 834-6500
Facsimile: (866) 316-9461
jgsmith@balch.com
dboyd@balch.com

Steven C. Corhern
BALCH & BINGHAM LLP
Post Office Box 306
Birmingham, AL 35201-0306
Telephone: (205) 251-8100
Facsimile: (205) 488-5708
scorhern@balch.com

Anne A. Hill
Elizabeth A. Sees
Joseph G. Stewart
ALABAMA DEPARTMENT OF CORRECTIONS
Legal Division
301 South Ripley Street
Montgomery, Alabama 36130
Telephone: (334) 353-3884
Facsimile: (334) 353-3891
anne.hill@doc.alabama.gov
elizabeth.sees@doc.alabama.gov
joseph.stewart@doc.alabama.gov

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 Case 2:14-cv-00601-MHT-TFM Document 1374 Filed 10/09/17 Page 39 of 40

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been served upon all

attorneys of record in this matter, including without limitation the following, by the

Courts CM/ECF system on this the 9th day of October, 2017:

Maria V. Morris William Van Der Pol, Jr.

Rhonda C. Brownstein Glenn N. Baxter
Latasha L. McCrary Barbara A. Lawrence
J. Richard Cohen ALABAMA DISABILITIES ADVOCACY
Caitlin J. Sandley PROGRAM
SOUTHERN POVERTY LAW CENTER University of Alabama
400 Washington Avenue 500 Martha Parham West
Montgomery, Alabama 36104 Box 870395
Telephone: (334) 956-8200 Tuscaloosa, Alabama 35487-0395
Facsimile: (334) 956-8481 Telephone: (205) 348-6894
maria.morris@splcenter.org Facsimile: (205) 348-3909
rhonda.brownstein@splcenter.org wvanderpoljr@adap.ua.edu
latasha.mccrary@splcenter.org gnbaxter@bama.ua.edu
richard.cohen@splcenter.org blawrence@adap.ua.edu
cj.sandley@splcenter.org

Deana Johnson Andrew P. Walsh

Brett T. Lane
MHM SERVICES, INC.
1447 Peachtree Street NE
Suite 500
Atlanta, GA 30309
Telephone: (404) 347-4134
Facsimile: (404) 347-4138
djohnson@mhm-services.com
btlane@mhm-services.com
William G. Somerville III
Patricia Clotfelter
Lisa W. Borden
BAKER DONELSON BEARMAN
CALDWELL & BERKOWITZ, PC
420 20th Street North
Suite 1400
Birmingham, Alabama 35203
Telephone: (205) 244-3863
Facsimile: (205) 488-3863
awalsh@bakerdonelson.com
wsomerville@bakerdonelson.com
pclotfelter@bakerdonelson.com
lborden@bakerdonelson.com

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 Case 2:14-cv-00601-MHT-TFM Document 1374 Filed 10/09/17 Page 40 of 40

Lonnie J. Williams Gregory M. Zarzaur

ALABAMA DISABILITIES ADVOCACY
PROGRAM
P. O. Box 870395
Tuscaloosa, AL 35487
Telephone: (205) 348-4928
Facsimile: (205)348-3909
lwilliams@adap.ua.edu
Anil A. Mujumdar
Diandra S. Debrosse
ZARZAUR MUJUMDAR & DEBROSSE
2332 2nd Avenue North
Birmingham, AL 35203
Telephone: (205) 983-7985
Facsimile: (888) 505-0523
gregory@zarzaur.com
anil@zarzaur.com
fuli@zarzaur.com

/s/ William R. Lunsford

Of Counsel

40