“Hope is a good thing, maybe the best of things, and no good thing ever dies.” The Shawshank Redemption (Castle Rock Entertainment 1994).
Senior Research and Writing Editor: Amanda L. B. Wineman
302 pages. 302 pages is what it took District Court Judge Myron Thompson to fully explain his ruling in Braggs v. Dunn.[1] He wrote 302 pages detailing the inadequacies and failures of the Alabama Department of Corrections (ADOC) in providing mental health care to its prisoners.[2] In a multi-faceted set of cases, the Southern Poverty Law Center, along with attorneys from other Alabama firms, brought suit on behalf of a class of prisoners from fifteen ADOC facilities against ADOC.[3] The first phase involved American Disability Act (ADA) claims that ADOC discriminated on the basis of physical disabilities and that they failed to make accommodations for disabilities.[4] “Phase 2A involves Eighth Amendment, ADA, Rehabilitation Act, and due-process claims regarding mental-health care. The parties settled the Phase 2A ADA and Rehabilitation Act claim. The due process claims are pending before the court for settlement approval.”[5] The third phase (Phase 2B) “will focus on medical-care and dental-care claims under the Eighth Amendment.[6] This opinion resolves only the Eighth Amendment claim of inadequate mental-health care. Lasting seven weeks, the bench trial resulted in a ruling primarily in favor of the prisoners on June 27, 2017.[7]
After reading his opinion, it is easy to understand why Judge Thompson required 302 pages to rule in Braggs. He needed to explain the procedural status of the complex case, provide necessary background regarding the facilities that were involved in the litigation, articulate the standard the court must use to determine whether ADOC violated the Eighth Amendment, and, most importantly, explain the court’s ruling on the several issues (and several sub-issues) of inadequacy the court found.[8] Having briefly discussed the case’s procedural status, the court noted fifteen facilities implicated in the case: Bibb, Bullock, Donaldson, Draper, Easterling, Elmore, Fountain, Hamilton, Holman, Kilby, Limestone, St. Clair, Staton, Ventress, and Tutwiler.[9] Tutwiler is the only women’s prison in Alabama, and Tutwiler, Bullock, and Donaldson “serve as treatment hubs for mental-health services, containing a residential treatment unit (RTU) and/or a stabilization unit (SU). These two types of units . . . house and treat the most severely mentally ill prisoners.”[10]
Braggs is not the first case to address the issue of prisoners receiving inadequate mental health care.[11] Therefore, the standard the court must apply has already been outlined as, “To prevail on an Eighth Amendment challenge, plaintiffs must prove that prison officials acted with deliberate indifference to serious medical needs.”[12] In determining whether this standard has been met a court must conduct two tests:
The objective test requires showing that the prisoner has ‘serious medical needs,’ and either has already been harmed or been ‘incarcerated under conditions posing substantial risk of serious harm. Subjectively, a prisoner must show that an official acted with deliberate indifference to that harm or risk of harm: that is, the official must have known[] of and disregarded[] an excessive risk to inmate health or safety.[13]
This is the standard Judge Thompson applied in the instant case.[14] In order to “establish deliberate indifference, plaintiffs must show that defendants had subjective knowledge of the harm or risk of harm, and disregarded it or failed to act reasonably to alleviate it.”[15]
Of the several issues the court found, it organized them into seven main categories referred to as “interrelated areas of inadequacy”:
(1) identification and classification of prisoners with mental illness; (2) treatment planning; (3) psychotherapy; (4) inpatient mental-health care units; (5) crisis care and suicide prevention; (6) use of disciplinary actions for symptoms of mental illness; and (7) use of segregation for mentally ill prisoners. In all seven areas, experts from both sides by and large agreed about significant flaws affecting mentally ill prisoners . . . Even Associate Commissioner Naglich [a named defendant] essentially agreed that some of these were problems so significant that they must be fixed as soon as possible, because lives are at risk.[16]
The court dictated four ways the identification and classification of prisoners with mental illness was inadequate: (1) the intake process; (2) the classification of mental-health needs; (3) the referral process; and (4) utilization of mental-health units.[17] A licensed practical nurse (LPN), without physician oversight, conducts the intake process through a series of paper questionnaires and makes a decision as to which prisoners require the attention of a licensed psychiatric physician. This ranking system requires LPNs to triage the prisoners and assign their medical needs somewhere along a sliding scale. [18] Tasking the LPNs with the duty to rank prisoners’ psychiatric needs, without proper mental health training, leads to underreporting; thereby leading to skewed statistics regarding the number of prisoners with serious mental health needs.[19] Additionally, the ranking system itself is inadequate because it “fails to accurately reflect prisoners’ mental-health needs.”[20]
“The purpose of the referral process is to identify prisoners whose mental illnesses develop during their incarceration and prisoners whose mental-health needs were not identified during the intake process.”[21] Describing the proper procedure, the defense expert explained that triaging is the proper procedure for dealing with referrals.[22] The clearest inadequacy is in the simple fact that “ADOC does not have a system to triage and identify the urgency of each request[,]” despite the mental health care provider reporting this same issue every year since 2011.[23] Further, due to the lack of any effective referral process, prisoners have resorted to self-harm to get attention from the mental-health staff.[24]
Utilization of mental-health units at ADOC prove inadequate because although RTUs or SUs should house approximately 515 ADOC prisoners, only 310 of the 376 beds were occupied by prisoners with mental-health needs.[25] The defense expert stated that those prisoners sent to SUs or RTUs were often there for a short time despite their need for continued care.[26]
Some issues are more easily explained, such as the conclusion that treatment planning is inadequate at ADOC. ADOC fails to create individualized plans for each prisoner based on his or her mental health needs.[27] Psychotherapy is constitutionally inadequate at ADOC for several reasons listed in the opinion, including understaffing, reliance on psychotropic medications over counseling and psychotherapy, under qualified mental health staff, and a lack of confidentiality.[28] What is important to note is that Judge Thompson describes these overarching areas of inadequacy as “interrelated.”[29] For example, ADOC’s inability to provide adequate psychotherapy, or its ability to identify and classify mental health needs, is caused largely by the same issues that cause ADOC’s inability to provide adequate inpatient care andother issues enumerated above.
ADOC’s suicide prevention and crisis care were found to be inadequate for several reasons.[30] These reasons were mostly echoing the issues that caused the previously described inadequacies. However, perhaps the most powerful evidence of ADOC’s failure to prevent suicides and provide crisis care occurred during the trial. Jamie Wallace, a prisoner at Bullock, testified that he attempted suicide several times and revealed scars to the court.[31] After having to reconvene court and coax testimony out of Wallace, the court demanded a report on his condition and the exact steps that ADOC was going to take to treat him.[32] The exceptionally powerful evidence came when only ten days after testifying about his mental condition and the lack of treatment he received, Jamie Wallace tragically committed suicide.[33] Judge Thompson somberly noted, “Without question, Wallace’s testimony and the tragic event that followed darkly draped all the subsequent testimony like a pall.”[34] What evidence could be more convincing that ADOC’s suicide prevention and crisis care were inadequate than a man who testified that he was not receiving care in times of crisis and was admittedly and obviously suicidal hanging from a cell? The court outlined the specific areas of inadequacy within suicide prevention and crisis care as: (1) failure to provide crisis care to those who need it; (2) placement of prisoners in crisis in dangerous and harmful settings; (3) inadequate treatment in crisis care; (4) unsafe crisis cells; (5) inadequate monitoring of suicidal prisoners; (6) inappropriate release from suicide watch and inadequate follow up.[35]
The sixth area of inadequacy, inappropriate use of disciplinary actions, refers to ADOC disciplining prisoners for behavior that is symptomatic of mental illness “without adequate regard for the disciplinary sanctions’ impact on mental health.”[36] The court stated, “These punitive practices in turn subject mentally ill prisoners to a substantial risk of decompensation and increased suffering.”[37] Jamie Wallace testified that he had been disciplined and sent to segregation multiple times after attempting suicide or harming himself, and his testimony was echoed by the records and testimony of three other plaintiffs.[38]
Segregation in prison is highly controversial.[39] The plaintiffs asked the court to prohibit mentally ill prisoners from being placed in segregation; however, “the court [saw] no need to reach that broad conclusion.”[40] Instead, the court limited its ruling to finding that ADOC’s segregation practices as they are now are unconstitutional.[41] However, Naglich agreed with plaintiff’s proposition that it is “categorically inappropriate” for seriously mentally ill prisoners to be placed in segregation, and that “such placement is tantamount to ‘denial of minimal medical care.’”[42] Perhaps both Plaintiffs’ requests and a general overhaul of ADOC’s segregation system could have been achieved considering defendant’s statement conceding the plaintiffs’ point.
There were three main contributing conditions the court discussed: (1) overcrowding; (2) mental-health understaffing; and (3) correctional understaffing.[43] ADOC is designed to hold 13,318 prisoners; however, according to its September 2016 monthly statistical report, it held 23,328 prisoners, bringing the occupancy rate to over 175%.[44] Further, “Plaintiffs’ expert Vail testified that the magnitude of overcrowding in ADOC is the worst he has seen in his career in corrections and consulting for other correctional systems across the country.”[45] Lisa Borden,[46] one of the attorneys assisting in the representation of the plaintiffs, remarked, “The fairly recent sentencing reforms passed by the legislature were meant to address overcrowding, and have done so to a modest extent. Hopefully that will continue, although the current political rhetoric of ‘getting tough on crime again’ poses potential challenges there.”[47] Borden expressed that she could not predict how desperately needed additional space would be created “given that the legislature has now rejected prison construction proposals twice.”[48] The court did not articulate how the defendants must comply with its rulings.
Although an overwhelming win for the plaintiffs, Judge Thompson did make some rulings in favor of defendants. First, “the court, out of an abundance of caution and exercising its discretion, leaves [the issue of whether periodic mental-health evaluations for all prisoners in segregation are inadequate] to be further addressed by the parties. Second, evidence was insufficient to establish a substantial risk of serious harm arising from ADOC’s medication management practices or the supervision of certified registered nurse practitioners.”[49] The court noted that the reason it found for defendants on these issues was not because ADOC was in fact operating a safe environment with trained employees, but rather that the evidence was insufficient to establish that the inadequacies created a substantial risk of serious harm.[50]
Looking forward, it is important to consider the impact this decision could have on prison litigation, the taxpayers, and the prisoners. With awareness of mental health issues on the rise, demand for treatment will likely only grow stronger. When asked about the likelihood of this decision having an impact nationwide, Borden stated, “The breadth and detail of Judge Thompson’s opinion will very likely have an impact in those cases because it makes clear that State officials cannot abdicate responsibility to provide constitutionally adequate care by passing the buck, literally, to private vendors, or by shrugging and blaming a lack of resources.”[51] Concern could rise regarding the effect this ruling may have on taxpaying citizens. After all, who is going to pay for more room to solve the overcrowding issue and the salaries of more staff? Borden describes the bigger picture: “For whatever reason, the State of Alabama has historically chosen to resist complying with the Constitution until it is made to do so through litigation. Whatever it would have cost to comply, that cost is greatly multiplied by the necessity of forcing it to comply.”[52] She also notes that money will likely be a determining factor in how quickly things change, especially regarding the hiring of additional mental health staff and correctional officers.[53] Additionally, she makes the often forgotten point: “If the State will have prisoners, it must provide adequate care.”[54] The greatest impact, however, will likely be felt by the people at the center of this trial: the prisoners in ADOC facilities.Following Judge Thompson’s ruling, the people in ADOC facilities will likely now have hope that their pleas and cries for change have been heard and that change will come. Borden described her experience throughout this trial stating, “[The most rewarding part] has been working with prisoners who previously have not felt that anyone cared about their plight, and seeing how it affects them to know someone does care.”[55] Through this trial, people who felt abandoned were reminded that someone cares. This case was about people like Jamie Wallace who desperately need hope, and now, 302 pages later, they have it.
[1] Braggs v. Dunn, No. 2:14cv601–MHT, 2017 WL 2773833 (M.D. Ala. June 27, 2017).
[2] Id.
[3] Id. at *2.
[4] Id. at *2 (“The parties settled Phase 1.”) (citing Dunn v. Dunn, 318 F.R.D. 652 (M.D. Ala. 2016)).
[5] Id.
[6] Braggs, 2017 WL 2773833, at *2.
[7] Id. at *2.
[8] Id. at *2, *8, and *11.
[9] Id. at *3.
[10]Id. at *3 (The rest of the mentally ill prisoners do not live in separate housing from the general population, and they often must go to a different part of the prison to receive treatment.)
[11] See Brown v. Plata, 563 U.S. 493 (2011) (stating that overcrowding that results in inadequate mental healthcare is unconstitutional); Casey v. Lewis, 834 F. Supp. 1477 (D. Ariz. 1993) (holding that the mental health treatment in Arizona prisons violated the Eighth Amendment).
[12]Estelle v. Gamble, 429 U.S. 97, 105-106 (1976).
[13]Braggs, 2017 WL 2773833, at *8 (quoting Estelle, 429 U.S. at 104; Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994) (citing Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003) (outlining the requirements of a deliberate indifference standard).
[14]Braggs, 2017 WL 2773833, at *8.
[15]Id. at *55 (citing Thomas v. Bryant, 614 F.3d 1288, 1312 (11th Cir. 2010)).
[16]Id. at *11 (emphasis added).
[17]Id. at *18-21.
[18]Id. at *19 (noting that an MH-0 does not receive further mental health treatment, and an MH-6 requires hospitalization).
[19]Id. (stating that the percentage of prisoners in ADOC is substantially lower than the national average, and experts from both sides concurred on this point).
[20]Id. at *20.
[21]Braggs, 2017 WL 2773833, at *18.
[22]Id.
[23]Id. at *20 (“Experts described examples of ‘increasingly desperate acts’ to get the attention of MHM and necessary services, such as self-injury, fire setting, and suicide attempts.”)
[24]Id.
[25]Id. at *21.
[26]Braggs, 2017 WL 2773833, at *21.
[27]Id. at *22.
[28]Id. at *23-25.
[29]Id. at *11.
[30]Id. at *32 (“First, ADOC and MHM’s use of a suicide risk-assessment tool is too limited to adequately identify those at high risk. Moreover, many prisoners at heightened risk of suicide or self-harm do not receive crisis care because of a severe shortage of crisis cells and staffing, and due to a culture of skepticism towards threats of suicide. Second, suicidal prisoners are often placed in unsafe environments both because of the shortage of crisis cells and because many crisis cells contain unsafe physical structures, such as tie-off points, and dangerous items that can be used for self-harm. Third, prisoners who are identified as suicidal receive inadequate monitoring and treatment. Lastly, inappropriate releases from suicide watch and a lack of follow-up care often push suicidal prisoners back into crises again and again, driving up the demand for crisis cells and diverting resources away from day-to-day, long-term treatment.”)
[31]Braggs, 2017 WL 2773833,at *4.
[32]Id.
[33]Id.
[34]Id.
[35]Id. at *33-41.
[36]Braggs, 2017 WL 2773833, at *41.
[37]Id. at *41 (citing Coleman v. Wilson, 912 F. Supp. 1282, 1320 (E.D. Cal. 1995) (holding that punishing mentally ill prisoners for behaviors indicative of their mental illness violated their Eighth Amendment rights)).
[38]Braggs, 2017 WL 2773833, at *43.
[39]Kristen Weir, Alone, in ‘the hole’, American Psychological Association 43 Am. Psychol. Assn. 54 (2012).
[40]Braggs, 2017 WL 2773833 at *44.
[41]Id.
[42]Id. at *52.
[43]Id. at *12-17.
[44]Id. at *12.
[45]Braggs, 2017 WL 2773833 at *12 (citing Brown, 563 U.S. at 539-42 (affirming the order of three-judge court to lower the occupancy rate in California from 170% to 137.5%).
[46] Lisa Borden is the Pro Bono Shareholder at Baker, Donelson, Bearman, Caldwell & Berkowitz in Birmingham, Alabama. She earned her law degree from Emory School of Law in 1989 and her Bachelor of Arts from the University of Central Florida in 1982. Defense counsel did not respond to request for comment.
[47]E-mail interview with Lisa W. Borden, Pro Bono Shareholder, Baker, Donelson, Bearman, Caldwell & Berkowitz (July 8, 2017).
[48]Id.
[49]Braggs, 2017 WL 2773833 at *54.
[50]Id.
[51]E-mail interview with Lisa W. Borden, Pro Bono Shareholder, Baker, Donelson, Bearman, Caldwell & Berkowitz (July 8, 2017).
[52]Id.
[53]Id.
[54]Id.
[55]Id.
American Journal of Trial Advocacy 