Myron H. Thompson, UNITED STATES DISTRICT JUDGE.
The plaintiffs in this putative class-action lawsuit are dozens of state prisoners and the Alabama Disabilities Advocacy Program (ADAP). The defendants are officials of the Alabama Department of Corrections (ADOC): the Commissioner and the Associate Commissioner of Health Services.
In September 2016, more than two years after this case was filed and after extensive discovery, defendants moved for summary judgment on the individual plaintiffs' Phase 2 claims.
As defendants requested summary judgment with regard to only individual plaintiffs, this opinion addresses only the claims by those individual prisoners, and hereinafter `plaintiffs' refers to only individual plaintiffs, excluding ADAP. The defendants' summary-judgment motion will be granted in part and denied in part.
ADOC confines about 23,500 prisoners in 28 prison facilities, including 15 major facilities, which are close custody or medium custody, and 13 work release centers, which are minimum custody. Of the major correctional facilities, Tutwiler is the only
Based on an intake screening, which takes place at Kilby for men and Tutwiler for women, prisoners receive a mental-health code ranging from MH-0, which indicates that a prisoner does not need any mental-health care, to MH-6, which indicates that a prisoner cannot be treated in ADOC custody and requires referral for inpatient treatment in a state hospital. Codes of MH-1 to MH-2 are for prisoners who ADOC believes can be housed in general population, while the higher codes (MH-3 to MH-5) indicate that a prisoner should be housed in an RTU or SU. Prisoners can also be added to the mental-health caseload during a post-intake classification review, based on a referral by staff, or by self-referral. At different points in early 2016, the mental-health caseload included between 2,700 and 3,400 prisoners.
ADOC has contracted with MHM Correctional Services, Inc. (MHM) to provide mental-health services — including medication, individual counseling, and group therapy — to mentally ill prisoners. MHM's current contract with ADOC went into effect on October 1, 2013. MHM's program in Alabama is led by Dr. Robert Hunter, who has been the Medical Director and Chief Psychiatrist since 2003, and Teresa Houser, who is the Program Manager (an administrative position) and has been working for MHM since 2008. MHM employs a range of mental-health providers, including psychiatrists, certified registered nurse practitioners (CRNPs), psychologists, `mental health professionals' (MHPs), registered nurses (RNs), licensed practical nurses (LPNs), activity technicians (ATs), and clerical support staff.
Although MHM provides virtually all of the mental-health treatment for prisoners, ADOC also employs two psychologists who assist with the intake process, `psychological associates' who do some screening and may provide some therapeutic care to prisoners with very low-level mental illness,
Commissioner Jefferson Dunn, who took office in April 2015, leads the ADOC. Associate Commissioner for Health Services Ruth Naglich, who has served in this role since 2004, has a nursing license and 20 years of experience in correctional medicine. She is responsible for managing and overseeing ADOC's medical and mental-health services, including those services delivered by MHM.
Summary judgment is appropriate under Federal Rule of Civil Procedure 56(a) "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." With respect to issues
On issues as to which the movant has the burden of proof at trial (such as, here, exhaustion of administrative remedies), the movant "must show
Once the party seeking summary judgment has met its initial burden, the burden shifts to the nonmoving party to demonstrate why summary judgment would be inappropriate.
The court's role at the summary-judgment stage is not to weigh the evidence or to determine the truth of the matter, but rather to determine only whether a genuine issue exists for trial.
Defendants contend that the mental-health care claims of six of the named plaintiffs — Businelle, Carter, Dillard, Dunn, Moncrief, and Terrell — are due to be dismissed as moot, based on "`[t]he general rule ... that a prisoner's transfer or release from a jail moots his individual [and pre-certification class] claim for declaratory and injunctive relief'" regarding conditions of confinement.
The court easily rejects the first of these arguments. Plaintiffs cite no case law for the proposition that a prisoner released on probation or parole remains, as they contend, in the custody of the Department of Corrections; he certainly does not remain in its custody for purposes relevant here, since he is free to receive free-world mental-health care and cannot receive mental-health care provided by the Department. Although plaintiffs note generally that there are high rates of recidivism among state prisoners and that three individuals have previously been re-incarcerated, they have not attempted to explain the relevance of this information to any exception to mootness, instead suggesting that they remain free to proceed on claims to the same extent as if they were still imprisoned.
Plaintiffs also contend that Dunn's claims are not moot because they fall within the "capable of repetition, yet evading review" exception to mootness for individual claims.
Plaintiffs next argue that Businelle's claims are subject to the "picking-off" exception because he was denied parole in May but granted it in September, just as class-certification briefing was in progress.
Finally, plaintiffs' fourth argument — that the claims of Dillard, Moncrief, and Terrell fall within the exception to mootness for inherently transitory class claims — fares no better. As the court explained in detail in a prior opinion: "A claim is inherently transitory not only if there
Although claims that "derive from potentially imminent release from custody are `a classic example of a transitory claim,'"
But the question here is not whether incarcerated plaintiffs who are not currently housed in the RTUs but have been in the past and may be again in the future can challenge the level of treatment provided in those units. Instead, the question is whether plaintiffs who have been released from custody altogether can challenge certain conditions they experience in prison. Defendants point out that there are a number of easily identifiable prisoners who are virtually certain to remain in custody for years (because they are serving extremely long sentences, including in some instances life without the possibility of parole) and who have experienced or are
Plaintiffs also contend that Dillard and Terrell also represent a small number of prisoners who are both mentally ill and intellectually disabled. But plaintiffs fail to explain why the claims of such prisoners are inherently transitory; the fact that there are relatively few of them (how many, plaintiffs do not say) is not enough. Although the court can imagine ways in which the provision of mental-health care to prisoners with intellectual disabilities is shaped by those disabilities, it is not aware that plaintiffs have made any allegations in their complaint of systemic problems specific to this circumstance.
Defendants contend that many of the named plaintiffs have failed to exhaust administrative remedies and that their claims are therefore barred. They rely for evidence on the admissions of seven named plaintiffs (Businelle, Carter, Jackson, McCoy, Moncrief, Wallace, and Williams) in their depositions that they did not file a mental-health grievance within the last five years; the declaration of an MHM employee that a review of MHM files revealed another five named plaintiffs (Bui, Dillard, Hardy, Johnson, and Pruitt) who did not file a mental-health grievance between January 1, 2012, and July 1, 2014; and plaintiffs' admission that another (Hartley) never filed a grievance with respect to his claims in this case.
The Prison Litigation Reform Act (PLRA) imposes the following exhaustion requirement: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The Supreme Court has squarely held that exhaustion is an affirmative defense, on which defendants bear the burden of proof.
Defendants have not borne their burden of proof with respect to any of the named plaintiffs at issue in Phase 2A for a number of reasons. As a preliminary matter, it is critical to note that ADOC is a highly unusual state prison system, in that it does not operate its own general grievance process for prisoners; therefore, the question is whether a grievance process operated entirely by MHM, which is not a general grievance process and functions without any involvement by correctional officials, was available for exhaustion of the specific claims in this case, which are brought only against correctional officials.
Of course, the court recognizes that the PLRA's exhaustion requirement, unlike the pre-PLRA requirement, does not require that administrative remedies be "effective," and contains no futility exception.
With respect to plaintiffs' claims that defendants' policies of custodial understaffing, and placement of prisoners in prolonged segregation without regard to their mental illness, create a substantial risk of serious harm by impeding access to, and increasing demand for, mental-health care, the grievance process was obviously not available; MHM has nothing to do with custodial staffing and the placement of prisoner in segregation. As this court explained in
The same argument can fairly be made with respect to plaintiffs' contentions that defendants are prospectively violating the Eighth Amendment by providing in their contract with MHM for too little funding and too few qualified practitioners. Even were it true (this issue is taken up later) that MHM made available a grievance process for plaintiffs to challenge discrete instances of inadequate care at the hands of practitioners employed by MHM, there is no evidence to suggest that MHM administrators had any authority unilaterally to increase their own contractual funding or staffing levels (indeed, it is plain that they did not).
This is vividly illustrated by the fact that, although MHM initially submitted a proposal in 2013 for staffing of 144.95 full-time equivalent positions, based on its own assessment of the level needed to provided appropriate care to prisoners across the system, it eventually had to reduce that figure substantially, to 126.5, because MHM was informed by defendants that "the department ... wouldn't be able to fund that many employees."
With regard to both the policies and practices discussed above and the policies and practices over which MHM does have control, the court further concludes that even the grievance process that MHM purports to operate is not available for purposes of the PLRA because it is "so opaque that it becomes, practically speaking, incapable of use," because, although "some mechanism exists to provide relief," it is "so confusing" that "no ordinary prisoner can discern or navigate it."
As an initial matter, plaintiffs point out that the only evidence defendants offered as to the existence of a grievance process for mental health-related claims at the relevant juncture (when the case was filed in 2014) was the declaration of MHM's Program Manager, Teresa Houser, attaching and referencing a grievance policy approved in July 2016. This policy said nothing about what grievance process did or did not exist two years earlier.
Even if this policy were in effect, defendants have still failed to meet their burden to show that an ordinary prisoner could figure out how to use it. As a preliminary matter, Houser testified that prisoners are informed of the mental-health grievance process when they receive "a form entitled Orientation to Mental Health Services," which, she says, "describ[es] the grievance processes and procedures." Houser Decl., D Ex. 143 (doc. no. 782-37) at 3. This statement contorts the meaning of the word `describe' well past its breaking point. All the form tells prisoners is this: "If you believe the mental health services provided to you are inadequate, you may file an inmate grievance." Inmate Orientation to Mental Health Services, P Ex. 170 (doc. no. 850-70) at 2. It does not tell prisoners anything about how to file such a grievance (or how to distinguish it from any other form of inmate grievance): this `description' does not reveal what form the grievance should be composed on, to whom it should be given and by what means, what information should be included, who will review it and how quickly, and whether there is any process of appeal.
There is no evidence to suggest that MHM's written grievance policy was made available to prisoners; even if it was, the policy is not substantially more informative. It states that a prisoner "may file a formal grievance by completing the relevant
Moreover, MHM's current policy states that "[f]ormal grievances related to mental health services may not be received directly by mental health staff but may be sent to the designated institutional department." MHM Grievance Mechanism for Health Complaints, D. Ex 182 (doc. no. 877-3) at 2, Dunn(MHM) 00071. Unfortunately, the policy does not reveal what the designated institutional department is, or how a prisoner should "send" his grievance to it. Houser stated in her deposition — directly contrary to the written policy she cited — that a prisoner who has completed a grievance form should "either put it in the in-house mail or hand it to us when they see us." Houser Depo. (doc. no. 996-17) at 22. Defendants have not offered evidence to show that either of these avenues for submission is disclosed to prisoners in any way; indeed, one is forbidden by the very policy defendants say reveals how the process works. While the PLRA might not require a grievance process that is completely clear and easy to follow, it does not countenance one that is so full of blind alleys and dead ends that even those who run it cannot manage to accurately and consistently describe how it works.
If a prisoner were able to determine how to file a grievance properly, it would be by sheer lucky guesswork. The fact that the court remains uncertain as to how a
Three additional points warrant mentioning with respect to exhaustion of plaintiffs' Eighth Amendment claims. First, the court notes that even if MHM's grievance process were available with respect to some or all of the claims at issue (again, it is not), defendants evidence would be inadequate
Second, the Eleventh Circuit has recognized that "a class of prisoner-plaintiffs certified under Rule 23(b)(2) satisfies the PLRA's administrative exhaustion requirement through `vicarious exhaustion,' i.e., when one or more class members ha[s] exhausted his administrative remedies with respect to each claim raised by the class."
Third and finally, the court notes that, while ADOC has no general grievance process, there does exist a formal process for appealing an involuntary-medication order. Defendants did not argue in their motion for summary judgment that the plaintiffs who raise due-process claims regarding involuntary medication have failed to exhaust this process. In any event, the one plaintiff who is actually subject to an involuntary-medication order, Bui, has filed an appeal of this order, so he appears to have exhausted this administrative remedy, assuming it is available. This appeals process is plainly not applicable to the remaining plaintiffs bringing due-process claims, who contend that the consent they gave was not voluntary, because they have not been afforded hearings or received orders and therefore have nothing to appeal.
Defendants contend that summary judgment is due to be granted with respect to plaintiffs Hardy and McCoy, because their claims are barred by the statute of limitations.
Plaintiffs have alleged just such a continuing violation; they seek prospective injunctive relief to remedy a substantial risk of serious harm that they contend has existed for some time and continues to exist. Given that the risk itself is the injury plaintiffs allege, the two challenged by defendants on this point need not actually demonstrate that this risk has resulted in harm to them within the past two years.
As another court recently put it, "[d]efendants' statute of limitations argument wholly ignores the fundamental nature and substance of the Plaintiffs' Eighth Amendment claim.... Plaintiffs brought suit to terminate an ongoing systemic pattern and practice of failure to provide constitutionally adequate [mental-health] care on the part of [the Department of Corrections] and its contractual providers. Plaintiffs allege that the unlawful conduct was continuing as of the date the lawsuit was filed, and that it continues as of today. The particular episodes of deficient [mental-health] care alleged in the complaint are not invoked as separate claims for relief, seeking recovery on the basis of separate instances of compensable harm. On the contrary, the examples of alleged sub-standard care set forth in Plaintiffs' pleadings — which are now supported by sworn declarations, deposition testimony, and other competent record evidence — are offered as corroboration for Plaintiffs' assertion that [ADOC] has engaged in an ongoing pattern and practice of wrongful, unconstitutional acts and omissions reflecting deliberate indifference to the serious medical needs of the prisoners residing [in their facilities]."
The court need not address Hardy, as it finds that he has not demonstrated the existence of a current, serious mental-health care need. (This issue is discussed
Defendants misperceive (or ignore) much of the substance of the claims brought by McCoy. They address only his involuntary-medication claim, and assert that he is disputing the procedures used to issue an involuntary-medication order in 2005. However, McCoy's claim actually revolves around his contention that he did not give voluntary and informed consent to medication injected into him in 2013 and 2014, well within the statute of limitations period. Moreover, with respect to McCoy's Eighth Amendment claim, he has clearly alleged, and offered evidence to show, an ongoing denial of adequate treatment; Dr. Burns specifically cited him as someone whose acute and disabling mental illness was not, at the time of her inspection, receiving an appropriate level of treatment.
The one named plaintiff involved in Phase 2A of this case with respect to whom defendants raise a preclusion argument is Pruitt. However, his mental-health claims are not barred by this prior litigation. Indeed, defendants' motion for summary judgment is ambiguous as to whether they even contend that Pruitt's mental-health claims, as opposed to his medical care claims, are precluded. Assuming, out of an abundance of caution, that defendants do make such an argument, the court explains below why it fails.
As defendants correctly explain, res judicata (claim preclusion) prohibits "successive litigation of the very same claim,"
Here, Pruitt's prior suit was, quite obviously, totally unrelated to his claims in the present case. In 2009, he filed a pro se complaint against the warden of the facility where he was housed and a number of correctional officers. This complaint makes no mention of mental-health care; instead, he complains about a particular, discrete incident, during which correctional officers allegedly kicked him out of a medical ward while he was in pain and awaiting testing for kidney stones, physically assaulted him, and then denied him access to care for his resulting injuries. The issues raised in that suit — whether the alleged actions occurred and whether they constituted violations of his constitutional rights — are entirely irrelevant to Pruitt's claim that he is currently being subjected to a substantial risk of serious harm due to the deliberate
Defendants adamantly insist that plaintiffs have not pursued a proper theory of Eighth Amendment liability because they seek to prove that defendants, by providing a deficient system of mental-health care, have created a substantial risk of serious future harm to mentally ill prisoners in their custody. In light of their erroneous belief that such a showing would not support liability, defendants have proceeded in their summary judgment briefing as if plaintiffs have brought a case focused on obtaining specific treatment for their individual mental-health problems. Before addressing defendants' arguments regarding the sufficiency of plaintiffs' evidence, the court will detour to explain why plaintiffs' actual theory of the case is well-supported by the case law. The court will discuss this precedent at some length because a clear understanding of its framework will facilitate the orderly and efficient presentation of the parties' evidence at trial.
One of the well-recognized ways that prison officials can violate the Eighth Amendment is by failing to provide prisoners with minimally adequate health care. This is because prisoners "must rely on prison authorities to treat [their] medical needs; if the authorities fail to do so, those needs will not be met."
Moreover, it is clear that "[f]ailure to provide basic psychiatric and mental health care states a claim of deliberate indifference to the serious medical needs of prisoners."
Deliberate indifference claims have both an objective and a subjective component. There are multiple modes of demonstrating the objective component of an Eighth Amendment violation. Although a prisoner may seek an injunction requiring prison officials to remedy a condition which is already inflicting harm on him at the time he files his complaint (for example, a prisoner is not receiving any insulin, which is necessary to treat his diabetes, and seeks an order requiring prison officials to provide it to him), he may also seek an injunction to prevent serious harm which is substantially likely to occur in the future — in the phrasing of
As the Supreme Court explained in
In the end, whether plaintiffs have already been harmed by the practices they challenge is, although relevant, not dispositive of their claims. This is because, as in
Although the Eighth Amendment's objective requirement of showing serious harm is not met by a showing of mere discomfort,
One additional point bears mention. Defendants' repeatedly insist that what plaintiffs are presenting to the court in this case is a mere disagreement with their health care providers about the care appropriate in their cases.
The court now turns its attention to the subjective prong of the deliberate indifference standard.
In general, "[w]hether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious. For example, if an Eighth Amendment plaintiff presents evidence showing that a substantial risk ... was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus must have known about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk."
Subjective deliberate indifference by prison officials to prisoners' medical and mental health can be manifested — and proven — in different ways. As explained in
Although the Eighth Amendment is not violated merely because a prisoner receives less than ideal health care, the Eleventh Circuit has repeatedly recognized that even when some care is provided, "deliberate indifference may be established by a showing of grossly inadequate care as well as by a decision to take an easier but less efficacious course of treatment."
What ties these forms of deliberate indifference together is, of course, deliberateness. On the one hand, the deprivation of care that in retrospect was necessary to avert harm — either pain, the worsening of a condition, or death — is not actionable merely because the defendant was negligent (even seriously so) in failing to recognize its necessity. (This is because we cannot infer knowledge on the part of the defendant when the care is merely subpar but not "grossly inadequate,"
This discussion reveals a critical point, overlooked by defendants in their protestations that plaintiffs cannot show Eighth Amendment violations because they all received some mental-health care: Although health care that is just slightly better than "grossly inadequate" does not violate the Constitution when the defendant does not realize it is so subpar, substantially smaller shortcomings in health care are actionably unlawful when the decision-maker understands that a particular standard of care will cause serious harm to prisoners but decides to go ahead with it nonetheless, because it is easier or cheaper.
What is striking in this case is the extent to which the mental-health practitioners involved appear to recognize what plaintiffs' experts have opined: the care being provided mentally ill prisoners in Alabama is lacking in certain ways. Defendants argue at some length that plaintiffs' experts have not convincingly demonstrated that this care is so grossly inadequate that its sheer inadequacy demonstrates deliberate indifference, but this is beside the point. When prison mental-health administrators know and communicate that they need more staff to provide appropriate care for prisoners, and the Commissioner refuses to provide funding for this staff, not in any exercise of medical judgment but because he does not have the money, this suffices to establish deliberate indifference and — in conjunction with a showing that this creates a substantial risk of serious harm — to establish an Eighth Amendment violation.
Defendants have honed in on, and cited numerous times in their briefs, the line in
Another point warrants some focused attention. Defendants have made a great fuss over plaintiffs' assertions that they are bringing a "systemic," rather than individual, Eighth Amendment challenge, as if this form of claim was not well-established in the jurisprudence of this circuit — indeed, so well-established that it is generally denoted with the term defendants so scorn.
"In institutional level challenges to prison health care such as this one, systemic deficiencies can provide the basis for a finding of deliberate indifference.
Notably, this means that, although one-off negligent treatment is not actionable, its repetition can render it so; put differently, care that causes serious harm but is not grossly inadequate can be challenged when it recurs, because frequent negligence, just like a single instance of truly egregious recklessness, may allow the court to infer subjective deliberate indifference.
Moreover, deliberate indifference can, of course, be demonstrated straightforwardly, through direct evidence that an administrator was aware of serious systemic deficiencies and failed to correct them. In
This is an official-capacity suit — "only another way of pleading an action against an entity of which an officer is an agent" or against the "official's office."
One final point, which often arises in systemic cases and is squarely presented here, bears mention. It is clear that at least in official-capacity suits like this one, lack of funds is not a justification for substandard treatment.
Indeed, inadequate funding can be a
Having addressed defendants' arguments regarding the relevant case law, the court will now turn to assessing whether plaintiffs have created a dispute of material fact as to the multiple necessary elements of their claims.
As a predicate to raising an Eighth Amendment mental-health claim, a plaintiff must have a serious mental-health care need. A serious need is "one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention."
As to Hardy, the court agrees with defendants. Although defendants' expert, Dr. Patterson, recognized that Hardy has dysthymic disorder, post-traumatic stress disorder, and antisocial and borderline personality disorders, he also concluded that these conditions "do not appear to affect him in such manner that he requires mental health care currently." Patterson Report (doc. no. 679-9) at 33. Hardy was removed from the mental-health caseload in 2010, apparently reflecting the conclusion of mental-health staff that he did not need treatment. There is no record evidence to the contrary.
As for Johnson: although defendants contend that he has never been diagnosed with a serious mental illness, there is no dispute that he suffered a traumatic brain injury as a child, that he was identified by staff at ADOC's mental hospital (prior to his conviction) as suffering from depression with possible psychosis and potentially incompetent to stand trial, and that in 2015, MHM's Medical Director and Chief Psychiatrist, Dr. Hunter, diagnosed him with adjustment disorder with anxiety and possible psychosis, after recognizing that he had "been in crisis for over a week" and had "paranoia and possible delusions." Johnson Medical Records, P Ex. 62 (doc. no. 844-12) at 15, MR047700. He also testified in his deposition and has told other prisoners that he suffers from auditory hallucinations. Defendants contend that Johnson's ability to express his need for care orally and in writing demonstrates that he is not seriously cognitively impaired. Whether or not their evidence shows this (plaintiffs point to evidence that Johnson relies on his uncle or other prisoners to fill out forms), his ability to articulate his requests would not demonstrate that he was not mentally ill. This evidence is, at a minimum, sufficient to create a dispute of material fact both as to whether Johnson has been diagnosed (by Dr. Hunter) as in need of mental-health treatment, and as to whether it is obvious that he has a current, serious mental-health need.
Pruitt was previously diagnosed with schizophrenia, depression, and antisocial personality disorder. However, mental-health staff have concluded that these conditions are in remission since 2010, and removed him from the mental-health caseload. Defendants offer evidence to show
Because defendants have taken the tack of responding to plaintiffs' claims as if they were about past violations, their response to the evidence that plaintiffs have presented of a risk of harm has been conclusory (and largely constituted an attack on the methodology employed, rather than the findings offered, by plaintiffs' expert, Dr. Burns). However, the court will discuss plaintiffs' evidence here in order to explain why it does create a dispute of material fact as to whether the policies and practices at issue create an actionable risk of harm.
Dr. Kathryn Burns, a licensed medical doctor with a certification in general psychiatry, has for several years served as the Chief Psychiatrist for the Ohio Department of Rehabilitation and Correction. She is also a Distinguished Fellow of the American Psychiatric Association, and has conducted assessments of the mental-health care provided by prison systems in six different States. Dr. Burns's expert report offers her opinions as to the adequacy of mental-health and custodial staffing, assessment and classification of mental illness, mental-health treatment, and oversight of mental-health care.
Dr. Craig Haney, who has a Ph. D. in psychology, is the Distinguished Professor of Psychology at the University of California, Santa Cruz, and has published scholarly articles and presented lectures on the psychological effects of incarceration. He has inspected and testified about numerous state prisons and similar institutions. Dr. Haney's expert report addresses the effects of overcrowding and understaffing on prisoners with mental-health needs, the effects of segregation on mentally ill prisoners, and the adequacy of mental-health treatment.
Because these reports are lengthy and because defendants do not seriously engage with the substance of them in their motion for summary judgment, the court will not discuss comprehensively all of the deficiencies they identify; instead, it will simply offer an illustrative summary. Because Dr. Burns is plaintiffs' primary mental-health expert, the court will focus more significantly on her opinions, although, as discussed below, many of them were corroborated by Dr. Haney's independent assessment.
Dr. Burns explains in her report that ADOC entered into a settlement agreement in
Dr. Burns relies on MHM's internal documents to demonstrate that, although Alabama law requires clinical registered nurse practitioners to be supervised by psychiatrists, they are practicing partially or in many cases entirely without supervision at many facilities. Dr. Burns draws on her experience supervising CRNPs in her own practice and her experience evaluating prison mental-health care around the country to explain that allowing CRNPs to practice without supervision increases the likelihood that prisoners will be misdiagnosed and receive inappropriate pharmaceutical and therapeutic treatment. She offers examples she recognized during her inspections of CRNPs' failure to diagnose or treat mental illness in prisoners, including
Dr. Burns explains that prisoners can access mental-health care in one of three ways — identification at reception, self-referral, and staff referral — and opines that each of these mechanisms is deficient in ways that subject prisoners to harm. Reception screening is conducted by licensed practical nurses, who take histories and determine whom to refer to psychiatrists for comprehensive evaluations. But Dr. Burns explains that LPNs are not qualified to make this preliminary assessment, and that reliance on these practitioners — who are unsupervised by registered nurses (again, contrary to Alabama law) — to conduct reception screening results in the failure to recognize and diagnose mental illness. She opines (and it seems fairly self-evident) that this failure to diagnose in turn results in denial of treatment to prisoners who then go on to suffer, including through self-harm. Dr. Burns cites examples of prisoners whose mental illness was not recognized at reception, leading to denial of treatment except for placement in a crisis cell after cutting or attempting to hang themselves.
Dr. Burns also opines that under-identification is reflected in the fact that "MHM consistently reports lower prevalence rates of mental illness in ADOC prisons than prevalence rates reported in other prisoners and prison systems throughout the United States."
As for self-referrals, Dr. Burns reports finding many instances in which MHM was unresponsive to written requests for care, and documented a number of instances in which prisoners engaged in self-harm and destructive behavior in order to get attention from mental-health providers. (She notes that "[i]ronically, these behaviors often result in disciplinary action and placement in segregation where mental health treatment is even more difficult to access." Burns Report (doc. no. 868-2) at 29.) She also notes that MHM audits of responses
Dr. Burns explains that prisoners with serious mental illness require a continuum of services from outpatient treatment to residential treatment to inpatient treatment, and a range of forms of treatment, including medication management and individual and group therapy. She notes that inpatient care is provided by transferring a prisoner to a state psychiatric hospital, but notes that MHM's Medical Director and Chief Psychiatrist, Dr. Hunter, testified in his deposition that inpatient care is rarely sought except as a prisoner approaches release. Dr. Burns opines that she "found many inmates on [her] tours that clearly required a higher level of care than could be provided in ADOC facilities."
As for intermediate, residential care for men,
Furthermore, Dr. Burns opines that many seriously mentally ill prisoners are receiving primarily psychopharmacological treatment, and either no or minimal psychotherapy.
Dr. Burns opines that prisoners who are prescribed psychotropic medication are also harmed by inadequate medication management practices. As a general matter, she concludes based on chart reviews and audit findings that follow-up appointments to assess the impact of medication are infrequent and brief. More specifically, she opines that prescribers rely too heavily on long-acting Haldol and Prolixin injections. Dr. Burns explains that these and similar medications "impact normal movement and can cause severe restlessness (akathisia) and painful muscle spasms (acute dystonic reaction) and also lead to permanent, irreversible movement disorders that include tremor, involuntary movements of the tongue and mouth (tardive dyskinesia) and Parkinsonism."
Although Dr. Burns touches on the issue, Dr. Haney devotes much of his expert report to the harmful effects of ADOC's policy of housing prisoners with serious mental illness in segregation. Dr. Burns explains, based on her own observations during tours and MHM reports she reviewed, that prisoners with mental illness are overrepresented in segregation, and that prisoners in segregation "receive medications and brief cell front contacts by MHPs and LPNs," but little or "no mental
Dr. Haney describes his tours of segregation units at length. In one facility, he describes the segregation units as "difficult to describe and unlike any I have ever seen in decades of doing this work"; they "typically remain dark," and the floors outside were "filthy" and appeared to be "charr[ed]." Haney Report (doc. no. 868-4) at 50. In another facility, he describes the segregation unit as filled with the smell of something burning and the sound of prisoners banging on their cell doors and screaming "help me"; some cell-door windows were covered, others were shattered, a number of doors were blackened from fires, and there was urine puddled on the floor outside several cells. Haney Report (doc. no. 868-4) at 34. At a third facility, in addition to conditions similar to the above, Dr. Haney describes hearing from multiple prisoners in segregation that they had been kept outside, in exercise pens, for multiple days on end. He described this finding as "bizarre and alarming."
In each of these facilities, he observed and spoke with prisoners in segregation whose mental health he believes has seriously deteriorated as a result of their confinement in these conditions. He also discusses at some length a bevy of scientific research he and others have conducted regarding the harmful psychological effects of segregation, particularly on prisoners who are mentally ill.
Dr. Haney also opines that inadequate monitoring and treatment practices further exacerbate the harms caused by placement of mentally ill prisoners in segregation. For one thing, he agrees with and expands upon the statement by Dr. Hunter, MHM's Medical Director and Chief Psychiatrist, that "[t]here's a need for closer monitoring or at least a mental health intervention once an inmate is notified officially of a classification change, especially if he's already in segregation."
Additionally, Dr. Burns opines that treatment for prisoners on suicide or crisis watch is inadequate. Among other problems, Dr. Burns observes that treatment of prisoners on watch "is generally limited to brief cell front contacts by MHP staff asking the prisoner whether or not he remains suicidal," and that one prisoner was not seen by mental-health staff for an entire weekend. Burns Report (doc. no. 868-2) at 46. She also notes that prisoners released from suicide or crisis watch are not routinely placed on the mental-health caseload, and cites examples of prisoners who were thereby denied adequate follow-up treatment. As for monitoring, Dr. Burns "found no evidence that ADOC or MHM has a process to ensure constant watch when a prisoner is actively suicidal."
Dr. Haney adds his concern regarding statements made by Dr. Hunter, MHM's Medical Director and Chief Psychiatrist, that reflected his and others' disregard of prisoners' threats of self-harm: Dr. Hunter acknowledged hearing reports that custodial staff made jokes to prisoners about suicide, and that he knew of between five and ten instances in the preceding year in which, in the words of Dr. Haney quoting Dr. Hunter, "custody staff have challenged prisoners to make good on their threats of self-harm — either `called their bluffs' or explicitly ignored their stated intentions to engage in self-harm and sent them back to their housing unit — and the prisoners in fact engaged in self-harm including instances where the prisoner `was sent back to their housing unit only for them to
Dr. Burns, Dr. Haney, and Eldon Vail, plaintiffs' correctional expert, further opine regarding the effects of inadequate custodial staff on various aspects of the mental-health care provided to prisoners in defendants' custody.
Dr. Burns concludes, in part based on MHM employees' recognition of and complaints about the problem, that a shortage of correctional officers undermines prisoners' access to mental-health care, because the officers are needed to escort prisoners to, and supervise them at, individual and group appointments and activities. She points, in particular, to evidence that prisoners who are housed in a number of segregation and residential treatment units are not adequately monitored or treated because inadequate custodial staffing makes it difficult for mental-health staff to have out-of-cell contact with them. Vail agrees; in his report, he discusses records demonstrating that "staffing shortages are creating an impediment for regular access by mental health staff to inmates in segregation" at five major facilities.
Dr. Haney, too, gives a number of examples, all of which draw on admissions by staff employed by MHM. For example, he notes that Houser admitted that groups were "frequently" cancelled at six of ADOC's major facilities, that these shortages also affect "activity tech groups, individual counseling, seeing the providers, psychiatrist or nurse practitioner," and result in segregation rounds being "often delayed." Haney Report (doc. no. 868-4) at 176-77 (quoting Houser Depo. (doc. no. 996-32) at 190, 192-93);
This evidence is plainly sufficient to create a genuine dispute of material fact as to whether the policies and practices plaintiffs challenge create a substantial risk of serious harm to ADOC prisoners who have serious mental illnesses.
To conclude, it is worth noting that even defendants' own mental-health expert, Dr. Patterson, agreed with many of the findings by Drs. Burns and Haney, including: that "staffing of the facilities is insufficient and a significant number of the mental health staff are unlicensed practitioners," and that there was "not documented supervision of the unlicensed practitioners, all of whom were providing direct services, and some [of whom] were also supervisors," Patterson Report (doc. no. 679-9) at 46; that the "physical structures are out-dated with regard to the provision of mental health services in that many do not have adequate space for the provision of group and individual counseling and treatment, nor are there adequate beds for the provision of residential treatment (RTU) and stabilization (SU) services," which "inherently limit[s] the number and capabilities of the mental health staff,"
He also found that the treatment plans he reviewed "are not appropriate for individual patients," as they are "neither individualized nor multidisciplinary," and "were signed on different dates by different people, which indicates that they are not being reviewed by a treatment team simultaneously and with the inclusion of the inmate. This is a deficiency that must be corrected and quite simply is not appropriate."
Based on an audit he conducted, Dr. Patterson concluded that there were three areas of "substantial concern": "Suicide Risk Evaluation and Management," "Mental Health Treatment Planning," and referrals. He identified the first two as "seriously deficient."
As Dr. Haney put it in his rebuttal report, defendants' own expert's "criticisms map almost perfectly onto, and significantly reinforce," those of plaintiffs' experts. Haney Rebuttal Report (doc. no. 840-15) at 18.
As plaintiffs point out, evidence that the named plaintiffs have suffered harm is relevant to substantiate the assertion that defendants' policies place them and other at a substantial risk of serious harm. (By this token, corroborating evidence related to the care of named plaintiffs whose claims are not justiciable is just as relevant as that of the named plaintiffs whose claims are justiciable.) However, they need not, as a technical matter, show that harm has already occurred to them in order successfully to demonstrate the existence of a substantial risk of serious harm. What they certainly need not show, despite defendants' vociferous insistence to the contrary, is that they have each been harmed in ways that, on their own, would suffice to prove a claim for deliberate indifference with respect to the past provision of mental-health care.
Nevertheless, all of the named plaintiffs have created a material dispute as to whether they have suffered serious harm; indeed, in a few cases defendants' own expert agrees that the care they have received was inadequate in ways that the court finds clearly amount to serious harm.
Braggs has been diagnosed with anxiety, major depressive disorder, and post-traumatic stress disorder.
He takes psychotropic medications for these conditions. Braggs testified in his deposition that he has repeatedly contacted mental-health staff to complain of unpleasant side effects of these medications — that they make him feel sick — but has been told that his only other option
Defendants' expert, Dr. Patterson, notes that Braggs' treatment plans contemplate regular therapy, but plaintiffs note that no such meetings are documented in his records (including during periods Braggs spent in segregation); instead, the only mental-health contacts documented in his records involve discussions about medication compliance. Defendants respond that plaintiffs admitted that Braggs had received both individual and group counseling while incarcerated. Pls.' Resp. to State's Reqs. for Admis. (doc. no. 382-1) at 77. What they actually admitted was that, subject to an objection that the request for admission was "ambiguous as to the time frame or frequency being referenced ... [and] vague as to the meaning of `mental health treatment' and `counseling,'" Braggs did receive some mental-health treatment other than medication at some point.
Plaintiffs also point out that Braggs' treatment plans were signed by unsupervised LPNs and by ADOC's unlicensed site administrator, and that Braggs has been classified as MH-1 ("stabilized with mild impairment in mental functioning"), despite having multiple diagnoses and being prescribed multiple psychotropic medications. Dr. Burns found that allowing unsupervised LPNs to make treatment decisions resulted in such misclassification.
Plaintiffs have created a dispute of material fact as to whether Braggs has been harmed by policies and practices regarding medication management, psychotherapeutic care, and assessment and classification.
Hartley has been diagnosed with schizoaffective disorder.
Defendants' expert, Dr. Patterson, reviewed Hartley's deposition testimony and his medical records, and agrees with plaintiffs that he "is not receiving adequate mental health care. Interventions to adequately address his chronic marijuana abuse and the resultant mental dysfunction including his aggression and agitation, and self-injurious behaviors have not been included in his treatment, and he continues to abuse marijuana infrequently. To properly remedy these deficiencies, the treatment team needs to develop an individualized, comprehensive treatment plan and interventions to address his comorbid marijuana use and impact on his mental health functioning." Patterson Report (doc. no. 679-9) at 41. Dr. Patterson relatedly notes in his report that Hartley's treatment plans are "not individualized and are repetitive with the same problem statement,
Dr. Burns likewise recognized Hartley's care as seriously deficient. She identified Hartley in her report as a prisoner who "require[es] an RTU level of care but [has been] improperly classified as [an] outpatient[ ]," and described him as a "seriously mentally ill inmate with side effects from medication and still experiencing symptoms that negatively impact [his] functioning leading to placement on watch in [the] infirmary but not considered for transfer to [a] higher level of care." Burns Report (doc. no. 868-2) at 37-38.
Plaintiffs have also presented evidence to demonstrate that, although Hartley does have frequent contacts with mental-health staff, they largely involve little or no counseling — which, according to Dr. Patterson, he requires. As one example, they point to his records from the first four months of 2016, noting that he was seen by mental-health staff ten times, but that six of them involved solely medication administration, one was a medication check, and one was a check-in while he was in a crisis cell; only two were counselling sessions, but they were supposed to occur monthly — that is to say, twice as often. As a more recent example, Dr. Burns notes in her report that "[w]hen he was placed in suicide watch at St. Clair shortly before our interview, his only contact with mental health staff was through the door." Burns Report (doc. no. 868-2) at 46.
In addition, Hartley has offered evidence to show inadequate medication management: his medical records show that he has complained of shaking caused by the Prolixin shots he receives, that he could not be prescribed a sufficiently high dose of a medication to treat these side effects because it adversely affected his kidneys, and that he has requested — but not been prescribed — alternative antipsychotic medication (from a class of medications that, according to MHM records, providers were discouraged from prescribing due to cost).
Plaintiffs have created a dispute of material fact as to whether Hartley has been harmed by policies and practices regarding assessment and classification, psychotherapeutic care, and medication management.
Jackson has been diagnosed with a mood disorder, antisocial personality disorder, and depression.
Plaintiffs have presented evidence to show that his extended, continuous placement in segregation, from 2007 to 2014, has resulted in psychological harm. Dr. Haney identified Jackson as an example of a prisoner who has suffered from placement in segregation, noting that Jackson stated that segregation "breaks you down mentally, you have anxiety and all this stuff but you don't realize it's happening to you." Haney Report Appendix (doc. no. 868-4) at 39-40.
Moreover, plaintiffs have offered evidence sufficient to create a material dispute as to whether he received adequate
Plaintiffs also offer evidence to show that Jackson's mental-health classification failed to account for the severity of his symptoms; he was, until recently, classified at the lowest level, MH-1, despite his diagnoses — which providers have recognized are accompanied by "severe behavioral disturbances" — his receipt of multiple psychotropic medications including an antipsychotic, and his multiple recent placements on suicide watch.
Finally, Dr. Patterson noted his concern about lapses in medication administration for Jackson, and Jackson's medical records indicate that a number of his mental-health appointments were canceled due to security issues arising from insufficient number of custodial officers.
Plaintiffs have created a dispute of material fact as to whether Jackson has been harmed by policies and practices regarding segregation, psychotherapeutic care, assessment and classification, medication management, and custodial staffing.
Johnson has a significant intellectual disability, as reflected in his difficulty answering straightforward questions at his deposition. Prior to his conviction, he was evaluated at the state mental hospital and diagnosed as depressed and possibly psychotic; the evaluators believed that he might be incompetent to stand trial.
After his admission to prison, he had no contact with mental-health staff for about 20 years, until he was placed on suicide watch in late 2015. At that time, his psychiatrist observed that he was experiencing "paranoia [and] possible delusions," and noted that despite his assessment at the state mental hospital, he was not on the mental-health caseload. Johnson Medical Records, P Ex. 62 (doc. no. 844-12) at 15, MR047700. Remarkably, in the section of the chart for symptoms, Dr. Hunter noted as follows: "He is now involved with SPLC to perhaps go to court given the beforementioned."
Plaintiffs have also offered evidence to show that when Johnson was released from suicide watch, he was placed in segregation, and, though referred for mental-health treatment, did not receive it.
McCoy has been diagnosed with schizophrenia, and is delusional.
Plaintiffs have presented evidence sufficient to create a dispute of material fact as to whether McCoy has received an appropriate level of care. Over 20 years in prison, he has spent only two years receiving residential, as opposed to outpatient, care. Dr. Burns concluded that he required an RTU level of care and had been improperly classified. Burns Report (doc. no. 868-2) at 37-38. McCoy testified, and Dr. Burns recognized, that he is seen infrequently and inconsistently by mental-health staff, sometimes going months at a time without seeing a psychiatrist or nurse practitioner. His medical records and his testimony reflect that his treatment plans are frequently altered outside of his presence; he does not believe that he has ever attended a meeting of his treatment team. McCoy's medical records reflect that he suffers from side effects from his psychotropic medication, including pain at the injection site, stiffness, and nausea, and he testifies that he has been refused treatment for these side effects.
Additionally, McCoy has been repeatedly placed in prolonged segregation, despite statements by his mental-health care providers that "[p]rolonged isolation will adversely affect [his] mental stability," and that "prolonged placement in segregation may cause [him] to decompensate or deteriorate psychologically," and that his "mental health has deteriorated since he was put in segregation." McCoy Institutional File, P Ex. 101 (doc. no. 850-1) at 15, ADOC021879; 3, ADOC021336; 8, ADOC021491.
Dr. Burns explains in her rebuttal report that when she interviewed McCoy, "he was psychotic with poorly organized thought processes and nearly incomprehensible speech." Burns Rebuttal Report (doc. no. 840-14) at 1. In her review of McCoy's records, she "found that the medical record did not accurately portray or document his condition."
Plaintiffs have created a dispute of material fact as to whether McCoy has been harmed by policies and practices regarding assessment and classification, psychotherapeutic care, medication management, and segregation.
Pruitt has been diagnosed with schizophrenia.
He has repeatedly attempted to harm himself, and offered evidence sufficient to create a dispute of material fact as to the adequacy of the care he received during and after these crises. His medical records reflect that during a six-month period beginning at the end of 2013, he was admitted to a crisis cell at least five times (including, in one instance, for as long as eleven days); as defendants' expert, Dr. Patterson, recognizes in his report with respect to two of the admissions, there is no indication that he was seen by a psychiatrist or nurse practitioner (or, in most cases, a psychologist) during any of these stints. Patterson Report (doc. no. 679-9) at 42-43. His medical records reflect the effects
Plaintiffs have also presented evidence to show that the follow-up care Pruitt has received after leaving the suicide and crisis cells has been inadequate. Dr. Burns cites him as an example of her general conclusion that prisoners released from crisis cells are "not routinely placed on the mental health caseload" and are thus denied "adequate follow-up." Burns Report (doc. no. 868-2) at 46-47 & n.58. He stated in his deposition that he had requested mental-health treatment on a number of occasions, but was told that he would be seen by mental-health staff when they had time, and then not seen. Pruitt testified that the mental-health counselor had refused to see him the week preceding his deposition. He explained that the only contact with mental-health staff he had during the two years preceding his deposition had occurred during segregation rounds; unlike some other prisoners, he was never taken out of his cell for counseling. Dr. Burns corroborates this statement, noting that his charts reflect that he has been offered "no treatment other than psychotropic medications," and that he has "repeatedly asked to see a mental health counselor, including submitting a request slip, but no one has spoken with him individually." Burns Report (doc. no. 868-2) at 36 n.45. Dr. Burns also cites him as an example of inadequate treatment leading to repeated self-harm. Burns Report (doc. no. 868-2) at 18-19 & n.18.
Dr. Burns also recognizes in her report that Pruitt has repeatedly received disciplinary sanctions for symptoms of his mental illness — he has been cited for creating a "security, safety or health hazard" when he has injured himself. Burns Report (doc. no. 568-2) at 29.
Plaintiffs have created a dispute of material fact as to whether Pruitt has been harmed by policies and practices regarding crisis care, assessment and classification, psychotherapeutic care, and disciplinary sanctions.
Wallace has been diagnosed with bipolar disorder, paranoid schizophrenia, attention deficit hyperactivity disorder, and intermittent explosive disorder. He also has an intellectual disability. He has very recently engaged in self-harm, attempting to commit suicide by biting himself.
Defendants' expert, Dr. Patterson, agrees with plaintiffs that "[h]is mental health treatment has been inadequate in the ADOC." Patterson Report (doc. no. 679-9) at 28. In particular, he explains that Wallace's "treatment plans are inadequate and do not effectively address the symptoms of his Bipolar Disorder," and "his intellectual disability also contributes to his variable participation in treatment and is not adequately addressed in the treatment plans. The medical records do not indicate he has been consistently offered group therapies to address his intellectual deficits and [ ] the focus of the plans appears to be on his hygiene and participation, but the interventions do not realistically provide for services to address his dual diagnosis of Bipolar Disorder and Intellectual Disability."
The record also contains evidence from Wallace's deposition and his institutional
Plaintiffs have also offered evidence to show that Wallace has received inadequate psychotherapeutic treatment. Although defendants respond that he had 550 interactions with mental-health staff between January 2012 and the end of September 2015, plaintiffs respond that many of these interactions were cursory, citing examples of extremely brief interactions. Moreover, Dr. Haney cited Wallace as an example of a prisoner receiving who had primarily brief, cell-front interactions with mental-health staff; Dr. Haney's report also noted that Wallace explained that, although he is removed from his cell for a counseling session once every other month, "officers hurry [the counselor] up if she spends too long with inmates." Haney Report Appendix (doc. no. 868-4) at 40.
Plaintiffs have created a dispute of material fact as to whether Wallace has been harmed by policies and practices regarding crisis care, disciplinary sanctions, and psychotherapeutic care.
Williams has been diagnosed with a mood disorder and attention deficit hyperactivity disorder; she has previously been prescribed antipsychotic medication and received inpatient psychiatric treatment.
Plaintiffs have offered evidence sufficient to create a dispute of material fact as to whether she has been denied adequate mental-health treatment as a result of the decision not to place her on the mental-health caseload for several years after her admission. Despite being referred for an evaluation, Williams was not placed on the mental-health caseload upon reentering custody in late 2012. In March 2014, she cut herself a number of times after a traumatic incident,
Moreover, plaintiffs have offered evidence to show that the care Williams received immediately surrounding the cutting incidents was deficient, including medical records showing that the providers who monitored her while she was in the crisis cell were not mental-health staff, and her deposition testimony that when she did speak with a mental-health provider, the interactions were brief — about five minutes. On one instance, her medical records reflect that she was twice returned to segregation — over the course of less than an hour and a half — after cutting herself and indicating her intent to continue doing so. Each time, she followed through, and was brought back to the medical unit. Again, this evidence appears to illustrate Dr. Burns's findings regarding the inadequacy of monitoring of prisoners engaging in self-harm.
Plaintiffs have created a dispute of material fact as to whether Williams has been harmed by policies and practices regarding assessment and classification, crisis care, and segregation.
Plaintiffs have presented evidence sufficient to establish subjective deliberate indifference in multiple different ways. First, plaintiffs apprised defendants — in writing, prior to commencing litigation — that the policies and practices at issue in this case created a substantial risk of serious harm to prisoners with serious mental illness. Second, MHM officials recognized the necessity of reforms (and the ways that prisoners were being harmed), and related these concerns to defendants, who failed to take responsive action, whether because they lacked sufficient funds or for some other reason. Third, plaintiffs offer evidence regarding defendants' decision to renew MHM's contract despite serious, recognized problems, and failure to monitor the care being provided by MHM, and argue compellingly that this evidence, too, could support a finding of subjective deliberate indifference.
As discussed at length in the opinion as to ADAP, ADAP and plaintiffs' counsel from the Southern Poverty Law Center discussed in detail the allegations in this case in a letter they sent to defendants prior to beginning this litigation. Courts have repeatedly found subjective deliberate indifference in systemic cases based on the defendants' receipt of communications and reports setting forth the ways in which the medical or mental-health care provided in their prisoners was inadequate and failure to respond.
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Other courts have similarly found subjective awareness based on external reports.
Moreover, plaintiffs have presented a wealth of direct evidence demonstrating that defendants were apprised of at least some of the serious inadequacies in mental-health care now challenged even before counsel brought them to their attention. The depositions of MHM administrators are replete with acknowledgements of their awareness of — and communication with defendants and their staff about — the problems documented by plaintiffs' experts.
For example, with respect to the staff's ability to handle the mental-health caseload: MHM Medical Director and Chief Psychiatrist Dr. Hunter admits that the combination of the increased size and severity of the mental-health caseload with the staffing decision by ADOC discussed above have "start[ed] to tax our ability to adequately do what we do." Hunter Depo., P Ex. 16 (doc. no. 675-16) at 44. A recent audit by MHM of Donaldson, one of ADOC's treatment-oriented facilities, recognizes "a shortage of mental health staff" and attendant problems, including that "admission nursing assessments to the RTU were not being completed" and "treatment plans were not being completed, not individualized." Fields Depo. (doc. no. 996-83) at 127. Houser testified that MHM had repeatedly requested that ADOC provide funds to hire additional mental-health staff, "in order for us to be able to provide services in a more timely way," and because the "number of crises that go on a daily basis ... takes away from doing the daily therapeutic things for the people on the caseload." Houser Depo., P Ex. 15 (doc. no. 675-15) at 22. The funds MHM requested were not provided, due to "state budget issues."
As another example, Dr. Hunter also agrees with plaintiffs' experts concern about the use of residential treatment
As for the placement of prisoners with mental illness in segregation, Dr. Hunter explains that he met with correctional administrators in early 2015 to share concerns about "the deleterious effects of long-term seg placement" and "what other systems are doing in that regard to address their problem"; he reports that the Commissioner's chief of staff was present at the meeting and stated that the Commissioner "very much would like some reform on how seg is handled here in Alabama." Hunter Depo. (doc. no. 996-2) at 184-86. Houser describes MHM's effort to communicate at this meeting "how when inmates are detained in a single cell for long periods of time, it will cause — often cause further decompensation in their mental health." Houser Depo. (doc. no. 996-32) at 66.
Plaintiffs also point to defendants' failure to conduct more than minimal auditing of the mental-health care being provided, and their failure to respond to serious concerns raised by the auditing that was actually done, as further evidence of deliberate indifference. Although the Associate Commissioner and the Office of Health Services (OHS) she runs are responsible, under the contract, from monitoring the performance of MHM in delivering mental-health care, the evidence suggests that they have abdicated this obligation to engage in "continuous quality improvement." Mental Health Services Contract, P Ex. 153 (doc. no. 682-13) at 9, ADOC00330. In 2013 and 2014, OHS conducted only two formal audits, both of the same residential treatment unit at one facility, Donaldson,
Defendants move for summary judgment with respect to involuntary-medication claims of Bui, Hartley, and McCoy, on the grounds that Bui has received adequate due process and that the other two prisoners have consented to receiving the medication (such that it was not involuntary at all).
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Moreover, since
Bui, the one plaintiff who is currently subject to an involuntary-medication order, has created disputes of material fact with respect to whether the initial order and its repeated renewals violated his substantive and procedural due-process rights.
Bui has been diagnosed with schizoaffective disorder, depressed type. Since 2007, he has been subject to a continuously renewed order for involuntary antipsychotic medication, which he receives by monthly injection. It is clear that Bui does not take his medication voluntarily: his medical record reflects repeated verbal requests to staff to terminate the involuntary-medication order, and indicates that on at least one occasion he agreed to the injection only when "confronted with possible interventions (DOC assistance)." Bui Medical Records, P Ex. 68 (doc. no. 844-18) at 11, MR002531. It also indicates that he formally
Notes from the review of this involuntary-medication order include suggestions in February 2008 and January 2010 that, as put in the latter instance, he would be a "good candidate for discontinuing the involuntary medication order at next review."
Plaintiffs have offered evidence to show that the decision to continue involuntary medication has not been based on current symptoms demonstrating a grave disability or danger to himself or others, but rather on the fact that he denies the existence of his mental illness. Plaintiffs note that the fact that Bui receives a long-acting injection on a monthly basis means that he has never been able to appear (and be observed) un-medicated at any of his hearings, as he is entitled by ADOC regulations to do. The evidence in the record shows that prior to the initiation of his involuntary medication, Bui's symptoms involved inappropriate behavior such as touching of female staff and proselytizing — but no "outward aggression or violence either to himself or others," Hunter Depo. (doc. no. 996-2) at 256-59 — and that his symptoms have improved over time, allowing him to move into general population. But defendants have not shown the absence of a dispute of material fact as to whether his current symptoms warrant ongoing involuntary medication.
Plaintiffs also contend that defendants have violated Bui's right to procedural due process. They identify evidence of a number of inadequacies in the hearing process that has been afforded Bui: most of the hearing notices Bui received did not indicate the recommended medication and/or the reasons for the hearing, and some of the hearing notices include dates that appear to have been changed or were dated for the same day as the hearing or, in one case, the day after the hearing. Plaintiffs also presented some records that
Defendants first contend that Bui's procedural due-process claim fails as a matter of law because ADOC's regulation setting forth procedures for involuntary medication is modeled after the Washington regulation that was upheld by the Supreme Court in
Defendants also note that Bui answered in the affirmative during his deposition when asked (generally, rather than with respect to any one of his numerous hearings) whether he had received notice of and an opportunity to attend his involuntary-medication hearings, that he had refused to attend some hearings, and that he had received the various procedural protections to which he was entitled at each one, such as the presence of a staff advisor, a right to appeal, and the ability to be unmedicated. However, Bui is not a native or fluent speaker of English, and he appears to have misunderstood the one question in this series to which he gave more than a monosyllabic response. Bui Depo., D Ex. 14-1 (doc. no. 772-2) at 72-73 ("Q: You had the ability to be unmedicated on that day, correct? A: Yeah. I told him [the doctor] I was — every time I see him, I told him I don't want to get a shot no more."). Moreover, this admission appears clearly to be untrue; as plaintiffs point out, Bui is required to receive a monthly injection of a long-lasting medication that makes his appearance at a hearing in an unmedicated state impossible. In light of this, and the apparent deficiencies revealed by his records, the court concludes that Bui's affirmative answers are insufficient to support summary judgment, and that a genuine dispute of material fact exists as to his procedural due-process claim.
As for Hartley and McCoy, plaintiffs agree that they have signed forms consenting to administration of psychiatric medication,
Other than during a one-month period in 2005, McCoy has not been under
Defendants do not substantively dispute this account of coercion, merely responding that McCoy signed a number of consent forms, that his medical records at points document McCoy's statements agreeing to be medicated, and that his assertion of a forged signature and his testimony describing coercion do not suffice to create a genuine dispute of fact.
The due-process claim brought by Hartley, however, does not raise a genuine dispute of material fact. Hartley is developmentally disabled and reads at a third-grade level, and testified that he sometimes requires assistance in reading and understanding documents he signs. He also testified that he does not know what psychotropic medications he takes or what they are for. However, Hartley agreed that mental-health staff would answer his questions and explain the documents he was asked to sign. Furthermore, plaintiffs do not present evidence of a policy or practice of mental-health staff failing to educate prisoners about their medications.
Defendants contend that plaintiffs have not offered evidence to demonstrate that any policies and procedures of the Commissioner and Associate Commissioner are causally related to any constitutional violations; in other words, they contend that they are simply not responsible. They note the unremarkable and undisputed facts that neither of these officials is actually involved in the direct provision of care to prisoners, and also that ADOC contracts with a corporation, MHM, to provide mental-health care.
But this standard applies in cases where the inferior, not the superior, is the one who has been deliberately indifferent. Here, plaintiffs are not seeking to hold defendants responsible for the deliberately indifferent acts or omissions of their underlings; they are seeking to hold defendants responsible for their own deliberately indifferent acts and omissions, and those of the contractor to which they have delegated authority over a non-delegable constitutional obligation. The acts and omissions plaintiffs have challenged are specific
In the first category fall policies and practices expressly set forth by defendants in the contract between ADOC and MHM: underfunding and understaffing, both in terms of the total number of mental-health staff and the number of staff with different qualifications. As has been discussed else-where, plaintiffs have presented evidence that the decisions of ADOC to provide less money and fewer and less qualified staff than their request for bids initially called for, and than MHM administrators requested, have resulted in a range of serious problems in the delivery of mental-health care across the system. Moreover, there is evidence in the record (in addition to the letter plaintiffs' counsel sent to defendants in advance of filing this case) that defendants were aware that the contractor they had selected was struggling to provide what it considered to be adequate care with the resources allotted, but failed to provide more resources.
Also in this first category are the policies or practices of operating prisons which are severely understaffed by correctional officers and overcrowded with prisoners.
The second category of policies and practices are those that defendants have not themselves enacted, but which are attributable to them because they have fully delegated decision-making authority to MHM with respect to their constitutional obligation to provide mental-health care to prisoners. As the Eleventh Circuit explained in
Defendants also argue that the relief sought by plaintiffs in this case is not available under the
Defendants contend that plaintiffs cannot obtain a declaration that past acts or omissions of defendants violated the Constitution, that plaintiffs have not presented evidence of an ongoing violation, and that plaintiffs improperly seek an order requiring defendants to perform discretionary tasks, which would constitute improper judicial interference with the management of state prisons.
This case, and the relief plaintiffs have requested, falls squarely within the
As discussed above, plaintiffs have indeed presented enough evidence to create a dispute of material fact as to whether such a continuing violation exists. To the extent that defendants object to plaintiffs' reliance on evidence about past events to demonstrate this risk, they confuse an evidentiary approach to proving claims and the claims themselves. Plaintiffs in official-capacity cases regularly rely on evidence of a pattern of past violations in order demonstrate that a policy or practice that caused those violations is presently and continues to be unconstitutional.
The court notes that the relief plaintiffs have requested is precisely that contemplated by the requirement that courts afford "States the first opportunity to correct the errors made in the internal administration of their prisons."
Considerable deference to prison administrators' decisions regarding the management of their facilities is appropriate. But abdication of the court's role as warden of the Constitution is not.
In conclusion, defendants' motion for summary judgment on the individual plaintiffs' claims will be granted in part and denied in part. Businelle, Carter, Dillard, Dunn, Moncrief, and Terrell, along with their claims, will be dismissed without prejudice; and summary judgment will be entered on the merits against Hardy. The mental-health Eighth Amendment claims of Hartley, Braggs, Jackson, Johnson, McCoy, Pruitt, Wallace, and Williams will go to trial. The involuntary-medication due-process claims of Bui and McCoy will also proceed to trial.
An appropriate judgment will be entered.
Furthermore,
As an aside, the court notes that, in theory, a mechanism of injury could be such that, although no one in a prison system had yet been harmed, it was likely that many would be in the future. For example, consider the introduction of a toxic substance, the symptoms of exposure to which only manifest after a period of time; plaintiffs would not need to wait until someone got sick to bring a claim. In this case, however, there is no reason to believe that if the policies and practices of which plaintiffs complain indeed create a substantial risk of serious harm, that harm would not yet have occurred to at least some mentally ill prisoners.
Inexplicably, defendants, in their reply, pretend as if they disputed whether plaintiffs other than these three have serious mental-health needs, stating as follows: "With the exception of three (3) individuals, Named Plaintiffs do not attempt to prove they suffered from the serious mental health need required to state an Eighth Amendment claim. They merely allege in conclusory fashion that they do indeed have a serious mental health need." Defs.' Summ. J. Reply (doc. no. 876) at 96. This misrepresentation is troubling. In any event, the court concludes, based on its review of the record, that plaintiffs have offered more than sufficient evidence to create a genuine dispute as to whether the remaining plaintiffs have serious mental-health needs.
Dr. Burns and Dr. Haney also opine that to the extent that counseling does occur, it is compromised by the fact that it generally occurs in non-confidential settings. Defendants' response to this contention (when raised by the named plaintiffs) appears to be that ADOC policy requires the presence of custody staff for security purposes. But this does not address whether the policy creates a substantial risk of serious harm. The court recognizes that bona fide security needs might justify such a requirement, at least in some instances; whether or not it is justified here will be assessed at trial.
The court notes that one of the named plaintiffs whose care Dr. Patterson found to be deficient, Carter, has been released. Although his claims are therefore moot, the court will briefly discuss the evidence regarding his mental-health care, because it goes to the substantial risk of serious harm faced by the named plaintiffs who remain incarcerated.
Carter has been diagnosed with psychosis, schizoaffective disorder, adjustment disorder with mood and conduct disturbance, major depressive disorder, borderline personality disorder, and impulse control disorder.
Defendants contended in their motion for summary judgment that Carter merely "desire[d] a different type of mental-health treatment, despite his total lack of any qualification to direct his own treatment." Defs.' Mot. for Summ. J. (doc. no. 769) at 100. This was a remarkable position, in light of the fact that someone who does have such qualifications — defendants'
In addition to this denial of medication, plaintiffs also noted that Carter was on "seg rotation" (being rotated amongst segregation units at different facilities). His medical records reflected statements to mental-health staff, in line with the evidence offered by Dr. Haney, that "he believe[d] he ha[d] some paranoia because of being in segregation." Haney Report (doc. no. 868-4) at 102-03; Carter Medical Records, P Ex. 73 (doc. no. 844-23) at 23, MR029623.
Plaintiffs also offered evidence that Carter was denied adequate care when he expressed his intent to harm himself, including testimony indicating that the last time prior to his deposition on which he cut himself with a razor blade, he had written to the mental-health staff, explaining that he "was having suicidal though[s]," but did not "get nothing in respond back." Carter Depo., P Ex. 30 (doc. no. 840-30) at 340. They also pointed to medical records in which mental-health staff documented that Carter reported hearing voices telling him to kill himself and injure others, and that he was assessed to have a "potential for injury," but described the plan for his treatment, in its entirety, as "Release to DOC." Carter Medical Records, P Ex. 73 (doc. no. 844-23) at 14-15, MR003288-89.
First, the court notes that its review of the evidence in the voluminous record (filling over 25 boxes) in this case was thorough, despite it being hampered by the need for painstaking deciphering of many of the photocopied, handwritten mental-health records defendants produced to plaintiffs, some of which were barely legible.
Second, the court notes that a number of the named plaintiffs have presented evidence to show that they cut themselves repeatedly with razor blades they were given by custodial staff (and which custodial staff failed to remove from their persons and safe cells). Frequently, these prisoners eventually swallowed the razor blades. The status of this issue is somewhat unclear. Initially, plaintiffs sought a preliminary injunction on this issue; then, the parties reached an agreement sufficient for plaintiffs to withdraw their motion. However, plaintiffs have represented to the court that razor blades are still available to prisoners in crisis, and their expert evidence is sufficient to create a dispute of material fact as to this point; the court will hear more at trial.
Third, the court agrees with defendants that plaintiffs' complaint does, in a small number of places, use overly broad language to characterize the allegations of the named plaintiffs. At points, plaintiffs' complaint could be read to allege an outright denial of treatment, when in fact they present evidence to show, and now contend in their briefing, that a given plaintiff suffered only from extremely inadequate treatment. To a significant degree, however, this disparity appears to arise as a result of a genuine dispute as to what constitutes `treatment': defendants' briefing considers every contact between a prisoner and mental-health staff to be treatment, whereas plaintiffs and their experts have a substantially narrower conception that excludes what they describe as cursory contacts.
However, in that same deposition, Braggs testified that he had repeatedly informed the mental-health staff that he was suffering side effects, but was informed that the only options were to endure these effects or the symptoms that would return if he stopped taking the medication. Given that context, neither Braggs's failure to articulate a specific alternative treatment at his deposition nor his letter to the Commissioner demonstrates that he has not suffered harm.
A number of other courts have held that official-capacity, injunctive-relief claims can proceed despite an absence of
Additionally, the court notes that, although MHM appears to have decision-making authority with respect to the types of medications prescribed, there is evidence that these decisions are also causally connected to defendants' denial of adequate funding. Plaintiffs note that MHM's meeting notes reveal that Dr. Hunter, its Medical Director and Chief Psychiatrist, has repeatedly expressed concern about the cost of certain classes of antipsychotics, and encouraged providers to "soften the impact" of these medications' increasing cost by "transitioning inmates off these medications." CQI Meeting Minutes, P Ex. 238 (doc. no. 686-18) at 3, MHM031155. Plaintiffs also point to the deposition testimony of named plaintiffs who were told by providers that they were being taken off medication that effectively treated their conditions (hallucinations and bipolar disorder) because ADOC "couldn't afford it." Wallace Depo., P Ex. 32 (doc. no. 840-32) at 29, 95;
