GEORGIA ADVOCACY OFFICE, M.J., K.H., on behalf of themselves and others similarly situated, Plaintiffs – Appellees, versus THEODORE JACKSON, in his official capacity as Sheriff of Fulton County, MARK ADGER, in his official capacity as Chief Jailer, MEREDIETH LIGHTBOURNE, in her official capacity as Medical Director, TYNA TAYLOR, in her official capacity as Detention Captain, PEARLIE YOUNG, in her official capacity as Detention Lieutenant, Defendants – Appellants.
No. 19-14227
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
July 14, 2021
D.C. Docket No. 1:19-cv-01634-WMR-RDC [PUBLISH]
Appeal from the United States District Court for the Northern District of Georgia
(July 14, 2021)
Before WILSON, GRANT, and TJOFLAT, Circuit Judges.
The District Court below entered a preliminary injunction requiring Fulton County Jail officials to provide regular out-of-cell time to female inmates with psychiatric disabilities and to improve the sanitary conditions in their cells. The officials appealed. We consider whether the preliminary injunction expired by operation of law under the terms of the Prison Litigation Reform Act (PLRA). We hold that it has, and accordingly dismiss this appeal as moot and vacate the preliminary injunction order.
I.
The Plaintiffs in this action are the Georgia Advocacy Office, a nonprofit dedicated
The Defendants named in the complaint were Theodore Jackson, Sherriff of Fulton County; Mark Adger, Chief Jailer for the Sherriff‘s Office; Meredieth Lightbourne, Medical Director for the Sherriff‘s Office; Tyna Taylor, Detention Captain for the South Fulton Municipal Regional Jail; and Pearlie Young, Detention Lieutenant for the South Fulton Municipal Regional Jail.
Plaintiffs alleged the conditions at the Jail violate the
On April 7, 2019, Plaintiffs moved the District Court to enter a preliminary injunction requiring Defendants to “(1) Offer at least four hours of daily out-of-cell time to all women in [mental health pods], including one hour per day of outdoor time; and (2) Within 30 days, establish and present to the Court for its approval a plan, designed to be implemented within another 30 days, for providing a medically appropriate environment for women who experience psychiatric disabilities and are assigned to [mental health pods], including sanitary conditions of confinement and out-of-cell therapeutic activities.” Plaintiffs also requested “expedited discovery and a hearing at which Plaintiffs will show that the requested relief satisfies the requirements of the [PLRA].”3
On July 23, 2019, after a three-day evidentiary hearing, the District Court granted Plaintiffs’ requested preliminary injunction.4 The order contained the findings
That opinion—styled “addendum order“—was issued 62 days later on September 23, 2019. The opinion explained the Court‘s earlier findings in greater detail and made additional findings that the PLRA‘s requirements were satisfied.
On October 18, 2019, Defendants took this interlocutory appeal from the District Court‘s two orders pursuant to
After the benefit of oral argument, we find that the preliminary injunction has expired by operation of law, making this appeal moot. We accordingly dismiss the appeal and vacate the order imposing the injunction as well as the subsequent addendum order.
II.
Congress enacted the Prison Litigation Reform Act of 1995,
To that end,
Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.
(B) The court shall not order any prospective relief that requires or permits a government official to exceed his or her authority under State or local law or otherwise violates State or local law, unless—
(i) Federal law requires such relief to be ordered in violation of State or local law;
(ii) the relief is necessary to correct the violation of a Federal right; and
(iii) no other relief will correct the violation of the Federal right.
Recognizing that district courts might enter preliminary injunctive relief in prison cases under
In any civil action with respect to prison conditions, to the extent otherwise authorized by law, the court may enter a temporary restraining order or an order for preliminary injunctive relief. Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity set out in paragraph (1)(B) in tailoring any preliminary relief. Preliminary injunctive relief shall automatically expire on the date that is 90 days after its entry, unless the court makes the findings required under subsection (a)(1) for the entry of prospective relief and makes the order final before the expiration of the 90-day period.
In sum,
This appeal primarily concerns the third function—we will call it the “unless” clause—and particularly the meaning of the phrase “makes the order final.” Since the District Court here entered the challenged preliminary injunction well over 90 days ago, we must decide whether it did what was necessary to prevent its expiration by operation of law on the 90th day. If it did not, then this appeal is moot and we lack jurisdiction absent an applicable exception. United States v. Sec‘y, Fla. Dep‘t of Corr., 778 F.3d at 1229.
Plaintiffs argue the preliminary injunction has not expired. According to them, all the “unless” clause requires district courts to do to avoid expiration is to “finalize a preliminary injunction‘s terms to ensure that they comply with . . . [the] need-narrowness-intrusiveness criteria.” Under this reading of the statute, the District Court did all it needed to do to prevent expiration when it issued its addendum order making the required need-narrowness-intrusiveness findings.
Defendants, by contrast, insist that making the order “final” means converting the preliminary injunction into a permanent injunction. The District Court did not treat the preliminary-injunction hearing as a trial on the merits under
We note that the parties’ positions are somewhat unusual. One would usually expect the appellees to be the ones arguing the Court lacks jurisdiction to decide the appeal, but here it is the appellants (Defendants) who press the argument and appellees (Plaintiffs) who resist it. Defendants’ position is not as senseless as it appears at first blush, however, because while they believe their appeal is moot, they urge us to decide it anyway under the exception to the mootness doctrine for disputes “capable of repetition, yet evading review.” We will grant Defendants half of what they seek since we believe the injunction against them has expired by operation of law, making this appeal moot, but we decline to go further and review its conformance with the PLRA because we do not believe this dispute is one that will evade review.
In part II.A, we discuss the way the PLRA alters the traditional landscape for entering injunctive relief in PLRA cases. In part II.B, we confront the parties’ competing arguments about the meaning of the PLRA‘s “unless” clause and ultimately reject Plaintiffs’ interpretation. Finally, in part II.C we address and reject Defendants’ argument that this dispute is “capable of repetition, yet evading review.”
A.
Before diving into the PLRA‘s text, we take a step back and examine how it
We begin with what the PLRA leaves unchanged.
The procedural dimension of those preexisting limits come from the Federal Rules. Upon application for injunctive relief,
The substantive considerations informing a district court‘s decision whether to issue injunctive relief come from “historic federal equity practice.” 11A Charles A. Wright & Arthur Miller, Federal Practice and Procedure §§ 2947, 2942 (3d ed. 2020). For the entry of preliminary injunctive relief, the four traditional considerations in equity are: (1) a substantial likelihood of success on the merits; (2) a substantial threat that the plaintiff will suffer irreparable injury if the injunction is not granted; (3) the threatened injury to the plaintiff outweighs the harm an injunction may cause to the defendant; and (4) a grant of preliminary injunction would not disserve the public interest. Nnadi v. Richter, 976 F.2d 682, 690 (11th Cir. 1992). The considerations at play for permanent injunctions overlap with the preliminary-injunction considerations, though they are not identical. Courts considering whether to grant a permanent injunction ask whether the plaintiff has demonstrated: “(1) it has suffered an irreparable injury; (2) remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) the public interest would not be disserved by a permanent injunction.” Angel Flight of Ga., Inc. v. Angel Flight Am., Inc., 522 F.3d 1200, 1208 (11th Cir. 2008) (citing eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)). The PLRA does not displace these equitable considerations in cases that fall within its ambit. See Swain v. Junior, 961 F.3d 1276 (11th Cir. 2020) (applying the traditional equitable considerations on review of a preliminary injunction subject to the PLRA).
Once a district court determines that injunctive relief is warranted under the traditional equitable considerations, it must consider the appropriate scope of such relief. This step in issuing an injunction involves the “measurement or shaping”
Having established the background principles that guide courts in issuing and tailoring injunctions, we now examine how the PLRA alters the landscape for injunctions in prison cases. It does so in two significant ways. First, the PLRA supercharges some of the traditional equitable principles of injunctive relief. While courts were already required to ensure injunctions are no broader than necessary, the PLRA emphasizes the importance of narrow tailoring in prison litigation by requiring courts to make specific findings that “such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.”
Second,
But how does this reshuffling of values play out in practical terms? Basically, the PLRA‘s imperative that prospective relief shall be awarded only to the extent “necessary to correct the violation of [a] Federal right,”
To see what we mean, consider the possible outcomes after a district court issues a 90-day preliminary injunction. One possibility is that the defendant reforms its practices to comply with the terms of the injunction within the 90 days. In this situation, a district court should ask whether the defendant‘s reforms “have completely and irrevocably eradicated the effects of the alleged violations,” Thomas v. Bryant, 614 F.3d 1288, 1321 (11th Cir. 2010), keeping in mind that “[i]t is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when . . . there is probability of resumption,” United States v. Or. State Med. Soc., 343 U.S. 326, 333 (1952). If the district court is satisfied that the defendant‘s reforms are in earnest and sufficiently enduring, it should ordinarily let the preliminary injunction expire on the 90th day and dismiss the case, since a permanent injunction would no longer be “necessary to correct the violation of the Federal right.”
But what if the defendant wants to appeal the grant of preliminary injunctive relief? It can appeal the preliminary injunction order under
These alterations to the landscape of injunctive relief in prison cases further the PLRA‘s twin aims of expediting prison litigation and ending judicial micromanagement of prison systems. Once a preliminary injunction issues, the plaintiff‘s entitlement to a permanent injunction is typically ascertained within 90 days, greatly condensing the litigation lifecycle. Furthermore, the model avoids unnecessary judicial oversight by incentivizing prisons to redress violations on their own. A prison that wishes to avoid being subject to a permanent injunction and the attendant judicial oversight will have good reason to reform its policies during the 90-day period in which the preliminary injunction is in place.
B.
It should be clear from the foregoing discussion that we believe the entry of a permanent injunction is necessary to prevent a preliminary injunction from expiring by operation of law after 90 days under the PLRA‘s “unless” clause. This, we believe, follows from the PLRA‘s model for injunctive relief. Plaintiffs argue, though, that the PLRA‘s text is to the contrary. We disagree.
We begin questions of statutory interpretation by looking at the statute‘s plain language. United States v. Gilbert, 198 F.3d 1293, 1298 (11th Cir. 1999). In doing so, we follow “the cardinal rule that statutory language must be read in context since a phrase gathers meaning from the words around it.” Hibbs v. Winn, 542 U.S. 88, 101 (2004) (quotation marks and citation omitted) (alterations adopted). Recall that the “unless” clause provides:
Preliminary injunctive relief shall automatically expire on the date that is 90 days after its entry, unless the court makes the findings required under subsection (a)(1) for the entry of prospective relief and makes the order final before the expiration of the 90-day period.
A “final order” is a commonplace legal term meaning “[a]n order that is dispositive of the entire case.” Final Order, Black‘s Law Dictionary 1123 (7th ed. 1999); see also Fort v. Roadway Express, Inc., 746 F.2d 744, 747 (11th Cir. 1984) (“A final judgment is generally recognized as being an order of the court which ‘leaves nothing for the court to do but execute on the judgment.‘” (citation omitted)). An order is not “final” in this sense unless it “end[s] a court action or proceeding leaving nothing further to be determined by the court or to be done except the administrative execution of the court‘s finding but not precluding an appeal.” Final, Webster‘s Third New International Dictionary 851 (1993). Final orders stand in direct contrast to interlocutory orders, which are “order[s] that relate[] to some intermediate matter in the case.” Interlocutory Order, Black‘s Law Dictionary 1123.
A suit for a permanent injunction contemplates a bench trial on the merits followed by findings of fact and conclusions of law under
If the “unless” clause, when it speaks of making the order “final,” means entering a “final order” as Defendants argue it does, then
Plaintiffs, however, argue that the “unless” clause uses “final” in a less technical sense. According to Plaintiffs, “final” means only “not to be processed further but . . . utilized as is.” Final, Webster‘s Third New International Dictionary at 8551. To “make the order final” in this sense means simply to complete or perfect the order by making all the required findings for the entry of preliminary injunctive relief.
Plaintiffs’ interpretation has some merit. If Congress wanted to make preliminary injunctions expire after 90 days unless the district court entered a final order imposing a permanent injunction, it could have said so more clearly. “Making” a preliminary injunction order final is a strange way to speak of entering a final judgment incorporating an injunction. Nonetheless, we believe Defendants have the better interpretation.
Despite the linguistic awkwardness just noted, the word “final” amidst talk of “preliminary injunctive relief” and “orders” naturally evokes, to a legally trained mind, the concept of a “final order.” The surrounding language strongly suggests that “final” is being used in a technical legal sense as opposed to the broader colloquial sense that Plaintiffs advance. See United States v. Williams, 553 U.S. 285, 294, 128 S. Ct. 1830, 1839 (2008) (“[A] word is given more precise content by the neighboring words with which it is associated.“).
The surplusage that would result from Plaintiffs’ interpretation also counsels in favor of reading “final” in the narrow sense of a “final order.” Recall that
Plaintiffs’ interpretation also reads out other portions of the statute. Before the “unless” clause,
Plaintiffs can only avoid this outcome by pretending that the PLRA allows district courts to issue preliminary injunctions and then choose whether to later make need-narrowness-intrusiveness findings. The court would only have to make such findings if it wanted the injunction to last beyond 90 days. Of course, the problem with this is that
This reading also means the preliminary injunction cannot be effectively reviewed by a court of appeals until the district court makes the findings required for its issuance under
Defendants’ interpretation, by contrast, recognizes that
As already noted, we agree with Plaintiffs that “making” a preliminary injunction order final is not the clearest way to speak of entering a permanent injunction. This does not discourage us from adopting Defendants’ interpretation, however, because we believe this language merely reflects a common way of thinking and talking about the relationship between preliminary and permanent injunctions. It is not unusual to speak of a preliminary injunction merging with, becoming, or being converted into a permanent injunction. See, e.g., Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 314, 119 S. Ct. 1961, 1966 (1999) (“[A]n appeal from the grant of a preliminary injunction becomes moot when the trial court enters a permanent injunction, because the former merges into the latter.” (emphasis added)); AcryliCon USA, LLC v. Silikal GmbH, 985 F.3d 1350, 1361 n.25 (11th Cir. 2021) (“A preliminary injunction only becomes a permanent injunction when the district court includes a permanent injunction in its final judgment.” (emphasis added)); Associated Builders & Contractors Fla. E. Coast Chapter v. Miami-Dade Cnty., 594 F.3d 1321, 1323-24 (11th Cir. 2010) (per curiam) (“Once an order of permanent injunction is entered, any preliminary injunction merges with it . . . .” (emphasis added)); Sec. & Exch. Comm‘n v. First Fin. Grp. of Tex., 645 F.2d 429, 433 (5th Cir. 1981) (“Once an order of permanent injunction is entered . . . the order of preliminary injunction is merged with it . . . .” (emphasis added)); Certified Grocers of Ill., Inc. v. Produce, Fresh & Frozen Fruits & Vegetables, Fish, Butter, Eggs, Cheese, Poultry, Florist, Nursery, Landscape & Allied Empl., Drivers, Chauffeurs, Warehousemen & Helpers Union, Chic. & Vicinity, Ill., Local 703, 816 F.2d 329, 330 (7th Cir. 1987) (“[T]he court converted the preliminary injunction to a permanent injunction.” (emphasis added)); In re Estate of Ferdinand Marcos Human Rights Litig., 94 F.3d 539, 544 (9th Cir. 1996) (“[W]here a permanent injunction has been granted that supersedes the original preliminary injunction, the interlocutory injunction becomes merged in the final decree . . . .” (citation and quotations omitted) (emphasis added)); Burbank-Glendale-Pasadena Airport Auth. v. City of Los Angeles, 979 F.2d 1338, 1340 n.1 (9th Cir. 1992) (“Once an order of permanent injunction is entered, the preliminary injunction merges with it . . . .” (emphasis added)). This language reflects the functional continuity between preliminary and permanent injunctions—though they are put in place by separate and distinct orders, the nature of the relief is the same and the latter typically replaces the former without lapse. Thus, it is natural to think of a permanent injunction order as securing, or indeed “making final,” a preexisting preliminary injunction.
Plaintiffs also argue that the phrase “[p]reliminary injunctive relief shall automatically expire . . . unless,” shows that the “unless” clause establishes requirements for preliminary injunctions to continue beyond 90 days. Thus, Plaintiffs conclude, “making the order final” cannot mean entering a permanent injunction because that would cause the preliminary injunction to cease instead of continue.
Plaintiffs’ argument rests on the assumption that the word “expire” in
Finally, Plaintiffs argue that if “making the order final” means entering a permanent injunction, then the “unless” clause of
We acknowledge that 90 days is a short amount of time to reach a final decision on the merits of a complex civil case about prison conditions. Nonetheless, that is what the text of
C.
Our precedent is clear that when a preliminary injunction expires by operation of law under
Our contrary precedent notwithstanding, Defendants argue there is a “reasonable expectation” they will be subject to yet another injunction requiring them to provide psychiatrically disabled female inmates with regular out-of-cell time and to improve the sanitary conditions in their cells. Defendants do not attempt to argue that any subsequent injunction will evade review, and we do not believe one would.
Defendants can obtain review when the District Court enters a permanent injunction after a trial on the merits, assuming Plaintiffs succeed. See Brooks v. Ga. State Bd. of Elections, 59 F.3d 1114, 1121 (11th Cir. 1995) (declining to apply the exception for cases “capable of repetition, yet evading review” in part because “the district court retained jurisdiction of the case, which may be litigated on the merits and the outcome appealed“); Tropicana Prods. Sales, Inc. v. Phillips Brokerage Co., 874 F.2d 1581, 1583-84 (11th Cir. 1989) (same). We can then review the injunction under
Because this appeal is moot and no exception to mootness applies, we dismiss the appeal and vacate the District Court‘s order imposing the preliminary injunction and its addendum order stating findings and conclusions in support of the injunction. See United States v. Sec‘y Fla. Dep‘t of Corr., 778 F.3d at 1229-30.
SO ORDERED.
WILSON, Circuit Judge, dissenting:
I disagree with the majority‘s interpretation of
The majority holds that the entry of a permanent injunction is necessary to prevent a preliminary injunction from expiring after 90 days. It claims that its holding “follows from the PLRA‘s model for injunctive relief.” Maj. Op. at 20. I disagree. Though the PLRA‘s “model for injunctive relief” is one that disfavors judicial involvement in prison administration, no statute “pursues its purpose at all costs.” Antonin Scalia & Bryan A. Garner, Reading Law 57 (2012). Accordingly, we must give due regard to the text of
I.
In passing the PLRA, Congress sought to limit litigation brought by prisoners and address what it perceived as judicial overreach in the courts. See 141 Cong. Rec. S14414 (daily ed. Sept. 27, 1995) (remarks of Sen. Dole) (“These guidelines will work to restrain liberal Federal judges who see violations o[f] constitutional rights in every prisoner complaint and who have used these complaints to micromanage State and local prison systems.“); see also Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (explaining that the PLRA was passed “to reduce the number of frivolous cases filed by imprisoned plaintiffs, who have little to lose and excessive amounts of free time with which to pursue their complaints“).
The PLRA‘s obstacles to prisoner civil rights suits are numerous. Just to name a few, the law poses an exhaustion requirement on prisoners seeking to file suits,
The majority‘s reasons for reaching the contrary conclusion are unavailing. The majority asserts that “final order” is a commonplace legal term, widely understood to mean an order that disposes of a case. I agree. The problem here, though, is that
I agree with the Plaintiffs that the more natural interpretation of “final” here is “not to be processed further” and “utilized as is.” Final, Webster‘s Third New International Dictionary 851 (1993). In the context of
The majority concedes that this interpretation “has some merit.” Maj. Op. at 23. This is not only because Congress could have imposed a firm 90-day limit on preliminary injunctions in a much clearer and simpler way (by simply removing the “unless” clause altogether) but also because “making an order final” is an odd way to talk about entering a permanent injunction (which is ordinarily entered after a full trial on the merits).
Nonetheless, the majority asserts that its interpretation is “better” because “the word ‘final’ amidst talk of ‘preliminary injunctive relief’ and ‘order’ naturally evokes, to a legally trained mind, the concept of a ‘final order.‘” Id. This is so, it explains, because the “surrounding language strongly suggests that final is being used in a ‘technical legal sense.‘” Id. I disagree with that interpretation. The technical legal terms surrounding the phrase “makes the order final” are not enough to essentially transform the words into the term “final order.”
What the majority does today prevents preliminary injunctions from serving their core equitable purpose of protecting plaintiffs from the substantial threat of irreparable injuries while their claims are pending. See Nnadi v. Richter, 976 F.2d 682, 690 (11th Cir. 1992). To issue a preliminary injunction, a district court must find that
Preliminary injunctions have been issued since as early as the mid-1800s to prevent irreparable injuries while cases are litigated. See In re Slaughter-House Cases, 77 U.S. (10 Wall.) 273 (1869). “Surrounding language” is not enough to disrupt this long-running equitable practice. Furthermore, using the PLRA‘s stated purpose of reducing judicial involvement in prison management to reach this result disregards “what [the PLRA] chooses not to do.” Scalia & Garner, Reading Law, at 57.
II.
The majority also asserts that the Plaintiffs’ interpretation of the statute is incorrect because it collapses the two requirements of the “unless” clause, “effectively reading the ‘final order’ requirement out of the statute.” Maj. Op. at 24. I disagree. First, there is no “final order” requirement in the statute. The statute requires a court to “make[] the order final.” When read in context of the full sentence it becomes evident that the word “order” refers to the preliminary injunction order. See United States v. Williams, 553 U.S. 285, 294 (2008).13 Nowhere does the statute require the entry of a “final order.”
Second, there are still two distinct requirements on the district court. To comply with the PLRA, the district court must 1) make the findings required by
The Plaintiffs’ interpretation also does not read out other portions of the statute, as the majority claims. See Maj. Op. at 24. While
III.
The majority‘s broad overview of the case also fails to portray the reality that women with serious psychiatric disabilities in the South Fulton Jail mental health pods will continue to face while the case is litigated without a preliminary injunction in place.
The Plaintiffs summarize the Sheriff‘s official records, photographs and video recordings in the record, and firsthand accounts of investigators who inspected the pods: Women in the mental health pods are subject to long-term isolation in horrific and repulsive conditions. Women have “been found lying catatonic on the floor, screaming unintelligibly, speaking incoherently, banging their heads against cell walls, repeatedly attempting suicide, living in cells with feces smeared on the walls or urine pooled on the floors, and enduring extraordinary squalor as their mental health deteriorated, causing harm up to and including death.” Despite the medical recognition that isolation for seriously mentally ill people “can be as clinically distressing as physical torture,” Jeffrey Metzner et al., Solitary Confinement and Mental Illness in U.S. Prisons, 38 J. Am. Acad. Psych. & L. 104, 104 (2010), women with the most serious psychiatric disorders at South Fulton Jail are held in isolation on a virtually around-the-clock basis.
That is what will continue to happen while the case is pending if the preliminary injunction is not in place.
The majority asserts that the 90-day time limit for preliminary injunctions “expedites the lifecycle of prison cases.” Maj. Op. at 17. But it provides no support or explanation for how or why litigation will be expedited. Rather than expedite cases, I fear the 90-day limit will leave plaintiffs vulnerable to likely unconstitutional conduct as the merits are litigated at a normal pace.
The majority also fails to grapple with the length of time that cases take to proceed to a trial on the merits. Again, it claims without support that “[o]nce a preliminary injunction issues, the plaintiff‘s entitlement to a permanent injunction is typically ascertained within 90 days, greatly condensing the litigation lifecycle.” Maj. Op. at 19. While that could be true for some cases, it is certainly not the case in many class action prisoner civil rights suits, like this one. This case was filed in April of 2019 and the preliminary injunction was initially granted in July of 2019. It appears that currently—in the summer of 2021—the parties are only now litigating summary judgment motions.
IV.
The majority‘s holding today threatens to leave prisoners in vulnerable, likely unconstitutional
Notes
- Within 7 days of the entry of this Order, develop a system to track each individual‘s out of cell time within B, C and G pod and that each woman be permitted at least 1 hour recreation time and 2 hours of free time daily.
- Within 30 days of the entry of this Order, offer at least four hours of daily out-of-cell time to each woman assigned to B-Pod, C-Pod, and G-Pod on at least five days each week. At least one hour per day shall include outdoor recreation or indoor gym time.
- Within 30 days of the entry of this Order, establish and file with the Court a written plan, designed to be implemented within another 30 days, for providing sanitary conditions of confinement and out-of-cell therapeutic activities to each woman assigned to B-Pod, C-Pod, or G-Pod on at least five days each week. The plan must specifically address (a) steps to assist women in maintaining their hygiene; (b) steps to achieve a clean and safe living space in each pod; (c) structured out-of-cell group activities; (d) designation and training of officers assigned to work in a non-acute housing unit; and (e) addressing and maintaining the physical plant of the jail. Defendants shall confer in good faith with Plaintiffs’ counsel to create terms of the new plan. If the parties are unable to agree on the content of the plan, Plaintiffs may submit written objections to the Defendants’ plan within 14 days of the date on which Defendants file it.
- Nothing in this Order shall prevent Defendants from denying out-of-cell time to a woman assigned to B-Pod, C-Pod, or G-Pod where doing so is necessary to prevent an immediate and substantial risk of serious harm to a person. If out-of-cell time is denied for any individual detainee in accordance with this paragraph, the reasons for the denial shall be fully documented, to include the name of the detainee, date of out-of-cell time denial, and the specific reason for the denial. No detainee may be denied out-of-cell time under this paragraph for a period greater than 24 hours.
- Failure to comply with this Order shall not be excused by allegations of inadequate staffing.
A detainee denied out-of-cell time under this paragraph shall be reviewed by a correctional supervisor at the rank of lieutenant or higher at least once every 24 hours to determine whether denial of the detainee‘s out-of-cell time remains necessary to prevent an immediate and substantial risk of serious harm to a person. In any such case, the mental health treatment team shall be notified and a member of the mental health staff shall visit the detainee at least once per every 24-hour period. A psychiatrist must approve a denial of out-of-cell time for a person with serious mental illness if that denial continues for more than 48 consecutive hours.