Edward Braggs v. Commissioner, Alabama Department of Corrections
Opinion
majorityUSCA11 Case: 22-10292 Document: 139-1 Date Filed: 06/24/2026 Page: 1 of 73
FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10292
____________________
JOSHUA DUNN, et al.,
Plaintiffs,
EDWARD BRAGGS,
on behalf of himself and all others similarly situated,
TEDRICK BROOKS,
on behalf of himself and all others similarly situated,
GARY LEE BROYLES,
on behalf of himself and all others similarly situated
et al.,
Plaintiffs-Appellees-
Cross Appellants,
versus
COMMISSIONER, ALABAMA DEPARTMENT OF
CORRECTIONS,
DEPUTY COMMISSIONER, OFFICE OF HEALTH SERVICES,
ALABAMA DEPARTMENT OF CORRECTIONS,
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2 Opinion of the Court 22-10292
Defendants-Appellants-
Cross Appellees,
ASSOCIATE COMMISSIONER OF HEALTH SERVICES FOR
THE
ALABAMA DEPARTMENT OF CORRECTIONS, et al.,
Defendants.
____________________
Appeals from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:14-cv-00601-MHT-JTA
____________________
Before JORDAN, LAGOA, and TJOFLAT, Circuit Judges.
JORDAN, Circuit Judge:
Between 2015 and 2016 alone, the rate of suicide for inmates
imprisoned in the Alabama Department of Corrections’ various
prisons was more than double the national average among state
and federal correctional facilities. During one 15-month period of
this litigation, 15 Alabama inmates killed themselves.
The plaintiffs contend that these staggering numbers are due
largely in part to the Department of Corrections’ deliberate indif-
ference to the serious mental healthcare needs of its inmates in vi-
olation of the Eighth Amendment to the United States Constitu-
tion. After years of litigation, the district court agreed and issued
comprehensive, system-wide injunctive relief to remedy the con-
stitutional deprivations as to mental healthcare treatment in the Al-
abama prison system.
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22-10292 Opinion of the Court 3
Managing this litigation was no small feat. The district court
painstakingly outlined thousands of pages of documentary evi-
dence, held two seven-week bench trials, and issued orders con-
taining nearly 1,000 pages of liability and remedial findings. Its ef-
forts were thorough and commendable.
We have said federal courts do not sit as “super-wardens”
over the day-to-day operations of the country’s prison systems. See
Pesci v. Budz, 935 F.3d 1159, 1166 (11th Cir. 2019) (“[C]ourts do not
sit as super-wardens, . . . and prison officials, rather than judges,
will make the difficult judgments concerning institutional opera-
tions.”) (internal citation omitted). This principle has generally
been codified by Congress in the Prison Litigation Reform Act, 18
U.S.C. § 3626. The federal courts “nevertheless must not shrink
from their obligation to ‘enforce the constitutional rights of all per-
sons, including prisoners.’ [They] may not allow constitutional vi-
olations to continue simply because a remedy would involve intru-
sion into the realm of prison administration.” Brown v. Plata, 563
U.S. 493, 511 (2011) (internal quotation marks and citations omit-
ted). And sometimes system-wide relief is appropriate under the
PLRA. See id. at 539–45 (upholding, under the PLRA, the remedial
order of a three-judge district court requiring California to reduce
its overall prison population to 137.5% of capacity (by reducing the
population by 38,000 to 46,000 persons) within two years).
Today we must decide whether the district court properly
ordered certain permanent prospective relief under the PLRA and
the Eighth Amendment.
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4 Opinion of the Court 22-10292
I
This appeal deals with the culmination of only one phase of
nearly a decade of class action litigation against the Alabama De-
partment of Corrections for its alleged violation of federal law and
alleged deliberate indifference to the mental and physical health of
the inmates housed in its facilities. To deal with the magnitude of
this litigation, the district court trifurcated the case into three
“phases”: Phase 1, Phase 2A, and Phase 2B. Phase 1 involved claims
brought under the Americans with Disabilities Act, 42 U.S.C. §
12101 et seq., and the Rehabilitation Act, 29 U.S.C. 794, asserting
discrimination based on physical disabilities and a failure to accom-
modate those disabilities. Phase 2A involved Eighth Amendment,
ADA, Rehabilitation Act, and due process claims regarding inade-
quate mental healthcare. Phase 2B, which is still pending, involved
Eighth Amendment claims based on inadequate medical and dental
care. We deal only with the Eighth Amendment claims in Phase
2A. 1
The plaintiffs in Phase 2A are a group of seriously mentally
ill Alabama prisoners and the Alabama Disabilities Advocacy Pro-
gram. Seeking declaratory and injunctive relief, they sued John
Hamm, the Commissioner of the Alabama DOC and Ruth
Haglitch, the Associate Commissioner of Health Services for the
DOC, in their official capacities, asserting that the DOC provided
1 The parties settled the Phase 2A ADA, Rehabilitation Act, and due process
claims.
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constitutionally inadequate mental healthcare in its prison facili-
ties. 2
Following years of litigation, dozens of attempted media-
tions, and multiple bench trials, the district court ultimately con-
cluded that the DOC was liable for violations of the Eighth Amend-
ment based on its deliberate indifference to the mental healthcare
of its inmates. The court then, again after a number of mediations
and a seven-week evidentiary hearing, issued system-wide and per-
manent remedial injunctive relief.
Before we dive headlong into the thousands of pages of doc-
umentary and testimonial evidence, and the factual findings and
legal conclusions of the district court, we outline the contextual
framework of the Eighth Amendment and the PLRA.
A
“The Eighth Amendment, made applicable to the States
through the Fourteenth Amendment, prohibits the infliction of
‘cruel and unusual punishments.’” Glossip v. Gross, 576 U.S. 863, 876
(2015). Under these Amendments, the “[f]ederal and state govern-
ments . . . have a constitutional obligation to provide minimally ad-
equate medical care to those whom they are punishing by incarcer-
ation.” Harris v. Thigpen, 941 F.2d 1495, 1504 (11th Cir. 1991). Spe-
cifically, the Supreme Court has held that prison officials violate
the Eighth Amendment when they display “deliberate indifference
to serious medical needs of prisoners.” Estelle v. Gamble, 429 U.S. 97,
2 We usually refer to the defendants collectively as the “DOC.”
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104 (1976). As relevant here, the “[f]ailure to provide basic psychi-
atric and mental health care” may constitute “deliberate indiffer-
ence to the serious medical needs of prisoners.” Rogers v. Evans, 792
F.2d 1052, 1058 (11th Cir. 1986). See also Greason v. Kemp, 891 F.2d
829, 833–34 (11th Cir. 1990) (collecting cases and holding that pris-
oners have a clearly established constitutional right to psychiatric
care).
To prove an Eighth Amendment violation, a plaintiff must
establish two elements. See Wade v. McDade, 106 F.4th 1251, 1255
(11th Cir. 2024) (en banc). First, “the deprivation alleged must be,
objectively, ‘sufficiently serious.’” Id. (quoting Farmer v. Brennan,
511 U.S. 825, 834 (1994)). Second, “a prison official must have a suf-
ficiently culpable state of mind”—i.e., must be deliberately indiffer-
ent. See id. (citations and quotations omitted).
Deliberate indifference itself has two components—one sub-
jective and one objective. See id. at 1262. A plaintiff must demon-
strate that the defendant acted with “subjective recklessness as used
in the criminal law.” Farmer, 511 U.S. at 839. “[T]o do so he must
show that the defendant was actually, subjectively aware that his
own conduct caused a substantial risk of serious harm to the plain-
tiff.” Wade, 106 F.4th at 1262. “[E]ven if the defendant ‘actually
knew of a substantial risk to inmate health or safety,’ he ‘cannot be
found liable under the [Eighth Amendment]’ if he ‘responded rea-
sonably to the risk.’” Id. (quoting Farmer, 511 U.S. at 844–45). So “a
plaintiff must show both that the defendant actually (subjectively)
knew that an inmate faced a substantial risk of serious harm and
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that the defendant disregarded that known risk by failing to re-
spond to it in an (objectively) reasonable manner.” Mosley v.
Zachery, 966 F.3d 1265, 1270 (11th Cir. 2020) (cleaned up). Whether
a prison official has subjective knowledge of a substantial risk “is a
question of fact subject to demonstration in the usual ways, includ-
ing 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.” Farmer, 511 U.S. at 842.
B
Congress enacted the PLRA, 18 U.S.C. § 3626, in 1996. The
PLRA “imposes limits on the scope and duration of preliminary
and permanent injunctive relief[.]” Nelson v. Campbell, 541 U.S. 637,
650 (2004). It thus “altered the landscape of prison reform litigation
in two primary respects.” Cason v. Seckinger, 231 F.3d 777, 780 (11th
Cir. 2000).
First, the PLRA limits the scope of prospective relief that a
federal court has authority to enter, directing that prospective relief
shall not be entered “unless the court finds that such relief is nar-
rowly drawn, extends no further than necessary to correct the vio-
lation of the [f]ederal right, and is the least intrusive means neces-
sary to correct the violation of the [f]ederal right.” § 3626(a)(1)(A).
These are referred to as “need-narrowness-intrusiveness” findings.
See United States v. Sec’y, Fla. Dep’t of Corr., 778 F.3d 1223, 1228–29
(11th Cir. 2015). Where a court enters prospective relief under the
PLRA, it must provide “particularized findings, on a provision-by-
provision basis,” meaning that such “[p]articularized findings,
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analysis, and explanations should be made as to the application of
each criteria to each requirement imposed” by the court. See Cason,
231 F.3d at 785. See also Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d
1263, 1278–79 (11th Cir. 2020) (noting that boilerplate recitations
of the PLRA’s requirements are insufficient, even where the court
issues a lengthy order that carefully considers each requested form
of relief on the merits).
Second, “the PLRA limits a court’s authority to continue to
enforce previously entered prospective relief in prison litigation re-
form cases.” Cason, 231 F.3d at 780. But the expiration of prospec-
tive relief under the PLRA can depend on whether an injunction is
preliminary or permanent. See § 3626(a)(2) (governing preliminary
injunctive relief); § 3626(b) (governing permanent injunctive re-
lief).
The PLRA specifically mandates that preliminary injunctive
relief automatically expires 90 days after its entry, unless the court
makes requisite need-narrowness-intrusiveness findings and
“makes the order final before the expiration of the 90-day period.”
§ 3626(a)(2). On the other hand, permanent prospective injunctive
relief is generally terminable upon a party’s motion two years after
its entry or one year after the court has entered an order denying
termination of the prospective relief. See § 3626(b)(1)(A). A party
moving for termination of permanent injunctive relief is entitled to
“immediate termination” if the relief was granted without requisite
need-narrowness-intrusiveness findings. See § 3626(b)(2). But per-
manent prospective relief shall not terminate—even upon
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motion—“if the court makes written findings based on the record
that prospective relief remains necessary to correct a current and
ongoing violation” of the federal right and otherwise meets the
need-narrowness-intrusiveness requirements. See § 3626(b)(3). 3
C
With this legal landscape in mind, the district court endeav-
ored to determine whether the DOC was deliberately indifferent
to the serious medical healthcare needs of the class of inmates, and
if so, to craft an appropriate remedy under the PLRA. The evidence
and procedural history of this case is lengthy and tumultuous, so
we endeavor to succinctly outline those aspects pertinent to the
district court’s findings and conclusions.
1
When the plaintiffs initiated this action, the DOC operated
14 male prisons (Bibb, Bullock, Donaldson, Draper, Easterling,
Elmore, Fountain, Hamilton, Holman, Kilby, Limestone, St. Clair,
Staton, and Ventress), and one major women’s prison (Tutwiler).
These prisons collectively house around 19,500 inmates, with ap-
proximately 3,400 of them receiving some type of mental health
treatment, such as counseling or psychotropic medications.
Bullock, Donaldson, and Tutwiler contain mental-health
treatment units, including “Stabilization Units” and “Residential
Treatment Units.” Stabilization Units (“SUs”) are for patients who
3 The parties may also agree to end or modify the prospective relief before it
is terminated. See § 3626(b)(1)(B).
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“are suffering from acute mental-health problems—such as acute
psychosis or other conditions causing an acute risk of self-harm.”
All SU patients are housed in individual cells. Residential Treat-
ment Units (“RTUs”) are reserved for patients with “moderate im-
pairment in mental health functioning” that puts them at risk in a
general-population setting. These two types of units, together re-
ferred to as “mental-health units,” house and treat the most se-
verely mentally ill prisoners in Alabama. Inmates on the mental-
health caseload but not housed in the mental-health units receive
their care through outpatient services.
The DOC is responsible for providing mental health services
at its prisons and does so by contracting with a private provider.
During the liability trial, MHM Correctional Services, Inc., served
as the DOC’s mental-health contractor.
2
In November of 2016, the district court certified a Phase 2A
class “of all persons with a serious mental illness who are, or will
be, confined within [the DOC’s prisons], excluding Tutwiler Prison
for Women and the work-release centers.”
From December of 2016 through February of 2017, the dis-
trict court held a bench trial on the DOC’s liability under the Eighth
Amendment. The court heard seven weeks’ worth of testimony
from numerous witnesses, including inmates, the then-Commis-
sioners, and various experts, and also received thousands of pages
of documentary evidence regarding mental healthcare within the
DOC. At the close of this trial, the court issued its Phase 2A
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Liability Opinion and Order finding that the Commissioners, in
their official capacities, were liable for violations of the Eighth
Amendment. See D.E. 1285 (“Liability Order”). The 302-page Lia-
bility Order outlined (at considerable length) the court’s factual
findings and conclusions of law. In sum, the court found that the
DOC’s mental healthcare is, “[s]imply put, . . . horrendously inad-
equate.” Id. at 299. Specifically, the court found seven factors con-
tributing to the Eighth Amendment violation, in addition to the
“overarching” problems of understaffing and overcrowding. Those
seven factors were as follows:
(1) Failing to identify prisoners with serious mental-
health needs and to classify their needs properly;
(2) Failing to provide individualized treatment plans
to prisoners with serious mental-health needs;
(3) Failing to provide psychotherapy by qualified and
properly supervised mental-health staff and with
adequate frequency and sound confidentiality;
(4) Providing insufficient out-of-cell time and treat-
ment to those who need residential treatment;
and failing to provide hospital-level care to those
who need it;
(5) Failing to identify suicide risks adequately and
providing inadequate treatment and monitoring
to those who are suicidal, engaging in self-harm,
or otherwise undergoing a mental-health crisis;
(6) Imposing disciplinary sanctions on mentally ill
prisoners for symptoms of their mental illness, and
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imposing disciplinary sanctions without regard for
the impact of sanctions on prisoners’ mental
health; [and]
(7) Placing seriously mentally ill prisoners in segrega-
tion without extenuating circumstances and for
prolonged periods of time; placing prisoners with
serious mental-health needs in segregation with-
out adequate consideration of the impact of segre-
gation on mental health; and providing inade-
quate treatment and monitoring in segregation.
Id. at 300–01. The court further found that “persistent and severe
shortages of mental-health staff and correctional staff, combined
with chronic and significant overcrowding, are the overarching is-
sues that permeate each of the above-identified contributing fac-
tors of inadequate mental-health care.” Id. at 301.
D
After two months of mediation to develop a comprehensive
remedial plan, it became apparent that the matter of the appropri-
ate remedy was too large and complex to be addressed all at once.
The district court therefore severed the remedy into the various
contributing factors, to be addressed seriatim. See Phase 2A Revised
Scheduling Order, D.E. 1357.
Later in 2018, after many months of negotiations, the parties
reached a series of agreements regarding remedies for the DOC’s
Eighth Amendment violations. These stipulated remedies were re-
duced to a series of enforceable court orders on many matters,
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including segregation, treatment and monitoring of prisoners in
segregation, administrative coding for prisoners with mental ill-
ness, mental-health screening during intake, the mental-health re-
ferral process, individualized mental healthcare plans, and psycho-
therapy and confidentiality during counseling sessions.
The district court reviewed each of the parties’ stipulations
before it reduced them to enforceable orders. And when the court
reviewed the stipulations, the DOC agreed that they should be re-
duced to enforceable orders.
But in early 2019 the district court spotted a significant prob-
lem related to the stipulated orders—it had never made PLRA find-
ings in writing. The court raised this issue with the parties during a
hearing on February 7, 2019.
The DOC argued that the stipulated orders were unenforce-
able because they lacked particularized PLRA need-narrowness-in-
trusiveness findings for each provision. The plaintiffs disagreed, ar-
guing that the DOC had waived these findings by agreeing to the
stipulations in the first instance. But the district court overruled
those objections.
Because the stipulated orders “lacked PLRA findings,” in
May of 2019 the district court scheduled “an evidentiary hearing on
whether the stipulations previously reduced to orders and the stip-
ulations pending before the court complied with the PLRA.” But
the evidentiary hearing regarding the remedial orders was not
completed until July 9, 2021, in large part due to the COVID-19
pandemic and the sensitive nature of the operation of prison
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facilities during a public health crisis. The court issued its Omnibus
Remedial Opinion and Order—with PLRA findings—on Decem-
ber 27, 2021. See D.E. 3461–D.E. 3464. See also D.E. 3465.
E
Several months before the district court issued its Omnibus
Remedial Opinion and Order, it released its Monitoring Order. The
court chose to “resolve the issue of monitoring separately from all
substantive remedial orders and on a global scale, rather than as to
each individual order.”
In the Monitoring Order, the district court adopted the
DOC’s “overarching proposal that, in light of [its] own admission
that [it] lack the capacity to self-monitor, outside experts will ini-
tially monitor compliance and will draw on their expertise to de-
velop many of the details of the monitoring plan.” Additionally,
“[t]hose outside experts will train and eventually hand control over
to an internal monitoring team, building the capacity of the DOC
to regulate itself.”
Throughout the Monitoring Order, the district court repeat-
edly made need-narrowness-intrusiveness findings as required by
the PLRA. A couple of the findings are of particular note. First, the
court explained that “[t]he consultation element of monitoring is
particularly critical in light of the admission of the defendants that
ADOC lacks the ‘training’ to self-monitor.” Second, the court high-
lighted that the ADOC had a long history of failing to comply with
its interim remedial orders, and “[s]everal courts ha[d] indicated
that in applying the need-narrowness-intrusiveness requirement, a
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history of non-compliance helps justify an intrusive remedy.” Fi-
nally, and perhaps most importantly, the court emphasized that the
entire goal of the Monitoring Order was to equip and permit the
DOC to comply with its orders “without court supervision.” In
other words, the remedy was meant to be as narrow and least in-
trusive as possible by equipping the DOC to one day monitor itself.
F
Eventually, the district court determined that the “shortest
path toward concluding this phase of the litigation” was for each
side to submit a proposed omnibus remedial order encompassing
the entire scope of relief at issue and for it to hold “a single eviden-
tiary hearing to consider these proposals.” After that the court
would “create a final omnibus remedial order resolving all of the
outstanding issues” in Phase 2A of the litigation.
The district court followed that course and held a series of
evidentiary hearings in May, June, and July of 2021—lasting nearly
seven weeks in total. The court then entered its Phase 2A Omnibus
Remedial Order and accompanying Phase 2A Omnibus Remedial
Opinion, containing nearly 1,000 pages of findings of fact and con-
clusions of law, including need-narrowness-intrusiveness findings.
These hearings were necessary because, as noted, the district
court had failed to make particularized need-narrowness-intrusive-
ness findings when entering the stipulated orders. During the hear-
ings, the court was able to formulate remedies for the violation it
found in its 2017 Liability Opinion, and to make particularized
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findings regarding how these remedies satisfied the need-narrow-
ness-intrusiveness requirement under § 3626(a)(1) of the PLRA.
The Omnibus Remedial Order was a 46-page injunction lay-
ing out the relief ordered by the district court. The Order addressed
each area of deficiency discussed in the 2017 Liability Opinion.
Part I of the Omnibus Remedial Opinion discussed the case’s
procedural history and the legal standards governing the ordered
relief.
Part II of the Remedial Opinion examined whether circum-
stances had improved in any of the areas of deficiency that the dis-
trict court found in its 2017 Liability Opinion. This allowed the dis-
trict court to ensure that it could make sufficiently informed PLRA
findings. As the court explained, “the general degree of improve-
ment or lack of improvement in the areas of relief that were the
subject of the omnibus proceedings will inform the court’s deter-
mination of precisely what remedies remain necessary in each area
and what modes of providing that relief are the most narrowly tai-
lored and least intrusive ways of correcting the violations at issue.”4
This section of the Remedial Opinion also recounted the de-
tails of six of the 12 suicides that had occurred since the 2017 Lia-
bility Opinion—many of which were shocking. For example, on
4 Specifically, the district court examined changed circumstances regarding
correctional staffing, mental-health staffing, restrictive housing, intake, cod-
ing, referral, confidentiality, treatment teams and plans, psychotherapy, sui-
cide prevention, higher levels of care, discipline, and training.
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April 14, 2020, a correctional officer discovered Laramie Avery
hanging from a ceiling vent during pill call. Officers did not cut Mr.
Avery down until two minutes after they discovered him, and they
took a picture of him hanging from the ceiling before they cut him
down. Additionally, they waited 12 minutes after finding Mr. Avery
to initiate CPR. The case of Casey Murphree provided another
poignant example. Mr. Murphree had a long history of mental-
health problems and had been incarcerated in the DOC since 1996.
Throughout early 2020, Mr. Murphree showed signs of a deterio-
rating mental state and was seen by nurses who worked for the
DOC. Notwithstanding his mental-health problems, Mr. Murphee
was sent to segregation on May 17, 2020. About 20 hours after en-
tering segregation, Mr. Murphree was found dead in his cell with a
ligature around his neck. By the time he was discovered, rigor mor-
tis had set in, which is a process that takes several hours.
Part III of the Remedial Opinion was 375 pages long, and it
addressed each kind of relief awarded in the Remedial Order. The
district court painstakingly addressed the need-narrowness-intru-
siveness requirement with respect to every form of relief awarded
in the Remedial Order, providing specific reasons why the relief
was necessary, narrow, and least intrusive.
G
The DOC then appealed the Phase 2A Remedial Order—
claiming it to be a permanent injunction—as well as various “in-
terim” orders that it contends we have pendent jurisdiction over.
The plaintiffs cross-appealed, arguing that the district court erred
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in not finding that the DOC waived various arguments regarding
the scope of remediation necessary to comply with the PLRA.
One week before oral argument—and over two years after it
initially appealed—the DOC filed a Rule 28(j) letter, asserting that
the Phase 2A Remedial Order was actually preliminary and thus
subject to the PLRA’s 90-day expiration requirements for prelimi-
nary injunctions granting prospective relief.
We begin by assuring ourselves of our appellate jurisdiction.
II
We first summarize the general rules of appellate jurisdic-
tion under 28 U.S.C. §§ 1291 and 1292. We then explain why the
Phase 2A Omnibus Remedial Order is an injunction subject to ap-
pellate review under § 1292(a)(1). We will finish by explaining why
the DOC’s mootness argument regarding the so-called “non-final”
or “preliminary” nature of the Phase 2A Remedial Order is incor-
rect.
A
Under § 1291, we “have jurisdiction of appeals from all final
decisions of the district courts of the United States[,]” and “[a] final
decision is ‘one which ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.’” Positano
Place at Naples I Condo. Assoc., Inc. v. Empire Indemnity Ins. Co., 84
F.4th 1241, 1248 (11th Cir. 2023) (citing Pitney Bowes, Inc. v. Mestre,
701 F.2d 1365, 1368 (11th Cir. 1983)) (internal citation omitted).
Generally, “an order adjudicating fewer than all of the claims in a
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suit, or adjudicating the rights and liabilities of fewer than all of the
parties, is not a final judgment from which an appeal may be
taken[.]” Supreme Fuels Trading FZA v. Sargeant, 689 F.3d 1244, 1246
(11th Cir. 2012) (brackets omitted).
When “a district court anticipates that further proceedings
on substantive matters may be required, any order it makes to fa-
cilitate those further proceedings is necessarily not final.” Broussard
v. Lippman, 643 F.2d 1131, 1133 (5th Cir. Unit A 1981). The Phase
2A Omnibus Remedial Order is not a “final” order as contemplated
by § 1291. And neither party asserts that it is. See Appellants’ Rule
28(j) Letter (Mar. 12, 2024) (“The Court had jurisdiction at the time
the Commissioners perfected appeal under 28 U.S.C.
§ 1292(a)(1).”); Appellees’ Resp. to Juris. Question. at 15 (Mar. 2,
2022) (“Here, as [Alabama] concedes, there is no final order on ap-
peal. Instead, the parties have cross-appealed an interlocutory or-
der granting an injunction and invoke this Court’s jurisdiction un-
der 28 U.S.C. § 1292(a)(1).”). 5
B
Under § 1292(a)(1), we have jurisdiction to review certain in-
terlocutory orders, such as those “granting, continuing, modifying,
5 At oral argument, the discussion on finality necessarily dovetailed into a dis-
cussion about whether a Rule 54(b) certification was required to permit appel-
late jurisdiction over the Phase 2A Omnibus Remedial Order. But, as discussed
below, Rule 54(b) is not needed when an injunction is appealable under
§ 1292(a)(1)—which the Phase 2A Omnibus Remedial Order is.
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refusing or dissolving injunctions, or refusing to dissolve or modify
injunctions[.]” This statutory provision creates a narrow exception
to the “long-established policy against piecemeal appeals.” Gardner
v. Westinghouse Broad. Co., 437 U.S. 478, 480 (1978). “In determining
what is an appealable order under 28 U.S.C. [§] 1292(a)(1), courts
look not to terminology, but to the ‘substantial effect of the order
made.’” McCoy v. La. State Bd. of Educ., 345 F.2d 720, 721 (5th Cir.
1965) (internal citation omitted).
To be appealable under § 1292(a)(1), “the interlocutory or-
der appealed must have the first two elements of an injunction,”
i.e., “it must be: (1) a clearly defined and understandable directive
by the court to act or to refrain from a particular action; and (2)
enforceable through contempt, if disobeyed.” Alabama v. U.S. Army
Corps of Engineers, 424 F.3d 1117, 1128 (11th Cir. 2005). The order
must also give “some or all of the substantive relief sought in the
complaint” and generally should have a “direct or irreparable im-
pact on the merits of the controversy.” Id. at 1128–29. See also Bir-
mingham Fire Fighters Ass’n 117 v. Jefferson Cnty., 280 F.3d 1289, 1292
(11th Cir. 2002) (explaining that there must be a decree “‘of an in-
junctive character’”) (citation omitted).
Here, the Phase 2A Omnibus Remedial Order is an injunc-
tion subject to appeal under § 1292(a)(1), as it both commands the
DOC to undertake a number of actions and is enforceable under
the district court’s inherent civil contempt power. See Nken v.
Holder, 556 U.S. 418, 428 (2009) (“[An injunction] is a means by
which a court tells someone what to do or not to do. When a court
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22-10292 Opinion of the Court 21
employs ‘the extraordinary remedy of injunction’ . . . it directs the
conduct of a party, and does so with the backing of its full coercive
powers.”) (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312
(1982)). See also Black’s Law Dictionary 937 (11th ed. 2019) (defin-
ing “injunction” as “[a] court order commanding or preventing an
action”); 1 Howard C. Joyce, A Treatise on the Law Relating to
Injunctions § 1, at 2 (1909) (“In a general sense, every order of a
court which commands or forbids is an injunction; but in its ac-
cepted legal sense, an injunction is a judicial process or mandate
operating in personam by which, upon certain established principles
of equity, a party is required to do or refrain from doing a particular
thing.”).
On its face, the Phase 2A Omnibus Remedial Order states
that it “enjoin[s] and restrain[s]” the DOC and its officials, see D.E.
3464 at 1, thereby constituting an order “granting” an injunction
under § 1292(a)(1). And, taking the “functional approach,” Birming-
ham Fire Fighters Ass’n 117, 280 F.3d at 1293, the effect of the Phase
2A Omnibus Remedial Order is to compel the DOC to implement
wide-ranging, substantive changes at its facilities.
As to the second element, no party doubts that the Phase 2A
Omnibus Remedial Order is enforceable via the district court’s in-
herent contempt power. And we agree with their collective assess-
ment on this point.
Importantly, “[i]f an injunction is ordered, appeal is available
under § 1292(a)(1) even though other issues of remedy remain
open, and the determination of liability is subject to review.” 16
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22 Opinion of the Court 22-10292
Wright & Miller, Fed. Prac. & Proc. Juris. § 3915.2 (3d. ed. & Sept.
2025 update) (collecting cases). This proposition is generally ac-
cepted by our circuit and others. See, e.g., Simmons v. Block, 782 F.2d
1545, 1549 (11th Cir. 1986) (an appeal could be taken under
§ 1292(a)(1) from a permanent injunction entered on summary
judgment, even though a crossclaim remained pending and no
Rule 54(b) certification was entered); Triad Sys. Corp. v. Southeastern
Exp. Co., 64 F.3d 1330, 1334 (9th Cir. 1995) (an appeal could be
taken from preliminary injunction entered after phase one of bifur-
cated litigation, even where phase two included unresolved addi-
tional claims), superseded by statute on other grounds, 17 U.S.C.
§ 17(c); United States v. Humboldt County, 615 F.2d 1260, 1261 (9th
Cir. 1980) (an appeal could be taken from a judgment that entered
a permanent injunction as to part of the claims presented, even
though other claims remained pending); Brennan v. Western Union
Tel. Co., 561 F.2d 477, 479–80 (3d Cir. 1977) (an order that deter-
mined overtime pay liability but not amount of damages was not
final, but it could be appealed because it enjoined future violations).
Cf. Graff v. City of Chicago, 9 F.3d 1309, 1313 (7th Cir. 1993) (an ap-
peal could be taken under § 1292(a)(1) from an order that denied a
preliminary injunction and dismissed some counts of the complaint
but left one count standing).
Significantly, § 1292(a)(1) also alleviates any necessity for a
Rule 54(b) certification. See Simmons, 782 F.2d at 1549; Cable Hold-
ings of Battlefield, Inc. v. Cooke, 764 F.2d 1466, 1470–71 (11th Cir.
1985). Indeed, the provisions of Rule 54(b), which “govern[s] the
finality of orders that finally dispose of less than all the claims as to
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22-10292 Opinion of the Court 23
all of the parties in multiclaim or multiparty litigation, do not limit
appeals under § 1292(a)(1). . . .” 16 Wright & Miller, Fed. Prac. &
Proc. Juris. § 3921 (3d. ed. & Sept. 2025 update). See also DeJohn v.
Temple Univ., 537 F.3d 301, 308 (3d Cir. 2008) (appellate jurisdiction
existed where the district court granted partial summary judgment
and enjoined a university from enforcing its sexual harassment pol-
icy and no attempt was made to certify under Rule 54(b)); Coastal
States Gas Corp. v. Dep’t of Energy, 644 F.2d 969, 974 n.14 (3d Cir.
1981) (noting that Rule 54(b) does not affect the appealability of
orders granting injunctions); Humboldt Cnty., 615 F.2d at 1261 (fail-
ure to direct entry of final judgment under Rule 54(b) did not defeat
the appeal where, after a trial on the merits, the district court en-
tered an injunction prohibiting the enforcement of several ordi-
nances challenged by the plaintiffs, but did not rule on two other
ordinances).
In sum, we have statutory appellate jurisdiction pursuant to
§ 1292(a)(1) because the district court’s Phase 2A Omnibus Reme-
dial Order granted injunctive relief against the DOC.
C
This does not, however, end the inquiry. In its last-ditch
Rule 28(j) letter, filed only one week before oral argument, the
DOC “advised” us that the appeal may be moot because the Phase
2A Omnibus Remedial Order was an expired “preliminary injunc-
tion” under the PLRA. See § 3626(a)(2). Generally, the expiration of
an injunction challenged on appeal moots the appeal. See United
States, 778 F.3d at 1228–29. Accordingly, although § 1292(a)(1)
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24 Opinion of the Court 22-10292
permits appeals of either preliminary or permanent injunctions, we
must determine whether the district court’s Phase 2A Omnibus Re-
medial Order constitutes a “final” or “preliminary” injunction un-
der the PLRA. As explained below, we conclude that it constitutes
a permanent injunction and thus has not expired pursuant to the
PLRA’s 90-day provision.
“Recognizing that district courts might enter preliminary in-
junctive relief in prison cases under Federal Rule of Civil Procedure
65(a), Congress set out additional requirements for such relief” un-
der the PLRA, including § 3626(a)(2). See Ga. Advocacy Off. v. Jack-
son, 4 F.4th 1200, 1206 (11th Cir. 2021), vacated upon settlement, 33
F.4th 1325 (11th Cir. 2022). That provision states that “[p]relimi-
nary injunctive relief shall automatically expire . . . 90 days after its
entry, unless the court makes [need-narrowness-intrusiveness]
findings . . . and makes the order final before the expiration of the
90-day period.” § 3626(a)(2). But the Phase 2A Omnibus Remedial
Order was not “preliminary” under either Rule 65 or the PLRA.
Therefore, it was not subject to the PLRA’s 90-day expiration pro-
vision.
We start with the DOC’s own acknowledgements that this
Order was in fact permanent prior to its about-face on the cusp of
oral argument. Of course, we are not bound by a party’s litigation
position when reviewing our jurisdiction, but a party can be held
to its admissions on jurisdictional facts. See Durbois v. Deutsche Bank
Nat’l Tr. Co. as Tr. of Holders of AAMES Mortg. Inv. Tr. 20054 Mortg.
Backed Notes, 37 F.4th 1053, 1060 (5th Cir. 2022) (collecting cases).
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22-10292 Opinion of the Court 25
As the Supreme Court has put it, the “[c]onsent of parties cannot
give the courts of the United States jurisdiction, but the parties may
admit the existence of facts which show jurisdiction, and the courts
may act judicially upon such an admission.” Ry. Co. v. Ramsey, 89
U.S. 322, 327 (1874).
For years (and up until one week before oral argument), the
DOC operated pursuant to an understanding—both below and on
appeal—that the district court’s Phase 2A Omnibus Remedial Or-
der constituted a permanent injunction. Indeed, one of the DOC’s
jurisdictional premises for its appeal of the district court’s “interim
orders” is based on the merger doctrine—which requires that the
Phase 2A Omnibus Remedial Order be permanent. The examples
are numerous, but a few will suffice to demonstrate the DOC’s
consistent understanding:
• Appellants’ Br. at xiii: “This Court possesses ju-
risdiction over the Interim Phase 2A Remedial Or-
ders because they merged into the Remedial Or-
der. An order that adjudicates fewer than all
claims, or the rights and liabilities of fewer than all
parties, does not constitute an appealable final or-
der. When a permanent injunction incorporates the
same relief as a preliminary injunction, the two merge,
and a party properly appeals from the permanent
injunction. The Remedial Order incorporates re-
lief in the same areas as the Interim Orders and,
accordingly, the Interim Orders merged into it.”
(internal citations omitted).
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26 Opinion of the Court 22-10292
• Appellants’ Br. at 55: “This Court reviews ‘the
district court’s entry of a permanent injunction for
an abuse of discretion.’” (internal citations omit-
ted).
• Appellants’ Resp. to Juris. Q. at 17: “Moreover,
when a permanent injunction incorporates the same
relief as a preliminary injunction, the two ‘merge,’ and
an appeal is properly taken from the permanent injunc-
tion. The same principle applies here. Although
the Staffing Order was not a ‘preliminary’ injunc-
tion, it was a ‘non-final’ injunction. Thus, the relief
granted in the non-final Staffing Order merged
into the December 2021 Order for purposes of ap-
peal.” (internal citations omitted).
• Appellants’ Resp. to Juris. Q. at 19: “Instead, the
State awaited a ‘final’ resolution of Phase 2A in an at-
tempt to bring all of its Phase 2A concerns to this
Court in a single appeal. The only reason the De-
cember 2021 Order does not qualify as a ‘final’ or-
der is the pendency of the Phase 2B claims, which
at this point constitute essentially a separate case
that remains to be litigated from the beginning.”
• Appellants’ Mot. to Stay, D.E. 3490 at 7–8: “For
a court to grant permanent injunction relief, it must
find (1) an irreparable injury; (2) no adequate rem-
edy at law; (3) an equitable remedy is warranted
considered the balance of the hardships between
plaintiff and defendant; and (4) and permanent in-
junction will disserve the public interest . . . .“[A]
district court should only consider permanent
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22-10292 Opinion of the Court 27
injunctive relief ‘if the defendant fails to implement
reforms or implements half-baked or imperma-
nent reforms.’” (internal citations omitted).
Although perhaps these statements are not jurisdictional “facts” in
the traditional sense, they leave us skeptical of the DOC’s new-
found realization that the district court’s Phase 2A Omnibus Reme-
dial Order should now be considered a preliminary injunction
given its repeated assertions to the contrary.6
In any event, we independently conclude that the Phase 2A
Omnibus Remedial Order reflects all the traditional requirements
of a permanent injunction. It was issued after full findings of liabil-
ity on the Eighth Amendment claims premised on inadequate men-
tal health treatment throughout the DOC’s facilities. These find-
ings were made after a seven-week trial on liability and an addi-
tional seven-week evidentiary hearing on remedies pursuant to the
findings of liability (after years of mediation on remedies). The
DOC asserts that the Order was “preliminary” because it stated, in
part, that it “is not final.” Appellants’ Rule 28(j) Letter (Feb. 27,
6 If the DOC really believed that the Order was only a preliminary injunction,
we are confident that it would have told the district court that it expired after
90 days or would have sought dismissal of the appeal on mootness grounds
months earlier. “We remind counsel that, as officers of the court, they have a
duty to raise alleged defects in subject-matter jurisdiction when they first be-
come apparent, not merely when doing so becomes strategically expedient.”
I.L. v. Alabama, 739 F.3d 1273, 1284 n.6 (11th Cir. 2014). See Aves ex rel. Aves v.
Shah, 997 F.2d 762, 767 (10th Cir. 1993) (“[W]hile subject matter jurisdiction
enjoys a special status . . . as an officer of the court, candor and honesty are
not only expected, they are demanded.”).
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28 Opinion of the Court 22-10292
2024) (citing D.E. 3464 at 41). But this is only half true. The Order
must be read in its entirety and in context, and the function of the
Order takes precedence over its form. See Birmingham Fire Fighters
Ass’n 117, 280 F.3d at 1292.
The Phase 2A Omnibus Remedial Order states as follows:
“This order is not final and remains open in that the parties must still
submit proposals for further and/or different relief and monitoring may
warrant consideration and reconsideration of issues.” D.E. 3464 at 41
(emphasis added). Read in this context—and together with the dis-
trict court’s 500+ pages of additional findings in the Phase 2A Om-
nibus Opinion—it is apparent that the Order “remains open” re-
garding potential modification and/or termination pursuant to,
among other things, the PLRA’s statutory termination and modifi-
cation procedures, and the district court’s monitoring scheme. See
§ 3626(b)(1)(B), (b)(4) (termination and modification provisions).
Indeed, the district court contextualized the entire Phase 2A Om-
nibus Remedial Order in this way:
After receiving [the parties’ remedial] proposals, the
court determined that the shortest path toward con-
cluding this phase of the litigation was for each party to
submit a proposed omnibus remedial order encom-
passing the entire scope of relief at issue and for the court
to hold a single evidentiary hearing to consider these
proposals, after which it would create a final omnibus
remedial order resolving all of the outstanding issues in this
phase of the litigation.
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22-10292 Opinion of the Court 29
D.E. 3461 at 17 (emphasis added and internal quotations omitted).
Regarding the previously entered and stipulated “interim” orders,
the court further explained that the parties agreed to extend the
duration of those stipulated preliminary orders—pursuant to the
PLRA’s 90-day requirement—“until this final, omnibus order was
entered.” Id. (citing Joint Request to Extend Phase 2A Remedial Or-
ders, D.E. 3076 at 1–2). The parties and the district court under-
stood—and in our opinion, continue to understand—that the
Phase 2A Omnibus Remedial Order is a permanent injunction.
Thus, looking at both its text and “function,” the Order is perma-
nent.
As further evidence of its permanency, the Phase 2A Omni-
bus Remedial Order was not issued under the preliminary injunc-
tion standard insofar as that standard requires a finding of a “likeli-
hood of success on the merits.” Rather, again looking to its func-
tional effect, the Order contained full findings on liability—i.e., ac-
tual success on the merits. Cf. Ga. Advocacy Off., 4 F.4th at 1207 (not-
ing that the district court did not treat the preliminary-injunction
hearing as a trial on the merits and therefore could not have en-
tered a permanent injunction).7
7 To the extent that the DOC argues that the entire case must be finalized for
an injunction to be considered permanent it is mistaken for reasons we will
explain. See also 16 Wright & Miller, Fed. Prac. & Proc. Juris. § 3921 (3d. ed. &
Sept. 2025 update) (“An interlocutory order that grants a permanent injunc-
tion can be appealed [under § 1292(a)(c)].”).
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30 Opinion of the Court 22-10292
The Ninth Circuit has held that a similar injunction under
the PLRA was permanent as opposed to preliminary for purposes
of determining whether it had expired as a matter of law under
§ 3626(a)(2). See Edmo v. Corizon, Inc., 935 F.3d 757, 783–84 (9th Cir.
2019). That case did not even involve a full trial on the merits of
liability; instead, it involved a three-day evidentiary hearing, which
“effectively converted th[o]se proceedings into a final trial on the
merits of the plaintiff’s request for permanent injunctive relief.”
Edmo v. Idaho Dep’t of Corr., 358 F. Supp. 3d 1103, 1122 n.1 (D. Idaho
2018). In this regard, the Ninth Circuit’s decision in Edmo makes
sense and we find it persuasive.
The DOC really does not make much of an argument re-
garding why the Phase 2A Omnibus Remedial Order is preliminary,
other than the brisk language discussed above. And though it takes
issue with the need-narrowness-intrusiveness findings, it does not
contend that the district court failed to make such findings. It in-
stead asserts that those findings are inadequately tailored and tem-
porally insufficient. That other claims remain pending does not
abate the Order’s permanency for § 3626(a)(2) purposes. See 16
Wright & Miller, Fed. Prac. & Proc. Juris. § 3924 (3d. ed. & Sept.
2025 update).
D
In short, we have appellate jurisdiction over the appeal of
the district court’s Phase 2A Omnibus Remedial Order as an injunc-
tive decree under § 1292(a)(1). And we do not lose such jurisdiction
on statutory mootness grounds under § 3626(a)(2) of the PLRA
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22-10292 Opinion of the Court 31
because the Phase 2A Omnibus Remedial Order is a permanent in-
junction not generally subject to expiration after 90 days.
III
Although we conclude that we have appellate jurisdiction
over the Phase 2A Omnibus Remedial Order, we must still deter-
mine the full scope of that jurisdiction. Specifically, the parties dis-
pute whether and to what extent we may exercise pendent appel-
late jurisdiction over certain additional orders, including the district
court’s Understaffing Order, the Suicide-Prevention Order, and the
Monitoring Order.
The DOC asserts that we should exercise our discretionary
pendent jurisdiction over the Monitoring Order and that all other
“interim” orders, including the Understaffing Order and the Sui-
cide-Prevention Order, “merged” into the Phase 2A Omnibus Re-
medial Order. The plaintiffs, on the other hand, maintain that these
orders are not appealable under either the pendent jurisdiction doc-
trine or the “merger” doctrine because review of the orders is un-
necessary to determine the validity of the Phase 2A Omnibus Re-
medial Order and the merger doctrine only applies to final judg-
ments.
We conclude that we may properly exercise pendent appel-
late jurisdiction over the Liability and Monitoring Orders but will
not exercise jurisdiction over the Understaffing and Suicide Preven-
tion Orders. We explain why below.
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32 Opinion of the Court 22-10292
A
Pendent appellate jurisdiction allows us to “address [other-
wise] nonappealable orders if they are inextricably intertwined
with an appealable decision or if review of the former decision [is]
necessary to ensure meaningful review of the later.” Jones v. Fran-
sen, 857 F.3d 843, 850 (11th Cir. 2017) (quoting Hudson v. Hall, 231
F.3d 1289, 1294 (11th Cir. 2000)). “‘Matters may be sufficiently in-
tertwined . . . when they implicate[ ] the same facts and the same
law.’” Id. (quoting Smith v. LePage, 834 F.3d 1285, 1292 (11th Cir.
2016)). “[T]he critical inquiry is whether the appealable issue can
be resolved without reaching the merits of the nonappealable is-
sues.” In re MDL-1824 Tri-State Water Rights Litig., 644 F.3d 1160,
1179 (11th Cir. 2011).
Here, both parties submit that the Liability Orders, which
are otherwise nonappealable, are inextricably intertwined with the
Phase 2A Omnibus Remedial Order (the appealable order). We
agree. We cannot meaningfully review the appropriate scope and
form of the district court’s permanent injunction under the PLRA
without also reviewing the constitutional violations set out in the
Liability Orders, as they are interdependent pieces of the mental-
health care phase of this litigation.
We think the same is true of the Monitoring Order. That
Order, which “establishe[d] an overarching monitoring structure
and scheme” to ensure “compliance with the court’s remedial or-
ders on mental-health care,” is “inextricably intertwined” with the
Phase 2A Omnibus Remedial Order. As the district court’s primary
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22-10292 Opinion of the Court 33
tool to enforce the DOC’s compliance, it is an integral part of the
comprehensive remedial scheme mandated by the permanent in-
junction.
The plaintiffs’ assertion that the 124-page Monitoring Order
is merely a “case management order” is unpersuasive. The Moni-
toring Order bears no resemblance to a run-of-the-mill scheduling
order. Rather, it provides a detailed plan for monitoring the DOC’s
compliance with the remedial orders and building the DOC’s ca-
pacity to self-monitor. The Monitoring Order establishes an exter-
nal monitoring team, which will train and eventually hand over re-
sponsibility to an internal monitoring team within the DOC. It de-
tails the composition of that team, how team members will be se-
lected, and what rules will govern them. Given the Monitoring Or-
der’s role in the district court’s “multifaceted remedial plan,” we
will exercise pendent appellate jurisdiction to review it.
B
The DOC next asserts that the Understaffing Order and the
Suicide-Prevention Order have merged into the Phase 2A Omnibus
Remedial Order and are therefore appealable. As we explain below,
we need not decide whether the DOC is correct.
Generally, when a district court enters a permanent injunc-
tion, any previous preliminary injunction ceases being effective. See
M.H. by and through Lynah v. Commn’r of the Ga. Dep’t of Community
Health, 111 F.4th 1301, 1311 (11th Cir. 2024). As such, “[a] perma-
nent injunction order moots interlocutory review of a correspond-
ing preliminary injunction order[.]” In re Chiquita Brands Int’l, Inc.,
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34 Opinion of the Court 22-10292
965 F.3d 1238, 1245 (11th Cir. 2020) (emphasis added). “When a
permanent injunction order and a preliminary injunction order
raise the same questions, . . . the preliminary order is best viewed
as merging with the final order, as both orders speak to the merits
of whether the requested injunctive relief is appropriate.” Id. See
also Assoc. Builders & Contractors Fla. E. Coast Chapter v. Miami-Dade
County, 594 F.3d 1321, 1323–24 (11th Cir. 2010) (“Once an order of
permanent injunction is entered, any preliminary injunction
merges with it, and appeal may be had only from the order of per-
manent injunction.”).
The DOC submits that the Understaffing and Suicide-Pre-
vention Orders were not “preliminary” injunctions but were in-
stead “non-final” injunctions. We do not know what the DOC
means, for a preliminary injunction is non-final by its very nature.
But we need not address the issue, because the DOC did not sub-
stantively appeal or challenge the Understaffing and Suicide-Pre-
vention Orders in its merits briefing. As a result, we decline to
opine on our jurisdiction over abandoned challenges to the merits
of those Orders. “We have long held that an appellant abandons a
claim when [it] either makes only passing references to it or raises
it in a perfunctory matter without supporting arguments and au-
thority.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th
Cir. 2014). Cf. United States v. Hayes, 762 F.3d 1300, 1310 (11th Cir.
2014) (“Our cases . . . are replete with the rule that we do not have
a duty to raise and decide issues—even constitutional ones—not
mentioned by the parties.”).
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22-10292 Opinion of the Court 35
V
The challenges mounted by the DOC are numerous. The
plaintiffs assert that we need not address those challenges because
the stipulated interim orders—which were issued prior to the Phase
2A Omnibus Remedial Order—should be reinstated to the extent
they differ from the latter. Specifically, they argue that the DOC
waived its right to contest the Liability Orders and the stipulated
remedial orders, and that the district court abused its discretion in
excusing that waiver. 8
Because the plaintiffs’ waiver argument, if successful, would
largely resolve the DOC’s challenges to the respective orders, we
discuss that argument first.
A
The plaintiffs contend that the DOC waived its right to chal-
lenge the district court’s failure to make particularized need-nar-
rowness-intrusiveness findings when entering the Stipulated Or-
ders. This is because, the plaintiffs say, (1) waiver is legally possible
under the text of the PLRA and controlling precedent, and (2) the
8 As noted, the plaintiffs filed a cross-appeal to assert that the district court
abused its discretion in allowing the DOC to challenge the orders on appeal
because the DOC waived its objections below. But the plaintiffs did not need
to cross-appeal to raise the waiver argument because through that argument
they are only defending the orders and do not seek to enlarge their rights. See
Jennings v. Stephens, 574 U.S. 271, 276 (2015) (“An appellee who does not take
a cross-appeal may ‘urge in support of a decree any matter appearing in the
record, although his argument may involve an attack upon the reasoning of
the lower court.’”) (citation omitted).
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36 Opinion of the Court 22-10292
DOC agreed that the district court should enter the stipulations as
enforceable orders. In the alternative, they argue that the DOC
should be judicially estopped from challenging the stipulated or-
ders. In response, the DOC asserts that the plaintiffs have forfeited
their waiver argument by conceding to the district court that PLRA
findings were necessary and unwaivable.
We review a district court’s application of waiver and judi-
cial estoppel for abuse of discretion. See Smith v. R.J. Reynolds To-
bacco Co., 880 F.3d 1272, 1280 (11th Cir. 2018) (waiver); Stephens v.
Tolbert, 471 F.3d 1173, 1177 (11th Cir. 2006) (judicial estoppel). The
abuse of discretion standard is deferential and gives the district
court a “wide range of choice.” BLOM Bank SAL v. Honickman, 605
U.S. 204, 217 (2025). (internal quotation marks and citation omit-
ted). Thus, we will reverse only if the district court applies the
“wrong legal standard” or committed a “clear error of judgment.”
United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en
banc). Though we are sympathetic to the plaintiffs’—and district
court’s—apparent initial understanding that all parties believed the
stipulated orders to be enforceable, we see no abuse of discretion.
The provision of the PLRA which deals with settlements
provides as follows:
In any civil action with respect to prison conditions,
the court shall not enter or approve a consent decree
unless it complies with the limitations on relief set
forth in subsection (a).
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22-10292 Opinion of the Court 37
18 U.S.C. § 3626(c)(1). And § 3626(a) requires the district court to
make “particularized” need-narrowness-intrusiveness findings
when granting prospective relief. The court must ensure that “each
requirement imposed by the preliminary injunction satisfies each
of the need-narrowness-intrusiveness criteria.” United States, 778
F.3d at 1228 (emphasis added). If the court fails to make particular-
ized need-narrowness-intrusiveness findings, “a defendant or inter-
vener shall be entitled to the immediate termination of any prospec-
tive relief[.]” § 3626(b)(2) (emphasis added).
Though parties are free to enter “a private settlement agree-
ment that does not comply with the limitations on relief set forth
in subsection (a),” the district court may not “enforce [ ]” “the
terms of that agreement” in the event of breach. See § 3626(c)(2).
Instead, the court’s only option is to “reinstate[ ]” “the civil pro-
ceeding that the agreement settled.” Id.
The Fourth Circuit has rejected the argument that a state,
by accepting the terms of a consent decree, “waived the right [un-
der the PLRA] to findings of fact and conclusions of law” regarding
the claims of the inmates who had filed suit. See Cagle v. Hotto, 177
F.3d 253, 257 (4th Cir. 1999). That argument, it explained, would
render § 3626(b)(2) a “virtual nullity.” Id.
Given the Fourth Circuit’s decision in Cagle, we do not be-
lieve the district court abused its discretion in rejecting the plain-
tiffs’ waiver argument here. Although a litigant is normally allowed
to waive (or can forfeit) statutory rights, Clement v. U.S. Atty. Gen.,
75 F.4th 1193, 1201 (11th Cir. 2023) (noting that “[s]tatutory rights
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38 Opinion of the Court 22-10292
are presumptively subject to waiver and forfeiture”), the PLRA can
also be seen as a limitation on the remedial authority of a court to
mandate prospective relief, and if seen in this light waiver may not
be on the table. See Brief for the United States as Intervenor in Gates
v. Rowlands, No. 96-16537, 1997 WL 33484937, at *5 (9th Cir. 1997).
The plaintiffs’ reliance on Cason v. Seckinger, 231 F.3d 777
(11th Cir. 2000), Hoffer v. Secretary, Florida Department of Corrections,
973 F.3d 1263, 1278 n.7 (11th Cir. 2020), and Thomas v. Bryant, 614
F.3d 1288, 1323 & n.33 (11th Cir. 2010), is unavailing.
The plaintiffs first point to footnote 8 of Cason, which stated:
Of course, we do not mean to suggest that the district
court must conduct an evidentiary hearing about or
enter particularized findings concerning any facts or
factors about which there is not dispute. The parties
are free to make any concessions or enter into any
stipulations they deem appropriate.
231 F.3d at 785 n.8 (emphasis added). But it is important to note
what Cason said in the text of the opinion before this footnote:
“Only if the court makes written findings on the record that the
relief satisfies the above need-narrowness-intrusive standards can
the prospective relief be continued.” Id. at 785. The Cason footnote
is thus not as broad as the plaintiffs claim; it does not definitively
say that the parties can impliedly waive the need-narrowness-intru-
siveness requirement simply by agreeing to stipulated orders. Ra-
ther, Cason instructs that parties can obviate the need for a hearing
or certain factfinding by intentionally and expressly stipulating to
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22-10292 Opinion of the Court 39
certain facts supporting a need-narrowness-intrusiveness finding.
The district court may not simply assume a remedy fulfills the need-
narrowness-intrusiveness requirement because the parties present
it with a stipulated agreement. What’s more, Cason involved a ter-
mination motion under § 3626(b)(3), and not the initial entry of a
consent order under § 3626(c)(1), which is the critical provision im-
plicated in this case. See 231 F.3d at 781.
The other two cases also fail to support the plaintiffs’ posi-
tion. Hoffer rejected the argument made by the dissent in that case,
based on footnote 8 of Cason, that because the Florida Department
of Corrections had “conceded” that the district court’s injunction
satisfied the PLRA’s need-narrowness-intrusiveness requirement,
the district court was not obligated to make particularized findings.
See Hoffer, 973 F.3d at 1278 n.7. And in Thomas, which did not in-
volve a consent decree, settlement, or stipulated order the district
court did make need-narrowness-intrusiveness findings to support
its injunction. See Thomas, 614 F.3d at 1323 n.33. The issue was not
whether the parties could do away with the need for need-narrow-
ness-intrusiveness findings through a stipulated order. Rather, the
case addressed whether the parties could abandon their objection
to the sufficiency of the district court’s need-narrowness-intrusive-
ness findings. See id.9
9 We do not address whether parties are prohibited from waiving judicial find-
ings required by the PLRA. We conclude only that, given the legal landscape,
the district court did not abuse its discretion in rejecting the plaintiffs’ waiver
argument.
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40 Opinion of the Court 22-10292
B
Nor should the DOC be judicially estopped from challeng-
ing the stipulated orders. The district court did not abuse its discre-
tion in concluding that judicial estoppel should not be applied.
Judicial estoppel is a doctrine intended to prevent “the per-
version of the judicial process.” United States v. Munoz, 112 F.4th
923, 934 (11th Cir. 2024) (quotation omitted). Generally, under the
doctrine a party that “assumes a certain position in a legal proceed-
ing” and “succeeds in maintaining that position” may not thereaf-
ter “assume a contrary position” “simply because his interests have
changed.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quot-
ing Davis v. Wakelee, 156 U.S. 680, 689 (1895)). Three factors inform
the decision to apply judicial estoppel. Id. at 750–751. “First, the
party’s two positions must be clearly inconsistent. Second, the
party must have succeeded in persuading a court to accept its ear-
lier position. Third, the party must derive an unfair advantage or
impose an unfair detriment on the opposing party if not estopped.”
Munoz, 112 F.4th at 935 (internal quotation marks and citations
omitted).
None of these factors are in play here.
First, the DOC’s later position is not clearly inconsistent
with its earlier one. The DOC agreed to the stipulations and asked
the district court to reduce them to enforceable orders. That is not
the same as telling the court it was not required to make need-nar-
rowness-intrusiveness findings under the PLRA in order to enforce
the orders. The PLRA provides that the court “shall not enter or
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22-10292 Opinion of the Court 41
approve a consent decree” without making need-narrowness-intru-
siveness findings. 18 U.S.C. § 3626(c)(1). So the DOC could agree
to the orders and assume that the court would independently make
the required particularized PLRA findings.
Second, we are not convinced that the DOC persuaded the
district court of anything. The DOC asked the court to reduce the
stipulations to enforceable orders. It never, to our knowledge or
understanding, told the court it did not have to make PLRA find-
ings when doing so.
Third, the DOC has not derived an unfair advantage or im-
posed any unfair detriment on the plaintiffs. Without need-narrow-
ness-intrusiveness findings, the DOC is entitled to “immediate ter-
mination” of the ordered relief. See § 3626(b)(2). That the plaintiffs
were required to prepare for an evidentiary hearing to prove that
the relief they requested complied with the PLRA later in the liti-
gation does not constitute an unfair detriment.
In sum, we cannot say that the district court abused its dis-
cretion by declining to judicially estop the DOC from challenging
the stipulated orders below.
VI
On then, finally, to the merits. Courts considering whether
to grant a permanent injunction to plaintiffs who have prevailed on
the merits ask whether they have demonstrated that: “(1) [they]
ha[ve] 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
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42 Opinion of the Court 22-10292
plaintiff[s] and defendant[s], a remedy in equity is warranted; and
(4) the public interest would not be disserved by a permanent in-
junction.” Angel Flight of Ga., Inc. v. Angel Flight Am., Inc., 522 F.3d
1200, 1208 (11th Cir. 2008).
We review the entry of a permanent injunction for an abuse
of discretion. See Thomas, 614 F.3d at 1303. “A district court abuses
its discretion if it applies an incorrect legal standard, follows im-
proper procedures in making the determination, or makes findings
of fact that are clearly erroneous.” Collegiate Licensing Co. v. Am. Cas.
Co. of Reading, Pa., 713 F.3d 71, 77 (11th Cir. 2013). As noted, the
abuse of discretion standard “allows a range of choice for the dis-
trict court, so long as that choice does not constitute a clear error
of judgment.” Frazier, 387 F.3d at 1259 (quotation omitted).
We review the district court’s underlying legal conclusions
that there were Eighth Amendment violations de novo. See Thomas,
614 F.3d at 1303. But “[s]ubsidiary issues of fact,” such as a district
court’s subjective deliberate indifference findings, are reviewed
only for clear error. See id. Under the clearly erroneous standard,
“[i]f the district court’s view of the evidence is plausible in light of
the entire record, an appellate court may not reverse even if it is
convinced that it would have weighed the evidence differently in
the first instance.” Brnovich v. Democratic Nat’l Comm., 594 U.S. 647,
687 (2021). In other words, “[a] finding that is ‘plausible’ in light of
the full record—even if another is equally or more so—must gov-
ern.” Cooper v. Harris, 581 U.S. 285, 293 (2017).
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22-10292 Opinion of the Court 43
A
We turn first to the Liability Orders. The DOC challenges
the district court’s finding of Eighth Amendment deliberate indif-
ference on two grounds. First, it contends that the court could not
properly enter relief in 2021 based on its finding of Eighth Amend-
ment violations in 2017 without making renewed liability findings.
Second, it argues that the court erred in finding deliberate indiffer-
ence in the Liability Orders because the evidence did not support a
finding of “subjective deliberate indifference—i.e., reckless behav-
ior,” or of conscience-shocking care. We reject both arguments.
1
The DOC insists that the district court was required by both
Supreme Court precedent and the PLRA to find that the constitu-
tional violation it had found in 2017 was “current and ongoing” in
2021 before ordering relief. According to the DOC, the court “erred
by entering relief in 2021 based on its finding of constitutional vio-
lations in 2017” during the liability phase of the trial and should
have made a new deliberate indifference finding in 2021 at the out-
set of the remedial phase of the trial. That is not so.
First, the text of the PLRA contains no such requirement. If
a district court has already made a deliberate-indifference finding
during the first phase of a bifurcated trial, nothing in § 3626(a) re-
quires it to make another liability finding during the remedial phase,
which may take place later. As we’ve explained earlier, § 3626(a)
applies to the entry of “[p]rospective relief in any civil action with
respect to prison conditions” and requires only that “such relief [be]
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44 Opinion of the Court 22-10292
narrowly drawn, extend[ ] no further than necessary to correct the
violation of the Federal right, and [be] the least intrusive means
necessary to correct the violation of the Federal right[.]”
§ 3626(a)(1)(A).
The DOC pulls the “current and ongoing” language from
§ 3626(b) of the PLRA—which governs only the termination of al-
ready-ordered relief. In relevant part, § 3626(b)(3) states:
Prospective relief shall not terminate if the court
makes written findings based on the record that pro-
spective relief remains necessary to correct a current
and ongoing violation of the Federal right, extends no
further than necessary to correct the violation of the
Federal right, and that the prospective relief is nar-
rowly drawn and the least intrusive means to correct
the violation.
(emphasis added).
Both § 3626(a) and § 3626(b) require need-narrowness-intru-
siveness findings, but only the latter requires the violation at issue
to be “current and ongoing.” And “[w]here Congress includes par-
ticular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclu-
sion.” Freemanville Water Sys., Inc. v. Poarch Band of Creek Indians, 563
F.3d 1205, 1209 (11th Cir. 2009). Simply put, “when Congress uses
different language in similar sections, it intends different mean-
ings.” United States vs. Pate, 84 F.4th 1196, 1203 (11th Cir. 2023)
(quoting Freemanville, 563 F.3d at 1209)).
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22-10292 Opinion of the Court 45
What’s more, the PLRA expressly contemplates that trials
may be bifurcated. See § 3626(f ) (discussing appointment of a spe-
cial master “during the remedial phase of the action”). Given this
possibility, if Congress wanted § 3626(a) to be applied differently in
bifurcated trials we would expect that it would have said so. See An-
imal Legal Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1217 (11th
Cir. 2015) (“Where Congress knows how to say something but
chooses not to, its silence is controlling.”). We “presume that Con-
gress said what it meant and meant what it said.” Harry v. Marchant,
291 F.3d 767, 770 (11th Cir. 2002) (en banc). And Congress simply
did not require a district court to find that a constitutional violation
for relief under § 3626(a) be “current and ongoing” at the time of
the remedies phase before ordering appropriate relief.
Second, the DOC’s argument conflicts with binding prece-
dent. In Thomas, a 2010 decision, we rejected the argument that the
“current and ongoing” requirement in § 3626(b)(3) applied to the
entry of prospective relief under § 3626(a). In that case, the defend-
ants argued that the district court was required to find a “current
and ongoing” violation before entering injunctive relief. See
Thomas, 614 F.3d at 1319–1320. We were not persuaded, holding
that “the ‘current and ongoing’ requirement is distinct from the
standard governing the initial entry of injunctive relief.” Id. at 1320.
There was “no indication in the PLRA, its legislative history, or the
case law to suggest that the ‘current and ongoing’ requirement was
intended by Congress to amend the well-established law that in-
junctive relief is available in the first instance ‘to prevent a substan-
tial risk of serious injury from ripening into actual harm,’ i.e., to
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46 Opinion of the Court 22-10292
prevent future harm.” Id. (quoting Farmer, 511 U.S. at 845). We
thus concluded that only the “PLRA’s need-narrowness-intrusive-
ness limitation” governs the entry of prospective relief in prison lit-
igation cases. See id. “Whether there is a ‘current and ongoing’ con-
stitutional violation” is a matter to be considered only “in a termi-
nation proceeding, at least two years after the district court’s initial
award of relief.” Id.
To be sure, a district court should account for changes in
circumstances before imposing a remedy under the PLRA. And
changed circumstances will necessarily impact the court’s need-
narrowness-intrusiveness findings. See 18 U.S.C. § 3626(a)(1)(A). If
the defendants have made significant improvements after the lia-
bility trial, the court’s remedy must be narrowed accordingly. But,
as explained above, nothing in the text of the PLRA requires the
court to make new findings of liability at the remedial phase.
Here the district court dedicated more than 180 pages of its
Remedial Opinion to considering the impact of changed circum-
stances in the DOC’s prisons. See D.E. 3462 at 3–186. Though the
DOC had made some “improvements,” the court found that it con-
tinued to fall short of the constitutional minimum in many other
areas. See id. at 3. The court acknowledged that “[s]uch improve-
ments do not necessarily categorically preclude the need for reme-
dies in those areas, but they do alter the appropriate scope of re-
lief.” Id. See also LaMarca v. Turner, 995 F.2d 1526, 1541 (11th Cir.
1993) (“Subsequent events, such as improvements in the allegedly
infirm conditions of confinement, while potentially relevant, are
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22-10292 Opinion of the Court 47
not determinative. When a defendant corrects the alleged infirmity
after suit has been filed, a court may nevertheless grant injunctive
relief unless the defendant shows that absent an injunction, the in-
stitution would not return to its former, unconstitutionally defi-
cient state.”). That was all the district court was required to do by
the PLRA.
The DOC made no showing of materially changed circum-
stances. Rather, it demonstrated “a long history of failing to comply
with the remedial orders in this case.” D.E. 3462 at 166. In one par-
ticularly egregious misrepresentation, the then-Associate Commis-
sioner of Health Services claimed during her 2016 testimony that
the DOC was rolling out “a new mental-health coding system pro-
hibiting placement of seriously mentally ill prisoners in segrega-
tion.” Id. at 167. But this turned out to be untrue, as two of her
colleagues testified that the DOC “moved ten mentally ill prisoners
out of segregation . . . only after her testimony, and that there was
no official policy change.” Id. Given this lack of candor, the district
court understandably felt it was “unable to rely on [DOC’s] will-
ingness and ability to self-correct.” Id. at 170.
The district court did not err by entering relief in 2021 dur-
ing the remedial phase of the trial in this case based on its findings
of deliberate indifference in 2017 during the liability phase of the
trial. We thus proceed to review of the Liability Order.
2
The Eighth Amendment prohibits the infliction of “cruel
and unusual punishments.” U.S. Const. amend. VIII. And because
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48 Opinion of the Court 22-10292
such punishments would “result in pain and suffering which no one
suggests would serve any penological purpose,” the Supreme
Court has held that a prison official’s deliberate indifference to a
prisoner’s serious medical needs violates the Eighth Amendment.
See Estelle v. Gamble, 429 U.S. 97, 103–04 (1976). Federal and state
governments thus “have a constitutional obligation to provide
minimally adequate medical care to those whom they are punish-
ing by incarceration.” Harris v. Thigpen, 941 F.2d 1495, 1504 (11th
Cir. 1991).
Our precedents make clear that this obligation extends to in-
mates’ psychiatric and mental health care. See id. at 1505. See also
Rogers, 792 F.2d at 1058 (“Failure to provide basic psychiatric and
mental health care states a claim of deliberate indifference to the
serious medical needs of prisoners.”); Steele v. Shah, 87 F.3d 1266,
1269 (11th Cir. 1996) (“[I]t is established that psychiatric needs can
constitute serious medical needs and that the quality of psychiatric
care one receives can be so substantial a deviation from accepted
standards as to evidence deliberate indifference to those serious
psychiatric needs.”). No one disputes this general proposition.
We have, however, emphasized that “the Eighth Amend-
ment doesn’t require [prisoners’ mental health care] to be ‘perfect,
the best obtainable, or even very good.’” Hoffer, 973 F.3d at 1271.
(quoting Harris, 941 F.2d at 1510). Rather, only treatment that is
“so grossly incompetent, inadequate, or excessive as to shock the
conscience or to be intolerable to fundamental fairness” violates
the Eighth Amendment. Keohane v. Fla. Dept. of Corr. Sec’y, 952 F.3d
1257, 1277–78 (11th Cir. 2020) (citation omitted).
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22-10292 Opinion of the Court 49
A prison official violates the Eighth Amendment when he is
“deliberately indifferent to a substantial risk of serious harm to an
inmate who suffers injury.” Swain v. Junior, 961 F.3d 1276, 1285
(11th Cir. 2020) (citation and internal quotation marks omitted).
The standard for establishing liability on an Eighth Amendment de-
liberate-indifference claim is as follows:
1. First, of course, the plaintiff must demonstrate, as
a threshold matter, that he suffered a deprivation that
was, “objectively, ‘sufficiently serious.’”
2. Second, the plaintiff must demonstrate that the de-
fendant acted with “subjective recklessness as used in
the criminal law,” and to do so he must show that the
defendant was actually, subjectively aware that his
own conduct caused a substantial risk of serious harm
to the plaintiff—with the caveat, again, that even if
the defendant “actually knew of a substantial risk to
inmate health or safety,” he “cannot be found liable
under the Cruel and Unusual Punishments Clause” if
he “responded reasonably to the risk.”
Wade,106 F.4th at 1261–62 (citations omitted). 10
This case of course involves Eighth Amendment claims at
an institutional and system-wide level. In “institutional level chal-
lenges to prison health care,” we have explained that “systemic
10 Whether an official failed with the requisite knowledge to respond in a rea-
sonable manner is analyzed under an objective standard. See, e.g., Mosley, 966
F.3d at 1270; Swain, 958 F.3d at 1088.
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50 Opinion of the Court 22-10292
deficiencies can provide the basis for a finding of deliberate indif-
ference” when those deficiencies “in staffing, facilities, equipment,
or procedures” are so extreme “that the inmate population is effec-
tively denied access to adequate medical care.” Harris, 941 F.2d at
1505.
The district court found seven contributing factors that gave
rise to its finding of liability under the Eighth Amendment: First,
the DOC fails to identify prisoners with serious mental-health
needs in the first place. Second, the DOC does not provide individ-
ualized treatment plans to prisoners with serious mental-health
needs. Third, the DOC does not provide frequent and confidential
psychotherapy by mental-health staff who are adequately trained
and supervised. Fourth, the DOC fails to provide hospital-level care
and sufficient out-of-cell time to those who need it. Fifth, the DOC
fails to adequately identify suicide risks, and fails to adequately
monitor and treat those who are suicidal or engaging in self-harm.
Sixth, the DOC imposes disciplinary sanctions on mentally ill pris-
oners for symptoms of their mental illness and imposes disciplinary
sanctions without regarding to how they might impact prisoner’s
mental health. Seventh, the DOC placed mentally ill prisoners in
segregation without adequate monitoring or adequate considera-
tion regarding how segregation might impact their mental health.
All of these problems are exacerbated by prison overcrowding
combined with pervasive shortages of mental-health staff and cor-
rectional staff. And in the 2019 Supplemental Liability Opinion, the
court found that the DOC fails to “conduct[] adequate periodic
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22-10292 Opinion of the Court 51
mental-health evaluations of prisoners in segregation,” which
“contribute[s] to the [DOC’s] violation of the Eighth Amendment.”
Critically, the DOC does not contend that any of these fac-
tual findings by the district court were clearly erroneous.
3
The DOC claims that the district court erred by ruling that
it acted with deliberate indifference by focusing solely on the risk
of harm to inmates, without addressing the standard’s subjective
component. Specifically, with respect to overcrowding and under-
staffing, the court supposedly “bypassed evidence of the Commis-
sioners’ efforts to increase correctional staffing” and “neglected” to
explain what they could have done to remedy the problem. Re-
viewing for clear error, see Thomas, 614 F.3d at 1312, we disagree.
The district court explained that “the current levels of men-
tal-health and correctional understaffing and overcrowding . . . il-
lustrates [the DOC’s] disregard of risk of harm.” The court rea-
soned that the DOC’s response to overcrowding and understaffing
had been “objectively insufficient” because “systemic and gross de-
ficiencies” had persisted “for years and years.”
It is true that officials “may be found free from [Eighth
Amendment] liability if they responded reasonably to the risk, even
if the harm ultimately was not averted.” Swain, 961 F.3d at 1287.
But we have also recognized that “in institutional level challenges
to prison health care . . . systemic deficiencies can provide the basis
for a finding of deliberate indifference.” Harris, 941 F.2d at 1505.
“Deliberate indifference to inmates’ health needs may be shown,
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52 Opinion of the Court 22-10292
for example, by proving that there are ‘such systemic and gross de-
ficiencies, or procedures that the inmate population is effectively
denied access to adequate medical care’” Id. (citation omitted). And
that is what the court found here—known systemic deficiencies
that had persisted for years that prevented the DOC from meeting
the constitutional floor for minimally adequate mental health care.
The court found that the deficiency exists, and that the DOC,
through its unreasonable response, has effectively denied the in-
mate population access to constitutionally adequate medical care.
See id. 11
The DOC also insists that the district court improperly
traced the Eighth Amendment violation caused by overcrowding
in its prison facilities to the DOC’s “historical indifference” instead
of the “personal indifference” of Commissioners Naglich and
Dunn. This argument ignores that this is an official-capacity § 1983
suit, under Ex Parte Young, 209 U.S. 123 (1908), meaning it is “in all
11 Other circuits agree that deliberate indifference can be shown on an “insti-
tutional level, when the prison’s system of medical care is so seriously inade-
quate as to cause unwarranted suffering[.]” Cruz v. Ward, 558 F.2d 658, 662 (2d
Cir. 1977). Accord Ruiz v. Estelle, 679 F.2d 1115, 1126 (5th Cir. 1982) (“We affirm
the district court’s finding that [the Texas Department of Corrections] imposes
cruel and unusual punishment on inmates in its custody as a result of the to-
tality of conditions in its prison.”), modified in part, 688 F.2d 266 (5th Cir. 1982);
Dunaley v. Carnahan, 132 F.3d 1234, 1245 (8th Cir. 1997) (“A number of indi-
viduals and isolated incidences of medical malpractice or negligence do not
amount to deliberate indifference without some specific threat of harm from
a related system wide deficiency[.]”); Disability Rights Montana, Inc. v. Batista,
930 F.3d 1090, 1097 (9th Cir. 2019) (acknowledging that a deliberate indiffer-
ence claim can be brought based on “systemwide deficiencies”).
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22-10292 Opinion of the Court 53
respects other than name, to be treated as a suit against the entity.”
Kentucky v. Graham, 473 U.S. 159, 166 (1985). And our precedent
quickly disposes of the DOC’s contention. In LaMarca, we held that
even where a new superintendent “appear[ed] to be a dedicated
public servant who is trying very hard to make [the defendant
prison system] an efficient and effective correctional institution,”
what mattered in an official-capacity suit was the institution’s “his-
torical indifference.” 995 F.2d at 1542. Without a showing that the
institution’s “past wrongs would not be repeated,” a finding of lia-
bility against the entity was warranted—despite the new superin-
tendent’s efforts. See id.
Finally, the DOC briefly argues (in no more than two para-
graphs) that the district court applied the wrong standard when as-
sessing the mental healthcare inmates received: The DOC says that
the care it provided may not have been good, but it was not con-
science-shocking. And it points out, several inmates received ade-
quate care. But it’s the DOC that has the standard wrong.
The district court made a finding of “systemic deficiencies”
that were “interrelated: failures at each step of the process of iden-
tifying and treating inmates snowballed to produce a mental-health
care system that was ‘horrendously inadequate’ when taken as a
whole.” D.E. 3462 at 5. The question is not, as the DOC asserts,
whether each individual contributing factor that the court found
was, in and of itself, conscience-shocking. Rather, we must ask
whether—when all seven factors (plus overcrowding and under-
staffing) are taken together—the deficiency is so extreme that “the
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54 Opinion of the Court 22-10292
inmate population is effectively denied access to adequate medical
care.” Harris, 941 F.2d at 1505. Based on the court’s extensive fac-
tual findings, which are not clearly erroneous, that is exactly what
happened in Alabama’s prison system. 12
Moreover, the district court detailed several practices that
are grossly inadequate all on their own. For instance, the DOC reg-
ularly fails to properly monitor suicidal inmates. Acutely suicidal
inmates are often sent to segregation (and sometimes crisis cells
specifically intended for suicidal inmates) and held—largely un-
monitored—in cells with tie off points. The court found that many
of these cells contain “grates, sprinkler heads,” and “ropes” that are
used as clothes lines—all of which “can be easily used to commit
suicide.” D.E. 1285 at 222.
When taken together, all contributing factors detail a prison
system that failed as a whole to care for its inmates. The failures
started “at the door.” D.E. 1285 at 71. The DOC’s prisons suffer
from severe and chronic overcrowding—in 2016 they had an occu-
pancy rate of over 175%. The prisons have also dealt with severe
understaffing of mental health providers since at least 2013. See id.
12 Admittedly the Liability Opinion could have been clearer that it was making
a systemic finding and applying that legal standard, but we think the district
court said enough throughout its various opinions and orders to make this
clear. After all, we can “infer[] from [the] district court’s explicit factual find-
ings and conclusion implied factual findings that are consistent with its judge-
ment although unstated.” United States v. $242,484.00, 389 F. 3d 1149, 1154
(11th Cir. 2004) (en banc).
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at 49. Despite these longstanding problems, multiple budget cuts
and the DOC’s refusal to increase the authorized number of men-
tal-health positions meant the caseload per provider continued to
increase. Due to shortages of qualified staff the DOC regularly re-
lied on “unsupervised, unlicensed counselors” known as “mental
health professionals” to treat inmates. See id. at 105. Its failure to
identify inmates with serious mental-health needs led to the DOC
having one of the lowest purported percentages in the country of
mentally ill prisoners, while simultaneously having a high number
of suicides. See D.E. 3462 at 6. And a combination of inadequate
treatment planning, psychotherapy, inpatient care, and crisis care
rendered treatment in the prisons wholly inadequate.
When the system is viewed as a whole, we detect no error—
factual or legal—in the district court’s finding of deliberate indiffer-
ence.
B
Having determined that the district court properly found the
DOC was deliberately indifferent during the liability phase of the
trial, we turn to review of the relief ordered during the remedial
phase. In its three-part Phase 2A Omnibus Remedial Opinion, the
court dedicated 375 pages to making PLRA findings and ordering
appropriate relief. The DOC raises two issues with the Remedial
Opinion. First, it says, the Remedial Opinion violated the PLRA by
applying an incorrect legal standard and ordering greater relief than
necessary. Second, it asserts that the district court improperly
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56 Opinion of the Court 22-10292
ordered a system-wide remedy. With respect to each argument we
agree in part and disagree in part with the DOC.
1
The DOC begins by challenging the district court’s Reme-
dial Opinion on the ground that it failed to satisfy the PLRA’s need-
narrowness-intrusiveness requirement. It advances two points.
The first is that the district court “relied on an incorrect legal stand-
ard” because it found relief necessary for “some reason other than
to correct a constitutional violation.” The second is that the district
court awarded greater relief than necessary to correct the DOC’s
Eighth Amendment violation. We reject the DOC’s first argument.
But because its second argument is correct as to some of the relief
that the court awarded, partial reversal is warranted.
The first argument lacks merit, and reveals—once again—
that the DOC misunderstands how the PLRA functions with re-
spect to the Eighth Amendment violation. When a district court
analyzes the matter of remedy under § 3626(a)(1), it must make
“particularized findings” that “each requirement imposed” by the
remedial order satisfies each element of the need-narrowness-in-
trusiveness standard. See United States, 778 F.3d at 1227–28 (quoting
Cason, 231 F.3d at 785). “It is not enough to simply state in conclu-
sory fashion that the requirements” of the remedial order “satisfy
those criteria.” Id. (quoting Cason, 231 F.3d at 785). “Even
where . . . a district court issues a lengthy order that carefully con-
siders each requested form of relief on the merits, it cannot just
append a rote, catch-all assertion that” its remedy “satisfies” the
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need-narrowness-intrusiveness requirement. See Hoffer, 973 F.3d at
1278–79.
Part III of the Omnibus Remedial Opinion devoted 375
pages to discussing the relief that the district court awarded and
analyzing whether each kind of relief satisfied the need-narrow-
ness-intrusiveness requirement of the PLRA. The court’s analysis
was particularized and was not conclusory. For example, in ana-
lyzing whether its correctional-staffing remedy satisfied the PLRA,
the court spent 14 pages discussing each prong of the need-narrow-
ness-intrusiveness requirement.
Attempting to parry, the DOC insists that much of this care-
ful work was wrong because the district court did not tie its reme-
dies to the constitutional violation it found. But that misunder-
stands the Eighth Amendment violation at issue. As we’ve already
explained, the district court found the DOC liable for systemic defi-
ciencies that meant inmates at its facilities were essentially denied
access to mental healthcare. There were seven deficient factors that
contributed to the violation—in addition to overcrowding and un-
derstaffing—and the court found that each aspect of relief that the
DOC takes issue with was necessary to correct an issue that con-
tributed to one of those seven factors. That is all the court was re-
quired to do.
The DOC’s second argument—that the district court
awarded greater relief than necessary to correct the Eighth Amend-
ment violation—in part has more heft. Again, the PLRA requires
the district court’s remedy to be “narrowly drawn,” extend “no
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58 Opinion of the Court 22-10292
further than necessary to correct the violation of the Federal right,”
and be “the least intrusive means necessary to correct the violation
of the Federal right.” 18 U.S.C. § 3626(a)(1)(A). But a narrow and
proper remedy for a constitutional violation is not “invalid simply
because it will have collateral effects.” Brown, 563 U.S. at 531. The
“particular plaintiff or plaintiffs” language in § 3626(a)(1)(A)
“means only that the scope of the order must be determined with
reference to the constitutional violations established by the specific
plaintiffs before the court.” Id. Because of the PLRA’s limits on the
scope of relief, the court’s remedy must do nothing other than cor-
rect the Eighth Amendment violation at issue. In other words, the
remedy must seek to raise the DOC’s mental healthcare to a level
where it is not “grossly inadequate.” McElligott v. Foley, 182 F.3d
1248, 1255 (11th Cir. 1999); Harris, 941 F.2d at 1505 (quoting Rogers,
792 F.2d at 1058).
The DOC challenges a number of provisions in the Reme-
dial Order where, it says, the district court’s remedy extended fur-
ther than the PLRA allows. As to two of these provisions, we agree.
As to the rest, we do not.
The district court’s mandate that the DOC suicide-proof all
stabilization units, restricted housing units, and suicide-watch cells
according to the Hayes Checklist—which “provides for the elimi-
nation of tie off points and other structural elements that facilitate
suicide attempts, as well as the maintenance of adequate visibility
into the cell to allow monitoring”—goes too far. See D.E. 3463 at
97. Dr. Jeffry Metzner—one of the DOC’s experts—characterized
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the Hayes Checklist as a set of “best practices” for suicide-proofing
a cell. But the Eighth Amendment does not guarantee “best” prac-
tices—it merely prohibits “grossly incompetent” practices that re-
sult in denial of treatment. See Hoffer, 973 F.3d at 1271. The court
required all stabilization units and restricted housing units to com-
ply with the Hayes Checklist, even if they were not used to house
potentially suicidal inmates. Yet, as all three of the plaintiffs’ experts
conceded, there is no other system in the country where every re-
stricted housing unit is suicide-proofed. The court’s requirement
that all of these cells comply with the Hayes Checklist thus does far
more than raise the DOC’s suicide-prevention practices above the
constitutional floor.
A second remedial provision related to staffing also exceeds
the requirements of the PLRA. The district court ordered that “[b]y
July 1, 2025,” the DOC “must fill all mandatory and essential posts
at the level indicated in the most recent staffing analysis at that
time.” D.E. 3464 at 3. That requirement is in a section discussing
“correctional staffing” for the entire prison system and it is not lim-
ited to mental-health units. In the court’s own words, “essential”
posts are those “that are needed for normal operations but may be
temporarily interrupted.” D.E. 3462 at 65. According to the court,
“normal operations” includes “recreation activities” and “voca-
tional and educational systems.” Id. Because of this broad under-
standing of “essential posts,” the remedy requires the DOC to fill
posts that don’t appear to be necessary for, and indeed seem to
have little to do with, the provision of mental healthcare. Under
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60 Opinion of the Court 22-10292
the PLRA, that remedy therefore goes beyond correcting constitu-
tionally deficient mental healthcare. See Hoffer, 973 F.3d at 1271.
That said, the other provisions the DOC objects to do not
violate the PLRA.
The district court ordered the DOC not to place “[i]nmates
with serious mental illness in” restrictive housing absent “a docu-
mented exceptional circumstance.” Inmates placed in an RHU “for
safety and security issues for 72 hours or longer” must be offered
at least three hours of out-of-cell time per day. Inmates placed in
an RHU “for non-safety or non-security issues must be removed
from the RHU within 72 hours.”
The Remedial Opinion failed, the DOC says, to cite evi-
dence tying the 72-hour limit to the Eighth Amendment violation.
We see several problems with the DOC’s argument. First of all, the
DOC requested this relief—the district court simply adopted the
DOC’s own proposal here. Second, the court did cite evidence sub-
stantiating the remedy: Dr. Jeffrey Metzner—the DOC’s own ex-
pert—“testified that the rationale for these limitations was that he
believes 72 hours is the amount of time that a person with serious
mental illness can remain in segregation conditions without suffer-
ing serious psychological harm.” [This relief, therefore, was neces-
sary given the DOC’s “continued practice of transferring inmates
from suicide watch to segregation and placing inmates in segrega-
tion when they are clinically contraindicated for such placement.”
And it was narrowly tailored because it went no further than the
DOC requested—allowing segregation placements “for the
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22-10292 Opinion of the Court 61
maximum amount of time that the defendants’ expert testified that
he believed” to be safe. Finally, because it allowed the DOC to con-
tinue placing inmates in segregation “for reasons of accountabil-
ity,” it was the least intrusive means of correcting the violation.
The court did not abuse its discretion or otherwise err.
Next, the DOC takes issue with the provisions requiring the
cleaning of RHU cells. The district court ordered that all RHU cells
be cleaned within three months of the effective date of the Reme-
dial Order, and that these cells always be cleaned before they re-
ceive new occupants. The DOC says this is an example of “mi-
cromanag[ment].” But the DOC concedes that this remedy is not
“a tremendously burdensome requirement.”
The district court found this relief necessary considering its
finding that
[c]ells in the restrictive housing units were often filled
with the smell of burning paper and urine, and ex-
tremely dirty with what appears to be dried excre-
ment on the walls and floors, contributing to a height-
ened risk of decompensation for mentally ill prison-
ers and a heightened risk of developing serious men-
tal health needs for those who were initially healthy.
D.E. 3463 at 94 (citation and internal quotation marks omitted).
Though the DOC tried to suggest improvements were made to the
cleanliness of the RHU cells between the liability and remedial
phases of trial, the court made a credibility determination, to which
we owe deference, that this was not so. See id. at 94–95.
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62 Opinion of the Court 22-10292
Accordingly, we don’t think this remedy went beyond the consti-
tutional floor or transgressed the PLRA.
Finally, the DOC complains that the Remedial Order grants
relief to non-class members, specifically referencing the remedial
provision requiring that “[a]n inmate placed in a RHU for safety or
security issues for 72 hours or longer will be offered at least three
hours of out-of-cell time per day (which may be congregate out-of-
cell time) while he or she remains in the RHU.” The DOC argues
that this requirement applies to all prisoners, not just prisoners
with serious mental illnesses. But the DOC simultaneously con-
cedes that the court later clarified several times that this provision
applies only to prisoners with a serious mental illness. Given the
court’s repeated clarifications, the DOC’s objection lacks merit.
In sum, two of the challenged remedies went beyond the
scope of relief permitted by the PLRA. As to these two remedies,
we reverse. Because the other challenged remedies complied with
the PLRA, we affirm as to them.
2
The DOC argues that because the Liability Opinion high-
lighted “only isolated issues at certain prisons,” the systemwide re-
lief ordered in the Remedial Order violates the PLRA. According
to the DOC, the district court “lack[ed] evidence to support sys-
temwide relief” and should have made “prison-specific PLRA
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22-10292 Opinion of the Court 63
findings.” We reject this argument as well, with the exception of
the DOC’s objections regarding Tutwiler. 13
The Supreme Court’s 2011 decision in Brown essentially
forecloses the DOC’s claim that, in a case like this one, the district
court was required to make prison-specific findings. In Brown, the
Supreme Court affirmed a three-judge district court’s order requir-
ing the release of 46,000 prisoners—across the entire California
prison system—in two years. See 563 U.S. at 500–02. The court’s
order applied to two separate class actions: Coleman v. Brown and
Plata v. Brown. See id.at 500. The Coleman class action dealt with
mental healthcare, while the Plata class action dealt with medical
care. See id.
At the time of the district court’s order in Brown, California’s
prisons were operating at nearly 200% of their capacity, leading to
several Eighth Amendment violations, including inadequate
13 We reject yet another waiver argument from the plaintiffs. The plaintiffs say
that the DOC waived its systemwide-relief argument by raising it “too late” in
litigation to be fairly heard by the district court. The plaintiffs’ only record
citation for this proposition is a footnote in the court’s Understaffing Opinion.
But the Understaffing Opinion was issued in February of 2018; nearly four
years before the court issued its Omnibus Remedial Order in December of
2021. As the plaintiffs are aware, the DOC’s challenge is to the systemwide
relief awarded in the 2021 Omnibus Remedial Order, not the 2018 Understaff-
ing Opinion. The court noted that the DOC had raised this argument in its
pretrial brief and proposed relief. Thus, even assuming that the DOC waived
a challenge to the systemwide-relief ordered in the 2018 Understaffing Order,
it did not waive its systemwide-relief argument with respect to the 2021 Om-
nibus Remedial Order.
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64 Opinion of the Court 22-10292
medical and mental healthcare. See id. at 501. The Supreme Court
rejected California’s argument that the remedial order was over-
broad because under the PLRA it did not account for varying prob-
lems in different California prisons:
The order also is not overbroad because it encom-
passes the entire prison system, rather than separately
assessing the need for a population limit at every in-
stitution. The Coleman court found a systemwide vio-
lation when it first afforded relief, and in Plata the
State stipulated to systemwide relief when it con-
ceded the existence of a violation. Both the Coleman
Special Master and the Plata Receiver have filed nu-
merous reports detailing systemwide deficiencies in
medical and mental health care. California’s medical
care program is run at a systemwide level, and re-
sources are shared among the correctional facilities.
Id. at 532.
The Supreme Court in Brown held that the district court
could order systemwide relief because it made findings about sys-
temwide deficiencies. See id. Under Brown, and given the district
court’s extensive factual findings, systemwide relief was an appro-
priate exercise of discretion and consistent with the PLRA.14
14 We note that though the plaintiffs rely on Brown in their briefs the DOC
never cites—much less discusses—this seminal case in either of its briefs. That
failure speaks volumes.
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22-10292 Opinion of the Court 65
After a seven-week liability trial, the district court made find-
ings about systemwide failures in the DOC’s facilities, noting that
“the evidence from both sides (including testimony from Commis-
sioner Dunn and Associate Commissioner Naglich as well as that
of all experts) extensively and materially supported the plaintiffs’
claim.” The court based its review on hundreds of hours of witness
testimony and “thousands of pages of documentary evidence.” It
cited evidence from five expert witnesses who visited many of the
DOC’s 15 prisons. Two visited six prisons, two visited seven pris-
ons, and one visited nine prisons. These experts also reviewed doc-
uments from across the prison system, including audits, regula-
tions, policies and procedures, medical records, deposition tran-
scripts, and statistical reports. And they personally interviewed
hundreds of prisoners. Further, during the liability phase of trial,
the court heard testimony from prison staff, the Commissioner of
the DOC, the Associate Commissioner of Health Services, and sev-
eral prisoners—both named plaintiffs and class members. Given
the sheer breadth of evidence that the court reviewed, we detect
no clear error in its factual findings or legal error in its conclusions
about the DOC’s systemwide deficiencies.
We are thus not persuaded by the DOC’s contention that
the district court lacked sufficient evidence to order systemwide re-
lief. The Liability Order identified a systemic Eighth Amendment
violation. In Part II of the Omnibus Remedial Opinion, the court
spent 186 pages analyzing mental healthcare “in the [DOC] sys-
tem” and making findings regarding “systemic” deficiencies in the
[DOC’s] facilities. It made these findings after remedial hearings
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66 Opinion of the Court 22-10292
that lasted from May 24, 2021, to July 9, 2021. Considering this ex-
tensive evidence, we reject the DOC’s unsubstantiated claim that
the problems the court identified were “isolated” to “certain pris-
ons.” The “scope of injunctive relief is dictated by the extent of the
violation established, not by the geographical extent of the plaintiff
class.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). The court
could properly impose a systemwide remedy based on its findings
of systemwide liability. See Brown, 563 U.S. at 532.
The DOC points out that the plaintiffs stipulated in 2021 that
Hamilton (one of the DOC’s prisons) “is adequately staffed with
correctional staff and supervisors.” And the district court also rec-
ognized that Easterling, Fountain, Holman, Kilby, and Limestone
“have enough mental-health staff.” But the district court imposed
systemwide staffing requirements anyway.
For two reasons, however, the DOC’s argument about these
institutions is generally unavailing.
First, the district court did not abuse its discretion in con-
cluding that a system-wide remedy was necessary to fix the system-
wide problem (i.e., the Eighth Amendment violation) as a whole,
and there is no claim that inmates with mental-health problems are
only housed in certain institutions. The court found that because
the DOC’s prisons “form part of an interlocking system,” “focusing
relief on only a few facilities could fatally hinder its ability to rem-
edy the constitutional violation found.” As the plaintiffs aptly note,
“[i]f the Remedial Order were limited to some subset of DOC facil-
ities, DOC could ‘remedy’ deficiencies at covered facilities by
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22-10292 Opinion of the Court 67
overcrowding and diverting resources from other facilities without
regard for the consequences that would inevitably follow.” Under
Brown, that possibility is sufficient to satisfy the need-narrowness-
intrusiveness requirement. See Brown, 563 U.S. at 532 (upholding
system-wide relief under the PLRA because “California’s medical
care program is run at a system-wide level, and resources are
shared among the correctional facilities”).
Second, although the district court found that the staffing
levels at Easterling, Fountain, Holman, Kilby, and Limestone were
sufficient in 2021, that was largely due to reduced intake from local
jails during the COVID-19 pandemic. The court noted that “[b]oth
parties agree[d] that, when the pandemic abates, [the DOC] will
likely see a substantial and rapid increase in its inmate population.”
And “[w]hen intake resumes, [the DOC] will almost certainly re-
quire more staff in each of its facilities to provide a constitutionally
permissible standard of care.” This is because, as the court correctly
explained, “necessary staffing levels are always relative to prison
population.”
The one exception to this analysis is the district court’s ap-
plication of the Remedial Order to Tutwiler, the DOC’s only facil-
ity for women. The court partially excepted Tutwiler from its find-
ings of system-wide deficiencies. The court found that “inadequate
identification and classification of mental-health needs, inadequate
screening for suicide risk, and inadequate psychotherapy create a
substantial risk of serious harm to mentally ill prisoners at Tut-
wiler.” D.E. 1285 at 235–36. But it noted the lack of evidence that
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68 Opinion of the Court 22-10292
Tutwiler’s “number of crisis cells, suicide-watch placements, segre-
gation placements, and treatment and monitoring available in seg-
regation” posed a substantial risk of harm to Tutwiler’s prisoners.
See id. at 236. The last suicide at Tutwiler occurred in 2004, and the
one Tutwiler inmate who testified at trial acknowledged that she
had been treated by a capable psychiatrist at Tutwiler for 13 years.
The court also observed that “both sides presented affirmative ev-
idence that the care being provided in the Tutwiler [residential
treatment unit] is adequate, or close to adequate.” Tutwiler, thus,
did not suffer from the same factors that led to the court’s liability
finding against the DOC.
Despite the district court’s limited liability findings as to Tut-
wiler, the Remedial Order only exempts Tutwiler from the correc-
tional staffing remedial provision. Tutwiler must otherwise com-
ply with every other aspect of the district court’s injunctive decree.
As a general matter, “[c]ourts have no power to presume and re-
mediate harm that has not been established.” Lewis v. Casey, 518
U.S. 343, 360 n.7 (1996). And under the PLRA, the district court
may not award relief beyond what is necessary to correct the con-
stitutional violation at issue. See § 3626(a)(1)(A). As to Tutwiler,
we set aside the remedial provisions about monitoring, mental
healthcare in segregation, the number of crisis cells, residential
treatment units, and suicide-watch placements.
3
In sum, we reject the DOC’s challenge to the system-wide
nature of the Omnibus Remedial Opinion. The district court
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22-10292 Opinion of the Court 69
identified problematic system-wide practices, and did not err (fac-
tually or legally) in doing so. And because the court found a system-
wide violation, under Brown it could remedy that violation on a
system-wide basis while still satisfying the PLRA. We reverse only
as to some of the remedial provisions applicable to Tutwiler.
C
Finally, the DOC challenges the district court’s Monitoring
Order on the grounds that it does not meet the PLRA’s need-nar-
rowness-intrusiveness requirements. The Monitoring Order, re-
leased in September of 2020 before the Omnibus Remedial Opin-
ion, was designed to help the DOC “attain timely, meaningful, and
sustainable compliance with the court’s remedial orders on mental-
health care.” In the Monitoring Order, the court adopted the
DOC’s “overarching proposal that, in light of its own admission
that [it] lack[s] the capacity to self-monitor, outside experts will in-
itially monitor compliance and will draw on their expertise to de-
velop many of the details of the monitoring plan.” The external
monitoring team would “train and eventually hand control over to
an internal monitoring team, building the capacity of the [DOC] to
regulate itself.”
For their part, the plaintiffs respond that the Monitoring Or-
der need not comply with the need-narrowness-intrusiveness re-
quirement because it is not “prospective relief” under
§ 3626(a)(1)(A) (applying only to “[p]rospective relief in any civil ac-
tion with respect to prison conditions”) (emphasis added). This is a
question of first impression in this Circuit.
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70 Opinion of the Court 22-10292
The plaintiffs give us little to go on, citing only one district
court decision squarely holding that monitoring is not “prospective
relief” under the PLRA. See Carruthers v. Jenne, 209 F. Supp. 2d 1294,
1300 (S.D. Fla. 2002) (holding that “monitoring cannot be consid-
ered ‘prospective relief’ under the PLRA” because “monitoring is
not an ‘ultimate remedy’ and only aids the prisoners in obtaining
relief”). But the Second Circuit has said otherwise, albeit in dicta.
See Benjamin v. Fraser, 343 F.3d 35, 49 (2d Cir. 2003), overruled on
other grounds by Caiozzo v. Koreman, 581 F.3d 63 (2d Cir. 2009). In
Benjamin, the Second Circuit opined that the PLRA probably ap-
plies to monitoring orders. It explained that, in the PLRA context,
monitoring is used as a functional part of the district court’s pro-
spective relief such that there is “no easy distinction between [pro-
spective] relief itself and the monitoring of relief.” Id. It also noted
that failure to subject monitoring orders to the PLRA would “frus-
trat[e] one of the Act’s broad goals of limiting the ‘mi-
cromanag[ing] [of] State and local prison systems.’” Id. (quoting
141 Cong. Rec. S. 14611, 14626 (Sen. Dole) (1995)). Because we af-
firm the Monitoring Order even if assuming the court was obli-
gated to make PLRA findings, we assume without deciding that it
constitutes prospective relief to which the PLRA applies.
The DOC advances a number of arguments as to why the
Monitoring Order runs afoul of the PLRA. For starters, the DOC
claims that the Monitoring Order failed to include adequate PLRA
findings and collapsed the need-narrowness-intrusiveness analysis
into a single inquiry, asking only whether relief was necessary.
That approach, it says, directly conflicts with this Court’s
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22-10292 Opinion of the Court 71
instructions in Hoffer that the district court must make “particular-
ized findings . . . as to the application of each criteria” of the need-
narrowness-intrusiveness standard. See Hoffer, 973 F.3d at 1278 (em-
phasis added) (quoting Cason, 231 F.3d at 785). The DOC next ar-
gues that the court failed to impose certain “guardrails” that it pro-
posed, and that the “lack” of these guardrails will allow “the [exter-
nal monitoring team] to essentially replace [the DOC]’s profession-
als as the administrators of [the DOC]’s prisons.” Finally, the DOC
takes issue with the power of the correctional administration ex-
pert—a member of the external monitoring team—“to tell [the
DOC] whether ‘correctional staff are being deployed properly.’”
Starting with the first argument, the Monitoring Order sat-
isfies the PLRA’s need-narrowness-intrusiveness requirement,
even though the district court misstated the need-narrowness-in-
trusiveness standard. In its discussion of the standard, the district
court made the following statement:
In discussing why each part of the court’s order satis-
fies the PLRA’s need-narrowness-intrusiveness re-
quirement, 18 U.S.C. § 3626(a)(1)(A), the court in its
analysis will largely focus on a single inquiry: Is the
monitoring provision necessary to correct the consti-
tutional violation found?
D.E. 2915 at 15. Though the court was pointing out that the three
requirements are all interrelated, Hoffer does require the district
court to separately analyze each criterion of the PLRA’s standard.
See Hoffer, 973 F.3d at 1278 (quoting Cason, 231 F.3d at 785). That
said, despite having misstated the standard, the district court applied
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72 Opinion of the Court 22-10292
it correctly, so its misstatement was harmless. See, e.g., Copeland v.
Georgia. Dep’t of Corr., 97 F.4th 766 (11th Cir. 2024) (explaining that
a district court’s use of an incorrect legal standard can be harmless
error).
The Monitoring Order is replete with need-narrowness-in-
trusiveness findings that analyze each criterion separately. The dis-
trict court largely adopted the DOC’s own proposals, making revi-
sions only where necessary. As the court explained, the entire point
of the Monitoring Order was to subject the DOC to external mon-
itoring for as short of a time as possible, ensuring a “less intrusive
process.” The “goal for monitoring” is “that [the DOC] acquire[s]
the tools, resources, and capacity to provide constitutionally ade-
quate mental-health care to those in its custody without court su-
pervision.” Accordingly, the court gave the external monitoring
team “the authority, without a hearing, to stop evaluating a partic-
ular performance measure at a particular facility, or stop evaluating
a facility altogether, based on their own determination of sustained
substantial compliance.” The Monitoring Order complies with the
PLRA in both form and substance.
The DOC’s other arguments fare no better. The sheer
breadth of a remedy is not, on its own, enough to show that it fails
the PLRA. Sometime drastic remedies are the least intrusive and
yet necessary means of correcting an Eighth Amendment violation.
See, e.g., Brown, 563 U.S. at 541. That is the case here. The district
court imposed external monitoring partially because the DOC ad-
mitted that it lacked the capacity to monitor its own compliance
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22-10292 Opinion of the Court 73
with the court’s orders. Furthermore, the court highlighted the
DOC’s previous failure to comply with its interim remedial orders,
which suggested that it was unable “to take” effective “remedial
steps absent court intervention.” Finally, under the court’s order,
the goal of the external monitoring team was to “train and eventu-
ally hand control over to an internal monitoring team, building the
capacity of the [DOC] to regulate itself.” We think therefore there
is thus little danger that the external team will “replace [the DOC’s]
professionals,” as the DOC claims.
Because the Monitoring Order satisfies the PLRA’s need-
narrowness-intrusiveness standard, we affirm its issuance.
VII
We affirm the Liability Order and Monitoring Order. We af-
firm most of the Omnibus Remedial Opinion and the Omnibus
Remedies Order but reverse it in certain limited respects. On re-
mand the district court is to modify the injunctive relief consistent
with our opinion.
AFFIRMED IN PART AND REVERSED IN PART.
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