and we have what the next case on our docket this morning georgia advocacy office versus theadore jackson and i see ms palmer is here ashley jenelle moore palmer is here for jackson yes your honor and devon orland is here for the attorney general thank you your honor actually i am no longer with the attorney general's office i am with the georgia advocacy office and i'm representing the georgia advocacy office and the name plaintiffs in this action alright thank you and why don't we begin ms palmer you may begin your argument thank you your honor and good morning to you all may it please the court my name is ashley palmer and i represent all of the appellants in this matter the supreme court has rejected remedial orders that unnecessarily reach out to improve prison conditions other than those that violate the constitution and that's brown v platter in july two thousand and nineteen a preliminary injunction was entered against the fulton county sheriff and four of his employees as a result of two alleged constitutional violations that the court found after hearing three days of evidence and testimony regarding the treatment of seriously mentally ill female inmates in the sheriff's custody although the district court abused its discretion in entering this preliminary injunction appellant's recognize that this is a highly deferential standard by contrast there isn't any question that the district court's order fails to satisfy the need narrowness intrusiveness factors found in the prison litigation reform act further the court did not make its order final and thus it expired by operation of law ninety days after it was entered on july 23rd two thousand and nineteen i'll first speak to the issue of the underlying order being expired despite the district court's belief this order was not idolized upon the entry of the court's september 23rd two thousand and nineteen to den the mortar of the cases that have sought to define what the plra means by making a preliminary injunction final both the ninth circuit and mayweathers v nulon and the third circuit and victory v berks county have interpreted a final preliminary order as being a perspective or permanent order and appellants believe this is the correct reading if the district court still anticipate having a trial on whether a permanent injunction is necessary and that's what all the parties are anticipating then the preliminary junction that is in place is by definition not a final order we think the record which was recently supplemented is sufficient for this court to determine whether district court judge was correct that the preliminary injunction is a final order for the purpose of avoiding the ninety day restriction because the language of the statute is clear appellant asked for a determination by this court that the injunction has expired but we also recognize your honor is that the mootness doctrine and the plot that there's a question about the mootness doctrine is applicability in this case we would argue pursuant to mayweathers v nulon which is a night circuit taste at the 11th circuit sites approvingly in usb florida secretary of corrections which states that a district court does not buy a length of terms of the plra by entering a second injunction after the first is expired nothing in the statutes limits how many times the preliminary injunction can be imposed thus in this case the court the district court could enter another preliminary injunction one that may very well state whether the court intends to finalize the order but also one with the same level of intrusiveness and overbroad and this that we have here appellant's fear that the district court will be guided by the scope of relief in the order in question here unless this panel issues the appropriate correction so this let me be clear about the the mootness argument you're making if we were to agree with you that the injunction under the statute expired after ninety days because it wasn't made a permanent injunction then on remand the district court would have the opportunity to issue a new preliminary injunction or be required to perform the analysis to issue a permanent injunction at that point well your honor he would be a permitted to enter another preliminary injunction and this goes to my second argument to your second question which is the analysis that he would have to go through and for both the preliminary injunction and prospective relief he has to go through the need narrowness intrusiveness analysis and so we will be the same analysis as laid out in the plra applies both in the preliminary injunction context as well as in the context as perspective relief he also judge grant could immediately issue perspective relief he could immediately put into place a permanent injunction which pursuant to the plra would be in place for a two year period at a minimum depending upon the apellants coming back and making an argument that they believed at that time it should be extinguished and so he could do both your honor to answer your question so it looks like from a statute that you may really like some things about three hundred and sixty two thousand six hundred and twelve which is the ninety day limit but you may not like that it looks it's not requiring specific findings of the sort that are required in one can you talk to me about if you've noticed any differences it appears that perhaps preliminary injunctive relief the judge certainly must conclude that those factors are met but there's not the same there's not the same requirement for issuing findings there thank you judge and i understand your question and what i would say to that is in this instance although we don't believe that the preliminary injunction was made i know the district court judge in our supplement that we made to the record as your honors have probably seen believes that it was and so accordingly based upon that his belief that it was a final order he is required to make those findings that are found in one in order for it to be made final not only does he have to affirmatively make it final he also has to go through that neednarrowness intrusiveness which this court has stated in it's case law requires that they make make those particularized findings and so that's does he need to make those findings and then the top of the order says permanent injunction rather than preliminary junction is that in your view what needs to happen to transform the preliminary injunction into a final order i believe your honor that there has to be some language that puts the appellants on notice that this is in fact not just a preliminary injunction but a permanent one there's been other case law that says that the case will that the injunction will be in place until a final order on the underlying case is issued we have nothing like that here there was nothing where the court stated that we had any awareness that our clients at the beyond the ninety day period that they would still be required to comply with the mandates of the preliminary injunction as it concerns the preliminary injunction your honors and the plra as your honors are well aware congress has placed strict limits on remedial relief that a court may impose on a jail or prison it must be as a judge grant and i've been speaking about narrowly drawn and not intrusive however here the court went too far in dictating to the sheriff how he should remedy the alleged constitutional violations which he found to be twofold the deliberate indifference which we disagree with obviously and also an ada claim this court recently had in huffer v secretary florida department of corrections discussed that blame the deliberate in different standard but even assuming based on the facts that the court had in front of it that it was accurate and it was correct in making those findings the relief that it ordered the remedial relief is the issue with which that we have here in lewis v casey the supreme court noted that its opinions have alimented courts becoming immeshed in the minutiae of prison operations in the name of the constitution and that's because as this court held in pre prison legal news v sector terri florida department of corrections under turner v safely a supreme court case we are wide ranging and substantial deference to the decisions of prison administrators because of the complexity of prison management the fact that responsibility therefore is necessarily invested in prison officials and the fact that courts are ill equipped to deal with such problems the problem i think these allegations are frankly pretty horrific let's assume for purposes of argument which i know you don't actually agree with but let's assume that it's all true and there is a substantive violation how how could the court's order be more narrow yet less intrusive to the specific operations of the prison it seems like those are the jail it seems like those are someones intention to answer your question judge grant i think lewis v casey speaks to this too and it talks about the deference that should be given to prison officials and our particular case i understand that the facts as they were presented to this court then yes they do come off as being quite horrific but the act of the matter is the issue before the court with a staple wound which was is keeping women in a sale for longer than twenty two to twenty three hours deliberate indifference and is it exacerbating or is it causing their mental health issues their serious mental health issues that already existed to be further exacerbated that was that was the issue the court went in a broad scope to address many other issues that were not before it issues that plaintiffs presented at the lower level in terms of you know their discomfort with the fact that sometimes the toilet's leaked or they're upset in this with the temperature within sometimes the toilet leaks seems like a pretty dramatic understatement wouldn't you agree well i would say your honor that there was evidence that was shown that yes the toilets leak because the inmates were putting things down in the toilets and so yes there are there were there were draft things that were happening floodings things like that that happened i would submit to you honors typically in a jail and a prison setting and the jail was managing it the best that they could in terms of letting people out though which is the essence of the deliberate indifference i think to answer your honor's question in terms of the four hours that the court mandated the court even said itself in its order it wasn't finding that that was a constitutional mandate but what is required per lewis v casey is to give deference to the sheriff and so the question should have been asked the sheriff i have found that you are in violative of the constitutional deliberate in different standard what i'm saying to you is sherif i need you to go back with your jail officials and bring me a plan to allow us to ameliorate what's happening here and it may not have been four hours because the fact is is that especially now as we know in the light of covid there are many difficulties and many issues that the jails deal with on a daily basis and so slowly so council what was the the alternative remedy proposed by the sherif that sheriff didn't have an opportunity judge wilson to propose an alternative what the judge did was accepted a four page order from the plaintiffs that they presented at the conclusion of the hearing that he signed in everyone's presence and then he asked and then he indicated that he would make more particularized findings the appellants defendants in the underlying case then filed a motion for reconsideration in response to our motion the plaintiffs then presented the court with the fifty four page addendum order that your honor is have before them and he signed that without any alterations to it and so as my understanding correct that the order also does provide a safety valve for the sheriff to ensure deference to jail administrators when it's necessary for a penological purpose it is a very limited in scope safety valve judge wilson and i say that because even though the court said that i recognized that there are valid basis by which you may have to keep someone in the cell for longer than twenty four hours you still have to not only document your reasons for doing that but someone at a rank at either lieutenant or captain or higher has to assess why you make that decision and then after that we have to bring in one of your medical professionals to ensure that the decision was rightfully made by your correctional officers and so again that goes to the neednarrownessintrusiveness that i've been speaking about judge wilson the fact of the matter is that when the court steps itself so far into stepping into the shoes of the sheriff and the prison officials that is what the plr and congress said cannot stand and so i see that my time is up i will come back and reserve some time for rebuttal thank you right then we'll hear from this ms orland on behalf of the georgia advocacy office thank you your honor may i please to the court my name is devon orland and i represent the appellate that this action after three days of evidence and argument the district court ruled from the bench but despite his belief that courts should be cautious about entering an injunction that this was the type of case that required court intervention as he found defendants treatment of women with psychiatric disabilities to be both repulsive and shameful the district court's decision wills was supported by the undisputed record that women with serious psychiatric disabilities were left in their cells for twenty two to twenty four hours a day for days weeks and months on end the cells were covered in bodily fluids rust and mold in these conditions they deteriorated leaving them incoherent screaming unintelligibly laying catatonic banging their heads against walls and repeatedly attempting suicide dr jeffrey mets one of the foremost experts in the field of forensics put forth undisputed testimony that the bare minimum was to provide the class with four hours of adaceae time five days a week this still leads to the class plaintiffs in lockdown for one hundred and forty eight of the one hundred and sixty eight hours in each week the court provided appellants with the opportunity to devise their own plan with how to implement this court order the court entered up brief written order on that same day in that order the court stated it would enter into a more detailed order to meet the requirements for eighteen usc three thousand six hundred and twenty six two the court did just that and entered into a fifty four page order detailing its legal and factual findings and specifically making the neednarrow least intrusive determinations as defined by the statute and it did so within the ninety days specified by law the district court's decision should be affirmed i'll first address the validity as to the district courts grants of the preliminary injunction and then we'll address the impact of eighteen usc three thousand six hundred and twenty six two i further note that while appellants inaccurately assert that the addenda mortar expired by operation of law they also acknowledged the likelihood that the district court would enter a new operative order the district court did in fact do so and appellants chose not to appeal this order and as a result the operative injunction orders is not really before this court as to the validity of the order as the court has already noted the conditions were widely described by the plaintiffs in this case through affidavits expert testimony standards of harm scientific journals the negative impact to security as a result of the sheriff's conducts photographs and log books all of this evidence was undisputed the county offered two theories the first being what they were doing was fine and second that they were working on a plan to remedy things there was no disputing any of the expert testimony that locking these women up in these conditions in fact impaired their psychiatric condition and made it worse there was no contesting testimony that very little psychiatric therapeutic interventions occurred and there was further no testimony that the conditions that were displayed were anything other than what they were depicted to be by the plaintiff's complaint in that testimony proper by the plaintiffs in the case the initial grant of the plaintiff's motion for preliminary injunction was entered on july 23rd after the threeday evidence described and then the court entered into that detailed order on september 23rd two thousand and nineteen the order itself detailed evidence which produced the eyewitness accounts of the conditions of the facility and failure to treat persons experiencing with psychiatric disabilities it further outlined that people who didn't experience psychiatric disabilities were allowed out of their cells and given programmatic opportunities that people with psychiatric disabilities were not it outlined further the impact of the conditions especially since the women were locked in their cells for such a long period of time and the core analyzed each prong of the preliminary injunction standard outlined the facts that supported the ruling and found in favor of the injunction at every term the court specifically outlined its compliance with three million six hundred and twenty six thousand eight hundred and eighty two and it's need narrowness intrusive requirements to adopt the appellant's view of three thousand six hundred and twenty six in this case would if in effect cause district courts and plaintiffs to have to file a new preliminary injunction every ninety days the purpose of the preliminary the prose and litigation reform act was to alleviate the burdens on courts and to bring meritorious claims to the to the tribunal further to the provisions requiring the need narrowness least intrusive findings were to avoid courts from having injunctions in place for years on end without specific findings of the court the district court in this case complied specifically with the requirements and said it did so and highlighted it did so in its order and as a result entered into a compliant order do you think that the court's action effectively converted the preliminary injunction into a permanent i do not buy judge grant and the reason i don't is one the court didn't say it was entering a permanent injunction and i don't believe it's required to do so specifically it's required to make the preliminary injunction order final as the court highlighted in united states vs secretary florida department of corrections where the court in that case did vacate the district court's order specifically saying that it didn't finalize the preliminary injunction the term finalizing an order making findings allows for a court to enter an initial order to alleviate what in this case certainly were dire situations quickly while also allowing the court to craft a remedy that is in fact need narrow least intrusive in compliance with the prison litigation reform act through a thoughtful review of the record presented the defendants in this case will still have an opportunity to try the case this was a preliminary order no discovery had occurred and discovery is ongoing they will have an opportunity to file for summary judgment to disprove the facts that occurred were presented at the preliminary injunction hearing and further to dispute any facts that were presented through apian as opposed to cross examination and direct testimony this was not a final order this was a preliminary injunction and this was a finalization of the judge's preliminary injunction order moreover if you look to the canons of statutory construction to determine that the the addendum order was anything other than a preliminary injunction order it flies in the face of how a statute should be interpreted so the court says unless the court makes the order meaning the preliminary injunction order comply with the provisions of awan it expires within ninety days that statute that reference refers to the preliminary injunction initial order that as often issued in these types of cases i further note that appellants claim that they had didn't have notice that this order would be in effect in greater than ninety days is belied by the fact that the district court reference three hundred and sixty two thousand six hundred and eighty two twice first in its initial order and then it addendum order don't we need to though because i think everyone agrees that the pra is not the most artfully drafted statute around but don't we have to look at three thousand six hundred and twenty six i think to give us some context for what congress may have been trying to accomplish with the section that we're mostly focused on and would looking at taking that into account give some evidence that perhaps keeping the injunction as a preliminary injunction wouldn't allow the provisions under beads to come into effect the two year termination and so forth i didn't really understand the court's point but i think that if you look to be it defines the terms for which a tr a permanent injunction is terminated the whole provision deals with permanent injunctions if in fact that the intent was to eliminate a preliminary injunction within ninety days then the court then the congress would have said after ninety days the court must enter a permanent injunction there's no reasons for it to say to make the order final instead it would say it expires after ninety days unless the injunction becomes permanent that's not what the court did what the legislature did instead it's supported a provision to terminate longstanding consent decrees which as the court knows were rampant at the time the plra came into being but also to to tell courts look you've got to look at this every two years you can't just keep on going so there are two provisions one is the ninety day you've got to make this injunction for ninety days unless you make these findings then there are the federal rules of civil procedure which require discovery to actually take place over a period of time then you tried the case and if you're going to enter a permanent injunction you have to comply with these other things a preliminary injunction has never intended to last for years and years on end and that's some of the reason that the court issue is or the legislature passed this rule but they can't possibly expect discovery which even in a truncated discovery schedule is going to happen in one hundred and twenty days so you have to take it in the context of how the litigation process occurs and in this case the litigation process is ongoing we would have already tried the case by now had we not all been stalled a bit by the pandemic so i think the statute in the context of the greater judicial system makes perfect sense which is you have a preliminary injunction you need to make me nearness least intrusive findings in order for that injunction to stay in effect beyond that ninety days court you need to do your job you need to actually make these findings and do the work to keep something preliminarily from creating more harm and then once you try the case you don't get to keep an injunction and stay in a jail or prison forever and ever amen without similarly continuing to rereview so you had seen the court that under under b under one c the court can issue a preliminary injunction almost immediately with i'm not saying that we would suggest this but essentially with no findings they can just say this is horrible it's got to stop now and unless they unless they go through the steps required under one then that initial initial preliminary junction expires but if they go through the steps required on one then that becomes a final preliminary injunction that can remain in place as the permanent injunction litigation proceeds that's right your honor and in fact if you look at every single case relied on by the appellants in this action it refers to the court not making the need narrowness least intrusive analysis including this court v the united states versus secretary department of florida department of corrections every case where order has been vacated as determined to be not expiring in that ninety days the court specifies that the district court did not make those findings and therefore not finalizing the preliminary injunction order and if discovery kind of drags out let's set aside the pandemic which i think is a pretty unusual situation but what under ordinary circumstances what remedy under your reading of the statute do prison officials have if if your preliminary injunction just stretches for years which seems to be contrary to what the pra is trying to make happen i think they can always go back to the district court and say we've we've moved the client they can say we've made the claim or this injunction is no longer meritorious because i mean there's no reason that they can't go and move or vacate the preliminary injunction it just doesn't automatically happen so i think if you look at the if you look at the role that statutory construction issues in this case you have to take a look at the wording of the statute and the statute it says itself says unless the preliminary injunction unless the order meaning the initial order and preliminary injunction is goes through the three thousand six hundred and twenty six two language that it vacates and that unless only can refer to that last piece in conclusion i would just point to the court that the evidence and testimony in this case was largely undisputed the only all the experts all the all the practitioners that testified at this hearing said the minimum you can get out is twenty hours a week which still leaves an awful lot of time in lockdown and there wasn't a single solitary person who said it it was healthy it was safe it was treatment it was appropriate or it wasn't deliberate indifference for these women to be locked down in the manner that they were locked down and there were a lot of factors in that including the cell conditions and if you look at the district courts addendum order on pages fifty and fifty one he outlines those conditions and the why it was further undisputed but and documented by hundreds of photographs the conditions that these women were asked to live in all of the testifying experts agree that women with psychiatric disabilities are harmed by the segregation that this and this was exacerbated by the physical conditions and the only remedy offered by any expert was that the minimum was twenty hours out itself the district court rightly weighed these undisputed facts and the testimony that there was no security benefit to the segregation and make concrete and need narrow least intrusive findings within the ninety days required by statute asset the district court's order be affirmed with the question i'm going to drag you back into set short into rotation with one more question before you sit down absolutely thank you so the the preliminary injunction section says that it expires ninety days after its entry unless the court makes the findings required and makes the order final before the expiration what do you think that what do you think is required to make the order final besides those findings what are we to make of that and i think the court needs to actually issue the order so it goes through the factual analysis not just said need narrow least intrusive but do what the court did in this case and say i'm compliant with three thousand six hundred and twenty six two and and therefore the order i mean i don't think the court needs to make a magic word say the word final this court has never found that magic words were required but again it's referring to they order so it doesn't just say it needs to make at least least intrusive need narrows findings it says an issue in order you can't just stay at it from the bench you need to actually do the detailed analysis and put it in on order thank you your honor thank you miss orlin ms palmer you've reserved some time for rebuttle i did thank you judge wilson i wanted to follow up on the last question that judge grant was asked which has to do with the and to answer that question to the and is there for a reason and it's not just the superbowl it's not just does the court have to make the particular line it also has to make it finer and the reason for that is so that all parties specifically the upon whom the the injuction apply are aware of the fact that this is not pursuant to the plra just the ninety eight order but it's one that has been finalized that is not what occurred here i think it was around the struggle and answering that question because the fact is is that the judge did not stay here and he acknowledged in the transcript that is now before your honors in supplement that he did not state affirmatively or put anyone on notice that this order was going to be in place post the ninety days that may have been his intent that may have been what he was thinking in his head but unfortunately appellants can not operate pursuant to what the judge may have been thinking without actually being articulated in the order in some form what's your response to the suggestion that it's unrealistic to think that a permit that the litigation required and the discovery required for a permanent injunction could realistically happen in ninety days or less i actually don't think that that's an unreasonable thought at all your honor there are many district courts and outdoor appellate courts that have found that that was the very purpose behind why the plra was put into place and that was to take a very long drawn out process then y'all know how civil litigation and track ratings are the very reason that jails and prisons can not continue to be in limbo as we have been for almost two years and when july of two thousand and twenty one rolls around next year that would have been exactly two years from the time when the george when the judge put the original order in place and the fact is that would be the same amount of time for a permanent injunction and so it flattened the face of the purpose behind the lra there are district court that have said that in fact that is the very essence of life puts it at night and day that mayweather says that yes you may have to come back every ninety days to prove up your case again and though that may seem counterintuitive to the way that litigation is brought it does go to the fact that that's the supreme court has filed their prison and jail officials have to be able to properly oversee and provide the necessary operations that they need for the jails and prisons and when monies are being reallocated when you're having to go before the board of commissioner which we had nine to finding its staff and being upheaved to facilitate all that the judges asked the sheriff and his personnel to do that presents a problem for jails and prison what about the facts what do you say about the fact that the injunction that we have before us has apparently been updated or there's a new injunction what are we doing i understand well what i'm saying is first of all that it still relates back to the original order there have been instances in other courts specifically i think of a court at a district court in alabama that had the berries in case that came before it and even though it came back and it made a modification the question was whether it related back and i believe that did furthermore what i would say your honor is that updated is absolutely flagging the base of the intrusiveness the least intrusive that one is supposed to do when you're telling a share how long you have to bring a person out for and when that person without doing that four hour time what they are obligated to do which is it's been three hours giving them therapeutic activities and one hour ensuring that they get outdoor recreation that we're supposed to go through the process things of ensuring that they understand what it means to clean their state and educating them about how to keep themselves going and going through all of the law books apparently the judge because the plaintiffs didn't like the way the sheriff was maintaining his loft so we had to put in another process to maintain the law groups to document how people about for free time that is absolutely not what lewis v casey speaks to which is the deference that is supposed to be given to prison and jail officials a court is not in the position to be able to say what happens on a daytoday basis especially in such a fluid environment as a jail which is not a prison things are happening every day in that environment and for the judge to put this very onerous order on us which i know it was oral and wasn't able to contest there is no contestants from the other side this is not the least intrusive it would not if it had been the sheriff would have been consulted there have been his and would have been taken into consideration if it had been the motion for reconsideration that we brought back before the court would've been if your time has expired thank you your honor we could just add you restaurant out briefs and vet you would find the distractions not only in that thank you all right thank you ms palmer and ms orland the court is in recess until nine o'clock tomorrow morning