Georgia Advocacy Office v. Theodore Jackson

4 F.4th 1200

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 14, 2021
• Docket: 19-14227
• Status: Published

Opinion

USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 1 of 40

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-14227 ________________________

D.C. Docket No. 1:19-cv-01634-WMR-RDC

GEORGIA ADVOCACY OFFICE, M.J., K.H., on behalf of themselves and others similarly situated,

Plaintiffs – Appellees,

versus

THEODORE JACKSON, in his official capacity as Sheriff of Fulton County, MARK ADGER, in his official capacity as Chief Jailer, MEREDIETH LIGHTBOURNE, in her official capacity as Medical Director, TYNA TAYLOR, in her official capacity as Detention Captain, PEARLIE YOUNG, in her official capacity as Detention Lieutenant,

Defendants – Appellants. USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 2 of 40

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(July 14, 2021)

Before WILSON, GRANT, and TJOFLAT, Circuit Judges.

TJOFLAT, Circuit Judge:

The District Court below entered a preliminary injunction requiring Fulton

County Jail officials to provide regular out-of-cell time to female inmates with

psychiatric disabilities and to improve the sanitary conditions in their cells. The

officials appealed. We consider whether the preliminary injunction expired by

operation of law under the terms of the Prison Litigation Reform Act (“PLRA”).

We hold that it has, and accordingly dismiss this appeal as moot and vacate the

preliminary injunction order.

I.

The Plaintiffs in this action are the Georgia Advocacy Office, a nonprofit

dedicated to serving disabled Georgia residents, and two psychiatrically disabled

female inmates of the Fulton County Jail (“the Jail”). On April 10, 2019, Plaintiffs

filed a class action for injunctive relief in the United States District Court for the

Northern District of Georgia on behalf of “all women with psychiatric disabilities

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who are now or will in the future be confined in the Fulton County Jail system.” 1

The Defendants named in the complaint were Theodore Jackson, Sherriff of Fulton

County; Mark Adger, Chief Jailer for the Sherriff’s Office; Meredieth Lightbourne,

Medical Director for the Sherriff’s Office; Tyna Taylor, Detention Captain for the

South Fulton Municipal Regional Jail; and Pearlie Young, Detention Lieutenant for

the South Fulton Municipal Regional Jail.

Plaintiffs alleged the conditions at the Jail violate the Eighth Amendment’s

ban on “cruel and unusual punishments” and the Fourteenth Amendment’s equal

protection clause. They also alleged violations of the Americans with Disabilities

Act of 1990 (ADA), 42 U.S.C. §§ 12101 et seq., and the Rehabilitation Act of

1973, 29 U.S.C. § 701 et seq. Plaintiffs based their claims mainly on the Jail’s

alleged practice of confining psychiatrically disabled female inmates to isolation

cells (called “mental health pods”) for months at a time as well as the unsanitary

conditions in those cells. Their equal protection claim arose from the Jail’s alleged

policy of barring female inmates from receiving jail-based competency restoration

services.2

1 Plaintiffs also seek relief on behalf of a subclass including “all women with psychiatric disabilities who are now or will in the future be deemed incompetent to stand trial while confined in the Fulton County Jail system.” 2 Competency restoration services are designed to restore criminal defendants to competency after a court has found them incompetent to stand trial.

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On April 7, 2019, Plaintiffs moved the District Court to enter a preliminary

injunction requiring Defendants to “(1) Offer at least four hours of daily out-of-cell

time to all women in [mental health pods], including one hour per day of outdoor

time; and (2) Within 30 days, establish and present to the Court for its approval a

plan, designed to be implemented within another 30 days, for providing a

medically appropriate environment for women who experience psychiatric

disabilities and are assigned to [mental health pods], including sanitary conditions

of confinement and out-of-cell therapeutic activities.” Plaintiffs also requested

“expedited discovery and a hearing at which Plaintiffs will show that the requested

relief satisfies the requirements of the [PLRA].”3

On July 23, 2019, after a three-day evidentiary hearing, the District Court

granted Plaintiffs’ requested preliminary injunction.4 The order contained the

3 As will be discussed in part II.A, infra, the PLRA imposes requirements for injunctive relief respecting prison conditions in addition to the traditional requirements in equity. 4 The order required Defendants to take the following actions: 1. Within 7 days of the entry of this Order, develop a system to track each individual’s out of cell time within B, C and G pod and that each woman be permitted at least 1 hour recreation time and 2 hours of free time daily. 2. Within 30 days of the entry of this Order, offer at least four hours of daily out- of-cell time to each woman assigned to B-Pod, C-Pod, and G-Pod on at least five days each week. At least one hour per day shall include outdoor recreation or indoor gym time. 3. Within 30 days of the entry of this Order, establish and file with the Court a written plan, designed to be implemented within another 30 days, for providing sanitary conditions of confinement and out-of-cell therapeutic activities to each woman assigned to B-Pod, C-Pod, or G-Pod on at least five days each week. The plan must specifically address (a) steps to assist women in maintaining their hygiene; (b) steps to achieve a clean and safe living space in each pod; (c) structured 4 USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 5 of 40

findings traditionally required for the issuance of a preliminary injunction—

likelihood of success on the merits, that the balance of hardships favored Plaintiffs,

irreparable harm, and public interest. The Court also recognized that the PLRA

required additional “particularized findings,” and indicated that it would make

those findings in a “forthcoming opinion.”

out-of-cell group activities; (d) designation and training of officers assigned to work in a non-acute housing unit; and (e) addressing and maintaining the physical plant of the jail. Defendants shall confer in good faith with Plaintiffs’ counsel to create terms of the new plan. If the parties are unable to agree on the content of the plan, Plaintiffs may submit written objections to the Defendants’ plan within 14 days of the date on which Defendants file it. 4. Nothing in this Order shall prevent Defendants from denying out-of-cell time to a woman assigned to B-Pod, C-Pod, or G-Pod where doing so is necessary to prevent an immediate and substantial risk of serious harm to a person. If out-of- cell time is denied for any individual detainee in accordance with this paragraph, the reasons for the denial shall be fully documented, to include the name of the detainee, date of out-of-cell time denial, and the specific reason for the denial. No detainee may be denied out-of-cell time under this paragraph for a period greater than 24 hours. 5. Failure to comply with this Order shall not be excused by allegations of inadequate staffing. The District Court’s subsequent addendum order struck the last sentence of the fourth paragraph and replaced it with: A detainee denied out-of-cell time under this paragraph shall be reviewed by a correctional supervisor at the rank of lieutenant or higher at least once every 24 hours to determine whether denial of the detainee’s out-of-cell time remains necessary to prevent an immediate and substantial risk of serious harm to a person. In any such case, the mental health treatment team shall be notified and a member of the mental health staff shall visit the detainee at least once per every 24-hour period. A psychiatrist must approve a denial of out-of-cell time for a person with serious mental illness if that denial continues for more than 48 consecutive hours.

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That opinion—styled “addendum order”—was issued 62 days later on

September 23, 2019. The opinion explained the Court’s earlier findings in greater

detail and made additional findings that the PLRA’s requirements were satisfied.

On October 18, 2019, Defendants took this interlocutory appeal from the

District Court’s two orders pursuant to 28 U.S.C. § 1292(a).5 Defendants argue the

District Court abused its discretion in granting Plaintiffs’ request for a preliminary

injunction because neither the traditional requirements for a preliminary injunction

nor the PLRA’s additional need-narrowness-intrusiveness requirements were

satisfied.

After the benefit of oral argument, we find that the preliminary injunction

has expired by operation of law, making this appeal moot. We accordingly dismiss

the appeal and vacate the order imposing the injunction as well as the subsequent

addendum order.

5 On August 20, 2019, Defendants filed a motion for reconsideration of the District Court’s July 23 order under Federal Rule of Civil Procedure 59(e). The Court’s September 23 addendum order disposed of the motion, and Defendants therefore had 30 days from the date of the addendum order to appeal. See Fed. R. App. Pro. 4(a)(4)(A); Green v. Drug Enf’t Admin., 606 F.3d 1296, 1299–1301 (11th Cir. 2010); United States v. Ibarra, 502 U.S. 1, 6–7, 112 S. Ct. 4, 6–7 (1991).

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II.

Congress enacted the Prison Litigation Reform Act of 1995, 18 U.S.C. §

3626, to expedite prison litigation and end judicial overreach into the management

of prisons. Put simply, “Congress meant to get the federal courts out of the

business of running jails.” Benjamin v. Jacobson, 172 F.3d 144, 182 (2d Cir.

1999) (en banc) (Calabresi, J., concurring).

To that end, § 3626(a)(1) strictly limits the circumstances in which district

courts can issue “prospective relief”6 in civil actions challenging prison conditions:

Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. § 3626(a)(1)(A). These requirements are commonly referred to as the “need-

narrowness-intrusiveness” requirements. See United States v. Sec’y, Fla. Dep’t of

6 “Prospective relief” as used in the PLRA is defined as “all relief other than compensatory monetary damages.” 18 U.S.C. § 3626(g)(7). “Relief” is further defined as “all relief in any form that may be granted or approved by the court, and includes consent decrees but does not include private settlement agreements.” § 3626(g)(9). “Private settlement agreement” is defined as “an agreement entered into among the parties that is not subject to judicial enforcement other than the reinstatement of the civil proceeding that the agreement settled.” § 3626(g)(6).

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Corr., 778 F.3d 1223, 1226 (11th Cir. 2015). Section 3262(a)(1) also sets out

“principles of comity” that further limit the issuance of prospective relief:

(B) The court shall not order any prospective relief that requires or permits a government official to exceed his or her authority under State or local law or otherwise violates State or local law, unless—

(i) Federal law requires such relief to be ordered in violation of State or local law; (ii) the relief is necessary to correct the violation of a Federal right; and

(iii) no other relief will correct the violation of the Federal right. § 3626(a)(1)(B).

Recognizing that district courts might enter preliminary injunctive relief in

prison cases under Federal Rule of Civil Procedure 65(a), Congress set out

additional requirements for such relief in § 3626(a)(2):

In any civil action with respect to prison conditions, to the extent otherwise authorized by law, the court may enter a temporary restraining order or an order for preliminary injunctive relief. Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity set out in paragraph (1)(B) in tailoring any preliminary relief. Preliminary injunctive relief shall automatically expire on the date that is 90 days after its entry, unless the court makes the findings required under subsection (a)(1) for the entry of prospective relief and makes the order final before the expiration of the 90-day period. In sum, § 3626(a)(2) does three things. First, it confirms that courts can

issue preliminary injunctions in prison cases “to the extent otherwise authorized by

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law.” Second, it provides that preliminary injunctive relief must meet the need-

narrowness-intrusiveness requirements. Third, it provides that preliminary

injunctive relief shall expire within 90 days unless the court does two things: (1)

makes the need-narrowness-intrusiveness findings for prospective relief under

§ 3626(a)(1), and (2) makes the order final.

This appeal primarily concerns the third function—we will call it the

“unless” clause—and particularly the meaning of the phrase “makes the order

final.” Since the District Court here entered the challenged preliminary injunction

well over 90 days ago, we must decide whether it did what was necessary to

prevent its expiration by operation of law on the 90th day. If it did not, then this

appeal is moot and we lack jurisdiction absent an applicable exception. United

States v. Sec’y, Fla. Dep’t of Corr., 778 F.3d at 1229.

Plaintiffs argue the preliminary injunction has not expired. According to

them, all the “unless” clause requires district courts to do to avoid expiration is to

“finalize a preliminary injunction’s terms to ensure that they comply with . . . [the]

need-narrowness-intrusiveness criteria.” Under this reading of the statute, the

District Court did all it needed to do to prevent expiration when it issued its

addendum order making the required need-narrowness-intrusiveness findings.

Defendants, by contrast, insist that making the order “final” means

converting the preliminary injunction into a permanent injunction. The District

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Court did not treat the preliminary-injunction hearing as a trial on the merits under

Federal Rule of Civil Procedure 65(a)(2) 7 and therefore could not have entered a

permanent injunction. Thus, if Defendants’ interpretation is correct, the

preliminary injunction dissolved by operation of law long ago.

We note that the parties’ positions are somewhat unusual. One would

usually expect the appellees to be the ones arguing the Court lacks jurisdiction to

decide the appeal, but here it is the appellants (Defendants) who press the

argument and appellees (Plaintiffs) who resist it. Defendants’ position is not as

senseless as it appears at first blush, however, because while they believe their

appeal is moot, they urge us to decide it anyway under the exception to the

mootness doctrine for disputes “capable of repetition, yet evading review.” We

will grant Defendants half of what they seek since we believe the injunction

against them has expired by operation of law, making this appeal moot, but we

decline to go further and review its conformance with the PLRA because we do not

believe this dispute is one that will evade review.

7 Rule 65(a)(2) provides: Before or after beginning the hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing. Even when consolidation is not ordered, evidence that is received on the motion and that would be admissible at trial becomes part of the trial record and need not be repeated at trial. But the court must preserve any party’s right to a jury trial.

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In part II.A, we discuss the way the PLRA alters the traditional landscape for

entering injunctive relief in PLRA cases. In part II.B, we confront the parties’

competing arguments about the meaning of the PLRA’s “unless” clause and

ultimately reject Plaintiffs’ interpretation. Finally, in part II.C we address and

reject Defendants’ argument that this dispute is “capable of repetition, yet evading

review.”

A.

Before diving into the PLRA’s text, we take a step back and examine how it

changes the landscape for issuing injunctive relief in prison cases.

We begin with what the PLRA leaves unchanged. Section 3626(a)(1)(C)

states: “Nothing in this section shall be construed . . . to repeal or detract from

otherwise applicable limitations on the remedial powers of the courts.” Congress

thus made clear that the limitations on injunctive relief imposed by the Federal

Rules of Civil Procedure and traditional equity practice remain in force in cases

governed by the PLRA. The PLRA only adds to the preexisting limits on

injunctive relief; it does not subtract from them.

The procedural dimension of those preexisting limits come from the Federal

Rules. Upon application for injunctive relief, Rule 52 requires a district court to

hear the evidence in support of and opposition to the injunction and, whether the

court grants or denies the application, issue an order stating its findings of fact and

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conclusions of law.8 See Fed. R. Civ. P. 52(a)(1)&(2). If the court grants the

injunction, it must state the reasons why it issued, state the terms of the injunction

specifically, and describe in “reasonable detail . . . the act or acts restrained or

required.” Fed. R. Civ. P. 65(d)(1). If the court issues a preliminary injunction, it

must also give notice to the enjoined party. Fed. R. Civ. P. 65(a)(1).

The substantive considerations informing a district court’s decision whether

to issue injunctive relief come from “historic federal equity practice.” 11A Charles

A. Wright & Arthur Miller, Federal Practice and Procedure §§ 2947, 2942 (3d ed.

2020). For the entry of preliminary injunctive relief, the four traditional

considerations in equity are: (1) a substantial likelihood of success on the merits;

(2) a substantial threat that the plaintiff will suffer irreparable injury if the

injunction is not granted; (3) the threatened injury to the plaintiff outweighs the

harm an injunction may cause to the defendant; and (4) a grant of preliminary

injunction would not disserve the public interest. Nnadi v. Richter, 976 F.2d 682,

690 (11th Cir. 1992). The considerations at play for permanent injunctions overlap

with the preliminary-injunction considerations, though they are not identical.

Courts considering whether to grant a permanent injunction ask whether the

8 The Supreme Court has said that it is preferable for district courts to make these findings at or before they issue the preliminary injunction. Gibbs v. Buck, 307 U.S. 66, 78, 59 S. Ct. 725, 732 (1939). However, seeing as it would be pointless to reverse a district court’s decision to grant a preliminary injunction on the basis that it made sufficient findings later than it ought to have, the Court has essentially called this harmless error. Id.

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plaintiff has demonstrated: “(1) it has suffered an irreparable injury; (2) remedies

available at law, such as monetary damages, are inadequate to compensate for that

injury; (3) considering the balance of hardships between the plaintiff and

defendant, a remedy in equity is warranted; and (4) the public interest would not be

disserved by a permanent injunction.” Angel Flight of Ga., Inc. v. Angel Flight

Am., Inc., 522 F.3d 1200, 1208 (11th Cir. 2008) (citing eBay Inc. v.

MercExchange, L.L.C., 547 U.S. 388, 391, 126 S. Ct. 1837, 1839 (2006)). The

PLRA does not displace these equitable considerations in cases that fall within its

ambit. See Swain v. Junior, 961 F.3d 1276 (11th Cir. 2020) (applying the

traditional equitable considerations on review of a preliminary injunction subject to

the PLRA).

Once a district court determines that injunctive relief is warranted under the

traditional equitable considerations, it must consider the appropriate scope of such

relief. This step in issuing an injunction involves the “measurement or shaping” of

the injunction and is sometimes referred to as the “tailoring stage.” Dan B. Dobbs,

Law of Remedies § 2.4(6), at 113–14 (2d ed. 1993). The fundamental principle of

equity guiding the court at this stage is that “injunctive relief should be limited in

scope to the extent necessary to protect the interests of the parties.” Garrido v.

Dudek, 731 F.3d 1152, 1159 (11th Cir. 2013) (quoting Keener v. Convergys Corp.,

342 F.3d 1264, 1269 (11th Cir. 2003)) (alterations adopted); see also Dobbs, supra

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§ 1.7, at 30 (“The general principle states that remedies should reflect rights and

should not give the plaintiff either more or less than her right or entitlement.”). In

the case of a constitutional violation, “injunctive relief must be tailored to fit the

nature and extent of the established violation.” Gibson v. Firestone, 741 F.2d

1268, 1273 (11th Cir. 1984). In other words, the injunction “must be no broader

than necessary to remedy the constitutional violation.” Newman v. State of Ala.,

683 F.2d 1312, 1319 (11th Cir. 1982). When a district court fails to follow this

principle and drafts an unnecessarily broad injunction, the district court abuses its

discretion. Alley v. U.S. Dep’t of Health & Hum. Servs., 590 F.3d 1195, 1205

(11th Cir. 2009).

Having established the background principles that guide courts in issuing

and tailoring injunctions, we now examine how the PLRA alters the landscape for

injunctions in prison cases. It does so in two significant ways. First, the PLRA

supercharges some of the traditional equitable principles of injunctive relief.

While courts were already required to ensure injunctions are no broader than

necessary, the PLRA emphasizes the importance of narrow tailoring in prison

litigation by requiring courts to make specific findings that “such relief is narrowly

drawn, extends no further than necessary to correct the violation of the Federal

right, and is the least intrusive means necessary to correct the violation of the

Federal right.” § 3626(a)(1)(A). The PLRA also supercharges and particularizes

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the traditional public interest consideration by providing that courts “shall give

substantial weight to any adverse impact on public safety or the operation of a

criminal justice system caused by the relief.” § 3626(a)(1)(A) (emphasis added).

This requirement applies to the issuance of permanent as well as preliminary

injunctive relief, § 3626(a)(2), and presumably applies both to the determination of

whether the plaintiff is entitled to an injunction and to the tailoring of the

injunction.

Second, § 3626(a)(2)’s “unless” clause changes the function of preliminary

injunctions in prison cases. Ordinarily, the purpose of a preliminary injunction is

to prevent the plaintiff from suffering irreparable injury before the court can reach

a final decision on the merits. Wright & Miller, supra § 2947. To serve this

purpose, preliminary injunctions are typically “effective until a decision has been

reached at a trial on the merits.” Id. § 2941. A preliminary injunction under the

PLRA, however, may or may not last until a final decision on the merits is made.

Its lifespan is instead predetermined by the “unless” clause—it will automatically

expire 90 days after its entry unless certain conditions are met, one of which, as we

will explain in part II.B, is the entry of a permanent injunction after a trial on the

merits. § 3626(a)(2). In this respect, preliminary injunctive relief under the PLRA

more closely resembles a temporary restraining order (“TRO”) than a traditional

preliminary injunction. TROs are meant to preserve the status quo until a

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preliminary-injunction hearing is held, but their 14-day lifespan means they will

not necessarily last long enough to fulfill this function. See Fed. R. Civ. P.

65(b)(2); Wright & Miller, supra § 2951. The limited duration of a TRO is

“designed to restrict the possible adverse effect of an order that is granted without

a hearing and to ensure a prompt hearing on the application for a preliminary

injunction.” Wright & Miller, supra § 2953. Similarly, the PLRA’s 90-day cap on

preliminary injunctions limits the harmful effects of potentially unjustified or

overbroad injunctions and expedites the lifecycle of prison cases. The PLRA thus

subordinates the traditional function of preliminary injunctive relief—the

prevention of injury pending a trial on the merits—to the PLRA’s overarching goal

of reducing judicial involvement in prison management.

But how does this reshuffling of values play out in practical terms?

Basically, the PLRA’s imperative that prospective relief shall be awarded only to

the extent “necessary to correct the violation of [a] Federal right,” § 3626(a)(1)(A),

functions in conjunction with the “unless” clause, § 3626(a)(2), to create what is in

effect a 90-day test period during which the necessity of permanent injunctive

relief can be evaluated.

To see what we mean, consider the possible outcomes after a district court

issues a 90-day preliminary injunction. One possibility is that the defendant

reforms its practices to comply with the terms of the injunction within the 90 days.

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In this situation, a district court should ask whether the defendant’s reforms “have

completely and irrevocably eradicated the effects of the alleged violations,”

Thomas v. Bryant, 614 F.3d 1288, 1321 (11th Cir. 2010), keeping in mind that “[i]t

is the duty of the courts to beware of efforts to defeat injunctive relief by

protestations of repentance and reform, especially when . . . there is probability of

resumption,” United States v. Or. State Med. Soc., 343 U.S. 326, 333, 72 S. Ct.

690, 696 (1952). If the district court is satisfied that the defendant’s reforms are in

earnest and sufficiently enduring, it should ordinarily let the preliminary injunction

expire on the 90th day and dismiss the case, since a permanent injunction would no

longer be “necessary to correct the violation of the Federal right.” §

3626(a)(1)(A); see Rich v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 525, 530–31 (11th

Cir. 2013) (recognizing that a defendant’s voluntary cessation of challenged

conduct can sometimes moot a suit for injunctive relief). If, on the other hand, the

defendant fails to implement reforms or implements half-baked or impermanent

reforms, the district court should proceed to a trial on the merits, determine

whether a permanent injunction can be issued consistent with § 3626(a)(1)’s

requirements, and if so, make the findings required by that section and enter a

permanent injunction as part of a final judgment—or in the words of the PLRA,

“make[] the order final.” § 3626(a)(2). If the defendant wants to challenge the

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permanent injunction on appeal, he can appeal it as a final judgment under 28

U.S.C. § 1291.9

But what if the defendant wants to appeal the grant of preliminary injunctive

relief? It can appeal the preliminary injunction order under 28 U.S.C. § 1292(a)(1)

within 30 days of its entry, Fed. R. App. P. 4(a)(1)(A), and the court of appeals

will have 90 days from the order date to decide the appeal. If the court of appeals

does not decide the appeal within that time, then the injunction’s automatic

expiration will oust the court of jurisdiction, mooting the appeal. See United States

v. Sec’y, Fla. Dep’t of Corr., 778 F.3d at 1229. The district court should then

ordinarily proceed to a trial on the merits, taking the fact of the defendant’s appeal

as some evidence that any reform efforts it may have made are unlikely to render

permanent injunctive relief unnecessary. See Rich, 716 F.3d at 530–31 (refusing to

find that defendant’s reforms mooted the appeal in part because the defendant

“continue[s] to press on appeal that the voluntarily ceased conduct should be

declared constitutional”).

9 Section 1291 provides: The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. 18 USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 19 of 40

These alterations to the landscape of injunctive relief in prison cases further

the PLRA’s twin aims of expediting prison litigation and ending judicial

micromanagement of prison systems. Once a preliminary injunction issues, the

plaintiff’s entitlement to a permanent injunction is typically ascertained within 90

days, greatly condensing the litigation lifecycle. Furthermore, the model avoids

unnecessary judicial oversight by incentivizing prisons to redress violations on

their own. A prison that wishes to avoid being subject to a permanent injunction

and the attendant judicial oversight will have good reason to reform its policies

during the 90-day period in which the preliminary injunction is in place.

B.

It should be clear from the foregoing discussion that we believe the entry of

a permanent injunction is necessary to prevent a preliminary injunction from

expiring by operation of law after 90 days under the PLRA’s “unless” clause.

This, we believe, follows from the PLRA’s model for injunctive relief. Plaintiffs

argue, though, that the PLRA’s text is to the contrary. We disagree.

We begin questions of statutory interpretation by looking at the statute’s

plain language. United States v. Gilbert, 198 F.3d 1293, 1298 (11th Cir. 1999). In

doing so, we follow “the cardinal rule that statutory language must be read in

context since a phrase gathers meaning from the words around it.” Hibbs v. Winn,

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542 U.S. 88, 101, 124 S. Ct. 2276, 2285 (2004) (quotation marks and citation

omitted) (alterations adopted). Recall that the “unless” clause provides:

Preliminary injunctive relief shall automatically expire on the date that is 90 days after its entry, unless the court makes the findings required under subsection (a)(1) for the entry of prospective relief and makes the order final before the expiration of the 90-day period.

§ 3626(a)(2). The question before us is: What does it mean to make the order

“final”?

A “final order” is a commonplace legal term meaning “[a]n order that is

dispositive of the entire case.” Final Order, Black’s Law Dictionary 1123 (7th ed.

1999); see also Fort v. Roadway Express, Inc., 746 F.2d 744, 747 (11th Cir. 1984)

(“A final judgment is generally recognized as being an order of the court which

‘leaves nothing for the court to do but execute on the judgment.’” (citation

omitted)). An order is not “final” in this sense unless it “end[s] a court action or

proceeding leaving nothing further to be determined by the court or to be done

except the administrative execution of the court’s finding but not precluding an

appeal.” Final, Webster’s Third New International Dictionary 851 (1993). Final

orders stand in direct contrast to interlocutory orders, which are “order[s] that

relate[] to some intermediate matter in the case.” Interlocutory Order, Black’s

Law Dictionary 1123.

A suit for a permanent injunction contemplates a bench trial on the merits

followed by findings of fact and conclusions of law under Federal Rule of Civil

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Procedure 52(a)(1) and the entry of a final judgment granting or denying the

requested relief. See Permanent Injunction, Black’s Law Dictionary 788 (defining

“permanent injunction” as “[a]n injunction granted after a final hearing on the

merits”). The focus on a motion for a preliminary injunction, by contrast, is

whether the plaintiff faces a danger of irreparable injury before a permanent

injunction can be issued and whether the plaintiff is likely to prevail on the merits.

See Preliminary Injunction, Black’s Law Dictionary 788; see also Univ. of Tex. v.

Camenisch, 451 U.S. 390, 395, 101 S. Ct. 1830, 1834 (1981). If a district court

decides to issue a preliminary injunction, it does so by making the findings of fact

and conclusions of law required by Rule 52(a)(2) and entering an interlocutory

order. 10 See Camenisch, 451 U.S. at 395–96, 101 S. Ct. at 1834.

If the “unless” clause, when it speaks of making the order “final,” means

entering a “final order” as Defendants argue it does, then § 3626(a)(2) imposes a

90-day limit on all preliminary injunctions. If an injunction exceeding 90 days is

10 The findings of fact and conclusions of law that a district court must make for a preliminary injunction differ from those required for a permanent injunction because, as we previously discussed in part II.A, supra, the equitable considerations for each are not identical. When the court makes the findings and conclusions to enter a preliminary injunction, they will be framed in prospective terms—likelihood of success on the merits and a threat that the plaintiff will suffer irreparable injury. Nnadi v. Richter, 976 F.2d 682, 690 (11th Cir. 1992). But when the District Court enters a permanent injunction, he must find actual success on the merits and an actual irreparable injury. Angel Flight of Ga., Inc. v. Angel Flight Am., Inc., 522 F.3d 1200, 1208 (11th Cir. 2008). 21 USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 22 of 40

sought, it could only be ordered as part of a final judgment that leaves nothing

further for the court to do.

Plaintiffs, however, argue that the “unless” clause uses “final” in a less

technical sense. According to Plaintiffs, “final” means only “not to be processed

further but . . . utilized as is.” Final, Webster’s Third New International Dictionary

at 8551. To “make the order final” in this sense means simply to complete or

perfect the order by making all the required findings for the entry of preliminary

injunctive relief.

Plaintiffs’ interpretation has some merit. If Congress wanted to make

preliminary injunctions expire after 90 days unless the district court entered a final

order imposing a permanent injunction, it could have said so more clearly.

“Making” a preliminary injunction order final is a strange way to speak of entering

a final judgment incorporating an injunction. Nonetheless, we believe Defendants

have the better interpretation.

Despite the linguistic awkwardness just noted, the word “final” amidst talk

of “preliminary injunctive relief” and “orders” naturally evokes, to a legally trained

mind, the concept of a “final order.” The surrounding language strongly suggests

that “final” is being used in a technical legal sense as opposed to the broader

colloquial sense that Plaintiffs advance. See United States v. Williams, 553 U.S.

22 USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 23 of 40

285, 294, 128 S. Ct. 1830, 1839 (2008) (“[A] word is given more precise content

by the neighboring words with which it is associated.”).

The surplusage that would result from Plaintiffs’ interpretation also counsels

in favor of reading “final” in the narrow sense of a “final order.” Recall that

§ 3626(a)(2)’s “unless” clause says preliminary injunctions shall expire within 90

days unless the court does two things: (1) makes need-narrowness-intrusiveness

findings for the entry of prospective relief under § 3626(a)(1), and (2) makes the

order final. Under Plaintiffs’ reading, making the order final means no more than

making the need-narrowness-intrusiveness findings. Plaintiffs would therefore

have us collapse the two requirements into a single requirement, effectively

reading the “final order” requirement out of the statute. This would contravene the

rule that a statute ought to be interpreted, where possible, to give effect to all its

language. See Barton v. U.S. Att’y Gen., 904 F.3d 1294, 1300 (11th Cir. 2018),

aff’d sub nom. Barton v. Barr, 140 S. Ct. 1442, 206 L. Ed. 2d 682 (2020).

Plaintiffs’ interpretation also reads out other portions of the statute. Before

the “unless” clause, § 3626(a)(2) already requires that the court find the

preliminary relief is “narrowly drawn, extend[s] no further than necessary to

correct the harm the court finds requires preliminary relief, and [is] the least

intrusive means necessary to correct that harm” when first issuing the preliminary

injunction. If Plaintiffs are correct that “making the order final” only means

23 USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 24 of 40

formally making the need-narrowness-intrusiveness findings, then there would be

nothing left for the district court to do once the initial preliminary injunction order

is issued.

Plaintiffs can only avoid this outcome by pretending that the PLRA allows

district courts to issue preliminary injunctions and then choose whether to later

make need-narrowness-intrusiveness findings. The court would only have to make

such findings if it wanted the injunction to last beyond 90 days. Of course, the

problem with this is that § 3626(a)(1)(A) is unequivocal that “[t]he court shall not

grant or approve any prospective relief unless the court [makes need-narrowness-

intrusiveness findings].” 11 This language cannot be squared with an interpretation

that allows district courts to issue 90-day injunctions and only requires need-

narrowness-intrusiveness findings—or even a complete preliminary injunction

order, for that matter—if the court wants the injunction to last longer.

This reading also means the preliminary injunction cannot be effectively

reviewed by a court of appeals until the district court makes the findings required

for its issuance under Federal Rules of Civil Procedure 52(a). Davis v. United

States, 422 F.2d 1139, 1141 (5th Cir. 1970) (“In the words of the Supreme Court, a

11 Section 3626(a)(2) repeats this requirement for preliminary injunctions: “Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.”

24 USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 25 of 40

full and fair compliance with Rule 52(a) ‘is of the highest importance to a proper

review of the action of a court in granting or refusing a preliminary injunction.’”

(quoting Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310, 316, 60 S. Ct.

517, 520 (1940))). Since an essential part of those findings for injunctions subject

to the PLRA include the particularized need-narrowness-intrusiveness findings, see

United States v. Sec’y, Fla. Dep’t of Corr., 778 F.3d at 1228, effective review of a

PLRA injunction cannot be obtained until the district court makes those findings—

perhaps weeks or even months after the injunction was issued.

Defendants’ interpretation, by contrast, recognizes that § 3626(a)(2)

contemplates two separate proceedings. The district court must make the initial set

of need-narrowness-intrusiveness findings after a hearing to impose the

preliminary injunction in the first instance. Then, under the “unless clause,” the

court must make a second set of findings before converting the preliminary

injunction into a permanent injunction. This is consistent with the model

contemplated by the Federal Rules of Civil Procedure, which require separate

findings for the issuance of preliminary and permanent injunctions. See Fed. R.

Civ. P. Rule 52(a)(1)&(2). Because circumstances may change during the 90-day

period in which the preliminary injunction is in place, this requirement furthers the

PLRA’s goal of eliminating unnecessary and overbroad prison injunctions.

25 USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 26 of 40

As already noted, we agree with Plaintiffs that “making” a preliminary

injunction order final is not the clearest way to speak of entering a permanent

injunction. This does not discourage us from adopting Defendants’ interpretation,

however, because we believe this language merely reflects a common way of

thinking and talking about the relationship between preliminary and permanent

injunctions. It is not unusual to speak of a preliminary injunction merging with,

becoming, or being converted into a permanent injunction. See, e.g., Grupo

Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 314, 119 S. Ct.

1961, 1966 (1999) (“[A]n appeal from the grant of a preliminary injunction

becomes moot when the trial court enters a permanent injunction, because the

former merges into the latter.” (emphasis added)); AcryliCon USA, LLC v. Silikal

GmbH, 985 F.3d 1350, 1361 n.25 (11th Cir. 2021) (“A preliminary injunction only

becomes a permanent injunction when the district court includes a permanent

injunction in its final judgment.” (emphasis added)); Associated Builders &

Contractors Fla. E. Coast Chapter v. Miami-Dade Cnty., 594 F.3d 1321, 1323–24

(11th Cir. 2010) (per curiam) (“Once an order of permanent injunction is entered,

any preliminary injunction merges with it . . . .” (emphasis added)); Sec. & Exch.

Comm’n v. First Fin. Grp. of Tex., 645 F.2d 429, 433 (5th Cir. 1981) (“Once an

order of permanent injunction is entered . . . the order of preliminary injunction is

merged with it . . . .” (emphasis added)); Certified Grocers of Ill., Inc. v. Produce,

26 USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 27 of 40

Fresh & Frozen Fruits & Vegetables, Fish, Butter, Eggs, Cheese, Poultry, Florist,

Nursery, Landscape & Allied Empl., Drivers, Chauffeurs, Warehousemen &

Helpers Union, Chic. & Vicinity, Ill., Local 703, 816 F.2d 329, 330 (7th Cir. 1987)

(“[T]he court converted the preliminary injunction to a permanent injunction.”

(emphasis added)); In re Estate of Ferdinand Marcos Human Rights Litig., 94 F.3d

539, 544 (9th Cir. 1996) (“[W]here a permanent injunction has been granted that

supersedes the original preliminary injunction, the interlocutory injunction

becomes merged in the final decree . . . .” (citation and quotations omitted)

(emphasis added)); Burbank-Glendale-Pasadena Airport Auth. v. City of Los

Angeles, 979 F.2d 1338, 1340 n.1 (9th Cir. 1992) (“Once an order of permanent

injunction is entered, the preliminary injunction merges with it . . . .” (emphasis

added)). This language reflects the functional continuity between preliminary and

permanent injunctions—though they are put in place by separate and distinct

orders, the nature of the relief is the same and the latter typically replaces the

former without lapse. Thus, it is natural to think of a permanent injunction order as

securing, or indeed “making final,” a preexisting preliminary injunction.

Plaintiffs also argue that the phrase “[p]reliminary injunctive relief shall

automatically expire . . . unless,” shows that the “unless” clause establishes

requirements for preliminary injunctions to continue beyond 90 days. Thus,

Plaintiffs conclude, “making the order final” cannot mean entering a permanent

27 USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 28 of 40

injunction because that would cause the preliminary injunction to cease instead of

continue.

Plaintiffs’ argument rests on the assumption that the word “expire” in

§ 3626(a)(2) means simply “to come to an end” or “cease.” Expire, Webster’s

Third New International Dictionary at 801. If this were so, then an action which

prevents expiration of a preliminary injunction would, by definitional necessity,

cause the preliminary injunction to continue. However, we have previously

recognized that § 3626(a)(2) creates a particular type of expiration—expiration by

operation of law. United States v. Sec’y, Fla. Dep’t Corr., 778 F.3d at 1228.

Preventing a preliminary injunction from expiring by operation of law would not

necessarily mean the preliminary injunction continues. Indeed, the “merging” that

occurs when a permanent injunction is entered on top of a preexisting preliminary

injunction causes both the preliminary injunction to cease and prevents its

expiration by operation of law. We therefore find the language consistent with

Defendants’ reading of the provision.

Finally, Plaintiffs argue that if “making the order final” means entering a

permanent injunction, then the “unless” clause of § 3626(a)(2) would be

superfluous because § 3626(a)(1) already establishes the requirements for

permanent injunctive relief. This argument fails to recognize that the “unless”

clause governs a situation distinct from the one governed by § 3626(a)(1). As we

28 USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 29 of 40

have explained, § 3626(a)(1) governs the issuance of prospective relief in the first

instance, while § 3626(a)(2)’s “unless” clause governs the issuance of permanent

injunctive relief when a preliminary injunction is already in place. The “unless”

clause makes clear what § 3626(a)(1) alone might have left ambiguous—that a

court must make need-narrowness-intrusiveness findings when it converts a

preliminary injunction into a permanent injunction, even if it already made those

findings when issuing the preliminary injunction initially.12

We acknowledge that 90 days is a short amount of time to reach a final

decision on the merits of a complex civil case about prison conditions.

Nonetheless, that is what the text of § 3626(a)(2) calls for. In light of our reading

that preliminary injunctions respecting prison conditions expire after 90 days by

operation of law unless the District Court makes additional need-narrowness-

intrusiveness findings and enters a permanent injunction, we conclude that the

preliminary injunction here expired long ago.

12 We note that § 3626(a)(2) could be accused of suffering from surplusage for another reason. After all, if § 3626(a)(1) already covers “any prospective relief” and requires need- narrowness-intrusiveness findings, there would be no need to say that “[p]reliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.” § 3626(a)(2). But this sentence does play an important role: though this section authorizes the court to enter both a temporary restraining order or a preliminary injunction order, it makes clear that only a preliminary injunction order requires the need-narrowness-intrusiveness findings. Id. 29 USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 30 of 40

C.

Our precedent is clear that when a preliminary injunction expires by

operation of law under § 3626(a)(2), any appeal from that injunction is moot.

United States v. Sec’y, Fla. Dep’t of Corr., 778 F.3d at 1228–29. Defendants

nonetheless urge us to decide this appeal under the exception to mootness for

disputes that are “capable of repetition, yet evading review.” This exception

applies in “exceptional situations” where “(1) there [is] a reasonable expectation or

a demonstrated probability that the same controversy will recur involving the same

complaining party, and (2) the challenged action is in its duration too short to be

fully litigated prior to its cessation or expiration.” Id. at 1229; see also City of Los

Angeles v. Lyons, 461 U.S. 95, 109, 103 S. Ct. 1660, 1669 (1983). In a previous

PLRA case involving an expired preliminary injunction, we held that this

exception did not apply merely because the district court might enter another

preliminary injunction without making additional need-narrowness-intrusiveness

findings and making the order final within 90 days. United States v. Sec’y, Fla.

Dep’t of Corr., 778 F.3d at 1229.

Our contrary precedent notwithstanding, Defendants argue there is a

“reasonable expectation” they will be subject to yet another injunction requiring

them to provide psychiatrically disabled female inmates with regular out-of-cell

time and to improve the sanitary conditions in their cells. Defendants do not

30 USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 31 of 40

attempt to argue that any subsequent injunction will evade review, and we do not

believe one would.

Defendants can obtain review when the District Court enters a permanent

injunction after a trial on the merits, assuming Plaintiffs succeed. See Brooks v.

Ga. State Bd. of Elections, 59 F.3d 1114, 1121 (11th Cir. 1995) (declining to apply

the exception for cases “capable of repetition, yet evading review” in part because

“the district court retained jurisdiction of the case, which may be litigated on the

merits and the outcome appealed”); Tropicana Prods. Sales, Inc. v. Phillips

Brokerage Co., 874 F.2d 1581, 1583–84 (11th Cir. 1989) (same). We can then

review the injunction under 28 U.S.C. § 1291 as part of a final judgment.

Because this appeal is moot and no exception to mootness applies, we

dismiss the appeal and vacate the District Court’s order imposing the preliminary

injunction and its addendum order stating findings and conclusions in support of

the injunction. See United States v. Sec’y Fla. Dep’t of Corr., 778 F.3d at 1229–

30.

SO ORDERED.

31 USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 32 of 40

WILSON, Circuit Judge, dissenting:

I disagree with the majority’s interpretation of 18 U.S.C. § 3626(a)(2) of the

Prison Litigation Reform Act (PLRA). Because I do not believe that the

preliminary injunction expired after 90 days, I would hold that the case is not moot

and the finalized preliminary injunction complies with the PLRA.

The majority holds that the entry of a permanent injunction is necessary to

prevent a preliminary injunction from expiring after 90 days. It claims that its

holding “follows from the PLRA’s model for injunctive relief.” Maj. Op. at 20. I

disagree. Though the PLRA’s “model for injunctive relief” is one that disfavors

judicial involvement in prison administration, no statute “pursues its purpose at all

costs.” Antonin Scalia & Bryan A. Garner, Reading Law 57 (2012). Accordingly,

we must give due regard to the text of § 3626(a)(2) and “what [the statute] chooses

not to do.” Id. The PLRA does not require a permanent injunction be issued to

prevent a preliminary injunction from expiring after 90 days.

In passing the PLRA, Congress sought to limit litigation brought by

prisoners and address what it perceived as judicial overreach in the courts. See 141

Cong. Rec. S14414 (daily ed. Sept. 27, 1995) (remarks of Sen. Dole) (“These

guidelines will work to restrain liberal Federal judges who see violations o[f]

constitutional rights in every prisoner complaint and who have used these USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 33 of 40

complaints to micromanage State and local prison systems.”); see also Napier v.

Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (explaining that the PLRA was

passed “to reduce the number of frivolous cases filed by imprisoned plaintiffs, who

have little to lose and excessive amounts of free time with which to pursue their

complaints”).

By those measures, the PLRA has succeeded. The law has placed substantial

obstacles before prisoners seeking to file civil suits and has posed restrictions on

the judicial relief that can be awarded. The number of federal civil rights suits filed

by prisoners has dropped significantly since the law’s enactment, even as the

number of prisoners has risen. See Margo Schlanger, Inmate Litigation, 116 Harv.

L. Rev. 1555, 1583 (2003) (In 1995, the year before the PLRA, prisoners filed

39,008 federal civil rights suits, or 24.6 suits per 1,000 inmates. In 2001, 22,206

such suits were filed, a rate of 11.4 per 1,000 inmates.).

The PLRA’s obstacles to prisoner civil rights suits are numerous. Just to

name a few, the law poses an exhaustion requirement on prisoners seeking to file

suits, 42 U.S.C. § 1997e(a); makes prospective relief terminable after two years

unless a court makes written findings that it remains necessary, § 3626(b); and—as

discussed at length in the parties’ briefing—requires any prospective relief to

satisfy a need-narrowness-intrusiveness analysis, § 3626(a)(1). But those obstacles

33 USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 34 of 40

do not include a requirement that a permanent injunction be issued to prevent a

preliminary injunction from expiring after 90 days.

The majority’s reasons for reaching the contrary conclusion are unavailing.

The majority asserts that “final order” is a commonplace legal term, widely

understood to mean an order that disposes of a case. I agree. The problem here,

though, is that § 3626(a)(2) does not use this commonplace legal term—it instead

uses the phrase “makes the order final.” This word choice seems intentional. Just a

few subsections later, the statute does use the term “final order.” § 3626(e)(2)(b)

(“ending on the date the court enters a final order ruling on the motion”). Because

“final order” is a commonplace legal term with a well-settled meaning, the use of a

different term in § 3626(a)(2) indicates that Congress likely intended a different

meaning.

I agree with the Plaintiffs that the more natural interpretation of “final” here

is “not to be processed further” and “utilized as is.” Final, Webster’s Third New

International Dictionary 851 (1993). In the context of § 3626(a)(2), a preliminary

injunction is finalized, and does not expire, if within 90 days of issuance the

district court makes all required findings and issues a complete and final

The majority concedes that this interpretation “has some merit.” Maj. Op. at

23. This is not only because Congress could have imposed a firm 90-day limit on

34 USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 35 of 40

preliminary injunctions in a much clearer and simpler way (by simply removing

the “unless” clause altogether) but also because “making an order final” is an odd

way to talk about entering a permanent injunction (which is ordinarily entered after

a full trial on the merits).

Nonetheless, the majority asserts that its interpretation is “better” because

“the word ‘final’ amidst talk of ‘preliminary injunctive relief’ and ‘order’ naturally

evokes, to a legally trained mind, the concept of a ‘final order.’” Id. This is so, it

explains, because the “surrounding language strongly suggests that final is being

used in a “technical legal sense.” Id. I disagree with that interpretation. The

technical legal terms surrounding the phrase “makes the order final” are not

enough to essentially transform the words into the term “final order.”

What the majority does today prevents preliminary injunctions from serving

their core equitable purpose of protecting plaintiffs from the substantial threat of

irreparable injuries while their claims are pending. See Nnadi v. Richter, 976 F.2d

682, 690 (11th Cir. 1992). To issue a preliminary injunction, a district court must

find that 1) the moving party has a substantial likelihood of success on the merits;

2) the moving party will be irreparably injured without the injunction; 3) the

threatened injury to the moving party outweighs the harm the injunction might

cause the opposing party; and 4) the injunction would not be adverse to the public

interest. See KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1268 (11th Cir.

35 USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 36 of 40

2006). In a PLRA case, the court must also give substantial weight to “any adverse

impact on public safety or the operation of a criminal justice system” and find that

the preliminary injunction satisfies the need-narrowness-intrusiveness analysis. See

§ 3626(a)(2). But even if a district court makes all of these findings and believes

the preliminary injunction is warranted, the majority today seeks to limit that relief

to only 90 days, regardless of how long the case takes to litigate.

Preliminary injunctions have been issued since as early as the mid-1800s to

prevent irreparable injuries while cases are litigated. See In re Slaughter-House

Cases, 77 U.S. (10 Wall.) 273 (1869). “Surrounding language” is not enough to

disrupt this long-running equitable practice. Furthermore, using the PLRA’s stated

purpose of reducing judicial involvement in prison management to reach this result

disregards “what [the PLRA] chooses not to do.” Scalia & Garner, Reading Law, at

57.

The majority also asserts that the Plaintiffs’ interpretation of the statute is

incorrect because it collapses the two requirements of the “unless” clause,

“effectively reading the ‘final order’ requirement out of the statute.” Maj. Op. at

24. I disagree. First, there is no “final order” requirement in the statute. The statute

requires a court to “make[] the order final.” When read in context of the full

sentence it becomes evident that the word “order” refers to the preliminary

36 USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 37 of 40

injunction order. See United States v. Williams, 553 U.S. 285, 294 (2008).1

Nowhere does the statute require the entry of a “final order.”

Second, there are still two distinct requirements on the district court. To

comply with the PLRA, the district court must 1) make the findings required by

§ 3626(a)(1), and 2) finalize the preliminary injunction by issuing an order that

fully and finally sets out the bounds of the preliminary injunction. That is exactly

what the district court did here. After initially issuing the preliminary injunction,

the court used the 90-day period to solicit information from the parties and issue an

order that contained the court’s detailed need-narrowness-intrusiveness findings

and finalized the bounds of the preliminary injunction. That both requirements

could be fulfilled in one order does not necessarily collapse them.

The Plaintiffs’ interpretation also does not read out other portions of the

statute, as the majority claims. See Maj. Op. at 24. While § 3626(a)(2) does require

preliminary injunctive relief to be “narrowly drawn, extend no further than

necessary. . . and be the least intrusive means necessary to correct th[e] harm,” it

does not require these findings to be explicitly made, as is required to comply with

1 The full sentence reads: “Preliminary injunctive relief shall automatically expire on the date that is 90 days after its entry, unless the court makes the findings required under subsection (a)(1) for the entry of prospective relief and makes the order final before the expiration of the 90- day period.” § 3626(a)(2).

37 USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 38 of 40

subsection (a)(1). 2 Because the section regarding issuance of a preliminary

injunction does not include the word “finds,” the language indicates that a district

court could issue a preliminary injunction, stating that it has made the requisite

considerations and the need-narrowness-intrusiveness requirement is met, and then

have up to 90 days to explain its analysis and findings in writing. That is what the

district court did here, and I believe that is enough to prevent the preliminary

injunction from expiring.

III.

The majority’s broad overview of the case also fails to portray the reality

that women with serious psychiatric disabilities in the South Fulton Jail mental

health pods will continue to face while the case is litigated without a preliminary

injunction in place.

The Plaintiffs summarize the Sheriff’s official records, photographs and

video recordings in the record, and firsthand accounts of investigators who

inspected the pods: Women in the mental health pods are subject to long-term

isolation in horrific and repulsive conditions. Women have “been found lying

2 While almost identical, the different wording in subsections (a)(1) and (a)(2) is significant. For a preliminary injunction, the “relief must be narrowly drawn, extend no further than necessary. . . and be the least intrusive means necessary to correct that harm.” § 3626(a)(2) (emphasis added). But under § 3626(a)(1)(A), a “court shall not grant or approve any prospective relief unless the court finds that such relief” meets the need-narrowness-intrusiveness requirement. § 3626(a)(1)(A) (emphasis added). The term “finds” requires particularized findings, or an explanation of how the order meets the requirements. See United States v. Sec’y, Fla. Dep’t of Corr., 778 F.3d 1223, 1227–28 (11th Cir. 2015).

38 USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 39 of 40

catatonic on the floor, screaming unintelligibly, speaking incoherently, banging

their heads against cell walls, repeatedly attempting suicide, living in cells with

feces smeared on the walls or urine pooled on the floors, and enduring

extraordinary squalor as their mental health deteriorated, causing harm up to and

including death.” Despite the medical recognition that isolation for seriously

mentally ill people “can be as clinically distressing as physical torture,” Jeffrey

Metzner et al., Solitary Confinement and Mental Illness in U.S. Prisons, 38 J. Am.

Acad. Psych. & L. 104, 104 (2010), women with the most serious psychiatric

disorders at South Fulton Jail are held in isolation on a virtually around-the-clock

basis.

That is what will continue to happen while the case is pending if the

preliminary injunction is not in place.

The majority asserts that the 90-day time limit for preliminary injunctions

“expedites the lifecycle of prison cases.” Maj. Op. at 17. But it provides no support

or explanation for how or why litigation will be expedited. Rather than expedite

cases, I fear the 90-day limit will leave plaintiffs vulnerable to likely

unconstitutional conduct as the merits are litigated at a normal pace.

The majority also fails to grapple with the length of time that cases take to

proceed to a trial on the merits. Again, it claims without support that “[o]nce a

preliminary injunction issues, the plaintiff’s entitlement to a permanent injunction

39 USCA11 Case: 19-14227 Date Filed: 07/14/2021 Page: 40 of 40

is typically ascertained within 90 days, greatly condensing the litigation lifecycle.”

Maj. Op. at 19. While that could be true for some cases, it is certainly not the case

in many class action prisoner civil rights suits, like this one. This case was filed in

April of 2019 and the preliminary injunction was initially granted in July of 2019.

It appears that currently—in the summer of 2021—the parties are only now

litigating summary judgment motions.

IV.

The majority’s holding today threatens to leave prisoners in vulnerable,

likely unconstitutional situations without relief during the pendency of their

lawsuits. Because this is not what the language of the PLRA requires nor can it be

reconciled with the equitable rationales for the preliminary injunction, I

respectfully dissent.