Dunn v. Dunn (219 F. Supp. 3d 1100, 2016)

PHASE 2A INDIVIDUAL PLAINTIFFS SUMMARY JUDGMENT OPINION

Myron H. Thompson, UNITED STATES DISTRICT JUDGE

The plaintiffs in this putative class-action lawsuit are dozens of state prisoners and the Alabama Disabilities Advocacy Program (ADAP). The defendants are officials of the Alabama Department of Corrections (ADOC): the Commissioner and the Associate Commissioner of Health Services. They are sued in their official capacities only.

In Phase 2A of this case, with which this opinion is concerned, ADAP and a subset of individual plaintiffs assert the following mental-health claims: constitutionally inadequate mental-health treatment in Alabama prison facilities and involuntary medication without due process. They rely on the Eighth and Fourteenth Amendments, as enforced through 42 U.S.C. § 983. Plaintiffs seek declaratory and injunctive relief. Jurisdiction is proper under 28 U.S.C. § 331 (federal question) and § 1343 (civil rights). The case is proceeding on two parallel tracks consisting of ADAP’s claims and the individual plaintiffs’ claims.

In September 2016, more than two years after this case was filed and after extensive discovery, defendants moved for summary judgment on the individual plaintiffs’ Phase 2 claims. This motion is now before the court. The court will, at.this time, decide the motion only as to the Phase 2A claims.

As defendants requested summary judgment with regard to only individual plaintiffs, this opinion addresses only the claims by those individual prisoners, and hereinafter ‘plaintiffs’ refers to only individual plaintiffs, excluding ADAP. The defendants’ summary-judgment motion will be granted in part and denied in part.

I. Background

ADOC confines about 23,500 prisoners in 28 prison facilities, including 15 major facilities, which are close custody or medium custody, and 13 work release centers, which are minimum custody. Of the major correctional facilities, Tutwiler is the only one that houses female prisoners. At three of the major correctional facilities—Bullock, Donaldson, and Tutwiler—there are Residential Treatment Units (“RTUs”), which house mentally ill prisoners who need more direct monitoring and intensive treatment than is available in general population. Bullock and Tutwiler also have Intensive Stabilization Units (“SUs”), which house mentally ill prisoners in need of direct monitoring and stabilization after crises.

Based on an intake screening, which takes place at Kilby for men and Tutwiler for women, prisoners receive a mental-health code ranging from MH-0, which indicates that a prisoner does not need any mental-health care, to MH-6, which indicates that a prisoner cannot be treated in ADOC custody and requires referral for inpatient treatment in a state hospital. Codes of MH-1 to MH-2 are for prisoners who ADOC believes can be housed in general population, while the higher codes (MH-3 to MH-5) indicate that a prisoner should be housed in an RTU or SU. Prisoners can also be added to the mentalhealth caseload during a post-intake classification review, based on a referral by staff, or by self-referral. At different points in early 2016, the mental-health caseload included between 2,700 and 3,400 prisoners.

ADOC has contracted with MHM Correctional Services, Inc. (MHM) to provide mental-health services—including medication, individual counseling, and group therapy—to mentally ill prisoners. MHM’s current contact with ADOC went into effect on October 1, 2013. MHM’s program in Alabama is led by Dr. Robert Hunter, who has been the Medical Director and Chief Psychiatrist since 2003, and Teresa Houser, who is the Program Manager (an administrative position) and has been working for MHM since 2008. MHM employs a range of mental-health providers, including psychiatrists, certified registered nurse practitioners (CRNPs), psychologists, ‘mental health professionals’ (MHPs), registered nurses (RNs), licensed practical nurses (LPNs), activity technicians (ATs), and clerical support staff.

Although MHM provides virtually all of the mental-health treatment for prisoners, ADOC also employs two psychologists who assist with the intake process, ‘psychological associates’ who do some screening and may provide some therapeutic care to prisoners with very low-level mental illness, and a chief psychologist who is responsible for oversight of mental-health staff.

Commissioner Jefferson Dunn, who took office in April 2015, leads the ADOC. Associate Commissioner for Health Services Ruth Naglich, who has served in this role since 2004, has a nursing license and 20 years of experience in correctional medicine. She is responsible for managing and overseeing ADOC’s medical and mental-health services, including those services delivered by MHM.

II. Summary Judgment Standard

Summary judgment is appropriate under Federal Rule of Civil Procedure 56(a) “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” With respect to issues where “the non-moving party bears the burden of proof ... at trial [such as, here, the merits of plaintiffs’ claims], the moving party, in order to prevail, must do one of two things: show that the nonmoving party has no evidence to support its case, or present affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial.” Hammer v. Slater, 20 F.3d 1137, 1141 (11th Cir. 1994) (citation and internal quotation marks omitted).

On issues as to which the movant has the burden of proof at trial (such as, here, exhaustion of administrative remedies), the movant “must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence that would entitle it to a directed verdict if not controverted at trial.” Rich v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 526, 530 (11th Cir. 2013) (citation and internal quotation marks omitted).

Once the party seeking summary judgment has met its initial burden, the burden shifts to the nonmoving party to demonstrate why summary judgment would be inappropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must affirmatively set forth specific facts showing a genuine issue for trial, and may not rest upon mere allegations or denials in pleadings. See Fed. R. Civ. P. 56(c)(1).

The court’s role at the summary-judgment stage is not to weigh the evidence or to determine the truth of the matter, but rather to determine only whether a genuine issue exists for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In making this determination, the court must view the evidence in the light most favorable to the nonmoving party, drawing all reasonable inferences in that party’s favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Am. Tel. & Tel. Co. v. Delta Commc’ns Corp., 590 F.2d 100, 101-02 (5th Cir. 1979) (“If a frog be found in the party punch bowl, the presence of a mischievous guest but not the occurrence of spontaneous generation may reasonably be inferred.”). The court is not to weigh conflicting evidence or make credibility determinations at summary judgment. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996).

III. Procedural Arguments

A. Mootness

Defendants contend that the mental-health care claims of six of the named plaintiffs—Businelle, Carter, Dillard, Dunn, Moncrief, and Terrell—are due to be dismissed as moot, based on “‘[t]he general rule ... that a prisoner’s transfer or release from a jail moots his individual [and pre-certification class] claim for declaratory and injunctive relief ” regarding conditions of confinement. Dunn v. Dunn, 148 F.Supp.3d 1329, 1337 (M.D. Ala. 2015) (Thompson, J.) (quoting McKinnon v. Talladega Cty., 745 F.2d 1360, 1363 (11th Cir. 1984)). Plaintiffs argue that none of these plaintiffs’ pre-certification class claims are moot because: (1) all of them but Terrell have been conditionally released and are subject to the terms of probation or parole, (2) Dunn has been arrested and charged with another crime, making it likely that he will be incarcerated again either if he is convicted of that crime or if his parole is revoked, (3) Businelle is subject to the “picking-off’ exception to mootness for pre-certification class claims; and (4) Dillard’s, Moncriefs, and Terrell’s claims fall within the “inherently transitory” exception to mootness for pre-certification class claims. All of these arguments fail; therefore, the court will dismiss these named plaintiffs.

The court easily rejects the first of these arguments. Plaintiffs cite no case law for the proposition that a prisoner released on probation or parole remains, as they contend, in the custody of the Department of Corrections; he certainly does not remain in its custody for purposes relevant here, since he is free to receive free-world mental-health care and cannot receive mental-health care provided by the Department. Although plaintiffs note generally that there are high rates of recidivism among state prisoners and that three individuals have previously been re-incarcerated, they have not attempted to explain the relevance of this information to any exception to mootness, instead suggesting that they remain free to proceed on claims to the same extent as if they were still imprisoned.

Plaintiffs also contend that Dunn’s claims are not moot because they fall within the “capable of repetition, yet evading review” exception to mootness for individual claims. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975). Based on Honig v. Doe, 484 U.S. 305, 317-23, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988), they argue that there is a “reasonable expectation” that Dunn will again be subject to the challenged conduct. He has been arrested and charged with a felony, and they contend that he is likely either to be convicted of this offense or to have his parole revoked. In either event, plaintiffs argue, he will be returned to the custody of defendants and again subject to their mental-health care system. Plaintiffs have not submitted any record evidence to support these claims. But even if they had submitted evidence to this effect, plaintiffs’ reliance on the “reasonable expectation” standard elaborated upon in Honig would be misplaced. A party seeking to employ the exception for claims that are “capable of repetition, yet evading review” must show “two elements combined: (1) the challenged action was, in its duration, too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subject to the same action again.” Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (emphasis added). Honig addresses, and plaintiffs have addressed, only the latter of these two elements; Dunn has not shown that the duration of a future term in prison would be “so short as to evade review.” Spencer v. Kemna, 523 U.S. 1, 18, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).

Plaintiffs next argue that Busi-nelle’s claims are subject to the “picking-off’ exception because he was denied parole in May but granted it in September, just as class-certification briefing was in progress. See Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1050 (6th Cir. 1981) (finding that the relation-back doctrine applies to defeat mootness with respect to class claims “when the defendants have the ability by tender to each named plaintiff effectively to prevent any plaintiff in the class from procuring a decision on class certification”); see also Stein v. Buccaneers Ltd. P’ship, 772 F.3d 698, 706-07 (11th Cir. 2014) (recognizing this as the law of the Eleventh Circuit). Although this quick reconsideration is perhaps somewhat suspicious, plaintiffs have not offered any evidence to show that defendants or their employees were in any way responsible for or involved in the decision by the independent parole board to grant him release. Without any such evidence, the court cannot conclude that the exception applies.

Finally, plaintiffs’ fourth argument—that the claims of Dillard, Moncrief, and Terrell fall within the exception to mootness for inherently transitory class claims—fares no better. As the court explained in detail in a prior opinion: “A claim is inherently transitory not only if there exists no plaintiff who could both establish standing at the outset of litigation and retain an active stake by the time class certification is decided, but also if it would be difficult to identify which prospective plaintiff that would be at the time of filing. As the Supreme Court explained in Gerstein v. Pugh, a claim should be considered inherently transitory when ‘[ijt is by no means certain that any given individual, named as plaintiff, would be in ... custody long enough for a district judge to certify the class.’ 420 U.S. 103, 110 n.11, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (emphasis added). Both the Second and Seventh Circuits have held that, although ‘the ultimate length of confinement does affect the applicability of the ‘inherently transitory’ exception, the essence of the exception is uncertainty about whether a claim will remain alive for any given plaintiff long enough for a district court to certify the class.’ ” Dunn, 148 F.Supp.3d at 1340 (quoting Olson v. Brown, 594 F.3d 577, 582 (7th Cir. 2010) (emphasis added), and citing Zurak v. Regan, 550 F.2d 86, 90-92 (2d Cir. 1977); and Thorpe v. District of Columbia, 916 F.Supp.2d 65, 67 (D.D.C. 2013) (Huvelle, J.)).

Although claims that “derive from potentially imminent release from custody are ‘a classic example of a transitory claim,’ ” id. (quoting Wade v. Kirkland, 118 F.3d 667, 670 (9th Cir. 1997)), plaintiffs have endeavored to identify another category of issues that they contend are inherently transitory: those related to the mental-health care provided in ADOC’s RTUs. They note that there were only-about 200 male prisoners housed in the RTUs at the time the complaint was filed, and have suggested that the prisoners frequently move into and out of the RTUs.

But the question here is not whether incarcerated plaintiffs who are not currently housed in the RTUs but have been in the past and may be again in the future can challenge the level of treatment provided in those units. Instead, the question is whether plaintiffs who have been released from custody altogether can challenge certain conditions they experience in prison. Defendants point out that there are a number of easily identifiable' prisoners who are virtually certain to remain in custody for years (because they are serving extremely long sentences, including in some instances life without the possibility of parole) and who have experienced or are likely to experience, and can therefore properly challenge, the conditions in the RTUs going forward. Indeed, some of these prisoners remain as named plaintiffs in this case.

Plaintiffs also contend that Dillard and Terrell also represent a small number of prisoners who are both mentally ill and intellectually disabled. But plaintiffs fail to explain why the claims of such prisoners are inherently transitory; the fact that there are relatively few of them (how many, plaintiffs do not say) is not enough. Although the court can imagine ways in which the provision of mental-health care to prisoners with intellectual disabilities is shaped by those disabilities, it is not aware that plaintiffs have made any allegations in their complaint of systemic problems specific to this circumstance. Dillard’s, Mon-criefs, and Terrell’s claims are therefore not inherently transitory.

B. Exhaustion

Defendants contend that many of the named plaintiffs have failed to exhaust administrative remedies and that their claims are therefore barred. They rely for evidence on the admissions of seven named plaintiffs (Businelle, Carter, Jackson, McCoy, Moncrief, Wallace, and Williams) in their depositions that they did not file a mental-health grievance within the last five years; the declaration of an MHM employee that a review of MHM files revealed another five named plaintiffs (Bui, Dillard, Hardy, Johnson, and Pruitt) who did not file a mental-health grievance between January 1, 2012, and July 1, 2014; and plaintiffs’ admission that another (Hartley) never filed a grievance with respect to his claims in this case. Defendants do not contend that one of the remaining Phase 2A plaintiffs (Braggs) failed to exhaust.

The Prison Litigation Reform Act (PLRA) imposes the following exhaustion requirement: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court has squarely held that exhaustion is an affirmative defense, on which defendants bear the burden of proof. Jones v. Bock, 549 U.S. 199, 216-17, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). And, as the Supreme Court recently reiterated, proper exhaustion is a mandatory predicate to suit, with one exception: administrative remedies must be “available,” meaning that “an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of.’ ” Ross v. Blake, — U.S. -, 136 S.Ct. 1850, 1858-59, 195 L.Ed.2d 117 (2016) (quoting Booth v. Churner, 532 U.S. 731, 738, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)).

Defendants have not borne their burden of proof with respect to any of the named plaintiffs at issue in Phase 2A for a number of reasons. As a preliminary matter, it is critical to note that ADOC is a highly unusual state prison system, in that it does not operate its own general grievance process for prisoners; therefore, the question is whether a grievance process operated entirely by MHM, which is not a general grievance process and functions without any involvement by correctional officials, was available for exhaustion of the specific claims in this case, which are brought only against correctional officials. See Henderson v. Thomas, 891 F.Supp.2d 1296, 1311 (M.D. Ala. 2012) (Thompson, J.) (“[W]ith no generalized grievance system, ADOC inmates have lost ‘a way of attempting to improve prison conditions without having to file a lawsuit.’ In turn, corrections officials ‘lose the substantial benefits that administrative remedies were intended to provide them.’ ” (quoting Turner v. Burnside, 541 F.3d 1077, 1084-85 (11th Cir. 2008))).

Of course, the court recognizes that the PLRA’s exhaustion requirement, unlike the pre-PLRA requirement, does not require that administrative remedies be “effective,” and contains no futility exception. Alexander v. Hawk, 159 F.3d 1321, 1326 (11th Cir. 1998). Again, Alabama is an outlier; it is one of the few “state penal institutions [that do] not have an administrative remedy program to address prison conditions, and thus there are no ‘available’ administrative remedies to exhaust” with respect to many conditions-related claims. Id. at 1327. Instead, ADOC’s contractors have provided (or not, in light of the discussion below) grievance processes for discrete issues. Obviously, the provision of a grievance procedure with respect to one issue does not result in a requirement that prisoners exhaust it as to all issues; the court is forced to determine which issues are covered and which are not.

With respect to plaintiffs’ claims that defendants’ policies of custodial understaffing, and placement of prisoners in prolonged segregation without regard to their mental illness, create a substantial risk of serious harm by impeding access to, and increasing demand for, mental-health care, the grievance process was obviously not available; MHM has nothing to do with custodial staffing and the placement of prisoner in segregation. As this court explained in Henderson, in concluding that the medical-grievance process operated by ADOC’s medical care contractor was not available with respect to “broader disputes about ADOC housing and transfer policy” and could not “be used to complain to prison officials—as opposed to the Correctional Medical Services personnel—about accommodations policy,” “defendants have submitted no evidence that the medical professionals reviewing the medical grievance forms had any authority over non-medical issues or ADOC policy more generally. Allowing ADOC to characterize the medical grievance process as a generalized system would bait-and-switch the plaintiffs.” 891 F.Supp.2d at 1310-11 (citation omitted).

The same argument can fairly be made with respect to plaintiffs’ contentions that defendants are prospectively violating the Eighth Amendment by providing in their contract with MHM for too little funding and too few qualified practitioners. Even were it true (this issue is taken up later) that MHM made available a grievance process for plaintiffs to challenge discrete instances of inadequate care at the hands of practitioners employed by MHM, there is no evidence to suggest that MHM administrators had any authority unilaterally to increase their own contractual funding or staffing levels (indeed, it is plain that they did not). Booth explains that although the precise form of relief requested by a prisoner need not be available in order for him to be required to exhaust a grievance procedure (for example, when a prisoner demands monetary compensation but this form of redress cannot be provided), a grievance process is not available when “the relevant administrative procedure lacks authority to provide any relief or to take any action whatsoever in response to a complaint.” 532 U.S. at 736, 121 S.Ct. 1819. Booth goes on to elaborate that the administrative officers hearing the grievance must have some “authority to act on the subject of the complaint,” and take some responsive action “with respect to the type of allegations ... raise[d].” Id. at 736 n.4, 121 S.Ct. 1819 (emphasis added). The officers’ ability to do something is not enough; they must have the ability to do spmething responsive. Here, MHM plainly has no authority to give any relief at all with respect to the funding and staffing levels set by defendants; if a grievance were filed requesting such action, MHM would surely “disclaim[] the capacity to consider those petitions.” Ross, 136 S.Ct. at 1859.

This is vividly illustrated by the fact that, although MHM initially submitted a proposal in 2013 for staffing of 144.95 full-time equivalent positions, based on its own assessment of the level needed to provided appropriate care to prisoners across the system, it eventually had to reduce that figure substantially, to 126.5, because MHM was informed by defendants that “the department ... wouldn’t be able to fund that many employees.” Houser Depo., P Ex. 14 (doc. no. 675-14) at 298. Houser, MHM’s Program Manager, testified that she has repeatedly requested additional funding for staffing, but that her requests have been denied due to budgetary constraints.

With regard to both the policies and practices discussed above and the policies and practices over which MHM does have control, the court further concludes that even the grievance process that MHM purports to operate is not available for purposes of the PLRA because it is “so opaque that it becomes, practically speaking, incapable of use,” because, although “some mechanism exists to provide relief,” it is “so confusing” that “no ordinary prisoner can discern or navigate it.” Ross, 136 S.Ct. at 1859 (citation and quotation marks omitted) (explaining that the “procedures need not,” however, “be sufficiently ‘plain’ as to preclude any reasonable mistake or debate with respect to their meaning”).

As an initial matter, plaintiffs point out that the only evidence defendants offered as to the existence of a grievance process for mental health-related claims at the relevant juncture (when the case was filed in 2014) was the declaration of MHM’s Program Manager, Teresa Houser, attaching and referencing a grievance policy approved in July 2016. This policy said nothing about what grievance process did or did not exist two years earlier. See Smith v. Terry, 491 Fed.Appx. 81, 83 (11th Cir. 2012) (per curiam) (“The only facts pertinent to determining whether a prisoner has satisfied the PLRA’s exhaustion requirement are those that existed when he filed his original complaint.”). In reply, defendants have submitted a similar document they say—notably, without offering a supplemental declaration from Houser— was in effect since 2009.

Eyen if this policy were in effect, defendants have still failed to meet their burden to show that an ordinary prisoner could figure out how to use it. As a preliminary matter, Houser testified that prisoners are informed of the mental-health grievance process when they receive “a form entitled Orientation to Mental Health Services,” which, she says, “describ[es] the grievance processes and procedures.” Houser Decl., D Ex. 143 (doc. no. 782-37) at 3. This statement contorts the meaning of the word ‘describe’ well past its breaking point. All the form tells prisoners is this: “If you believe the mental health services provided to you are inadequate, you may file an inmate grievance.” Inmate Orientation to Mental Health Services, P Ex. 170 (doc. no. 850-70) at 2. It does not tell prisoners anything about how to file such a grievance (or how to distinguish it from any other form of inmate grievance): this ‘description’ does not reveal what form the grievance should be composed on, to whom it should be given and by what means, what information should be included, who will review it and how quickly, and whether there is any process of appeal.

There is no evidence to suggest that MHM’s written grievance policy was made available to prisoners; even if it was, the policy is not substantially more informative. It states that a prisoner “may file a formal grievance by completing the relevant form.” MHM Grievance Mechanisms for Health Complaints, D Ex. 182 (doc. no. 877-3), at 2, Dunn(MHM) 00071. Aside from the fact that this opaque boilerplate does not reveal which form is the “relevant” one, there is a further problem in practice: Houser stated in her deposition that the form prisoners are to use is actually the medical grievance form provided by Corizon, which is actually a grievance form produced by (and displaying the name of) Corizon’s predecessor, Correctional Medical Services. If the requirement that a prisoner submit a form issued by one contractor, and used to file grievances with another, to yet a third contractor, not named on the form, were not enough to confound even the most intelligent and diligent of prisoners, there is still more. The form Houser says should be used includes checkboxes to identify “the type of grievance you are filing,” but the only two options are “Medical Grievance” and “Medical Grievance Appeal.” Grievances of William Sullivan, P Ex. 165 (doc. no. 683-5) at 1, PLF002101. Apparently, defendants believe that prisoners should have surmised that they needed to cross out “Medical” and write “Mental Health,” or that they should simply have created a new, third checkbox to indicate the topic of their grievances.

Moreover, MHM’s current policy states that “[f]ormal grievances related to mental health services may not be received directly by mental health staff but may be sent to the designated institutional department.” MHM Grievance Mechanism for Health Complaints, D. Ex 182 (doc. no. 877-3) at 2, Dunn(MHM) 00071. Unfortunately, the policy does not reveal what the designated institutional department is, or how a prisoner should “send” his grievance to it. Houser stated in her deposition— directly contrary to the written policy she cited—that a prisoner who has completed a grievance form should “either put it in the in-house mail or hand it to us when they see us.” Houser Depo. (doc. no. 996-17) at 22. Defendants have not offered evidence to show that either of these avenues for submission is disclosed to prisoners in any way; indeed, one is forbidden by the very policy defendants say reveals how the process works. While the PLRA might not require a grievance process that is completely clear and easy to follow, it does not countenance one that is so full of blind alleys and dead ends that even those who run it cannot manage to accurately and consistently describe how it works.

If a prisoner were able to determine how to file a grievance properly, it would be by sheer lucky guesswork. The fact that the court remains uncertain as to how a prisoner attempting to file a mental-health grievance should indicate as much on the form and how he should submit the form makes clear that this process is not “available.” Indeed, it appears that prisoners do not understand that a mental-health grievance process exists; two named plaintiffs, Businelle and Jackson, testified to this effect. Although Houser contends that the process must be understood because “inmates ... submit grievances on a regular basis,” Houser Decl., D Ex. 143 (doc. no. 782-37) at 3, plaintiffs have presented considerable evidence to the contrary. Although MHM’s current policy states that MHM’s quality improvement program reviews grievances, plaintiffs note that not a single filed grievance was referenced in the minutes of MHM’s quality improvement meetings until October 2014 (after this case was filed). More damning still, MHM’s own annual audit in 2014 documented that three major facilities had logged no grievances at all that year, and that “MHM Site Administrators indicated that they rarely receive grievances.” MHM 2014 Audit, P Ex. 177 (doc. no. 850-77) at 10, ADOC0140892-9. In 2013, the audit revealed that “ [grievance logs were found at most facilities, many of which included no grievances.” MHM 2013 Audit, P Ex. 178 (doc. no. 850-78) at 14, ADOC0141610-13. Apart from raising concern as to why grievance logs were not found at all facilities, these audit findings further corroborate plaintiffs’ contention that it is the very rare prisoner who is aware that he is permitted to file a grievance with MHM and can manage to figure out how to do so.

Three additional points warrant mentioning with respect to exhaustion of plaintiffs’ Eighth Amendment claims. First, the court notes that even if MHM’s grievance process were available with respect to some or all of the claims at issue (again, it is not), defendants evidence would be inadequate to establish that plaintiffs have not exhausted it. This is because their evidence shows only that they did not file grievances regarding their mental-health care over spans of a few years. As discussed below, with respect to the statute of limitations arguments raised by defendants, plaintiffs claim continuing violations arising from policies or practices they say (and have offered evidence to show) have existed for some years. “In order to exhaust their remedies, prisoners need not file multiple, successive grievances raising the same issue (such as prison conditions or policies) if the objectionable condition is continuing.” Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013) (citing, among other cases, Parzyck v. Prison Health Servs. Inc., 627 F.3d 1215, 1219 (11th Cir. 2010) (a prisoner is “not required to initiate another round of the administrative grievance process on the exact same issue each time” a deprivation occurs), and Johnson v. Johnson, 385 F.3d 503, 521 (5th Cir. 2004) (“[P]risoners need not continue to file grievances about the same issue.”)). In order to bear their burden to show that plaintiffs had not exhausted, they would need to show that they had never filed grievances about the issues in this lawsuit. This they have not done.

Second, the Eleventh Circuit has recognized that “a class of prisoner-plaintiffs certified under Rule 23(b)(2) satisfies the PLRA’s administrative exhaustion requirement through ‘vicarious exhaustion,’ i.e., when one or more class members ha[s] exhausted his . administrative remedies with respect to each claim raised by the class.” Chandler v. Crosby, 379 F.3d 1278, 1287 (11th Cir. 2004) (alteration in original, citation and internal quotation, marks omitted), Here, because the court has, in conjunction with its denial of summary judgment, certified a Rule 23(b)(2) class, and because defendants do not raise the affirmative defense of exhaustion with respect to the mental-health claims brought one of the remaining named plaintiffs (Braggs), vicarious exhaustion might well apply to some or all of plaintiffs’ claims.

Third and finally, the court notes that, while ADOC has no general grievance process, there does exist a formal process for appealing an involuntary-medication order. Defendants did not argue in their motion for summary judgment that the plaintiffs who raise due-process claims regarding involuntary medication have failed to exhaust this process. In any event, the one plaintiff who is actually subject to an involuntary-medication order, Bui, has filed an appeal of this order, so he appears to have exhausted this administrative remedy, assuming it is available.’ This appeals process is plainly not applicable to the remaining plaintiffs bringing due-process claims, who contend that the consent they gave was not voluntary, because they have not been afforded hearings or received orders and therefore have nothing to appeal.

C. Statute of Limitations

Defendants contend that summary judgment is due to be granted with respect to plaintiffs Hardy and McCoy, because their claims are barred by the statute of limitations. The statute of limitations for a § 1983 claim is determined by reference to state law; the court looks to the limitations period for personal injury torts. Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). In Alabama, it is two years. However, it is federal law that determines when the cause of action accrues—that is, when the clock begins to run. Id. at 388, 127 S.Ct. 1091.

“Generally, accrual occurs when the prisoner knows or should know that he has suffered the injury that forms the basis of his complaint and can identify the person who inflicted the injury. Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003). However, an ‘allegation of a failure to provide needed and requested medical attention constitutes a continuing tort, which does not accrue until the date medical attention is provided.’ Lavellee v. Listi, 611 F.2d 1129, 1132 (5th Cir. 1980). The critical distinction in the continuing violation analysis is whether the prisoner complains ‘of the present consequence of a one[-]time violation, which does not extend the limitations period, or the continuation of that violation into the present, which does.’ Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003) (internal quotation marks omitted).” Baker v. Sanford, 484 Fed. Appx. 291, 293 (11th Cir. 2012).

Plaintiffs have alleged just such a continuing violation; they seek prospective injunctive relief to remedy a substantial risk of serious harm that they contend has existed for some time and continues to exist. Given that the risk itself is the injury plaintiffs allege, the two challenged by defendants on this point need not actually demonstrate that this risk has resulted in harm to them within the past two years. See Robinson v. United States, 327 Fed. Appx. 816, 818 (11th Cir. 2007) (holding that “continuing to expose [the plaintiff] to the source of his [infection] ... was a continuing violation,” presumably because it created a risk of reinfection). A prisoner can bring a claim that correctional administrators have acted in a way that creates a substantial risk of future harm even though that harm has never yet occurred; it would be nonsensical, then, to conclude that once some harm has occurred, a prisoner must bring a claim within a certain period of time, even though the conduct of the defendants that is creating the risk continues unabated. Plaintiffs in this case must, of course, show more than that the conduct of defendants creating the risk of harm occurred at the time of filing or at some point within the two years before the case was filed; they must, because they seek prospective relief against official-capacity defendants, show that this conduct is still ongoing.

As another court recently put it, “[d]e-fendants’ statute of limitations argument wholly ignores the fundamental nature and substance of the Plaintiffs’ Eighth Amendment claim.... Plaintiffs brought suit to terminate an ongoing systemic pattern and practice of failure to provide constitutionally adequate [mental-health] care on the part of [the Department of Corrections] and its contractual providers. Plaintiffs allege that the unlawful conduct was continuing as of the date the lawsuit was filed, and that it continues as of today. The particular episodes of deficient [mental-health] care alleged in the complaint are not invoked as separate claims for relief, seeking recovery on the basis of separate instances of compensable harm. On the contrary, the examples of alleged sub-standard care set forth in Plaintiffs’ pleadings—which are now supported by sworn declarations, deposition testimony, and other competent record evidence—áre offered as corroboration for Plaintiffs’ assertion that [ADOC] has engaged in an ongoing pattern and practice of wrongful, unconstitutional acts and omissions reflecting deliberate indifference to the serious medical needs of the prisoners residing [in their facilities].” Scott v. Clarke, 64 F.Supp.3d 813, 826 (W.D. Va. 2014) (Moon, J,).

. The court need not address Hardy, as it finds that he has not demonstrated the existence of a current, serious mental-health care need. (This issue is discussed below.) However, the court concludes that the statute of limitations does not bar McCoy’s claims.

Defendants misperceive (or ignore) much of the substance of the claims brought by McCoy. They address only his involuntary-medication claim, and assert that he is disputing the procedures used to issue an involuntary-medication order in 2005. However, McCoy’s claim actually revolves around his contention that he did not give voluntary and informed consent to medication injected into him in 2013 and 2014, well within the statute of limitations period. Moreover, with respect to McCoy’s Eighth Amendment claim, he has clearly alleged, and offered evidence to show, an ongoing denial of adequate treatment; Dr. Burns specifically cited him as someone whose acute and disabling mental illness was not, at the time of her inspection, receiving an appropriate level of treatment.

D. Preclusion

The one named plaintiff involved in Phase 2A of this case with respect to whom defendants raise a preclusion argument is Pruitt. However, his mental-health claims are not barred by this prior litigation. Indeed, defendants’ motion for summary judgment is ambiguous as to whether they even contend that Pruitt’s mental-health claims, as opposed to his medical care claims, are precluded. Assuming, out of an abundance of caution, that defendants do make such an argument, the court explains below why it fails.

As defendants correctly explain, res ju-dicata (claim preclusion) prohibits “successive litigation of the very same claim,” New Hampshire v. Maine, 532 U.S. 742, 748, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001), and applies “not only to the precise legal theory presented in the prior case, but to all legal theories and claims arising out of the same nucleus of operative fact.’ ” NAACP v. Hunt, 891 F.2d 1555, 1561 (11th Cir. 1990). Collateral estoppel (issue preclusion) bars relitigation of an issue when the same issue was raised and actually litigated in a prior suit, and the court’s decision as to that issue was necessary to the final resolution of the suit. See Mike Smith Pontiac, GMC, Inc, v. Mercedes-Benz of N. Am., Inc., 32 F.3d 528, 532 (11th Cir. 1994).

Here, Pruitt’s prior suit was, quite obviously, totally unrelated to his claims in the present case. In 2009, he filed a pro se complaint against the warden of the facility where he was housed and a number of correctional officers. This complaint makes no mention of mental-health care; instead, he complains about a particular, discrete incident, during which correctional officers allegedly kicked him out of a medical ward while he was in pain and awaiting testing for kidney stones, physically assaulted him, and then denied him access to care for his resulting injuries. The issues raised in that suit—whether the alleged actions occurred and whether they constituted violations of his constitutional rights—are entirely irrelevant to Pruitt’s claim that he is currently being subjected to a substantial risk of serious harm due to the deliberate indifference of the Commissioner and Associate Commissioner to the serious mental-health needs of prisoners in their custody. The only thing connecting these two cases is that they have something to do with Pruitt’s health during his incarceration. His current claims are not precluded.

IV. Substantive Arguments

A. Eighth Amendment

1. Standard

Defendants adamantly insist that plaintiffs have not pursued a proper theory of Eighth Amendment liability because they seek to prove that defendants, by providing a deficient system of mental-health care, have created a substantial risk of serious future harm to mentally ill prisoners in their custody. In light of their erroneous belief that such a showing would not support liability, defendants have proceeded in their summary judgment briefing as if plaintiffs have brought a case focused on obtaining specific treatment for their individual mental-health problems. Before addressing defendants’ arguments regarding the sufficiency of plaintiffs’ evidence, the court will detour to explain why plaintiffs’ actual theory of the case is well-supported by the case law. The court will discuss this precedent at some length because a clear understanding of its framework will facilitate the orderly and efficient presentation of the parties’ evidence at trial.

One of the well-recognized ways that prison officials can violate the Eighth Amendment is by failing to provide prisoners with minimally adequate health care. This is because prisoners “must rely on prison authorities to treat [their] medical needs; if the authorities fail to do so, those needs will not be met.” Estelle v. Gamble, 429 U.S. 97, 108, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). “Federal and state governments therefore have a constitutional obligation to provide minimally adequate medical care to those whom they are punishing by incarceration.” Harris v. Thigpen, 941 F.2d 1495, 1504 (11th Cir. 1991). However, “an inadvertent failure to provide adequate medical care cannot be said to constitute an unnecessary and wanton infliction of pain or to be repugnant to the conscience of mankind.... Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend evolving standards of decency in violation of the Eighth Amendment.” Estelle, 429 U.S. at 105-06, 97 S.Ct. 285 (citations and internal quotation marks omitted).

Moreover, it is clear that “[failure to provide basic psychiatric and mental health care states a claim of deliberate indifference to the serious medical needs of prisoners.” Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986). “The case law establishes that ‘mental health needs are no less serious than physical needs’ for purposes of the Eighth Amendment.” Thomas v. Bryant, 614. F.3d 1288, 1312 (11th Cir. 2010) (quoting Gates v. Cook, 376 F.3d 323, 332 (5th Cir. 2004)). This is because the denial of adequate mental-health care can be just as painful as the denial of adequate physical health care. See Ind. Frot. & Advocacy Servs. Comm’n v. Comm’r, Ind. Dep’t of Corr., 2012 WL 6738517, at *21- (S.D. Ind. Dec. 31, 2012) (Pratt, J.) (“Psychological pain exists. It is real and it results from many of the symptoms which are associated with the mentally ill.”).

Deliberate indifference claims have both an objective and 'a subjective component. There are multiple modes of demonstrating the objective component of an Eighth Amendment -violation. Although a prisoner may seek an injunction requiring prison officials to remedy a condition which is already inflicting harm on him at the time he files his complaint (for example, a prisoner is not receiving any insulin, which is necessary to treat his diabetes, and seeks an order requiring prison officials to provide it to him), he may also seek an injunction to prevent serious harm which is substantially likely to occur in the future—in the phrasing of Farmer v. Brennan, “a substantial risk of serious harm.” 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

As the Supreme Court explained in Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993), a case in which a prisoner challenged his prolonged exposure to second-hand smoke, “a remedy for unsafe conditions need not await a tragic event,” because “the Eighth Amendment protects against future harms to inmates,” even when the harm “might not affect all of those exposed” to the risk and even when the harm would not manifest itself immediately. Id. at 33-34, 113 S.Ct. 2475. As the court explained, prisoners complaining of unclean drinking water need not “wait[] for an attack of dysentery” before filing suit. Id. at 33, 113 S.Ct. 2475. The Court made clear that, although “scientific” or other expert evidence is relevant is assessing the gravity of the risk— that is, “the seriousness of the potential harm and the likelihood that such injury to health will actually be caused by exposure to” the risk at issue—the inquiry does not end there. Id. at 36, 113 S.Ct. 2475. “It also requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk. In other words, the prisoner must show that the risk of which he complains is not one that today’s society chooses to tolerate.” Id.

It is true that the Supreme Court once suggested, in dicta in a case about access to law libraries, that “a healthy inmate who ha[s] suffered no deprivation of needed medical treatment [lacks standing to] claim violation of his constitutional right to medical care ... simply on the ground that the prison medical facilities were inadequate.” Lewis v. Casey, 518 U.S. 343, 350, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). But this pronouncement has no bearing on this case. The plaintiffs here are prisoners with serious mental illnesses, not healthy prisoners; while a healthy prisoner might not be able to show a sufficiently specific and substantial risk of serious harm in alleging that he might become sick in some way at some time and need some form of medical care that might then not be adequately provided, plaintiffs in this case need' mental-health care and argue that the severe inadequacies of the care being provided are subjecting them to a high likelihood of fairly imminent harm. Indeed, they have offered evidence to show that the risk has already been manifested in deficient care they and others have received. For prisoners who are not healthy, it is clear that they “need not wait until [they] suffer[ ] an actual injury because the constitutional injury is the exposure to the risk of harm.” Parsons v. Ryan, 289 F.R.D. 513, 521 (D. Ariz. 2013) (Wake, J.) (citing Brown v. Plata, 563 U.S. 493, 506 n.3, 131 S.Ct. 1910, 179 L.Ed.2d 969 (2011)), aff'd, 754 F.3d 657 (9th Cir. 2014).

In the end, whether plaintiffs have already been harmed by the practices they challenge is, although relevant, not disposi-tive of their claims. This is because, as in Parsons, evidence related to the named plaintiffs was “not submitted to support individual Eighth Amendment claims; rather, the plaintiffs submitted [it] as evidence of the defendants’ unlawful policies and practices, and as examples of the serious harm to which all inmates in [defendants’] custody are allegedly exposed.” Parsons v. Ryan, 754 F.3d 657, 672 (9th Cir. 2014). What these plaintiffs must show is that they have been subjected to the harmful policies and practices at issue, not (necessarily) that they have already been harmed by these policies and practices. Admittedly, to the extent that they allege a condition has existed for a length of time, they generally must show that some prisoners—themselves or others—have been harmed, in order to demonstrate an objectively substantial risk of serious harm.

Although the Eighth Amendment’s objective requirement of showing serious harm is not met by a showing of mere discomfort, see Chandler, 379 F.3d at 1295, “unnecessary pain or suffering” is serious harm. LaMarca v. Turner, 995 F.2d 1526, 1535 (11th Cir. 1993). The serious-harm requirement “is concerned with both the ‘severity and the ‘duration’ of the prisoner’s exposure” to the harm, such that an exposure to harm “which might not ordinarily violate the Eighth Amendment may nonetheless do so if it persists over an extended period of time.” Chandler, 379 F.3d at 1295 (citation omitted); see also id. (“Severity and duration do not necessarily form a perfect sliding scale, but our analysis should be informed by a consideration of both factors.”). As a result, a persistent and ongoing harm may be actionable even when that same harm, occurring in a discrete past instance, might not be.

One additional point bears mention. Defendants’ repeatedly insist that what plaintiffs are presenting to the court in this case is a mere disagreement with their health care providers about the care appropriate in their cases. See Hamm v. DeKalb Cty., 774 F.2d 1567, 1575 (11th Cir. 1985) (“Th[e] evidence shows that [the plaintiffs] received significant medical care while at the jail. Although [he] may have desired different modes of treatment, the care the jail provided did not amount to deliberate indifference.”). Defendants are quite right that a prisoner’s mere preference for a different treatment over the one that was provided is insufficient to establish an Eighth Amendment violation. But the Eleventh Circuit has made clear that the mere fact that a health care provider provided some treatment is not sufficient to establish that it was constitutionally adequate treatment. Even in Eighth Amendment cases, “the quality of a doctor’s treatment is evaluated according to professional standards.” Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989). In Waldrop, the Eleventh Circuit agreed with the district court that there existed a dispute of material fact as to whether a psychiatrist’s treatment of the plaintiffs serious psychiatric needs was constitutionally adequate despite the fact that “all actions taken by [the treating psychiatrist] are undisputed,” because the plaintiffs “treatment must be evaluated according to professional standards.” Id. The circuit has clearly held that “conflicting expert opinion concerning the extent to which [psychiatric care] may have departed from professional standards” can warrant denial of summary judgment on an Eighth Amendment claim. Greason v. Kemp, 891 F.2d 829, 885 (11th Cir. 1990).

The court now turns its attention to the subjective prong of the deliberate indifference standard. In order to prove that a condition of confinement violates the Eighth Amendment’s prohibition on cruel and unusual punishment by creating an objectively “substantial risk of serious harm,” a prisoner must show subjective “deliberate indifference” on the part of the defendant: that is, “(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than gross negligence.” Thomas, 614 F.3d at 1312; see also Kelley, 400 F.3d at 1284 (explaining the distinction between the objective and subjective prongs).

In general, “[w]hether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious. For example, if an Eighth Amendment plaintiff presents evidence showing that a substantial risk ... was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus must have known about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk.” Farmer, 511 U.S. at 842-43, 114 S.Ct. 1970 (citations and internal quotation marks omitted).

Subjective deliberate indifference by prison officials to prisoners’ medical and mental health can be manifested—and proven—in different ways. As explained in Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999), courts have found deliberate indifference when a prison official “(1) knows of a prisoner’s need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment.” Courts have also found deliberate indifference when a prison official “persists in a particular course of treatment in the face of resultant pain and risk of permanent injury.” Id (citation and internal quotation marks omitted).

Although the Eighth Amendment is not violated merely because a prisoner receives less than ideal health care, the Eleventh Circuit has repeatedly recognized that even when some care is provided, “deliberate indifference may be established by a showing of grossly inadequate care as well as by a decision to take an easier but less efficacious course of treatment.” McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999) (citing Steele v. Shah, 87 F.3d 1266, 1269-70 (11th Cir. 1996), and Waldrop, 871 F.2d at 1035); see also Rogers, 792 F.2d at 1058 (citing Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974), and Gittlemacker v. Prasse, 428 F.2d 1, 6 (3d Cir. 1970)).

What ties these forms of deliberate indifference together is, of course, deliberateness. On the one hand, the deprivation of care that in retrospect was necessary to avert harm—either pain, the worsening of a condition, or death—is not actionable merely because the defendant was negligent (even seriously so) in failing to recognize its necessity. (This is because we cannot infer knowledge on the part of the defendant-when the care is merely subpar but not “grossly inadequate,” not because any care better than the grossly inadequate always passes constitutional muster.) On the other hand, the Eighth Amendment does forbid the very same denial of or delay of care once the defendant—a physician, officer, or official—becomes aware that care should be provided. Delaying or denying provision of health care that a defendant knows to be necessary for a “non-medical reason,” or rendering health care that is less effective because it is “easier,” is unconstitutional because it reflects not a medical mistake but an intentional deprivation.

This discussion reveals a critical point, overlooked by defendants in their protestations that plaintiffs cannot show Eighth Amendment violations because they all received some mental-health care: Although health care that is just slightly better than “grossly inadequate” does not violate the Constitution when the defendant does not realize it is so subpar, substantially smaller shortcomings in health care are actionably unlawful when the decision-maker understands that a particular standard of care will cause serious harm to prisoners but decides to go ahead with it nonetheless, because it is easier or cheaper. See Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 703-04 (11th Cir. 1986) (holding that a plaintiff’s “allegation that the defendants failed to. provide even that level of diagnostic care that they themselves believed necessary” clearly stated a claim for deliberate indifference, without making a finding that the denial of this level of care would, in and of itself, reflect deliberate indifference, and stating that “[i]ntentional failure to provide service acknowledged to be necessary is the deliberate indifference proscribed by the Constitution”).

What is striking in this case is the extent to which the mental-health practitioners involved appear to recognize what plaintiffs’ experts have opined: the care being provided mentally ill prisoners in Alabama is lacking in certain ways. Defendants argue at some length that plaintiffs’ experts have not convincingly demonstrated that this care is so grossly inadequate that its sheer inadequacy demonstrates deliberate indifference, but this is beside the point. When prison mental-health administrators know and communicate that they need more staff to provide appropriate care for prisoners, and the Commissioner refuses to provide funding for this staff, not in any exercise of medical judgment but because he does not have the money, this suffices to establish deliberate indifference and—in conjunction with a showing that this creates a substantial risk of serious harm—to establish an Eighth Amendment violation.

Defendants have honed in on, and cited numerous times in their briefs, the line in Waldrop, repeated in other cases, that “when a prison inmate has received medical care, courts hesitate to find an Eighth Amendment violation.” 871 F.2d at 1035. First of all, some of the policies and practices challenged here were not decided upon by medical staff (as defendants remind the court, the Commissioner and Associate Commissioner are not doctors), and do not concern treatment decisions; these include staffing decisions, and policies regarding placement in segregation. In addition, even with respect to the policies and practices that do concern mental-health treatment, defendants have ignored the admonition that immediately follows in Waldrop: “Hesitation does not mean, however, that the course of a physician’s treatment of a prison inmate’s medical or psychiatric problems can never manifest the physician’s deliberate indifference to the inmate’s medical needs.” Id. As the court explained in “reaffirming]” its previous case law, deliberateness can either be inferred, from the fact that the medical care rendered is “grossly incompetent,” or else demonstrated in the form of a “choice” to provide care known to be less effective— and therefore to subject the prisoner to a substantial risk of serious harm—because it is easier or cheaper. Id.; see also Freeman v. Lebedovych, 186 Fed.Appx. 943, 944 (11th Cir. 2006) (“Inadequate psychiatric care constitutes deliberate indifference if the quality of psychiatric care received is a substantial deviation from accepted professional standards.”).

Another point warrants some focused attention. Defendants have made a great fuss over plaintiffs’ assertions that they are bringing a “systemic,” rather than individual, Eighth Amendment challenge, as if this form of claim was not well-established in the jurisprudence of this circuit— indeed, so well-established that it is generally denoted with the term defendants so scorn.

“In institutional level challenges to prison health care such as this one, systemic deficiencies can provide the basis for a finding of d