U.S. District Court Eastern District of Virginia - (Richmond) CIVIL DOCKET FOR CASE #: 3:20-cv-00255-HEH-DJN

Whorley et al v. Northam et al Assigned to: District Judge Henry E. Hudson Referred to: District Judge David J. Novak Cause: 42:1983 Prisoner Civil Rights

Date Filed: 04/08/2020 Date Terminated: 05/12/2020 Jury Demand: None Nature of Suit: 555 Prison Condition Jurisdiction: Federal Question

Plaintiff Brooke Whorley

represented by Elliott Michael Harding Harding Counsel PLLC 608 Elizabeth Ave Charlottesville, VA 22901 (434) 962-8465 Email: hardingcounsel@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eden Brooke Heilman ACLU of Virginia 701 E. Franklin Street Suite 1412 Richmond, VA 23219 (804) 523-2152 Fax: (804) 649-2733 Email: eheilman@acluva.org ATTORNEY TO BE NOTICED

Jennifer Marie Safstrom ACLU of Virginia 701 E. Franklin Street Suite 1412 Richmond, VA 23219 (804) 523-2159 Fax: (804) 649-2733 Email: jsafstrom@acluva.org TERMINATED: 06/24/2020

Nicole Gloria Tortoriello American Civil Liberties Union of Virginia 701 E Franklin Street

Plaintiff Michael Sullivan
Plaintiff Gale Jones

Suite 1412 Richmond, VA 23219 (804) 726-6013 Fax: (804) 649-2733 Email: ntortoriello@acluva.org TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar ACLU of Virginia 701 E. Franklin Street Suite 1412 Richmond, VA 23219 (804) 523-2151 Fax: (804) 644-8022 Email: vagraharkar@acluva.org ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020
Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Alonzo Williams
Plaintiff Da'Von Walker

Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020
Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020
Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom

Plaintiff Dwight Horton
Plaintiff Frank Fairchild

(See above for address) TERMINATED: 06/24/2020
Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020
Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address)

Plaintiff Candace Blakenship
Plaintiff Brenda Van Emmenis

TERMINATED: 06/24/2020
Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020
Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020

Plaintiff Olivia Ivashin
Plaintiff Ennis Stewart

Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020
Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020

Plaintiff Lartaija Banks
Plaintiff Matthew Mosher

Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020 ATTORNEY TO BE NOTICED
Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020

Plaintiff Bruce Harris, Jr.
Plaintiff Johnathan McMillian

Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020
Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020
Nicole Gloria Tortoriello

Plaintiff Milton Williams, Sr.
Plaintiff Timothy Brummett

(See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020
Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020
Nicole Gloria Tortoriello (See above for address)

Plaintiff Anthony Vicks
Plaintiff Warren Brooks

TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020
Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020
Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021

Plaintiff Jesse Davenport
Plaintiff Warren Medley-Green

ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020
Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020
Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED

Plaintiff Larog Trowell
Plaintiff Benjamen Fyfe

Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020
Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020
Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED

Plaintiff Antonio Perryel
Plaintiff Donnie Offenbacker

Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020
Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020
Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar

Plaintiff Felipe Franco
Plaintiff Courtney Stroble

(See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020
Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address) ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Eden Brooke Heilman (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Safstrom (See above for address) TERMINATED: 06/24/2020
Nicole Gloria Tortoriello (See above for address) TERMINATED: 02/01/2021 ATTORNEY TO BE NOTICED
Vishal Mahendra Agraharkar (See above for address)

Defendant Ralph S. Northam
Defendant Brian J. Moran
Defendant Harold Clarke
Defendant Donald Wilmouth
Defendant Warden Rick White
Defendant

ATTORNEY TO BE NOTICED
Elliott Michael Harding (See above for address) ATTORNEY TO BE NOTICED
represented by Margaret Hoehl O'Shea Office of the Attorney General (Richmond) 202 North 9th Street Richmond, VA 23219 (804) 225-2206 Fax: (804) 786-4239 Email: moshea@oag.state.va.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margaret Hoehl O'Shea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margaret Hoehl O'Shea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margaret Hoehl O'Shea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margaret Hoehl O'Shea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Meyer
Defendant Tikki Hicks
Defendant Rodney Younce
Defendant Tracy Ray
Defendant Eric Aldridge
Defendant Dana Ratliffe-Walker
Defendant Tori Raiford
Defendant

represented by Margaret Hoehl O'Shea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margaret Hoehl O'Shea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margaret Hoehl O'Shea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margaret Hoehl O'Shea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margaret Hoehl O'Shea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margaret Hoehl O'Shea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margaret Hoehl O'Shea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tammy Williams
Defendant Joseph Bateman
Defendant Phillip White

represented by Margaret Hoehl O'Shea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margaret Hoehl O'Shea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margaret Hoehl O'Shea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/08/2020 04/08/2020 04/09/2020
04/13/2020

# Docket Text

Complaint (Filing Fee: $400.00, Receipt Number: 0422-7151697)

1

filed by Brooke Whorley. (Attachments: # 1 Civil Cover Sheet)

(Harding, Elliott) (Entered: 04/08/2020)

Initial Case Assignment to District Judge Henry E. Hudson. (smej, ) (Entered: 04/08/2020)

Proposed Summons by Lartaija Banks, Candace Blakenship,

2

Warren Brooks, Timothy Brummett, Jesse Davenport, Frank

Fairchild, Felipe Franco, Benjamen Fyfe, Bruce Harris, Jr, Dwight

Horton, Olivia Ivashin, Gale Jones, Johnathan McMillian, Warren

Medley-Green, Matthew Mosher, Donnie Offenbacker, Antonio

Perryel, Ennis Stewart, Courtney Stroble, Michael Sullivan, Larog

Trowell, Brenda Van Emmenis, Anthony Vicks, Da'Von Walker,

Brooke Whorley, Alonzo Williams, Milton Williams, Sr. (Harding,

Elliott) (Entered: 04/09/2020)

3 NOTICE of Appearance by Margaret Hoehl O'Shea on behalf of Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce (O'Shea, Margaret) (Entered: 04/13/2020)

04/13/2020 04/13/2020 04/13/2020 04/15/2020
04/15/2020
04/15/2020

4 ACKNOWLEDGEMENT OF SERVICE Executed as to 1

Complaint Acknowledgement filed by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 04/13/2020)

Telephone Conference held on 4/13/2020 before District Judge Henry E. Hudson (rpiz) (Entered: 04/13/2020)

MEMORANDUM ORDER - Accordingly, the Court SUSPENDS

5

the deadlines in this case for fourteen (14) days in order for the

parties to have an opportunity to come to a resolution. If counsel

later feel that they are making substantial progress, the Court will

continue the suspension of the deadlines. SEE ORDER FOR

DETAILS. Signed by District Judge Henry E. Hudson on

4/13/2020. (smej, ) (Entered: 04/13/2020)

6 NOTICE of Appearance by Eden Brooke Heilman on behalf of Lartaija Banks, Candace Blakenship, Warren Brooks, Timothy Brummett, Jesse Davenport, Frank Fairchild, Felipe Franco, Benjamen Fyfe, Bruce Harris, Jr, Dwight Horton, Olivia Ivashin, Gale Jones, Johnathan McMillian, Warren Medley-Green, Matthew Mosher, Donnie Offenbacker, Antonio Perryel, Ennis Stewart, Courtney Stroble, Michael Sullivan, Larog Trowell, Brenda Van Emmenis, Anthony Vicks, Da'Von Walker, Brooke Whorley, Alonzo Williams, Milton Williams, Sr (Heilman, Eden) (Entered: 04/15/2020)

7 NOTICE of Appearance by Nicole Gloria Tortoriello on behalf of Lartaija Banks, Candace Blakenship, Warren Brooks, Timothy Brummett, Jesse Davenport, Frank Fairchild, Felipe Franco, Benjamen Fyfe, Bruce Harris, Jr, Dwight Horton, Olivia Ivashin, Gale Jones, Johnathan McMillian, Warren Medley-Green, Matthew Mosher, Donnie Offenbacker, Antonio Perryel, Ennis Stewart, Courtney Stroble, Michael Sullivan, Larog Trowell, Brenda Van Emmenis, Anthony Vicks, Da'Von Walker, Brooke Whorley, Alonzo Williams, Milton Williams, Sr (Tortoriello, Nicole) (Entered: 04/15/2020)

8 NOTICE of Appearance by Jennifer Marie Safstrom on behalf of Lartaija Banks, Candace Blakenship, Warren Brooks, Timothy Brummett, Jesse Davenport, Frank Fairchild, Felipe Franco, Benjamen Fyfe, Bruce Harris, Jr, Dwight Horton, Olivia Ivashin,

Gale Jones, Johnathan McMillian, Warren Medley-Green, Matthew Mosher, Donnie Offenbacker, Antonio Perryel, Ennis Stewart, Courtney Stroble, Michael Sullivan, Larog Trowell, Brenda Van Emmenis, Anthony Vicks, Da'Von Walker, Brooke Whorley, Alonzo Williams, Milton Williams, Sr (Safstrom, Jennifer) (Entered: 04/15/2020)

04/15/2020

9 NOTICE of Appearance by Vishal Mahendra Agraharkar on behalf of Lartaija Banks, Candace Blakenship, Warren Brooks, Timothy Brummett, Jesse Davenport, Frank Fairchild, Felipe Franco, Benjamen Fyfe, Bruce Harris, Jr, Dwight Horton, Olivia Ivashin, Gale Jones, Johnathan McMillian, Warren Medley-Green, Matthew Mosher, Donnie Offenbacker, Antonio Perryel, Ennis Stewart, Courtney Stroble, Michael Sullivan, Larog Trowell, Brenda Van Emmenis, Anthony Vicks, Da'Von Walker, Brooke Whorley, Alonzo Williams, Milton Williams, Sr (Agraharkar, Vishal) (Entered: 04/15/2020)

04/17/2020

Telephone Conference held on 4/17/2020 before District Judge Henry E. Hudson (rpiz) (Entered: 04/17/2020)

04/20/2020 10

ORDER (Referring Case for Mediation) - It is hereby ORDERED that this case is REFERRED to United States District Judge David J. Novak for mediation. The suspension of deadlines previously set by the Court is CONTINUED until such time as mediation is completed. Signed by District Judge Henry E. Hudson on 4/20/2020. (Copy sent to Judge Novak) (smej, ) (Entered: 04/20/2020)

04/20/2020

CASE REFERRED to Mediation to Judge Novak. (Entered: 04/20/2020)

04/20/2020

Conference Call w/ Plts' Counsel set for 4/22/2020 at 02:00 PM; w/Defs' at 03:00 PM and w/ ALL counsel at 03:30 PM before District Judge David J. Novak. (cgar) (Entered: 04/20/2020)

04/22/2020

Minute Entry for proceedings held before District Judge David J. Novak:Telephone Conferences held on 4/22/2020. (cgar) (Entered: 04/22/2020)

04/23/2020

Settlement Conference (TELEPHONIC) set for 4/28/2020 at 10:00 AM before District Judge David J. Novak. (cgar) (Entered: 04/23/2020)

04/28/2020

Minute Entry for proceedings held before District Judge David J. Novak:Settlement Conference (TELEPHONIC) held on 4/28/2020. (cgar) (Entered: 04/28/2020)

05/01/2020

Minute Entry for proceedings held before District Judge David J. Novak:Telephone Conference held on 5/1/2020. (cgar) (Entered: 05/01/2020)

05/08/2020

Minute Entry for proceedings held before District Judge David J. Novak:Settlement Conference held on 5/8/2020. (cgar) (Entered: 05/08/2020)

05/11/2020

11 Joint MOTION to Dismiss and Retain Jurisdiction by Lartaija Banks, Candace Blakenship, Warren Brooks, Timothy Brummett, Jesse Davenport, Frank Fairchild, Felipe Franco, Benjamen Fyfe, Bruce Harris, Jr, Dwight Horton, Olivia Ivashin, Gale Jones, Johnathan McMillian, Warren Medley-Green, Matthew Mosher, Donnie Offenbacker, Antonio Perryel, Ennis Stewart, Courtney Stroble, Michael Sullivan, Larog Trowell, Brenda Van Emmenis, Anthony Vicks, Da'Von Walker, Brooke Whorley, Alonzo Williams, Milton Williams, Sr. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Heilman, Eden) (Entered: 05/11/2020)

05/12/2020

12 ORDER. THIS MATTER is before the Court on the Parties' Joint Motion to Dismiss and Retain Jurisdiction (the "Joint Motion"), filed on May 11, 2020 11 . For good cause shown, and in consideration of the Parties' Joint Motion, the Court hereby GRANTS the Parties' Joint Motion and conditionally dismisses the above-titled action with prejudice under Federal Rule of Civil Procedure 41(a)(2). In accordance with the Settlement Agreement, which was filed with this Court as Exhibit A to Parties' Joint Motion (ECF No. 11 -1) and is attached hereto, the Court specifically retains jurisdiction for the purpose of enforcing the Settlement Agreement in accordance with its terms, pursuant to Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 (1994). It is SO ORDERED. Signed by District Judge Henry E. Hudson on 5/12/20. (Attachments: # 1 Exhibit A) (jsau, ) (Entered: 05/12/2020)

05/19/2020

13 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 05/19/2020)

05/20/2020 14

Letter from Conrad Burke requesting documents. Copy of the complaint mailed as requested. (Attachments: # 1 Receipt) (smej, ) (Entered: 05/21/2020)

05/26/2020 15

STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S.

Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 05/26/2020)

06/02/2020 16

STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 06/02/2020)

06/09/2020

17 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 06/09/2020)

06/16/2020

18 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 06/16/2020)

06/23/2020

19 MOTION to Withdraw as Attorney by Lartaija Banks, Candace Blakenship, Warren Brooks, Timothy Brummett, Jesse Davenport, Frank Fairchild, Felipe Franco, Benjamen Fyfe, Bruce Harris, Jr, Dwight Horton, Olivia Ivashin, Gale Jones, Johnathan McMillian, Warren Medley-Green, Matthew Mosher, Donnie Offenbacker, Antonio Perryel, Ennis Stewart, Courtney Stroble, Michael Sullivan, Larog Trowell, Brenda Van Emmenis, Anthony Vicks, Da'Von Walker, Brooke Whorley, Alonzo Williams, Milton Williams, Sr. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Agraharkar, Vishal) (Entered: 06/23/2020)

06/23/2020

20 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 06/23/2020)

06/24/2020

Notice of Correction re 19 MOTION to Withdraw as Attorney : Clerk notified filing attorney of proper filing procedures for a Memorandum in Support. The filing attorney has been instructed to refile the Memorandum in Support using the correct docket event. (smej, ) (Entered: 06/24/2020)

06/24/2020

21 MOTION to Withdraw as Attorney by Lartaija Banks, Candace Blakenship, Warren Brooks, Timothy Brummett, Jesse Davenport,

Frank Fairchild, Felipe Franco, Benjamen Fyfe, Bruce Harris, Jr, Dwight Horton, Olivia Ivashin, Gale Jones, Johnathan McMillian, Warren Medley-Green, Matthew Mosher, Donnie Offenbacker, Antonio Perryel, Ennis Stewart, Courtney Stroble, Michael Sullivan, Larog Trowell, Brenda Van Emmenis, Anthony Vicks, Da'Von Walker, Brooke Whorley, Alonzo Williams, Milton Williams, Sr. (Attachments: # 1 Proposed Order)(Agraharkar, Vishal) (Entered: 06/24/2020)

06/24/2020

22 Memorandum in Support re 21 MOTION to Withdraw as Attorney filed by Lartaija Banks, Candace Blakenship, Warren Brooks, Timothy Brummett, Jesse Davenport, Frank Fairchild, Felipe Franco, Benjamen Fyfe, Bruce Harris, Jr, Dwight Horton, Olivia Ivashin, Gale Jones, Johnathan McMillian, Warren MedleyGreen, Matthew Mosher, Donnie Offenbacker, Antonio Perryel, Ennis Stewart, Courtney Stroble, Michael Sullivan, Larog Trowell, Brenda Van Emmenis, Anthony Vicks, Da'Von Walker, Brooke Whorley, Alonzo Williams, Milton Williams, Sr. (Agraharkar, Vishal) (Entered: 06/24/2020)

06/24/2020 23

Letter from Eric Saub requesting copy of docket sheet. (Copy of docket sheet mailed) (Attachments: # 1 Envelope) (smej, ) (Entered: 06/24/2020)

06/24/2020 24

Letter from Larry Taylor. (Attachments: # 1 Envelope) (smej, ) (Entered: 06/24/2020)

06/24/2020 25

ORDER GRANTING LEAVE TO WITHDRAW APPEARANCE OF COUNSEL - This cause has come before the Court upon Plaintiffs' motion seeking to withdraw Jennifer Safstrom of the American Civil Liberties Union Foundation of Virginia as counsel in this case. Having reviewed the motion and accompanying memorandum in support, this Court hereby ORDERS that the motion be hereby GRANTED. Attorney Jennifer Safstrom shall be and is hereby withdrawn as counsel of record for Plaintiffs, who will continue to be represented by the remaining attorneys of record. Signed by District Judge Henry E. Hudson on 6/24/2020. (smej, ) (Entered: 06/24/2020)

06/30/2020

26 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 06/30/2020)

07/02/2020 27

ORDER that this matter comes before the Court on receipt of the attached letter from an inmate at a Virginia Department of

Corrections facility (the "Letter"). The Court hereby DIRECTS the Clerk to file the Letter as a separate entry on the docket and distribute a copy to all counsel of record. It is so ORDERED. Signed by District Judge David J. Novak on 7/2/2020. (sbea,) (Entered: 07/02/2020)

07/02/2020

28 Declaration of Eric B. Saub re: 27 Order. (Attachment: # 1 Letter). (sbea,) (Entered: 07/02/2020)

07/07/2020 29

STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 07/07/2020)

07/10/2020

Conference Call re Settlement set for 7/14/2020 at 02:30 PM before District Judge David J. Novak. (cgar) (Entered: 07/10/2020)

07/14/2020

30 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 07/14/2020)

07/21/2020

31 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 07/21/2020)

07/23/2020 32

Letter from Ricky Donnell Nelson requesting a copy of the Complaint. (Attachments: # 1 Envelope, # 2 Letter from the Clerk) (smej, ) (Entered: 07/23/2020)

07/28/2020

33 MOTION to Mediate Dispute by Joshua Moseley. (Attachments: # 1 Appendix 1, # 2 Appendix 2, # 3 Appendix 3, # 4 Letter, # 5 Envelope) (smej, ) (Entered: 07/28/2020)

07/28/2020

34 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 07/28/2020)

07/29/2020 35

ORDER that this matter comes before the Court on the Request to Mediate Dispute (ECF No. 33 ) filed by Joshua Moseley, an inmate

at a Virginia Department of Corrections facility. Because the final settlement agreement in this matter does not authorize the Court to mediate individual inmate disputes, the Court hereby DENIES the Request (ECF No. 33 ). The Court herebyDIRECTS the Clerk to forward a copy of Mr. Moseley's Request (ECF No. 33 ) to Plaintiffs' counsel to determine whether the issues raised in the Request constitute a violation of the final settlement agreement that may be mediated through the procedures outlined in the agreement. It is so ORDERED. Signed by District Judge David J. Novak on 07/29/2020. Copy mailed to Joshua Moseley. Copies forwarded to Plaintiffs' counsel electronically. (walk, ) (Entered: 07/29/2020)

08/05/2020

36 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 08/05/2020)

08/12/2020

37 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 08/12/2020)

08/18/2020

38 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 08/18/2020)

08/25/2020

39 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 08/25/2020)

08/28/2020 40

Letter RECEIVED from Ronald Miles. (tjoh, ) (Entered: 08/28/2020)

09/01/2020

41 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 09/01/2020)

09/08/2020 42

Letter Reflecting Further Agreements Between the Parties. (O'Shea, Margaret) (Entered: 09/08/2020)

09/08/2020 43

STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 09/08/2020)

09/15/2020 44

STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 09/15/2020)

09/22/2020

45 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 09/22/2020)

09/29/2020 46

STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 09/29/2020)

10/07/2020 47

STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 10/07/2020)

10/14/2020

48 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 10/14/2020)

10/20/2020 49

STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 10/20/2020)

10/28/2020

50 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 10/28/2020)

11/03/2020

51 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 11/03/2020)

11/10/2020

52 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 11/10/2020)

11/18/2020

53 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 11/18/2020)

11/24/2020

54 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 11/24/2020)

12/04/2020

55 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 12/04/2020)

12/07/2020 56

NOTICE "of Substantial Non-Compliance" by Casel Frank Lucas. (Attachments: # 1 Unmarked Attachments 1, # 2

Unmarked Attachments 2, # 3 Unmarked Attachments 3,

# 4 Envelope) (smej, ) (Entered: 12/08/2020)

12/09/2020 57

STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 12/09/2020)

12/14/2020 58

NOTICE by Lartaija Banks, Candace Blakenship, Warren Brooks, Timothy Brummett, Jesse Davenport, Frank Fairchild, Felipe Franco, Benjamen Fyfe, Bruce Harris, Jr, Dwight Horton, Olivia

Ivashin, Gale Jones, Johnathan McMillian, Warren Medley-Green, Matthew Mosher, Donnie Offenbacker, Antonio Perryel, Ennis Stewart, Courtney Stroble, Michael Sullivan, Larog Trowell, Brenda Van Emmenis, Anthony Vicks, Da'Von Walker, Brooke Whorley, Alonzo Williams, Milton Williams, Sr (Heilman, Eden) (Entered: 12/14/2020)

12/17/2020 59

STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 12/17/2020)

12/24/2020

60 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 12/24/2020)

12/28/2020

61 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 12/28/2020)

12/28/2020

62 Letter from Charles Zellers. (Attachments: # 1 Envelope) (smej, ) (Entered: 12/28/2020)

01/06/2021

63 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 01/06/2021)

01/07/2021

64 Letter from Charles Zellers. (Attachments: # 1 Envelope) (smej, ) (Entered: 01/07/2021)

01/08/2021

65 ORDER (Referring Letter to Counsel) - This letter comes before the Court on a letter received by the Court from inmate Charles Zeller (ECF No. 64), requesting his and other inmates' release from prison. The Court hereby refers the letter to Plaintiffs' counsel, Eden Brooke Heilman, to review and take any action that counsel may deem appropriate. Signed by District Judge David J. Novak on 1/8/2020. (Copy mailed to Charles Zeller) (smej, ) (Entered: 01/08/2021)

01/13/2021 01/20/2021 01/21/2021 01/27/2021 01/28/2021 01/28/2021
01/28/2021

66 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 01/13/2021)
67 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 01/20/2021)
68 Letter from Eric Saub requesting copies. (Attachments: # 1 Envelope, # 2 Letter from the Clerk) (smej, ) (Attachment 2 replaced on 1/21/2021) (smej, ). (Entered: 01/21/2021)
69 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 01/27/2021)
70 Letter from Jeffery J. Gardner. (Attachments: # 1 Unmarked Exhibits, # 2 Envelope) (smej, ) (Entered: 01/28/2021)
71 MOTION to Withdraw as Attorney by Lartaija Banks, Candace Blakenship, Warren Brooks, Timothy Brummett, Jesse Davenport, Frank Fairchild, Felipe Franco, Benjamen Fyfe, Bruce Harris, Jr, Dwight Horton, Olivia Ivashin, Gale Jones, Johnathan McMillian, Warren Medley-Green, Matthew Mosher, Donnie Offenbacker, Antonio Perryel, Ennis Stewart, Courtney Stroble, Michael Sullivan, Larog Trowell, Brenda Van Emmenis, Anthony Vicks, Da'Von Walker, Brooke Whorley, Alonzo Williams, Milton Williams, Sr. (Attachments: # 1 Proposed Order)(Tortoriello, Nicole) (Entered: 01/28/2021)
72 Memorandum in Support re 71 MOTION to Withdraw as Attorney filed by Lartaija Banks, Candace Blakenship, Warren Brooks, Timothy Brummett, Jesse Davenport, Frank Fairchild, Felipe Franco, Benjamen Fyfe, Bruce Harris, Jr, Dwight Horton, Olivia Ivashin, Gale Jones, Johnathan McMillian, Warren MedleyGreen, Matthew Mosher, Donnie Offenbacker, Antonio Perryel, Ennis Stewart, Courtney Stroble, Michael Sullivan, Larog Trowell, Brenda Van Emmenis, Anthony Vicks, Da'Von Walker, Brooke Whorley, Alonzo Williams, Milton Williams, Sr. (Tortoriello, Nicole) (Entered: 01/28/2021)

02/01/2021 02/02/2021 02/03/2021
02/04/2021

73 ORDER granting 71 Motion to Withdraw as Attorney. Attorney Nicole Gloria Tortoriello terminated. Signed by District Judge Henry E. Hudson on 2/1/2021. (asho, ) (Entered: 02/01/2021)
74 MOTION for Release by Jeremy Defour. (Attachments: # 1 Envelope) (smej, ) (Entered: 02/02/2021)
75 STATUS REPORT by Eric Aldridge, Joseph Bateman, Harold Clarke, Tikki Hicks, Thomas Meyer, Brian J. Moran, Ralph S. Northam, Tori Raiford, Dana Ratliffe-Walker, Tracy Ray, Phillip White, Rick White, Tammy Williams, Donald Wilmouth, Rodney Younce. (O'Shea, Margaret) (Entered: 02/03/2021)
76 ORDER (Denying Motion for Release, Directing Forwarding of Letters) - The Court has received numerous other letters from inmates requesting relief under the final settlement agreement in this matter. However, the final settlement agreement does not authorize the Court to mediate individual inmate disputes or to order the release of individual inmates from custody. Accordingly, the Court hereby DENIES the Motion (ECF No. 74). Additionally, the Court hereby DIRECTS the Clerk to forward a copy of Mr. Defour's Motion, along with the other requests received from state inmates, to Plaintiffs counsel, Eden Brooke Heilman, to review and take any action that counsel may deem appropriate. Moreover, moving forward, the Clerk is hereby DIRECTED to forward any such letters from inmates requesting relief in this matter to Ms. Heilman without first docketing the letter. Signed by District Judge David J. Novak on 2/3/2021. (Copies distributed as directed) (smej, ) (Entered: 02/04/2021)

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3:20-cv00255-HEHDJN
2.60

 
 Case 3:20-cv-00255-HEH-DJN Document 1 Filed 04/08/20 Page 1 of 47 PageID# 1

IN THE UNITED STATES DISTRICT COURT OF THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

BROOKE WHORLEY, MICHAEL SULLIVAN, GALE JONES, ALONZO WILLIAMS, DA’VON WALKER, DWIGHT HORTON, FRANK FAIRCHILD CANDACE BLANKENSHIP, BRENDA VAN EMMENIS, OLIVIA IVASHIN, ENNIS STEWART, LARTAIJA BANKS, MATTHEW MOSHER, BRUCE HARRIS JR., JOHNATHAN MCMILLAN, MILTON WILLIAMS, SR., TIMOTHY BRUMMETT, ANTHONY VICKS, WARREN BROOKS, JESSE DAVENPORT, WARREN MEDLEY-GREEN LAROG TROWELL, BENJAMEN FYFE, ANTONIO PERRYELL, DONNIE OFFENBACKER, FELIPE FRANCO, and COURTNEY STROBLE;
Plaintiffs
v.
RALPH S. NORTHAM, BRIAN J. MORAN, HAROLD CLARKE, DONALD WILMOUTH, RICK WHITE, THOMAS MEYER, TIKKI HICKS, RODNEY YOUNCE, TRACY RAY, ERIC ALDRIDGE,

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Case No. 3:20-cv-255

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Case 3:20-cv-00255-HEH-DJN Document 1 Filed 04/08/20 Page 2 of 47 PageID# 2

DANA RATLIFFE-WALKER,

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TORI RAIFORD,

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TAMMY WILLIAMS

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JOSEPH BATEMAN

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PHILLIP WHITE

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Defendants

COMPLAINT Preliminary & Jurisdictional Statement 1. The Virginia Department of Corrections (“VDOC”) is responsible for the implementation and oversight of all policies governing Virginia’s State Correctional facilities (“prisons” or “penitentiaries”), including all policies governing the specific facilities managed by the independently named wardens herein and prison facilities housing the Plaintiffs in this suit. Virginia’s Governor Ralph Northam, Virginia’s Secretary of Public Safety and Homeland Security Brian Moran, and the VDOC Director Harold Clarke are the official governing authorities for the VDOC and are responsible for implementing policies that govern prison staff, contractors, inmates, visitors, properties, and suppliers. Additionally, the wardens of each facility are responsible for implementing policies that also govern prison staff, contractors, inmates, visitors, properties and suppliers. The VDOC and its prisons are charged with providing humane conditions of confinement, medical care for inmates, nutrition, safety, and the protection of inmates’ constitutional rights. 2. In the past several weeks, the United States and the Commonwealth of Virginia have endured an unparalleled public health emergency in the form of a global pandemic, COVID-19. This emergency has strained the Commonwealth’s resources, employment, regional healthcare services, and public institutions. In Virginia, it has caused thousands of infections and hundreds of deaths. By the time Court reads this, it is certain that more

2

Case 3:20-cv-00255-HEH-DJN Document 1 Filed 04/08/20 Page 3 of 47 PageID# 3
Virginians have tested positive for the virus and someone new is at risk of death. Nevertheless, even a virus cannot dissolve those fundamental liberties protected in our nation’s Constitution. 3. The Eighth Amendment of the United States Constitution, as applied to the States via the Fourteenth Amendment, protects all Americans from cruel and unusual punishment at the hands of the State. Within that guarantee, the Supreme Court of the United States has recognized that this Eighth Amendment protection “does not mandate comfortable prisons,” but neither does it permit inhumane ones, and it is now settled that “the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). In its prohibition of “cruel and unusual punishment,” the Eighth Amendment imposes duties on prison officials, “who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates.” Id. at 832-33 (citations omitted). 4. The Plaintiffs are suffering from the Defendants’ failure to adequately address the extreme health risk posed by COVID-19 and bring this suit seeking preliminary and permanent injunctive relief and a declaratory judgment from this honorable Court with the prayer that their Eighth and Fourteenth Amendment protections may intervene in their defense before it is too late. Therefore, this suit arises via 42 U.S.C. § 1983 and this Court has jurisdiction by way of 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3) and (4).
3

Case 3:20-cv-00255-HEH-DJN Document 1 Filed 04/08/20 Page 4 of 47 PageID# 4
Plaintiff Parties 5. All of the Plaintiffs share a common interest and fall into a general class as inmates who
are incarcerated in Virginia State Correctional Facilities subject to the control of the VDOC. Many of these Plaintiffs suffer from similar high-risk health conditions such as compromised respiratory systems, immune systems, and poor heart conditions. Other Plaintiffs find themselves similarly situated in that they are non-violent offenders or have served a significant portion of their active sentence of incarceration with little time left before release. Nevertheless, all Plaintiffs suffer from similar conditions of confinement as fellow inmates throughout the Virginia Department of Corrections in that they are in facilities that lack necessary equipment and medical supplies while housing hundreds of other inmates who are sleeping, eating, working, recreating, and being transported in a fashion that poses severe health risks. For these and other reasons stated herein, the Plaintiffs are collectively referred to in the several counts and factual allegations. 6. Plaintiff BROOKE NICOLE WHORLEY, Offender ID No. 1600508, is currently incarcerated at the Virginia Correctional Center for Women (“VCCW”) in Goochland County, Virginia following her conviction for the sale of controlled substances and a probation violation, all nonviolent crimes. Yesterday, Ms. Whorley tested positive for COVID-19. She is twenty-five (25) years old and her current release date is scheduled for June 23, 2021. She has served over two years of her three-year sentence and would return to her home with her husband in Afton, Virginia. 7. Plaintiff MICHAEL PAUL SULLIVAN, Offender ID No. 1929509, is currently incarcerated in the Greensville Work Center in Greensville County, Virginia following his convictions of embezzlement and other financially related, nonviolent crimes. His release
4

Case 3:20-cv-00255-HEH-DJN Document 1 Filed 04/08/20 Page 5 of 47 PageID# 5
date is currently scheduled to be June 30, 2022. Mr. Sullivan is forty-four (44) years old, he suffers from diabetes and high triglycerides. He has a wife and two sons who are minor children. Should he be released from incarceration, he will return to his home and family in South Hill, Virginia. Mr. Sullivan has had no negative infractions or “charges” while incarcerated, he advises several programs, and he is the church leader for an inmate worship group. 8. Plaintiff GALE SHAWN JONES, Offender ID No. 1453087, is currently incarcerated in Fluvanna Correctional Center for Women in Fluvanna County, Virginia following her convictions for the distribution and manufacturing of controlled substances, all nonviolent crimes. Her release date is currently scheduled to be February 18, 2025. Ms. Jones is fifty (50) years old, she suffers from multiple sclerosis, chronic obstructive pulmonary disease (“COPD”), Hepatitis C, and she is a high stroke risk. Ms. Jones has had no negative infractions or “charges” while incarcerated. She will return home to her family in Covington, Virginia if released from incarceration. 9. Plaintiff ALONZO LAMONT WILLIAMS, Offender ID No. 1986512, is currently incarcerated in Coffeewood Correctional Center in Culpeper County, Virginia following his convictions for the distribution and manufacturing of controlled substances as well as the possession of a firearm in Arlington Circuit Court, all of which were nonviolent crimes. He was sentenced to three years of active incarceration and has approximately thirteen months remaining. Mr. Williams is thirty-five (35) years old. He has only one lung as a result of tuberculosis and sleep apnea, the combination of which require him to use a medical device at night to assist with his breathing when he sleeps. Should he be released
5

Case 3:20-cv-00255-HEH-DJN Document 1 Filed 04/08/20 Page 6 of 47 PageID# 6
from prison, Mr. Williams will return to his home and live with his mother in Pasadena, Maryland. 10. Plaintiff DA’VON XAVIER WALKER, Offender ID No. 1674460, is currently incarcerated at Caroline Correctional Unit in Caroline County, Virginia following a probation violation and underlying original conviction of possession of a controlled substance, a nonviolent crime. Mr. Walker is twenty-six (26) years old and he is currently scheduled to be released on June 5, 2020 and will return to his home in Arlington, Virginia. 11. Plaintiff DWIGHT ANTHONY HORTON, Offender ID No. 1588705, is currently incarcerated at the State Farm Enterprise Unit in Powhatan County, Virginia following his conviction for possession with intent to distribute a controlled substance and the revocation of a suspended sentence for the same incident, all of which are nonviolent crimes. Mr. Horton is forty (40) years old. He has served five years and has a release date of January 26, 2033. Mr. Horton suffers from asthma and chronic allergies. Should he be released, he will return to his home in Petersburg, Virginia. 12. Plaintiff FRANK DOUGLAS FAIRCHILD, Offender ID No. 1760379, is currently incarcerated at the Indian Creek Correctional Center in Chesapeake, Virginia following his conviction for drug-related probation violations for an underlying crime involving possession of Schedule I/II substance, each are nonviolent crimes. Mr. Fairchild’s current release date is scheduled for December 1, 2021. Should he be released, he will return to his home in Spotsylvania County, Virginia. 13. Plaintiff CANDACE MARIE BLANKENSHIP, Offender ID No. 1534791, is currently incarcerated in Fluvanna Correctional Center for Women in Fluvanna County, Virginia following her convictions for a probation violation and underlying conviction of grand
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larceny, a nonviolent crime. Ms. Blankenship is currently scheduled for release on May 4, 2020. Ms. Blankenship is twenty-seven (27) years old and she suffers from asthma and epilepsy. Should she be released from prison, she will reside in Charlottesville, Virginia. 14. Plaintiff BRENDA RUND VAN EMMENIS, Offender ID No. 1583679, is currently incarcerated at the Virginia Correctional Center for Women (“VCCW”) in Goochland County, Virginia following her conviction for multiple counts of embezzlement and other financial, nonviolent crimes. She is sixty (60) years old. She suffers from arthritis, loss of hearing due to untreated ear infections while in prison, high blood pressure, chronic allergies, and migraines. She has served six years of incarceration and her current release date is scheduled for October 21, 2022. Should she be released from prison, she will return to her home in Fluvanna County, Virginia. 15. Plaintiff OLIVIA LYNN IVASHIN, Offender ID No. 1335220, is currently incarcerated at Fluvanna Correctional Center for Women in Fluvanna County, Virginia following her conviction for probation violation and underlying conviction of possession of a controlled substance, a nonviolent crime. Ms. Ivashin is currently scheduled to be released from prison on July 22, 2020. She is thirty-nine (39) years old and suffers from Hepatitis C and stress-induced seizures which require her to take Keppra, an anti-epileptic drug. Ms. Ivashin is awaiting adjudication regarding an alleged infraction that took place in 2019 while she was in prison and should she be found in violation of the internal policies, her “good time credit” would be rescinded and her time of incarceration will be extended. If she is released, she will return to her home in Broadway, Virginia. 16. Plaintiff ENNIS THOMAS STEWART, Offender ID No. 1260838, is currently incarcerated at Coffeewood Correctional Center in Culpeper County, Virginia following
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his convictions for a probation violation and an underlying felony offense of distribution of marijuana, a nonviolent offense. Mr. Stewart is forty (40) years old and he is currently scheduled to be released on November 29, 2021. Should he be released from prison, Mr. Stewart will return to his home in Manassas, Virginia. 17. Plaintiff LARTAIJA MONAI BANKS, Offender ID No. 1442583, is currently incarcerated at Fluvanna Correctional Center for Women in Fluvanna County, Virginia following her conviction for forgery and embezzlement, nonviolent crimes. Ms. Banks’ current release date is scheduled for August 17, 2020 but would have been in May of 2020 had her good time credit not been revoked. She suffers from high blood pressure and is thirty-one (31) years old. She will return to her home in Louisa County, Virginia following her release. 18. Plaintiff MATTHEW DANIEL MOSHER, Offender ID No. 1450743, is currently incarcerated in the Haynesville Correctional Center in Richmond County, Virginia following his conviction for robbery and use of a firearm, an unloaded airsoft “bb” gun, in commission of a felony. At the time of this filing, Haynesville has three (3) confirmed inmate cases of COVID-19. Mr. Mosher previously served in the Coast Guard for nine years and was a first responder during 9/11, spending over a month recovering human remains at “Ground Zero” in New York City. He also served time assisting with the aftermath of Hurricane Katrina. As a result of his experience and the scenes he witnessed on a routine basis, Mr. Mosher suffers from PTSD. Mr. Mosher became addicted to prescription pain pills and then fell into an addiction of heroine. With these addictions as a motivating factor, Mr. Mosher engaged in illicit activity that resulted in his conviction of robbery with the use of an unloaded “bb” gun and in the cumulative sentence of eleven
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years of active incarceration. Since being incarcerated, Mr. Mosher became the first person to graduate from the Sustaining Offender Addiction Recovery (SOAR) program at Augusta Correctional Center in July of 2019. He also completed his re-entry program and maintains a home plan. Mr. Mosher is at particular risk of suffering complications from COVID-19, as he has only one fully functioning lung and the other incapable of recovery due to a paralyzed diaphragm. Mr. Mosher requires the use of a CPAP machine, he has suffered pneumonia five times in the last four years, and recent medical tests have shown results suggesting he is suffering from pneumonia at the time of this filing. He is awaiting an X-ray scan for further tests, but the growing presence of COVID-19 cases has caused the medical unit in his prison to be closed. According to his most recent medical visit while incarcerated, Dr. Levine of the prison staff stated that COVID-19 would serve as a particularly worrisome infection given Mr. Mosher’s compromised respiratory system and it would likely prove to be fatal. 19. Plaintiff BRUCE WAYNE HARRIS JR., Offender ID No. 1116630, is currently incarcerated in Haynesville Correctional Center in Haynesville, Virginia following his conviction for his probation violation and failing to register as a sex offender, a nonviolent offense. He was sentenced to forty months of active incarceration and his current release date is scheduled for April 13, 2021. Mr. Harris is thirty-seven (37) years old and he suffers from high blood pressure. Should he be released from confinement, he will return to live with his wife at their home in Newport News, Virginia. 20. Plaintiff JOHNATHAN WESLEY MCMILLAN, Offender ID No. 1199465, is currently incarcerated in Dillwyn Correctional Center in Buckingham County, Virginia as a result of his 2006 conviction of attempted capital murder following his attempt to evade law
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enforcement at a high-speeds when he was twenty-one (21) years old. He was sentenced to fifteen (15) years of active incarceration and his release date is currently scheduled for February 17, 2021. Mr. McMillan is thirty-four (34) years old. Should he be released early, he will return to his home in Staunton, Virginia. 21. Plaintiff MILTON VALENTINO WILLIAMS, SR., Offender ID No. 1460576, is currently incarcerated in Deerfield Men’s Work Center located in Southampton County, Virginia as a result of his conviction for distribution of cocaine, a nonviolent crime. Mr. Williams received an active sentence of six years and his current release date is January 25, 2022. Mr. Williams is thirty-seven (37) years old and he suffers from diabetes. Should he be released from prison, he would leave the Commonwealth to live with his wife in Sunbury, North Carolina. 22. Plaintiff TIMOTHY JAMES BRUMMETT, Offender ID No. 1470155, is currently incarcerated in Patrick Henry Correctional Unit in Ridgeway, Virginia following his conviction of being a nonviolent felon in possession of a firearm which also served as a probation violation for his previous conviction of grand larceny, each of which are nonviolent crimes. His current release date is scheduled for June 10, 2022. He is thirty-four (34) years old and should he be released, he will return to his home in Pittsylvania County, Virginia. 23. Plaintiff ANTHONY DESHAWN VICKS, Offender ID No. 1153855, is currently incarcerated in Dillwyn Correctional Center in Buckingham County, Virginia following his five-year active sentence for a conviction for possession with intent to distribute a Schedule II drug, a nonviolent crime. His current release date is scheduled for July 6, 2021. Mr. Vicks suffers from diabetes and high blood pressure. He is forty-eight (48) years old.
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Should he be released from prison, he will return home to his wife, Renee Vicks in Albemarle County, Virginia. 24. Plaintiff WARREN CORNELIUS BROOKS, Offender ID No. 1414807, is currently incarcerated at Caroline Correctional Unit in Caroline County, Virginia following his conviction of possession with intent to distribute a Schedule I/II controlled substance, a nonviolent crime. He is currently scheduled for release from incarceration on May 2, 2022 and should he be released at that time or earlier, he will return to his home in Henrico County, Virginia. Mr. Brooks is thirty-eight (38) years old and suffers from complications of a dislocated hip, an injury that has yet to receive adequate medical treatment while he has been incarcerated. 25. Plaintiff JESSE ALLEN DAVENPORT, Offender ID No. 1180270, is currently incarcerated in Coffeewood Correctional Center in Culpeper County, Virginia following his convictions related to grand larceny via forging and uttering a bad check, a nonviolent crime. He is currently scheduled for release from incarceration on July 28, 2025. He suffers from Hepatitis C and has been denied treatment for his illness most recently after prison staff cited complications stemming from the ongoing COVID-19 pandemic. His condition is worsening due to the lack of care. Mr. Davenport is forty-five (45) years old and will return to his home in Spotsylvania, Virginia once he is released. 26. Plaintiff WARREN MORRIS MEDLEY-GREEN, Offender ID No. 1109870, is currently incarcerated in Dillwyn Correctional Center in Buckingham County, Virginia following his convictions for driving after being declared a habitual offender, eluding the police, and other driving related charges, all of which are nonviolent crimes. Mr. Medley-Green is currently schedule for release from incarceration on January 31, 2022, and should he be
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released at that time or earlier, he will return to his home in Harrisonburg, Virginia. Mr. Medley-Green is forty-eight (48) years old and suffers from asthma. 27. Plaintiff LAROG ANTHONY TROWELL, Offender ID No. 1366969, is currently incarcerated at Greensville Correctional Center in Greensville, Virginia following his conviction for a probation violation stemming from the possession with the intent to distribute controlled substances and a charge for solicitation to murder. He was originally sentenced to eleven (11) years in prison and has nine months left remaining on his active sentence, with release date of January 11, 2021. Mr. Trowell suffers from asthma, routinely suffers from bronchitis, and also has gastrointestinal problems. Should he be released, he will return to his home in Richmond, Virginia. 28. Plaintiff BENJAMEN WILLIAM FYFE, Offender ID No. 1682846, is currently incarcerated in the Greensville Work Center in Greensville County, Virginia following his conviction for robbery and use of a firearm in the commission of the offense. Prior to this incident, Mr. Fyfe had no prior record. He is currently scheduled to be released on September 1, 2022 and has been a model inmate. Should he be released early, he will return to his home in Smithfield, Virginia. 29. Plaintiff ANTONIO LEE PERRYEL, Offender ID No. 1049366, is currently incarcerated in Dillwyn Correctional Center in Buckingham County, Virginia following his conviction for being a prisoner in possession of marijuana and a 2003 conviction for robbery. His current release date is scheduled for April 4, 2033. Mr. Perryel is forty-four (44) years old and suffers from a compromised respiratory system due to chronic allergies. When he is released, he will leave the Commonwealth to return to his home with his wife in Waldorf, Maryland.
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30. Plaintiff DONNIE RAY OFFENBACKER, Offender ID No. 1198794, is currently incarcerated at Augusta Correctional Center in Augusta County, Virginia following his conviction for grand larceny, a nonviolent crime. Mr. Offenbacker is currently scheduled to be released from incarceration on June 23, 2023. He is thirty-seven (37) years old and will be returning to his home in Verona, Virginia upon his release.
31. Plaintiff FELIPE FRANCO, Offender ID No. 1099251, is currently incarcerated at Coffeewood Correctional Facility in Culpeper County, Virginia following his conviction for conspiracy and distribution of cocaine, all nonviolent crimes. Mr. Franco has served nineteen (19) years in prison and has a release date of September 9, 2025. He is forty-eight (48) years old and would return to his family and home in Virginia.
32. Plaintiff COURTNEY LASHAWN STROBLE, Offender ID No. 1199740, is currently incarcerated at the State Farm Correctional Facility in Powhatan County, Virginia following his conviction for being a nonviolent felon in possession of a firearm. His case remains on appeal to the Supreme Court of Virginia while he continues serving a five (5) year active sentence. If he were to be released, he would return to his family in Richmond, Virginia. Defendant Parties
33. Defendant RALPH S. NORTHAM is the Governor of the Commonwealth of Virginia and our Commonwealth’s Chief Executive Officer responsible for overseeing, managing, and directing policy for all Virginia agencies, including the Department of Public Safety and Homeland Security, which is the governing agency of the Virginia Department of Corrections (“VDOC”).
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34. Defendant BRIAN MORAN is the Secretary of Public Safety and Homeland Security, having been reappointed to this position by Governor Northam. Secretary Moran is responsible for overseeing, managing, and directing policy for all agencies within the Department of Public Safety and Homeland Security, including the VDOC and its prisons.
35. Defendant HAROLD C. CLARKE is the Director of the VDOC. He provides final approval of rules applicable to prison inmates. He is sued in his official capacity for declaratory and injunctive relief. At the time of this filing, the VDOC has publicly confirmed the presence of twenty-eight (28) positive cases of COVID-19 among VDOC’s inmates and staff. The VDOC directly oversees all policies and institutional directives for all State Correctional facilities throughout the Commonwealth, including all of those managed by the wardens listed as defendants below.
36. Defendant DONALD WILMOUTH is the warden of Virginia Correctional Center for Women (“VCCW”) in and State Farm Work Center. He is sued in his official capacity for declaratory and injunctive relief. At the time of this filing, VCCW and State Farm Work Center have publicly confirmed more than (12) inmates and twelve (12) staff members have tested positive for COVID-19. Under his direction, over twenty-four (24) cases have been confirmed.
37. Defendant RICK WHITE is the warden of Indian Creek Correctional Center (“Indian Creek”) in Chesapeake, Virginia. He is sued in his official capacity for declaratory and injunctive relief. At the time of this filing, Indian Creek has publicly confirmed one positive case of COVID-19 in an officer.
38. Defendant THOMAS MEYER is the warden of State Farm Correctional Center and State Farm Enterprise Unit (collectively “State Farm”) in Powhatan County, Virginia. He is sued
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in his official capacity for declaratory and injunctive relief. At the time of this filing, State Farm has publicly confirmed one positive case of COVID-19 in an officer. 39. Defendant TIKKI HICKS is the warden of Haynesville Correctional Center (“Haynesville”) located in Haynesville, Virginia. She is sued in her official capacity for declaratory and injunctive relief. At the time of this filing, Haynesville has publicly confirmed one positive case of COVID-19 in an officer. 40. Defendant RODNEY YOUNCE is the warden of Coffeewood Correctional Center (“Coffeewood”). He is sued in his official capacity for declaratory and injunctive relief. 41. Defendant TRACY RAY is the warden of Greensville Work Center. He is sued in his official capacity for declaratory and injunctive relief. 42. Defendant ERIC ALDRIDGE is the warden of the Fluvanna Correctional Center for Women, a State Correctional facility under the control of the VDOC. He is sued in his official capacity for declaratory and injunctive relief. 43. Defendant DANA RATLIFFE-WALKER is the warden of Dillwyn Correctional Center (“Dillwyn”). She is sued in her official capacity for declaratory and injunctive relief. 44. Defendant TORI RAIFORD is the warden of Caroline Correctional Unit. He is sued in his official capacity for declaratory and injunctive relief. 45. Defendant TAMMY WILLIAMS is the warden of Deerfield Correctional Center and Deerfield Men’s Work Center (collectively “Deerfield”) located in Capron, Virginia. She is sued in her official capacity for declaratory and injunctive relief. 46. Defendant JOSEPH BATEMAN is the warden of Patrick Henry Correctional Unit (“Patrick Henry”) located in Ridgeway, Virginia. He is sued in his official capacity for declaratory and injunctive relief.
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47. Defendant PHILLIP WHITE is the warden of Augusta Correctional Center (“Augusta”) located in Augusta County, Virginia. He is sued in his official capacity for declaratory and injunctive relief. Threat of COVID-19
48. As of April 8, 2020, a new strain of coronavirus which causes COVID-19, is known to have infected over 1,500,000 people, leading to at least 80,000 deaths worldwide and 10,000 deaths in the United States. There are over 3,600 confirmed cases in Virginia and there have been 75 deaths as a result of COVID-19.
49. COVID-19 (also referred to herein as “Coronavirus”) is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).
50. COVID-19 was first identified in December 2019 in Wuhan, China, the capital of China’s Hubei province, and has since spread globally, resulting in the ongoing 2019–20 coronavirus pandemic.
51. Common symptoms of COVID-19 include fever, cough, and shortness of breath as well as muscle pain diarrhea, sore throat, loss of smell, and abdominal pain. The majority of COVID-19 cases result in mild symptoms, while some progress to viral pneumonia and multi-organ failure.
52. COVID-19 is most commonly spread during close human contact via small droplets produced when people cough, sneeze, or talk. People may also catch COVID-19 by touching contaminated surfaces and then their face. The virus can survive on surfaces up to seventy-two (72) hours.
53. It is most contagious during the first three days after symptom onset, although spread may be possible before symptoms appear and in later stages of the disease.
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54. Time from exposure to onset of symptoms is generally between two (2) and fourteen (14) days, with an average of five (5) days.
55. The standard method of diagnosis is via reverse transcription polymerase chain reaction (rRT-PCR) from a nasopharyngeal swab.
56. The infection can also be diagnosed from a combination of symptoms, risk factors and a chest CT scan showing features of pneumonia.
57. Currently, there is no vaccine or specific antiviral treatment for COVID-19. Management involves treatment of symptoms, supportive care, isolation, and experimental measures.
58. Those infected with the virus may be asymptomatic or develop flu-like symptoms including fever, cough, fatigue, and shortness of breath.
59. Emergency symptoms include difficulty breathing, persistent chest pain or pressure, confusion, difficulty waking, and bluish face or lips; immediate medical attention is advised if these symptoms are present.
60. Less commonly, upper respiratory symptoms, such as sneezing, nasal discharge (“runny nose”), or a sore throat may be seen. Symptoms such as nausea, vomiting, and diarrhea have been observed in varying percentages.
61. For thousands of people, the disease has progressed to pneumonia, multi-organ failure, and death.
62. The time from symptom onset to needing mechanical ventilation is typically eight (8) days for those suffering from severe symptoms.
63. There is a delay between the moment when a person is infected with the virus and the time when they develop symptoms (“incubation” or “the incubation period”).
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64. The incubation period for COVID-19 is typically five (5) to six (6) days but may range from two (2) to fourteen (14) days.
65. Nearly ninety-eight percent of those who develop symptoms will do so within 11.5 days of infection.
66. Reports indicate that not all who are infected develop symptoms (“asymptomatic”). 67. Asymptomatic cases contribute to the spread of the disease. 68. The World Health Organization (WHO) and Center for Disease Control (CDC) claim that
COVID-19 is primarily spread during close contact and by small droplets produced when people cough, sneeze, or talk; with close contact being within 3 ft 3 in–9 ft 10 in. A study in Singapore found that an uncovered coughing can lead to droplets travelling up to 15 feet). 69. Respiratory droplets may also be produced during breathing out, including when talking. Though the virus is not generally airborne, the National Academy of Science has suggested that bioaerosol transmission may be possible and air collectors positioned in the hallway outside of people’s rooms yielded samples positive for viral RNA. 70. The droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. 71. Some medical procedures such as intubation and cardiopulmonary resuscitation (CPR) may cause respiratory secretions to be aerosolized and thus result in airborne spread. It may also spread when one touches a contaminated surface, known as fomite transmission, and then touches their eyes, nose, or mouth. 72. The virus is most contagious when people are symptomatic; while spread is possible before symptoms appear.
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73. According to the European Centre for Disease Prevention and Control (ECDC), one person generally infects two to three others.
74. The virus has been found to be detectable for one day on cardboard, for up to three days on plastic and stainless steel, and for up to four hours on copper and this varies based on humidity and temperature.
75. The severity of COVID-19 varies, as the disease may take a mild course with few or no symptoms, resembling other common upper respiratory diseases while mild cases typically recover within two weeks.
76. Those with severe or critical diseases may take three to six weeks to recover and among those who have died, the time from symptom onset to death has ranged from two to eight weeks.
77. Children are susceptible to the disease but are likely to have milder symptoms and a lower chance of severe disease than adults; in those younger than fifty (50) years, the risk of death is less than 0.5%, while in those older than 70 it is more than 8%.
78. In those most severely affected, COVID-19 may rapidly progress to acute respiratory distress syndrome (ARDS) causing respiratory failure, septic shock, or multi-organ failure.
79. Complications associated with COVID-19 include sepsis, abnormal clotting, and damage to the heart, kidneys, and liver.
80. Clotting abnormalities, specifically an increase in prothrombin time have been described in six-percent of those admitted to hospitals with COVID-19, while abnormal kidney function is seen in four-percent of this group. Liver injury as shown by blood markers of liver damage is frequently seen in severe cases.
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81. Many of those who die of COVID-19 have pre-existing conditions including hypertension, diabetes, cardiovascular disease, and heart disease.
82. Due to the respiratory complications that can arise from COVID-19, those with compromised lung capacity as a result of certain conditions including asthma, emphysema, chronic obstructive pulmonary disease (“COPD”), lung cancer, or the removal of one lung are at higher risk of death should complications arise. Basic Practices And Accepted Norms In Response To COVID-19
83. A vaccine is not expected until 2021, therefore a key part of managing COVID-19 is trying to decrease the epidemic peak, known as “flattening the curve,” by slowing the infection rate to decrease the risk of health services being overwhelmed, allowing for better treatment of current cases, and delaying additional cases until effective treatments or a vaccine become available.
84. Preventive measures to reduce the chances of infection include avoiding public spaces and gathering, avoiding crowded places, washing hands with soap and water often and for at least twenty-seconds, practicing good respiratory hygiene, and avoiding touching the eyes, nose, or mouth with unwashed hands.
85. The CDC recommends covering the mouth and nose with a tissue when coughing or sneezing and recommends using the inside of the elbow if no tissue is available. It also recommends proper hand hygiene after any cough or sneeze.
86. Recommended measures to prevent infection include frequent hand washing, the wearing of gloves, “social distancing” by maintaining a physical distance of six (6) to twelve (12) feet from others, especially from those with symptoms, the covering coughs and sneezes with a tissue or inner elbow, and keeping unwashed hands away from the face.
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87. Medical professionals, including Governor Northam, recommend the use of masks for everyone, especially those who suspect they have the virus and their caregivers. A particular model of masks (“N95 masks”) is considered to serve particularly well to protect against the inhalation and exhaling of contaminated air.
88. Recommendations for mask use by the general public vary, with many authorities requiring their use.
89. “Social distancing” strategies aim to reduce contact of infected persons with large groups by closing schools and workplaces, restricting travel, and cancelling mass gatherings. Social distancing also includes that people stay at least six feet apart.
90. According to the WHO, the use of masks is recommended only if a person is coughing or sneezing or when one is taking care of someone with a suspected infection. Some countries and States recommend healthy individuals wear face masks.
91. Governor Northam has suggested all people wear masks while in public regardless of whether they have shown symptoms of COVID-19.
92. In order to meet the need for masks, the WHO estimates that global production will need to increase by forty-percent (40%).
93. Those diagnosed with COVID-19 or who believe they may be infected are advised by the CDC to stay home except to get medical care, call ahead before visiting a healthcare provider, wear a face mask before entering the healthcare provider's office and when in any room or vehicle with another person, cover coughs and sneezes with a tissue, regularly wash hands with soap and water, and avoid sharing personal household items.
94. The CDC also recommends that individuals wash hands often with soap and water for at least 20 seconds, especially after going to the toilet or when hands are visibly dirty, before
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eating and after blowing one’s nose, coughing, or sneezing. It further recommends using an alcohol-based hand sanitizer with at least sixty-percent alcohol, but only when soap and water are not readily available.
Response To COVID-19 & Spread Throughout The Commonwealth 95. On March 11, 2020, the World Health Organization officially classified COVID-19 as a
pandemic. 96. On March 13, 2020, the President of the United States declared a national emergency in
response to the public threat to health posed by COVID-19. 97. On March 12, 2020, Virginia’s Governor Ralph Northam declared a State of Emergency
in response to the threat to health posed by COVID-19. 98. On March 17, 2020, the Honorable Chief Justice Lemons of the Virginia Supreme Court
declared a Judicial Emergency in light of COVID-19 and ordered all General District and Circuit Court proceedings to be halted, subject to a narrow list of exceptions requiring immediate judicial attention. 99. On March 19, 2020, Governor Northam and Brian Moran, Virginia’s Secretary of Public Safety, requested law enforcement, prosecutors, and judges to consider alternatives to incarceration as a result of this pandemic. 100. On March 20, 2020, Governor Northam activated the National Guard to aid Virginians during the State of Emergency posed by COVID-19. 101. On March 30, 2020, Governor Northam enacted Executive Order No. 55 (“EO55”) which ordered, in part: “All individuals in Virginia shall remain at their place of residence, except as provided below by this Order and Executive Order 53. To the extent individuals use shared or outdoor spaces, whether on land or on water, they must at all times maintain
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social distancing of at least six feet from any other person, with the exception of family or household members or caretakers.” 102. EO55 closed all public universities, beaches, and ordered “[a]ll public and private inperson gatherings of more than ten individuals are prohibited,” including “parties, celebrations, religious, or other social events, whether they occur indoor or outdoor.” 103. Violations of ¶¶ 2-5 of Governor Northam’s EO55 were deemed punishable as Class 1 misdemeanors via Va. Code § 44-146.17. 104. At a public press conference on April 6, 2020, Governor Northam recognized the value of wearing masks as a means of reducing the risk of COVID-19 contamination. At the press conference, he demonstrated the proper way to wear a mask, covering both the mouth and nose, using a mask made by the inmates in the VDOC. 105. Some inmates in the VDOC are being coerced to make these masks via fear of losing their “good time credits” if they do not participate, even though these work environments involve high population density, do not adhere to social distancing requirements, and VDOC’s inmates do not have universal access to these masks themselves. 106. At the same press conference, Governor Northam publicly recognized and reiterated the importance of personal protective equipment (i.e. masks, gloves, sanitizers, etc.) as well as the value and importance of COVID-19 testing and medical equipment such as ventilators. 107. Governor Northam and the Commonwealth are working with the Army Corps of Engineers to identify alternative healthcare facilities due to the expected impact and complications of overwhelming population at traditional hospitals and healthcare facilities.
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108. Neither Governor Northam nor Secretary Moran have ordered Virginia’s state government to identify alternative facilities or alternative methods of incarceration for inmates in the VDOC prison system.
109. On April 3, 2020, President Trump declared Virginia to be a “major disaster area” in light of the impact and spread of COVID-19.
110. On April 3, 2020, United States Attorney General William Barr issued a State of Emergency within the U.S. Bureau of Prisons due to the threat posed by COVID-19 in the prison population and ordered the expedited release of inmates to home confinement via the use of home electronic GPS ankle monitoring.
111. Additional protective measures have been taken throughout the Commonwealth and the United States, including primary and secondary school closures, and other limits on governmental and commercial activity. The U.S. Department of Treasury deemed the threat so serious that it went so far as to extend the filing deadline for reporting taxes by three months.
112. There are over 2,600 known cases of COVID-19 in Virginia, with over 60 deaths coming as a result.
113. As of April 6, 2020, COVID-19 has been positively identified in more than nineteen (19) inmates in Virginia’s prison system and at least twenty-one (21) staff members or contractors of the VDOC.
114. The number of Virginia inmates and staff that are infected with COVID-19 is possibly higher than those figures reported due to the lack of testing and policies requiring testing of all inmates and staff who have been in contact with those who are known to be infected.
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115. The Center for Disease Control issued guidance that individuals are at higher risk of contracting COVID-19 when in tightly crowded areas and all government entities have suggested individuals are to stay home as much as possible.
116. The conditions of confinement throughout the correctional facilities in VDOC create an ideal environment for the transmission of COVID-19.
Conditions of Confinement & Institutional Practices That Pose Heightened Risks of Infection in Virginia’s Prison System
117. Inmates and staff cycle in and out of Virginia’s correctional facilities from multiple regions of the Commonwealth.
118. Multiple service providers and contractors leave and return daily without COVID-19 testing.
119. Incarcerated people oftentimes have poorer health than the general population and, even in the best of times, medical care is limited.
120. Most of Virginia’s State Correctional facilities are located in rural or remote regions of the Commonwealth and are relatively far from Virginia’s largest hospitals and other medical resources.
121. According to public health experts, incarcerated individuals “are at special risk of infection, given their living situations,” and “may also be less able to participate in proactive measures to keep themselves safe,” “infection control is challenging in these settings.”
122. Prisons are amplifiers of infectious diseases such as COVID-19 because the practices that keep diseases from spreading, such as social distancing, are inherently more onerous to achieve in VDOC State Correctional facilities because these prisons engage in highdensity, centrally housed confinement and therefore have infrastructural limitations on space, resource allocation, and staff-to-inmate ratio.
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123. In Virginia’s local jail system, multiple localities, Commonwealth Attorneys, jail superintendents, and circuit courts have taken measures to limit inmate contact with outside individuals, including limits on contact visits between clients and attorneys. Multiple jails throughout the Commonwealth of Virginia have ordered the early release of select prisoners as well as the release and continued incarceration of inmates via home electronic GPS monitoring.
124. The Plaintiffs are currently housed in compact quarters in State Correctional facilities with no less than ten (10) but as many as ninety (90) other adult inmates in their immediate housing facility, while many of these facilities house hundreds or thousands of inmates. These facilities are overcrowded during the COVID-19 pandemic. Many of these inmates come and go from the prison on a routine basis and have been in contact with other inmates, VDOC Staff, and contractors who have contracted the virus.
125. The Defendants’ facilities use cycled air, community washed clothing, community accessed and prepared food, equipment, and community accessed supplies in a fashion that enhances the likelihood of contamination and infection for the Plaintiffs and those in their class.
126. The Defendants’ facilities use community accessed phones, computers, books, libraries, tables, chairs, games, cards, televisions, remotes, doors, cells, light fixtures, and other similar items used in daily life.
127. The Defendants’ facilities are not adhering to any material form of “social distancing” policies insofar as inmates are forced to:
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A. Sleep in quarters that are in open-air dormitories that house as few as twelve (12) and as many as ninety (90) other adults on beds, cots, or foam mattresses that are as close in proximity as approximately two (2) feet apart from other inmates;
B. Be transported via vehicles with more than ten (10) and as many as thirty (30) other inmates with little-to-no space between passengers;
C. Congregate in open areas of other inmates that range from more than ten (10) and up to ninety (90) others at a time.
D. Attend programming, classes, and other facility-managed gatherings of more than ten (10) in quarters that do not afford the opportunity for social distancing between inmates and staff.
E. Work in quarters, both inside and outside, in which the inmates are in large gatherings that do not comply with the medically or State-suggested limits in the number of individuals present or the distance from person to person.
128. The Defendants have failed to enact mandatory or uniform policies for staff, contractors, or inmates that present a material form of protection for inmates via the required use of masks, gloves, sanitizer, or other sanitation protection for the staff, inmates, their equipment, phones, computers, clothing, food, or other items in daily use.
129. In one specific instance on Monday, April 6, 2020 at Dillwyn Correctional Center, a correctional officer was confronted by inmates for failure to wear her mask while conducting inspections of the housing unit. A verbal altercation ensued resulting in the correctional officer stating that she did not need to wear the mask and that she hoped the inmates did get infected with COVID-19. Approximately twenty-five (25) inmates filed a
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grievance against this correctional officer, with one inmate receiving a “charge” or negative conduct record as a result. 130. There is no policy at any of the Defendants’ facilities that suggests or guarantees negative consequence for Defendants’ employees for failure to use masks, gloves, sanitizer, or other equipment meant to deter the spread of COVID-19. 131. The Defendants have failed to implement any uniform policies to materially limit social gatherings or adhere to social distancing guidelines, with some continuing to threaten negative treatment of inmates or threaten to record internal violations (“charges”) that place an inmate’s “good time credit” for early-release from incarceration if such inmates fail to attend work requirements, internal programs, or courses that continue to consist of more than ten (10) inmates in close quarters that do not allow or require distance between those who are present. 132. In some instances, the Defendants have ordered stays on inmate gatherings for religious exercises while maintaining the forced gathering and transportation of more than ten (10) inmates to and from daily work requirements in tight quarters that do not comply with the suggested parameters of social distancing. 133. Specifically, the threats of COVID-19 have been cited as a reason to deny the religious church gatherings traditionally led by Plaintiff SULLIVAN, even though he is required to attend his daily work routine with larger gatherings of inmates in tighter quarters for explicit threat of retribution that would negatively impact his “good time credit.” 134. The Defendants have ended several forms of medical treatment for inmates suffering from chronic diseases and otherwise life-threatening illnesses due to the risks posed by COVID19.
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135. Specifically, the threats of COVID-19 have been cited as a reason to deny the medical treatment of Hepatitis C for Plaintiff DAVENPORT.
136. The Defendants have denied and do not maintain any form of alternative sentencing measures such as home electronic GPS ankle monitoring that would protect inmates from large, crowded housing units.
137. In some instances, the Defendants removed materials from inmates, including gloves, that would otherwise serve to protect these inmates from exposure to COVID-19.
138. The Defendants lack the necessary amount of tests for COVID-19 and do not adhere to any testing policies for inmates or staff but for removing and testing individuals who show overt symptoms of COVID-19 and checking the temperatures of staff that enter the facility.
139. Many individuals who contract COVID-19 do not show symptoms, including elevated temperatures, even when they remain highly contagious, therefore it is possible that a contagious individual does not have high body temperature or show any outward symptoms.
140. The mere testing of staff for an elevated temperature prior to entering a facility is insufficient for determining whether such individual is infected.
141. The Defendants know or have the reason to know that contagious individuals may not show symptoms of COVID-19 and may not display a high body temperature yet they continue to adhere to policies that require the interaction of large crowds of inmates and staff in tight quarters.
142. The Defendants continue to implement programming in some instances where inmates leave the prison for off-grounds activity where they engage with members of the public and then do not quarantine these inmates from the general population.
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143. The Defendants are responsible for providing reasonable care and resources for the Plaintiffs and those in Plaintiffs’ class as inmates are wards of the State.
144. The Defendants have taken no action to identify and remove several of the Plaintiffs and those in Plaintiffs’ class who are at particularly high risk of suffering from complications from COVID-19. The Defendants have not amended any procedures, policies, or guidelines for the housing of inmates that suffer from chronic health-related issues, those who are elderly, or those who have compromised respiratory systems.
145. Specifically, Defendants NORTHAM, MORAN, and CLARKE have failed to issue or enforce material guidelines or policies requiring State Correctional facilities to identify elderly inmates or inmates with known risks to their respiratory system, cardiovascular system, or acute threats to their immune system even though such inmates are known to be at a high risk of suffering material, even fatal, complications from COVID-19.
146. Additionally, Defendants NORTHAM, MORAN, CLARKE, WILMOUTH, WHITE, MEYER, and HICKS have failed to issue or enforce any material, requisite guideline or policy for the removal of those individuals most at risk from the largest of housing units with general quarantine policies and placing these at-risk individuals in housing units with more uniquely-tailored sanitation or quarantine policies or in units smaller gatherings of individuals.
147. The Defendants have not procured or attempted to procure the amount of hygienic or sanitary supplies reasonably necessary for inmates to protect themselves against contracting COVID-19.
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148. The Defendants have not procured or attempted to procure the amount of ventilators reasonably necessary of the number of inmates to protect them or treat them as a result of COVID-19.
149. The Defendants have not procured or attempted to procure the amount of COVID-19 tests reasonably necessary to ensure the routine assessment of inmates, staff, or contractors.
150. The Defendants have not enacted or attempted to enact any form of alternative method of incarceration, such as home electronic GPS ankle monitoring (“home electronic monitoring” or “HEI”), as a means of reducing the density of their prison population in response to the risk posed by compact social gatherings of inmates.
151. The Defendants have not enacted or attempted to enact any policies related to the use of “charges,” or the implementation of internal infractions against the Plaintiffs and the Plaintiffs’ class, some of which threaten the removal of “good time credit” that would result in early release from incarceration.
152. The Defendants have not enacted any policy to retroactively reconsider or review prior decisions to remove inmates’ “good time credit” as a means of expediting the release of inmates and reducing the housing density, thereby failing to take actions that would reduce the prison population and release inmates who could otherwise be eligible for removal.
153. The Defendants continue to have staff delivering food to inmates without requiring the mandatory use of gloves or masks and in some instances threaten or enact policies of taking away the food of inmates if inmates are not wearing this equipment themselves.
154. The Defendants continue to foster an environment where inmates, including Plaintiffs and those in Plaintiffs’ class, are required or coerced to work outside of the prison in an
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environment where they interact with the public, thereby exposing them directly and indirectly to the threat of COVID-19 from outside sources. 155. The Plaintiffs, as inmates, are wards of the Commonwealth of Virginia and remain protected by the Constitution of the United States, specifically the Eighth Amendment’s guarantee that they are to be protected from cruel and unusual punishment as applied to the States via the Fourteenth Amendment. 156. The Defendants have a duty to these inmates and these Plaintiffs to provide, protect, and ensure contemporary standards of decency and, at a minimum, the civilized measure of life’s necessities. 157. The Defendants know that those who contract COVID-19 are at a serious risk of infecting anyone they may come in close contact with. 158. The Defendants know that those who contract COVID-19 can and do suffer damage to their own health and those with aforementioned risk-factors can and do suffer from serious complications that can and do prove to be fatal. 159. The Defendants know that COVID-19 poses a serious and significant risk of physical injury to all persons and Plaintiffs, especially those suffering from old age or compromised health. 160. The Defendants know or have reason to know that an individual may be infected with COVID-19 and contagious even though such individual is unaware of their infection and asymptomatic. 161. The Defendants know or have reason to know that an individual who is infected with COVID-19 and shows noticeable symptoms of the virus has typically been infected and contagious for several days.
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162. The Defendants know that their staff and contractors have contact with individuals outside of their employment and are at risk of being unknowingly infected with COVID-19.
163. The Defendants know that inmates are at risk of contracting COVID-19 without the inmate’s knowledge. Causes of Action I. Cruel and Unusual Punishment (Population Density & Spatial Limitations)
164. The Plaintiffs and their class incorporate and re-allege all facts previously stated in ¶¶ 1-163 in this Complaint.
165. The Defendants know or have reason to know the housing conditions, including size of confinement and population density, along with the health risks of particular inmates, including the Plaintiffs.
166. The Defendants know that COVID-19 is commonly spread via transmission as a result of close human contact.
167. The Defendants know that close contact between and among many persons creates a heightened and more serious and significant risk of spreading COVID-19.
168. The Defendants know that VDOC staff, contractors, and inmates come into close contact with each other and other persons on a constant basis.
169. The Defendants know or have reason to know that VDOC staff, contractors, and inmates have come in contact with or at a serious and substantial risk of unwittingly coming in contact with other individuals who have been infected with COVID-19 or objects that are contaminated with the virus.
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170. The Defendants know that VDOC inmates, including the Plaintiffs, do routinely live, eat, work, and generally congregate in high-density settings that involve close contact between and among many persons and many objects.
171. The Defendants know or have reason to know that increasing the spatial distance between individuals, specifically by six feet or more, and reducing the amount of individuals in a closed setting, specifically to a number of ten people or less, is a means of reducing the risk of spreading COVID-19.
172. Increasing spatial distance between individuals and limiting the number of individuals in close quarters are practices that are not only widely accepted societal norms during COVID-19 pandemic, they have been publicly encouraged via officials at all levels of Government, commercial enterprise, and American culture. In Virginia, these practices have been enacted into law in most settings via Executive Orders promulgated by Governor Northam.
173. These aforementioned practices of distancing and limiting population density are contemporary standards of decency.
174. The Defendants know or have reason to know that increasing spatial distance between individuals and limiting the number of individuals in a particular setting during the ongoing COVID-19 pandemic is a contemporary standard of decency recognized throughout the United States and the Commonwealth of Virginia.
175. The Defendants know that the VDOC inmates, including the Plaintiffs, along with staff and contractors, are not in a setting, are not subject to an environment, and are not provided or protected by prison policies, resources, or infrastructure that offers or requires the spatial
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distance or reduction in close-quarter population that is reasonably necessary to protect against the substantial risk of spreading COVID-19. 176. The Defendants know that this substantial risk of spreading COVID-19 to and among inmates, including the Plaintiffs, poses a substantial, serious, and significant risk to the physical health of these inmates and these Plaintiffs. 177. The Defendants know or have reason to know of other reasonable efforts, practices, policies, resources, and infrastructure that can be established to provide the spatial distance and reduction in population density necessary to reduce this ongoing risk, nevertheless these Defendants refuse to do so. 178. The Defendants know or have reason to know that the continued use of buses, vans, and high-density transportation poses a significant health risk due to spatial limitations and population density. 179. The Defendants know or have reason to know that the continued threat of giving “charges” or negative infractions to inmates as a result of an inmate’s unwillingness to participate in a spatially-limited, high-population program, class, or event forces or unduly coerces an inmate to engage in activity that is a serious, substantial, and significant risk to their health. 180. The Defendants know or have reason to know that the elimination of “good time credit” or opportunity for early release of an inmate who may otherwise qualify for release during the COVID-19 pandemic increases the population density in these facilities and poses a serious, substantial, and significant health risk to that inmate along with all others. 181. The Defendants know or have reason to know that VCOD’s failure to implement alternative sentencing, alternative housing measures, and alternative methods of incarceration enhances the risks of spatial limitations and population density in a fashion
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that poses a serious, substantial, and significant risk to those inmates who could reasonably be subject to such alternatives as well as those who remain confined according to the status quo. 182. The Defendants have a duty to protect the Plaintiffs and those in their class from these conditions and these risks, they have not done so in a reasonable fashion, and are therefore depriving them in an extreme manner via conditions of confinement that constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendment.
II. Cruel and Unusual Punishment (Lack of Supplies, Equipment, & Sanitation Policies for Inmates) 183. The Plaintiffs incorporate and reallege all facts stated previously in ¶¶ 1-163 in this Complaint. 184. The Defendants know or have reason to know that COVID-19 is commonly spread via transmission from its location on an object that was in the presence of an infected individual to the skin of an uninfected individual. 185. The Defendants know or have reason to know that inmates, including the Plaintiffs, along with staff and contractors routinely use of many objects by and among many persons and such use creates a heightened and more serious and significant risk of spreading COVID19. 186. The Defendants know that VDOC staff, contractors, and inmates come in contact with objects commonly used by many others on a routine and constant basis and such contact during a pandemic without additional measures poses a serious, significant, and substantial risk of spreading COVID-19. 187. The Defendants know or have reason to know that COVID-19 can be transmitted from an infected individual’s mouth or nose to outward places on their body, their clothing, nearby
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objects, nearby individuals, and the air generally via the infected person’s breathing, coughing, or sneezing. 188. The Defendants know or have reason to know that the COVID-19 virus can remain contagious once transmitted to an object can infect another individual once that object has been touched with a hand or clothing and such individual subsequently touches their face with that hand or clothing. 189. The Defendants know or have reason to know that there are supplies, equipment, tools, and chemicals that can reduce or prevent the transmission of COVID-19 from an infected individual to others, whether that is via object-to-person or airborne. 190. Such supplies, equipment, tools, and chemicals include items such as reusable and disposable masks, reusable and disposable gloves, hand sanitizer, liquid and bar soap, disinfecting wipes, rags, or cloth, aerosol spray, and disposable coverings for commonly touched items. 191. The practice of using, requiring, or providing these sort of supplies, equipment, tools, and chemicals is a common societal practice during the COVID-19 pandemic. So much so, that Governor Northam publicly referenced and displayed the use of these tools, specifically a wearable mask, in his address to the Commonwealth on April 6, 2020. 192. The use and provision of these and similar items have been recommended by public officials in all levels of Government, commercial enterprises, and in cultural reference. 193. The practice of using, requiring, and providing these and similar items during the COVID19 pandemic are contemporary standards of decency.
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194. The Defendants know or have reason to know that using, requiring, and providing these and similar items during the ongoing COVID-19 pandemic is a contemporary standard of decency recognized throughout the United States and the Commonwealth of Virginia.
195. Failure to provide and require these and other similar items for inmates poses a substantial, serious, and significant risk of spreading COVID-19 to and among inmates via objects and the air.
196. The Defendants know or have reason to know that the VDOC inmates, including the Plaintiffs, along with staff and contractors, are not provided or protected by prison policies, resources, or infrastructure that offers or requires these or other similar items that are reasonably necessary to protect against the substantial risk of spreading COVID-19.
197. The Defendants know that this substantial risk of spreading COVID-19 to and among inmates, including the Plaintiffs, poses a substantial, serious, and significant risk to the physical health of these inmates and these Plaintiffs.
198. Unlike private citizens seeking medical attention in the public at-large, these VDOC inmates are wards of the Commonwealth of Virginia, therefore it is the Commonwealth’s duty to ensure the protection of their health. Defendants NORTHAM and MORAN have specifically failed to account for this risk by placing the VDOC and its prisons in a position where the VDOC must compete with other entities to receive State-procured personal protective equipment.
199. The Defendants know or have reason to know of reasonable efforts, practices, policies, resources, and infrastructure that can be established to provide and require these items for inmates during this ongoing risk, nevertheless these Defendants refuse to do so.
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200. The Defendants have a duty to protect the Plaintiffs and those in their class from these conditions and these risks, they have not done so in a reasonable fashion, and are therefore depriving them in an extreme manner via conditions of confinement that constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendment. III. Cruel and Unusual Punishment (Lack of Basic Supplies, Equipment, & Sanitation Policies for Staff)
201. The Plaintiffs incorporate and re-allege the facts previously stated in ¶¶ 1-163 as well as ¶¶ 184-94 of this Complaint.
202. The VDOC and its several State Correctional facilities lack any uniform or explicit policies governing prison Staff’s or contractor’s requisite provision and use of items that are known to protect against the transmission of COVID-19 to objects or other persons.
203. Specifically, there is no explicit or uniform policy governing Staff or contractor use of masks, gloves, disinfectant sprays or wipes, disposal of waste, use of disposable coverings for commonly touched items, or application of accurate COVID-19 testing.
204. Failure to require prison staff and contractors to adhere to such policies regarding these and similar items presents a significant, substantial, and serious risk of continuous transmission of COVID-19 from staff and contractors who leave the prison on a daily basis to interact with the public and then return to the prison to interact with inmates and the objects they routinely use.
205. Requiring staff and contractors to have these items and use these items, along with other risk-reducing measures, is a contemporary standard of decency that the Defendants know or should know will reduce the serious, significant, and substantial risk of spreading COVID-19 to the inmates and Plaintiffs and jeopardizing their health.
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206. The Defendants know that this substantial risk of spreading COVID-19 to and among inmates, including the Plaintiffs, poses a substantial, serious, and significant risk to the physical health of these inmates and these Plaintiffs.
207. The Defendants know or have reason to know of reasonable efforts, practices, policies, resources, and infrastructure that can be established to provide and require these items for staff and contractors during this ongoing risk, nevertheless these Defendants refuse to do so.
208. The Defendants have a duty to protect the Plaintiffs and those in their class from these conditions and these risks, they have not done so in a reasonable fashion, and are therefore depriving them in an extreme manner via conditions of confinement that constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendment. IV. Cruel and Unusual Punishment (Lack of Medical Supplies, Equipment, & Testing for Inmates and Staff)
209. The Plaintiffs incorporate and re-allege the facts previously stated in ¶¶ 1-163 of this Complaint.
210. Testing individuals for COVID-19 is an important and requisite measure to reduce the spread of the virus because it affords the infected individual, medical professionals, policymakers, and the public an opportunity to not only provide the care needed to treat the symptoms of the disease but to also quarantine, isolate, or remove that individual from uninfected persons as a means of limiting exposure and spread of the virus.
211. Testing also affords the infected individual, medical professionals, policymakers, and the public an opportunity to proactively assess who, what, when, and where the infected person may have come in contact as a means of preemptively disinfecting contaminated objects or monitoring those who may incubating COVID-19 without showing symptoms.
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212. Diagnosing individuals for COVID-19 requires the use of specific tests which must be ordered and transported from manufacturing facilities and these tests are not reusable.
213. Determining whether an individual has a high temperature or fever is not a means of testing for COVID-19 but is merely a way to assess whether they have a commonly occurring symptom of the disease.
214. Along with COVID-19 tests, other forms of medical equipment, such as ventilators, are necessary for diagnosing the disease, treating the symptoms, and limiting the spread of the virus. Proactively procuring this medical equipment has become a contemporary standard of decency for Governmental entities, particularly those charged with the care of individuals.
215. Because the VDOC inmates and these Plaintiffs are wards of the State, the Defendants have a duty to proactively procure basic medical supplies for testing, diagnosing, treating, and preventing the spread of COVID-19 among its staff, contractors, and inmates so as to protect and treat the inmates.
216. The Defendants have not procured or introduced the basic number of COVID-19 tests, ventilators, or other medical equipment to satisfy the contemporary standard of decency for diagnostic testing or treatment.
217. The Defendants failure to procure these medical supplies poses a significant, substantial, and serious risk to the inmates insofar as a supply shortage is known to result in a lack of diagnosing infected individuals and therefore eliminates the ability to quarantine as a means of limiting infection.
218. The Defendants failure to procure these medical supplies poses a significant, substantial, and serious risk to the inmates insofar as a supply shortage is known to result in a lack of
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diagnosing and providing adequate treatment for infected inmates that suffer from severe symptoms. 219. Government entities at all levels, including those throughout the Commonwealth of Virginia, along with private commercial enterprise, have taken are continuing to take the preemptive steps to procure these and other medical equipment. 220. The Defendants are charged with providing the basic necessities of medical care for these inmates. 221. Having access to the appropriate number of COVID-19 tests, ventilators, and other medically necessary equipment is a contemporary standard of decency and a basic provision by healthcare providers and those charged with providing such care. 222. The Defendants know or should know that the lack of tests, testing policies, ventilators, and other medical equipment poses a significant, substantial, and serious risk to the health of these inmates due to the risk of spreading COVID-19 and suffering complications from severe symptoms. 223. The Defendants have a duty to protect the Plaintiffs and those in their class from these conditions and these risks, they have not done so in a reasonable fashion, and are therefore depriving them in an extreme manner via conditions of confinement that constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendment.
Prayer for Relief WHEREFORE, the Plaintiffs respectfully request for this honorable court to: A. Assume jurisdiction over this action; B. Declare the Defendants’ failure to enact polices to reduce the population density in VDOC prisons during the COVID-19 pandemic results in conditions of confinement that present
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such an imminent risk to the Plaintiffs’ health that it violates their Eighth Amendment right to be free from cruel and unusual punishment as incorporated to the States by the Fourteenth Amendment; C. Declare the Defendants’ failure to enact policies requiring and providing personal protective equipment and sanitary supplies and practices during the COVID-19 pandemic for the Plaintiffs that it results in conditions of confinement that present such an imminent risk to health that it violates their Eighth Amendment right to be free from cruel and unusual punishment as incorporated to the States by the Fourteenth Amendment; D. Declare the Defendants’ failure to enact policies that require VDOC staff and contractors to use personal protective equipment, COVID-19 tests, and engage in additional measures to reduce the transfer and spreading of the virus that it produces conditions of confinement that present such an imminent risk to health that it violates their Eighth Amendment right to be free from cruel and unusual punishment as incorporated to the States by the Fourteenth Amendment; E. Declare the Defendants’ failure to procure adequate medical testing equipment, ventilators, and other items considered reasonably necessary in the diagnosis, prevention, and treatment for COVID-19 that it produces conditions of confinement that present such an imminent risk to health that it violates the Plaintiffs’ Eighth Amendment right to be free from cruel and unusual punishment as incorporated to the States by the Fourteenth Amendment; F. Grant a preliminary and permanent injunction to:
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i. Mandate the Defendants to implement immediate, material policies to alleviate the population density in the State Correctional Facilities as a means of enhancing the practice known as social distancing;
ii. Order the Defendants to implement immediate, material policies to separate inmates into housing such that the number of inmates in an individual housing unit materially decreases and the space between sleeping and recreational areas increases;
iii. Ordering the Defendants to implement alternative methods of incarceration, specifically the use of home electronic GPS ankle monitoring, as a means of alleviating the population density in the VDOC facilities;
iv. Ordering the Defendants to identify and release at-risk portions of the inmate population to alternative confinement based on their age and health records as a means of alleviating the population density in the VDOC facilities;
v. Ordering the Defendants to forego the removal of “good time credit,” the availability of an adjusted release date, or early release from incarceration for inmates scheduled for release during the Commonwealth’s State of Emergency as a means of alleviating the VDOC population density;
vi. Ordering the Defendants, as a means of alleviating the VDOC population density, to review and reverse past rescission of “good time credit” for inmates who would otherwise be eligible for release immediately through June 10, 2020, with the option to extend such order to a later date should the need arise;
vii. Ordering the Defendants to cease and desist from threatening or placing negative infractions, issuing “charges” on the record of inmates, or revoking “good time
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credit,” for an inmate’s refusal to engage in programs, courses, work requirements, or other VDOC activities in which more than ten (10) inmates are required to be close quarters; viii. Ordering the Defendants to enact uniform policies requiring the immediate procurement, provision, and use of personal protective equipment and other health measures by VDOC staff, particularly those who come into regular personal contact with inmates, their goods, supplies, commissary, and food; ix. Ordering the Defendants to enact uniform policies requiring the immediate procurement and provision of personal protective equipment to inmates; x. Ordering the Defendants to enact uniform policies requiring the immediate procurement and use of COVID-19 diagnostic tests, ventilators, medicine, and related medical supplies for the VDOC facilities; xi. Enjoining the Defendants from engaging in any other conduct this Court finds violative of Plaintiffs’ rights as alleged; G. Awarding them reasonable attorney’s fees and costs afforded by 28 U.S.C. § 1988; and H. Granting them such further relief as this Court deems just and appropriate.
Respectfully submitted ______/s__________________ Elliott M. Harding, Esq. VSB No. 90442 Counsel for the Plaintiffs HARDING COUNSEL, PLLC 608 Elizabeth Ave. Charlottesville, VA 22901 P: 434-962-8465 E: HardingCounsel@gmail.com
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CERTIFICATE OF SERVICE
I hereby certify that on the 8th day of April, 2020, I will electronically file the foregoing with the Clerk of Court using the CM/ECF system. I will then send the document and a notification of such filing (NEF) with a summons to the following parties via personal service or an acceptable alternative via private carrier with proof of service to be provided to the Court.
Governor Ralph S. Northam Executive Mansion Capitol Square Richmond, VA 23218
Secretary Brian J. Moran Secretary of Public Safety 1111 E Broad St # 5035, Richmond, VA 23219
Director Harold Clarke Virginia Department of Corrections 6900 Atmore Dr. Richmond, VA 23225
Warden Donald Wilmouth, Virginia Correctional Center for Women 2841 River Road Goochland, VA 23063
Warden Rick White Indian Creek Correctional Center 801 Sanderson Road Chesapeake, VA 23328
Warden Thomas Meyer State Farm Correctional Center 3500 Woods Way State Farm, VA 23160
Warden Tikki Hicks Haynesville Correctional Center 421 Barnfield Rd. Haynesville, VA 22472
Warden Rodney Younce Coffeewood Correctional Center 12352 Coffeewood Dr. Mitchells, VA 22729
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Warden Tracy Ray Greensville Work Center 901 Corrections Way Jarratt, VA 23870
Warden Eric Aldridge Fluvanna Correctional Center for Women 144 Prison Ln. Troy, VA 22974
Warden Dana Ratliffe-Walker Dillwyn Correctional Center 1522 Prison Rd. Dillwyn, VA 23936
Warden Tori Raiford Caroline Correctional Unit 31285 Camp Rd. Hanover, VA 23069
Warden Tammy Williams Deerfield Correctional Center 21360 Deerfield Dr. Capron, VA 23829
Warden Joseph Bateman Patrick Henry Correctional Unit 18155 A.L. Philpott Hwy. Ridgeway, VA 24148
Warden Phillip White Augusta Correctional Center 1821 Estaline Valley Rd. Craigsville, VA 24430
______/s__________________ Elliott M. Harding, Esq. VSB No. 90442 Counsel for the Plaintiffs HARDING COUNSEL, PLLC 1150 Richmond Rd., Suite B Charlottesville, VA 22911 P: 434-962-8465 E: HardingCounsel@gmail.com
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 Case 3:20-cv-00255-HEH-DJN Document 11 Filed 05/11/20 Page 1 of 4 PageID# 96

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Richmond Division

BROOKE WHORLEY, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

)

RALPH NORTHAM, et al.,

)

)

Defendants.

)

____________________________________)

Case No. 3:20-cv-00255-HEH

JOINT MOTION TO DISMISS AND RETAIN JURISDICTION Brooke Whorley, Michael Sullivan, Gale Jones, Alonzo Williams, Da’Von Walker, Dwight Horton, Frank Fairchild, Candace Blankenship, Brenda Van Emmenis, Olivia Ivashin, Ennis Stewart, Lartaija Banks, Matthew Mosher, Bruce Harris, Jr., Johnathan McMillan, Milton Williams, Sr., Timothy Brummett, Anthony Vicks, Warren Brooks, Jesse Davenport, Warren Medley-Green, Larog Trowell, Bejamen Fyfe, Antonio Perryell, Donnie Offenbacker, Felipe Franco, and Courtney Stroble (“Plaintiffs”) and Ralph S. Northam, Brian J. Moran, Harold Clarke, Donald Wilmouth, Rick White, Thomas Meyer, Tikki Hicks, Rodney Younce, Tracy Ray, Eric Aldridge, Dana Ratliffe-Walker, Tori Raiford, Tammy Williams, Joseph Bateman, and Phillip White, in their official capacities, (“Defendants”) (collectively, “the parties”), having entered into a Settlement Agreement (“Agreement”), hereby jointly move this Court for entry of an order conditionally dismissing this action, with prejudice, pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, and move that the Court retain jurisdiction to enforce the Agreement in accordance with its terms. In support thereof, the parties state as follows:

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1. The parties participated in settlement conferences conducted by Judge David J. Novak on April 22, April 28, and May 8, 2020. As a result of these negotiations, the parties agreed to resolve Plaintiffs’ claims arising under the Eighth and Fourteenth Amendments of the United States Constitution.
2. On May 11, 2020, the parties executed the Settlement Agreement, attached as Exhibit A. Under the Agreement, the parties agreed to full resolution of all issues in the case and agreed to move this Court to dismiss this action and to retain jurisdiction for the limited purpose of enforcing the terms of this Agreement.
3. Pursuant to Paragraphs 1, 8, and 9 of the Agreement, the parties hereby jointly move this Court to dismiss this action with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2) and move that this Court retain jurisdiction to enforce the Agreement. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994) (recognizing that a federal district court may retain jurisdiction to enforce a “dismissal-producing settlement agreement” in its order); ColumbusAmerican Discovery Group v. Atlantic Mut. Ins. Co., 203 F.3d 291, 299 (4th Cir. 2000) (finding that dismissal order stating that “[t]he Court retains jurisdiction to enforce the settlement of the parties” granted the district court jurisdiction to enforce a settlement agreement).

Respectfully submitted,
/s/ Eden Heilman Eden Heilman (VSB No. 93554) Vishal Agraharkar (VSB No. 93265) Nicole Tortoriello (VSB No. 91129) Jennifer Safstrom (VSB No. 93746) ACLU FOUNDATION OF VIRGINIA 701 E. Franklin St., Suite 1412 Richmond, VA 23219 Tel: (804) 523-2152

Elliott Harding (VSB No. 90442) Harding Counsel, PLLC 608 Elizabeth Avenue Charlottesville, VA 22901 Tel: (434) 962-8465 hardingcounsel@gmail.com
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eheilman@acluva.org vagraharkar@acluva.org ntortoriello@acluva.org jsafstrom@acluva.org Counsel for Plaintiffs /s/ Margaret Hoehl O’Shea__ Margaret Hoehl O’Shea Office of the Attorney General Criminal Justice & Public Safety Division 202 North 9th Street Richmond, Virginia 23219 (804) 225-2206 moshea@oag.state.va.us Counsel for Defendants
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Case 3:20-cv-00255-HEH-DJN Document 11 Filed 05/11/20 Page 4 of 4 PageID# 99 CERTIFICATE OF SERVICE
I hereby certify that on the 11th day of May, 2020, I electronically filed the foregoing Joint Motion to Dismiss and Retain Jurisdiction with the Clerk of Court using the CM/ECF system, which will send a notice of such filing to all counsel of record.
/s/Eden Heilman Eden Heilman (VSB No. 93554) ACLU FOUNDATION OF VIRGINIA 701 E. Franklin St., Suite 1412 Richmond, VA 23219 Tel: (804) 523-2152 eheilman@acluva.org
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STIPULATED SETTLEMENT AGREEMENT
This Stipulated Settlement Agreement is entered into by the parties in Whorley et al. v. Northam et al., Case No. 3:20cv00255, currently pending in the United States District Court for the Eastern District of Virginia.
The plaintiffs are twenty-seven individuals incarcerated in the custody of the Virginia Department of Corrections (VDOC): Brooke Whorley, Brenda van Emmenis, Gale Jones, Candace Blankenship, Olivia Ivashin, Lartaija Banks, Alonzo Williams, Ennis Stewart, Felipe Franco, Jesse Davenport, Matthew Mosher, Bruce Harris, Jonathan McMillan, Anthony Vicks, Warren Medley-Green, Antonio Perryell, Da’Von Walker, Warren Brooks, Larog Trowell, Benjamen Fyfe, Michael Sullivan, Courtney Stroble, Dwight Horton, Milton Williams, Frank Fairchild, Timothy Brummett, and Donnie Offenbacker.
The defendants are Ralph Northam, Governor of Virginia; Brian Moran, Secretary of Public Safety and Homeland Security; Harold Clarke, Director of the Virginia Department of Corrections; and the wardens of the following correctional facilities: Virginia Correctional Center for Women, Indian Creek Correctional Center, State Farm Correctional Center, State Farm Enterprise Unit, Haynesville Correctional Center, Coffeewood Correctional Center, Greensville Work Center, Fluvanna Correctional Center for Women, Dillwyn Correctional Center, Caroline Correctional Unit, Deerfield Correctional Center, Patrick Henry Correctional Center, and Augusta Correctional Center. All defendants are named in their official capacities.
The parties to this Agreement believe that, in order to avoid protracted, costly, and timeconsuming litigation, it is in their respective interests to resolve the issues in the abovecaptioned case.
Accordingly, the parties to this Agreement, by and through their respective counsel, jointly stipulate and agree to the following:
1. Dismissal of Case No. 3:20cv255: The Plaintiffs shall, by and through their attorneys, cause the Complaint filed in the Eastern District of Virginia, Case No. 3:20cv255, to be voluntarily dismissed, in accordance with the terms of this Agreement, with each side bearing their own fees and costs. The parties consent to the reservation and exercise of jurisdiction by the U.S. District Court over all disputes between and among the Parties arising out of this Agreement.
2. Dismissal of Harold Clarke from Va. Sup. Ct. Case No. 200551: Counsel for the Plaintiffs agree to dismiss Harold Clarke, Director of the Virginia Department of Corrections, from the mandamus petition filed in the Virginia Supreme Court, Docket No. 200551. Each side shall bear their own fees and costs.
3. In consideration thereof, Defendants agree to the following:
a. Early Release Plan: On April 22, 2020, the Virginia General Assembly adopted a Budget Amendment that allows a certain category
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of incarcerated individuals to be considered for discharge from incarceration prior to their scheduled release dates during the Governor’s declared state of emergency. The Budget Amendment vests the Virginia Department of Corrections with the authority to make discharge determinations for early release. The Virginia Department of Corrections has developed a policy entitled COVID-19 Response: Inmate Early Release Plan, to implement the terms of the Budget Amendment. Pursuant to this Agreement, VDOC agrees to amend or otherwise clarify its existing Early Release Plan as follows:
i. The Early Release Plan, as adopted, provides that individuals who have less than 12 months remaining on their sentence will be considered for possible release as long as they have not been convicted of a Class 1 felony or a violent sex offense. Among other eligibility criteria, VDOC also requires that the individual have a viable home plan, which means that—as defined in VDOC Operating Procedure 820.2(VII)(A)(1)—the inmate must be able to provide an address where the individual will be able to live without violating any conditions of a court order (e.g., a no-contact order or order not to reside with minor children), and that will adhere to any lease restrictions in terms of the individuals allowed to live in that residence (e.g., restrictions for subsidized housing). Defendants agree to amend the Early Release Plan to provide reference to the home plan criteria defined in OP 820.2(VII)(A)(1), and to specify that any address provided may be verified by a local probation and parole officer, rather than the re-entry counselor normally used under OP 820.2(VII)(A)(1). VDOC will also document that, for the purposes of inmates considered for release pursuant to the Budget Amendment or any COVID-19-related conditional pardon, it is suspending the requirement of OP 820.2(VII)(A)(1), which ordinarily specifies that a home plan will not be verified more than 6 months before the individual’s anticipated release date.
ii. Under the Early Release Plan, VDOC is also considering an individual’s health condition—along with available community resources—when deciding whether to exercise its discretion to release an inmate pursuant to the Budget Amendment. By “health condition,” VDOC specifically agrees to give priority consideration for approval of release to those individuals who have a health condition enumerated by the Centers for Disease Control and Prevention (CDC) as being at higher risk of health complications if that individual were to contract COVID-19.
iii. Pursuant to this Agreement, VDOC agrees to amend its existing Early Release Plan to specify that it will make all
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reasonable efforts to review eligible individuals prior to the expiration of the declaration of emergency. If the agency elects not to exercise its discretion to discharge an individual who was potentially eligible for release under the Early Release Plan, that inmate will be notified of the decision not to release by written document providing the reason that the inmate is not being released, which will be mailed to the inmate within 48 hours of the final decision not to release. The individual will also be provided with information about requesting a COVID19-related conditional pardon, in accordance with part 3(b), below.
iv. VDOC agrees that it will exercise its authority to consider the review and release of eligible individuals on a rolling basis, meaning VDOC will consider those who are or become eligible for release at any point during the period of the emergency declaration, or any emergency declaration that meets the conditions of the Budget Amendment, not just those who became eligible at a static time period when the policy was adopted.
v. VDOC has disseminated to all incarcerated individuals and staff information about the Early Release Plan and requirements for eligibility, and will continue to make such information available as updates or changes may occur. The informational materials include an appeal document that the inmates may use to address disagreements or concerns with their calculations, scores, or assessments on particular criteria described in VDOC’s Early Release Plan.
vi. VDOC also agrees to update its COVID-19 webpage to report, on a daily basis, the number of individuals who have been released under the Budget Amendment.
vii. For the duration of this Agreement, Counsel for the Defendants shall report to the Court and Counsel for the Plaintiffs, on a weekly basis, as follows: (1) the number of individuals reviewed for release; (2) the number of individuals granted release; and (3) the number of individuals denied release.
viii. VDOC agrees that, if the state of emergency expires, it will continue to review individuals with less than a year remaining on their sentence over the following ninety (90) days to determine whether they might be eligible for release in the event that there is a subsequent declaration of emergency that would revive their authority to release individuals from incarceration under the Early Release Plan.
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b. Conditional Pardons: The Office of the Secretary of the Commonwealth reviews all pardon petitions on an individual basis so that unique circumstances surrounding an individual’s case may be considered. This allows for the Secretary and Defendants to expedite petitions as deemed appropriate, including the processing of conditional pardons requesting release because of the COVID-19 pandemic. Defendants represent and warrant that the Office of the Secretary of the Commonwealth is actively identifying and expediting consideration of petitions that reference medical concerns both related and unrelated to the COVID-19 pandemic.
There are currently no eligibility criteria or restrictions for conditional pardons; petitioners should provide all relevant information, including any medical conditions or other specific health concerns that would factor into the consideration of their petition for clemency. The Defendants and the Office of the Secretary of the Commonwealth agree to prioritize conditional pardons at this time, in order to expedite petitions from individuals currently incarcerated.
Defendants represent and warrant that the Office of the Secretary of the Commonwealth has agreed to consider conditional pardons relating to the COVID-19 pandemic even if the requestor had a previous, unrelated pardon request denied within the preceding 2 years, a factor that would normally result in the automatic denial of the successive petition. Any individual who has a request for clemency currently pending review may supplement their existing application with new information regarding medical conditions or concerns related to the COVID-19 pandemic. By way of this agreement, Defendants agree to provide the Office of the Secretary of the Commonwealth with any assistance that they might need to complete expedited consideration of conditional pardons requesting release because of the COVID-19 pandemic, including—but not limited to—making sure that information about any new procedures is disseminated to inmates within the custody of VDOC.
c. Grievances: Defendants agree to provide written guidance to the grievance coordinators at VDOC facilities, instructing them to prioritize for review any grievances alleging delay in medical assessment or treatment related to COVID-19, as well as any grievances regarding failure to abide by COVID-19-related policies and protocols, such as deficiencies in personal protective equipment (“PPE”), sanitation, or access to personal hygiene or cleaning supplies. Defendants agree to share the proposed written guidance with counsel for Plaintiffs prior to its dissemination. For purposes of this agreement, “grievance” includes both informal complaints and regular grievances. If an inmate complains of symptoms related to COVID-19, a supervisor should meet with the inmate immediately to initiate the
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process of referring the inmate to a medical provider for screening. If the supervisor does not believe the reported symptoms qualify for COVID-19, and the inmate disagrees, then the inmate should immediately file an emergency grievance, which will be responded to by a medical provider. Defendants shall continue to document the dates and times of all sick calls and emergency grievances related to medical concerns, the inmate’s reported symptoms, the dates and times the inmate is seen by medical professionals, and the outcome, to allow for tracking of the response to complaints of COVID-19 symptoms.
d. Medical Co-pays: Defendants agree to continue, for the duration of this Agreement, the suspension of co-pays for all sick calls, healthrelated emergency grievances, and medical assessments to ensure cost is not a deterrent to seeking medical care.
e. Testing: Defendants will continue to work with the Virginia Department of Health (VDH) and local health departments to procure and allocate as many tests as possible to VDOC facilities, prioritizing the testing of inmates and staff in VDOC facilities identified by VDH as “outbreak” locations. Defendants agree to report to Plaintiff’s counsel, every week, the total number of VDOC inmates tested during the preceding week.
f. Hygiene and Sanitation: VDOC agrees to continue providing all inmates with enhanced access to showers and handwashing opportunities, as well as providing up to two bars of soap per week, free of charge. In accordance with their existing COVID-19 sanitation plan, Defendants shall also continue to require high interval sanitation of all equipment of common usage at all facilities, such as tables and chairs, telephones, video screens, gym equipment, bathrooms, vending machines, microwaves, laundry machines, keyboards, remote controls, and doors. Defendants also agree to continue providing access to cleaning supplies for each housing area, including in quantities sufficient for each inmate to clean and disinfect the floor and all surfaces of their housing unit or cell.
g. Laundry: VDOC shall continue to ensure that the facemasks that have been provided to inmates are laundered daily, and all inmates have access to enough clean clothing to allow them to change clothes on a daily basis. VDOC further agrees that, during the duration of the Agreement, the laundry schedule for bedding shall be amended so that bed linens are laundered twice per week, rather than once per week.
h. PPE: Defendants will continue to ensure that all correctional staff are informed about the types of PPE required to perform the various staff functions; the proper donning, removing, and disposal of PPE; the appropriate receptacles for disposal of PPE; and an explanation of the
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related rationale. Defendants shall also continue to communicate expectations around the frequent sanitizing of correctional staff equipment, such as restraints, handcuffs, and other equipment potentially used on multiple inmates.
i. Staffing & Inmate Housing: Defendants agree to continue to restrict the movement of staff from facility-to-facility and building-to-building within facilities, to the greatest extent possible, to minimize the risk of virus transmission by staff. Defendants shall also continue to restrict the transfer of inmates from facility-to-facility unless necessary to transport an inmate for security reasons and/or a pending court appearance. Defendants shall continue to require all staff to wear appropriate PPE when entering an area housing individuals who are suspected or known to have tested positive for COVID-19, and to change their PPE, in compliance with applicable CDC and VDH guidance, when leaving those housing units to limit the risk of exposure to and transmission of the virus. Staff shall document when they enter and leave specific facilities or housing units so that their movements can be retraced in the event of infection. Staff shall wear appropriate protective items at all times in facilities where infection has been confirmed.
j. Inmate Education: VDOC shall continue to educate inmates on the COVID-19 pandemic by providing information about the pandemic, symptoms, virus transmission, and how to protect oneself from the virus. VDOC staff shall continue to post signage and information in common areas that provide (1) general updates and information about the COVID-19 pandemic; (2) information on how inmates can protect themselves from contracting COVID-19; and (3) instructions on how to properly wash hands. Among other locations, signage must be posted in every housing area.
k. Confidential Attorney Communications: VDOC shall continue to ensure that inmates, including those in medical isolation or quarantine, will be provided the opportunity to conduct confidential legal calls, at no cost to the inmate, through the inmate telephone system, and shall continue to require that the facility disable the automatic recording system to ensure that the legal call is not recorded. Such calls shall be permitted to be of sufficient duration to discuss confidential legal matters. Defendants agree to provide written guidance to VDOC facilities requesting that the facilities expedite any request to add an attorney phone number to the automatic block list, which will serve as an additional safeguard to ensure confidentiality of the attorney-client communication. Such guidance will also provide that a request to add an attorney phone number to the automatic block list may be made by an inmate or an attorney. If the facility’s telephone provider is causing a delay greater than 48 hours in adding attorney phone numbers to the
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block list, the facility shall provide interim access to confidential legal calls by another avenue appropriate in that facility.
l. Language Assistance: VDOC agrees to provide language translation services or other accommodations, as necessary, for incarcerated individuals who may not be able to otherwise access any of the written materials discussed in this section.
4. Plaintiffs’ counsel shall have reasonable access to the documents and information necessary to properly evaluate whether Defendants are complying with the provisions of this Agreement. Defendants agree to provide counsel for the Plaintiffs with access to policies, procedures, plans, regulations, rules, guidance, or directives implementing the terms of this Agreement. Defendants agree that if there is a material change to the terms of their existing COVID19 policies and procedures, including but not necessarily limited to the specific policies discussed above, those changes shall be communicated to counsel for the Plaintiffs. The parties shall cooperate as best as possible to accommodate any additional requests for documents and information by Plaintiffs in a timely manner, without unduly burdening Defendants. If the Parties fail to agree, either party may contact Judge David Novak and request mediation of the dispute.
5. In the event that either party fails to substantially comply in some significant respect with this Agreement, counsel shall provide a written statement describing the alleged non-compliance. (“Notice of Substantial NonCompliance”). The other party shall provide a written response to the Notice of Substantial Non-Compliance within five (5) calendar days from receipt of that Notice. Within five (5) calendar days of receipt of the written response, the parties shall confer in a good faith effort to resolve their dispute informally.
6. In the event that a Notice of Substantial Non-Compliance cannot be resolved informally, counsel for the parties shall request that Judge David Novak mediate the dispute. In the event that Judge Novak is no longer available, the parties shall jointly request the assignment of another Judge or Magistrate Judge. If the dispute has not been resolved through mediation in conformity with this Agreement within 20 calendar days, either party may file a motion to enforce the Agreement in the District Court.
7. Parties to this Agreement are not required to exhaust administrative remedies under 42 U.S.C. § 1997e(a) in order to seek relief pursuant to this Agreement. For all other individuals, a Notice of Substantial Non-Compliance in this matter shall not constitute a substitute for the exhaustion of administrative remedies requirement set forth in 42 U.S.C. § 1997e(a).
8. Reservation of Jurisdiction: The parties consent to the reservation and exercise of jurisdiction by the United States District Court for the Eastern
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District over all disputes between and among the Parties arising out of this Agreement. In the event the Court finds that either party has not complied with the Agreement, the Court may: (1) require the allegedly breaching party to submit a plan to remedy the deficiencies identified by the Court; (2) require the parties to mediate the dispute, which may result in entry of a supplemental or modified settlement agreement; (3) upon motion of the non-breaching party, declare the settlement agreement null and void; or (4) engage in any other such actions as the Court might deem appropriate to resolve the pending dispute.
9. Duration of Agreement: The parties agree that the Court shall retain jurisdiction to resolve issues arising from implementation of this Agreement, in accordance with paragraph (8), above, until such time as the Court determines that its implementation is no longer necessary, after taking into consideration the spread of the virus in VDOC facilities, the impacts of contamination on the inmate population, and mitigation efforts.
10. No Admission of Liability: Plaintiffs acknowledge that this Agreement does not constitute an admission by the Defendants of any: (a) liability; (b) violation of any federal, state or local statute, law, regulation, order or other requirement of law; (c) breach of contract, actual or implied; (d) commission of any tort; or (e) other civil wrong.
11. Virginia Law Applies: This Agreement shall be deemed to have been made within the Commonwealth of Virginia and shall be interpreted, construed and enforced in accordance with the laws of the Commonwealth of Virginia.
12. Attorney’s Fees: The prevailing party may be entitled to an award of attorneys’ fees in any action commenced to enforce this Agreement or any provision therein.
13. Severability: If one or more provisions of this Agreement shall be ruled unenforceable or void, the parties may enforce the remainder of this Agreement.
14. Non-Waiver: Failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver of that or any other provision.
15. Voluntary Agreement: The parties have had an opportunity to consult with an attorney before signing this Agreement. The Plaintiffs acknowledge that, in signing this Agreement, they relied only on the promises set forth in this Agreement and not on any other promise made by the Defendants. This Agreement has been entered into freely, knowingly, and voluntarily and not as a result of coercion, duress, or undue influence.
16. Entire Agreement: This Agreement constitutes the entire understanding and agreement between the Parties hereto with respect to its subject matter. This Agreement supersedes all other understandings, agreements, communications
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__________________________ Margaret Hoehl O’Shea Office of the Attorney General Criminal Justice & Public Safety Division 202 North 9th Street Richmond, Virginia 23219 (804) 225-2206 Email: moshea@oag.state.va.us
Counsel for Defendants

5/11/2020
________________ Date

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 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

BROOKE WHORLEY, et al., Plaintiffs,
V.
RALPH S. NORTHAM, et al., Defendants.

) ) ) )
) Civil Action No. 3:20cv255-HEH
) ) ) )

FINAL ORDER

THIS MATTER is before the Court on the Parties' Joint Motion to Dismiss and

Retain Jurisdiction (the "Joint Motion"), filed on May 11, 2020 (ECF No. 11). For good

cause shown, and in consideration of the Parties' Joint Motion, the Court hereby

GRANTS the Parties' Joint Motion and conditionally dismisses the above-titled action

with prejudice under Federal Rule of Civil Procedure 4l{a)(2). In accordance with the

Settlement Agreement, which was filed with this Court as Exhibit A to Parties' Joint

Motion (ECF No. 11-1) and is attached hereto, the Court specifically retains jurisdiction

for the purpose of enforcing the Settlement Agreement in accordance with its terms,

pursuant to Kokkonen v. Guardian Life Insurance Co. ofAmerica, 511 U.S. 375 (1994).

The Clerk is directed to send a copy of this Order to all counsel of record.

It is so ORDERED.

Avt. Date:tf

2020

Richmond,irginia

�/ Henry E. Hudson Senior United States District Judge

STIPULATED SETTLEMENT AGREEMENT
This Stipulated Settlement Agreement is entered into by the parties in Whorley et al. v. Northam et al., Case No. 3:20cv00255, currently pending in the United States District Court for the Eastern District ofVirginia.
The plaintiffs are twenty-seven individuals incarcerated in the custody of the Virginia Department of Corrections (VDOC): Brooke Whorley, Brenda van Emmenis, Gale Jones, Candace Blankenship, Olivia Ivashin, Lartaija Banks, Alonzo Williams, Ennis Stewart, Felipe Franco, Jesse Davenport, Matthew Mosher, Bruce Harris, Jonathan McMillan, Anthony Vicks, Warren Medley-Green, Antonio Perryell, Da'Von Walker, Warren Brooks, Larog Trowell, Benjamen Fyfe, Michael Sullivan, Courtney Stroble, Dwight Horton, Milton Williams, Frank Fairchild, Timothy Brummett, and Donnie Offenbacker.
The defendants are Ralph Northam, Governor of Virginia; Brian Moran, Secretary of Public Safety and Homeland Security; Harold Clarke, [?irector of the Virginia Department of Corrections; and the wardens of the following correctional facilities: Virginia Correctional Center for Women, Indian Creek Correctional Center, State Farm Correctional Center, State Farm Enterprise Unit, Haynesville Correctional Center, Coffeewood Correctional Center, Greensville Work Center, Fluvanna Correctional Center for Women, Dillwyn Correctional Center, Caroline Correctional Unit, Deerfield Correctional Center, Patrick Henry Correctional Center, and Augusta Correctional Center. All defendants are named in their official capacities.
The parties to this Agreement believe that, in order to avoid protracted, costly, and time­ consuming litigation, it is in their respective interests to resolve the issues in the above­ captioned case.
Accordingly, the parties to this Agreement, by and through their respective counsel, jointly stipulate and agree to the following:
1. Dismissal of Case No. 3:20cv255: The Plaintiffs shall, by and through their attorneys, cause the Complaint filed in the Eastern District of Virginia, Case No. 3:20cv255, to be voluntarily dismissed, in accordance with the terms of this Agreement, with each side bearing their own fees and costs. The parties consent to the reservation and exercise of jurisdiction by the U.S. District Court over all disputes between and among the Parties arising out of this Agreement.
2. Dismissal of Harold Clarke from Va. Sup. Ct. Case No. 200551: Counsel for the Plaintiffs agree to dismiss Harold Clarke, Director of the Virginia Department of Corrections, from the mandamus petition filed in the Virginia Supreme Court, Docket No. 200551. Each side shall bear their own fees and costs.
3. In consideration thereof, Defendants agree to the following:
a. Early Release Plan: On April 22, 2020, the Virginia General Assembly adopted a Budget Amendment that allows a certain category

of incarcerated individuals to be considered for discharge from incarceration prior to their scheduled release dates during the Governor's declared state of emergency. The Budget Amendment vests the Virginia Department of Corrections with the authority to make discharge determinations for early release. The Virginia Department of Corrections has developed a policy entitled COVID-19 Response: Inmate Early Release Plan, to implement the terms of the Budget Amendment. Pursuant to this Agreement, VDOC agrees to amend or otherwise clarify its existing Early Release Plan as follows:
i. The Early Release Plan, as adopted, provides that individuals who have less than 12 months remaining on their sentence will be considered for possible release as long as they have not been convicted of a Class I felony or a violent sex offense. Among other eligibility criteria, VDOC also requires that the individual have a viable home plan, which means that-as defined in VDOC Operating Procedure 820.2(VIl)(A)(l)-the inmate must be able to provide an address where the individual will be able to live without violating any conditions of a court order (e.g., a no-contact order or order not to reside with minor children), and that will adhere to any lease restrictions in terms of the individuals allowed to live in that residence (e.g., restrictions for subsidized housing). Defendants agree to amend the Early Release Plan to provide reference to the home plan criteria defined in OP 820.2(VIl)(A)(l), and to specify that any address provided may be verified by a local probation and parole officer, rather than the re-entry counselor normally used under OP 820.2(VIl)(A)(l ). VDOC will also document that, for the purposes of inmates considered for release pursuant to the Budget Amendment or any COVID-19-related conditional pardon, it is suspending the requirement of OP 820.2(VIl)(A)(l ), which ordinarily specifies that a home plan will not be verified more than 6 months before the individual's anticipated release date.
ii. Under the Early Release Plan, VDOC is also considering an individual's health condition-along with available community resources-when deciding whether to exercise its discretion to release an inmate pursuant to the Budget Amendment. By "health condition," VDOC specifically agrees to give priority consideration for approval of release to those individuals who have a health condition enumerated by the Centers for Disease Control and Prevention (CD C) as being at higher risk of health complications if that individual were to contract COVID-19.
iii. Pursuant to this Agreement, VDOC agrees to amend its existing Early Release Plan to specify that it will make all
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reasonable efforts to review eligible individuals prior to the expiration of the declaration of emergency. If the agency elects not to exercise its discretion to discharge an individual who was potentially eligible for release under the Early Release Plan, that inmate will be notified of the decision not to release by written document providing the reason that the inmate is not being released, which will be mailed to the inmate within 48 hours of the final decision not to release. The individual will also be provided with information about requesting a COVID19-related conditional pardon, in accordance with part 3(b), below.
iv. VDOC agrees that it will exercise its authority to consider the review and release of eligible individuals on a rolling basis, meaning VDOC will consider those who are or become eligible for release at any point during the period of the emergency declaration, or any emergency declaration that meets the conditions of the Budget Amendment, not just those who became eligible at a static time period when the policy was adopted.
v. VDOC has disseminated to all incarcerated individuals and staff information about the Early Release Plan and requirements for eligibility, and will continue to make such information available as updates or changes may occur. The informational materials include an appeal document that the inmates may use to address disagreements or concerns with their calculations, scores, or assessments on particular criteria described in VDOC's Early Release Plan.
vi. VDOC also agrees to update its COVID-19 webpage to report, on a daily basis, the number of individuals who have been released under the Budget Amendment.
vii. For the duration of this Agreement, Counsel for the Defendants shall report to the Court and Counsel for the Plaintiffs, on a weekly basis, as follows: (l) the number of individuals reviewed for release; (2) the number of individuals granted release; and (3) the number of individuals denied release.
viii. VDOC agrees that, if the state of emergency expires, it will continue to review individuals with less than a year remaining on their sentence over the following ninety (90) days to determine whether they might be eligible for release in the event that there is a subsequent declaration of emergency that would revive their authority to release individuals from incarceration under the Early Release Plan.
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b. Conditional Pardons: The Office of the Secretary of the Commonwealth reviews all pardon petitions on an individual basis so that unique circumstances surrounding an individual's case may be considered. This allows for the Secretary and Defendants to expedite petitions as deemed appropriate, including the processing of conditional pardons requesting release because of the COVID-19 pandemic. Defendants represent and warrant that the Office of the Secretary of the Commonwealth is actively identifying and expediting consideration of petitions that reference medical concerns both related and unrelated to the COVID-19 pandemic.
There are currently no eligibility criteria or restrictions for conditional pardons; petitioners should provide all relevant information, including any medical conditions or other specific health concerns that would factor into the consideration of their petition for clemency. The Defendants and the Office of the Secretary of the Commonwealth agree to prioritize conditional pardons at this time, in order to expedite petitions from individuals currently incarcerated.
Defendants represent and warrant that the Office of the Secretary of the Commonwealth has agreed to consider conditional pardons relating to the COVID-19 pandemic even if the requestor had a previous, unrelated pardon request denied within the preceding 2 years, a factor that would normally result in the automatic denial of the successive petition. Any individual who has a request for clemency currently pending review may supplement their existing application with new information regarding medical conditions or concerns related to the COVID-19 pandemic. By way of this agreement, Defendants agree to provide the Office of the Secretary of the Commonwealth with any assistance that they might need to complete expedited consideration of conditional pardons requesting release because of the COVID-19 pandemic, including-but not limited to-making sure that information about any new procedures is disseminated to inmates within the custody of VDOC.
c. Grievances: Defendants agree to provide written guidance to the grievance coordinators at VDOC facilities, instructing them to prioritize for review any grievances alleging delay in medical assessment or treatment related to COVID-19, as well as any grievances regarding failure to abide by COVID-19-related policies and protocols, such as deficiencies in personal protective equipment ("PPE"), sanitation, or access to personal hygiene or cleaning supplies. Defendants agree to share the proposed written guidance with counsel for Plaintiffs prior to its dissemination. For purposes of this agreement, "grievance" includes both informal complaints and regular grievances. If an inmate complains of symptoms related to COVID-19, a supervisor should meet with the inmate immediately to initiate the
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process of referring the inmate to a medical provider for screening. If the supervisor does not believe the reported symptoms qualify for COVID-19, and the inmate disagrees, then the inmate should immediately file an emergency grievance, which will be responded to by a medical provider. Defendants shall continue to document the dates and times of all sick calls and emergency grievances related to medical concerns, the inmate's reported symptoms, the dates and times the inmate is seen by medical professionals, and the outcome, to allow for tracking of the response to complaints ofCOVID-19 symptoms.
d. Medical Co-pays: Defendants agree to continue, for the duration of this Agreement, the suspension of co-pays for all sick calls, health­ related emergency grievances, and medical assessments to ensure cost is not a deterrent to seeking medical care.
e. Testing: Defendants will continue to work with the Virginia Department of Health (VDH) and local health departments to procure and allocate as many tests as possible toVDOC facilities, prioritizing the testing of inmates and staff inVDOC facilities identified byVDH as "outbreak" locations. Defendants agree to report to Plaintiffs counsel, every week, the total number ofVDOC inmates tested during the preceding week.
f. Hygiene and Sanitation: VDOC agrees to continue providing all inmates with enhanced access to showers and handwashing opportunities, as well as providing up to two bars of soap per week, free of charge. In accordance with their existingCOVID-19 sanitation plan, Defendants shall also continue to require high interval sanitation of all equipment of common usage at all facilities, such as tables and chairs, telephones, video screens, gym equipment, bathrooms, vending machines, microwaves, laundry machines, keyboards, remote controls, and doors. Defendants also agree to continue providing access to cleaning supplies for each housing area, including in quantities sufficient for each inmate to clean and disinfect the floor and all surfaces of their housing unit or cell.
g. Laundry:VDOC shall continue to ensure that the facemasks that have been provided to inmates are laundered daily, and all inmates have access to enough clean clothing to allow them to change clothes on a daily basis. VDOC further agrees that, during the duration of the Agreement, the laundry schedule for bedding shall be amended so that bed linens are laundered twice per week, rather than once per week.
h. PPE: Defendants will continue to ensure that all correctional staff are informed about the types of PPE required to perform the various staff functions; the proper donning, removing, and disposal of PPE; the appropriate receptacles for disposal of PPE; and an explanation of the
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related rationale. Defendants shall also continue to communicate expectations around the frequent sanitizing of correctional staff equipment, such as restraints, handcuffs, and other equipment potentially used on multiple inmates.
i. Staffing & Inmate Housing: Defendants agree to continue to restrict the movement of staff from facility-to-facility and building-to-building within facilities, to the greatest extent possible, to minimize the risk of virus transmission by staff. Defendants shall also continue to restrict the transfer of inmates from facility-to-facility unless necessary to transport an inmate for security reasons and/or a pending court appearance. Defendants shall continue to require all staff to wear appropriate PPE when entering an area housing individuals who are suspected or known to have tested positive for COVID-19, and to change their PPE, in compliance with applicable CDC and VDH guidance, when leaving those housing units to limit the risk of exposure to and transmission of the virus. Staff shall document when they enter and leave specific facilities or housing units so that their movements can be retraced in the event of infection. Staff shall wear appropriate protective items at all times in facilities where infection has been confirmed.
j. Inmate Education: VDOC shall continue to educate inmates on the COVID-19 pandemic by providing information about the pandemic, symptoms, virus transmission, and how to protect oneself from the virus. VDOC staff shall continue to post signage and information in common areas that provide (I) general updates and information about the COVID-19 pandemic; (2) information on how inmates can protect themselves from contracting COVID-19; and (3) instructions on how to properly wash hands. Among other locations, signage must be posted in every housing area.
k. Confidential Attorney Communications: VDOC shall continue to ensure that inmates, including those in medical isolation or quarantine, will be provided the opportunity to conduct confidential legal calls, at no cost to the inmate, through the inmate telephone system, and shall continue to require that the facility disable the automatic recording system to ensure that the legal call is not recorded. Such calls shall be permitted to be of sufficient duration to discuss confidential legal matters. Defendants agree to provide written guidance to VDOC facilities requesting that the facilities expedite any request to add an attorney phone number to the automatic block list, which will serve as an additional safeguard to ensure confidentiality of the attorney-client communication. Such guidance will also provide that a request to add an attorney phone number to the automatic block list may be made by an inmate or an attorney. If the facility's telephone provider is causing a delay greater than 48 hours in adding attorney phone numbers to the
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block list, the facility shall provide interim access to confidential legal calls by another avenue appropriate in that facility.
I. Language Assistance: VDOC agrees to provide language translation services or other accommodations, as necessary, for incarcerated individuals who may not be able to otherwise access any of the written materials discussed in this section.
4. Plaintiffs' counsel shall have reasonable access to the documents and information necessary to properly evaluate whether Defendants are complying with the provisions of this Agreement. Defendants agree to provide counsel for the Plaintiffs with access to policies, procedures, plans, regulations, rules, guidance, or directives implementing the terms of this Agreement. Defendants agree that if there is a material change to the terms of their existing COVID19 policies and procedures, including but not necessarily limited to the specific policies discussed above, those changes shall be communicated to counsel for the Plaintiffs. The parties shall cooperate as best as possible to accommodate any additional requests for documents and information by Plaintiffs in a timely manner, without unduly burdening Defendants. If the Parties fail to agree, either party may contact Judge David Novak and request mediation of the dispute.
5. In the event that either party fails to substantially comply in some significant respect with this Agreement, counsel shall provide a written statement describing the alleged non-compliance. ("Notice of Substantial Non­ compliance"). The other party shall provide a written response to the Notice of Substantial Non-Compliance within five (5) calendar days from receipt of that Notice. Within five (5) calendar days of receipt of the written response, the parties shall confer in a good faith effort to resolve their dispute informally.
6. In the event that a Notice of Substantial Non-Compliance cannot be resolved informally, counsel for the parties shall request that Judge David Novak mediate the dispute. In the event that Judge Novak is no longer available, the parties shall jointly request the assignment of another Judge or Magistrate Judge. If the dispute has not been resolved through mediation in conformity with this Agreement within 20 calendar days, either party may file a motion to enforce the Agreement in the District Court.
7. Parties to this Agreement are not required to exhaust administrative remedies under 42 U.S.C. § l997e(a) in order to seek relief pursuant to this Agreement. For all other individuals, a Notice of Substantial Non-Compliance in this matter shall not constitute a substitute for the exhaustion of administrative remedies requirement set forth in 42 U.S.C. § 1997e(a).
8. Reservation of Jurisdiction: The parties consent to the reservation and exercise of jurisdiction by the United States District Court for the Eastern
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District over all disputes between and among the Parties arising out of this Agreement. In the event the Court finds that either party has not complied with the Agreement, the Court may: (I) require the allegedly breaching party to submit a plan to remedy the deficiencies identified by the Court; (2) require the parties to mediate the dispute, which may result in entry of a supplemental or modified settlement agreement; (3) upon motion of the non-breaching party, declare the settlement agreement null and void; or (4) engage in any other such actions as the Court might deem appropriate to resolve the pending dispute.
9. Duration of Agreement: The parties agree that the Court shall retain jurisdiction to resolve issues arising from implementation of this Agreement, in accordance with paragraph (8), above, until such time as the Court determines that its implementation is no longer necessary, after taking into consideration the spread of the virus in VDOC facilities, the impacts of contamination on the inmate population, and mitigation efforts.
10. No Admission of Liability: Plaintiffs acknowledge that this Agreement does not constitute an admission by the Defendants of any: (a) liability; (b) violation of any federal, state or local statute, law, regulation, order or other requirement of law; (c) breach of contract, actual or implied; (d) commission of any tort; or (e) other civil wrong.
11. Virginia Law Applies: This Agreement shall be deemed to have been made within the Commonwealth of Virginia and shall be interpreted, construed and enforced in accordance with the laws of the Commonwealth of Virginia.
12. Attorney's Fees: The prevailing party may be entitled to an award of attorneys' fees in any action commenced to enforce this Agreement or any provision therein.
13. Severability: If one or more provisions of this Agreement shall be ruled unenforceable or void, the parties may enforce the remainder of this Agreement.
14. Non-Waiver: Failure of either Party to enforce any prov1s1on of this Agreement shall not be construed as a waiver of that or any other provision.
15. Voluntary Agreement: The parties have had an opportunity to consult with an attorney before signing this Agreement. The Plaintiffs acknowledge that, in signing this Agreement, they relied only on the promises set forth in this Agreement and not on any other promise made by the Defendants. This Agreement has been entered into freely, knowingly, and voluntarily and not as a result of coercion, duress, or undue influence.
16. Entire Agreement: This Agreement constitutes the entire understanding and agreement between the Parties hereto with respect to its subject matter. This Agreement supersedes all other understandings, agreements, communications
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or negotiations (whether written or oral) between the Parties hereto with respect to such subject matter. Each party represents, warranties, and covenants that it has the full legal authority to enter into this Agreement and to perform the duties and obligations arising under this Agreement.

17. Written Amendment Reguired: This Agreement may not be amended, changed or altered, except by a writing signed by the Parties.

18. Binding Obligations: This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors, assigns, estate, heirs and personal representatives.

19. Counterparts: This Agreement may be executed in counterparts or with electronic signatures, and if so executed each such counterpart shall have the force and effect of an original. A facsimile or copy of an original signature transmitted to the other Party is effective as an original document.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year written below.

Entered:
� :60.8 E:liz:abcet:h A:v:e. L� Charlottesville, VA 22901 Tel: (434) 962-8465 Email: hardingcounseI@gmuiJ.com

f;Jtt f�o
Date

Eden Heilman Vishal Agraharkar Nicole Tortoriello Jennifer Safstrom ACLU FOUNDATION OF VIRGINIA 701 E. Franklin St., Suite 1412 Richmond, VA 23219 Tel: (804) 523-2152 Email: eheilmun@acluva.org vagruharkar@acluva.org ntortoriello@ac lu vu.org jsafstrom@acluva.org
Counselfor Plaintiffs

May 11, 2020 Date
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Margaret Hoehl O'Shea Office of the Attorney General Criminal Justice & Public Safety Division 202 North 9th Street Richmond, Virginia 23219 (804) 225-2206 Email: moshea@oag.state.va.us
Counsel for Defendants

5/11/2020
Date

IO

 
 Case 3:20-cv-00255-HEH-DJN Document 34 Filed 07/28/20 Page 1 of 3 PageID# 206

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

BROOKE WHORLEY, et al.,

Plaintiffs,

v.

Case No. 3:20-cv-255

RALPH S. NORTHAM, et al.,

Defendants.

STATUS REPORT

COME NOW Defendants Ralph Northam, et al., by counsel, and pursuant to the

Stipulated Settlement Agreement between the parties (ECF No. 11-1), provides the following

status report to the Court:

1. Pursuant to Part 3(a)(vii)(1) of the Settlement Agreement, Defendants report that

VDOC substantively reviewed 63 inmates for possible release under the Early Release Plan

during the week of July 19 through July 25, 2020. The total number of inmates VDOC has

substantively reviewed, to date, is one thousand (1,000).

2. Pursuant to Part 3(a)(vii)(2) of the Settlement Agreement, Defendants report that,

of the 63 inmates reviewed during the week of July 19 through July 25, 2020, VDOC approved

36 of those inmates for Early Release. The total number of inmates approved, to date, is 778.

3. Pursuant to Part 3(a)(viii)(3) of the Settlement Agreement, Defendants report that,

of the 63 inmates reviewed during the week of July 19 through July 25, 2020, VDOC denied

Early Release for 27 of those inmates. The total number of inmates denied, to date, is 201.

Case 3:20-cv-00255-HEH-DJN Document 34 Filed 07/28/20 Page 2 of 3 PageID# 207

4. Pursuant to Part 3(e) of the Settlement Agreement, Defendants report that approximately 977 inmates were tested for COVID-19 during the week of July 19 through July 25, 2020. The total number of VDOC inmates tested, to date, is approximately 25,976.

Respectfully submitted,
RALPH S. NORTHAM, BRIAN J. MORAN, HAROLD CLARKE, DONALD WILMOUTH, RICK WHITE, THOMAS MEYER, TIKKI HICKS, RODNEY YOUNCE, TRACY RAY, ERIC ALDRIDGE, DANA RATLIFFE-WAKLER, TORI RAIFORD, TAMMY WILLIAMS, JOSEPH BATEMAN, and PHILIP WHITE, Defendants.

By:

/s/

Margaret Hoehl O’Shea, AAG, VSB #66611

Criminal Justice & Public Safety Division

Office of the Attorney General 202 North 9th Street

Richmond, Virginia 23219

(804) 225-2206

(804) 786-4239 (Fax)

Email: moshea@oag.state.va.us

2

Case 3:20-cv-00255-HEH-DJN Document 34 Filed 07/28/20 Page 3 of 3 PageID# 208
CERTIFICATE OF SERVICE
I hereby certify that on this 28th day of July, 2020, I electronically filed the foregoing
Status Report with the Clerk of the Court using the CM/ECF system which will provide
notification of such filing to the following:
Elliott M. Harding, Esq. (VSB #90442) HARDING COUNSEL, PLLC 608 Elizabeth Avenue Charlottesville, VA 22909 434-962-8465 HardingCounsel@gmail.com
Eden Heilman Date Vishal Agraharkar Nicole Tortoriello Jennifer Safstrom ACLU FOUNDATION OF VIRGINIA 701 E. Franklin St., Suite 1412 Richmond, VA 23219 Tel: (804) 523-2152 Email: eheilman@acluva.org vagraharkar@acluva.org ntortoriello@acluva.org jsafstrom@acluva.org
Counsel for the Plaintiffs
And I hereby certify that I have mailed by United States Postal Service the documents to the
following non-CM/ECF participants: N/A

By:

/s/

Margaret Hoehl O’Shea, AAG, VSB #66611

Criminal Justice & Public Safety Division

Office of the Attorney General 202 North 9th Street

Richmond, Virginia 23219

(804) 225-2206

(804) 786-4239 (Fax)

Email: moshea@oag.state.va.us

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